(1) Zore Khan (40), (2) Sher Ali (31), (3) Ali Muhammad (51), (4) Qasam Ali (46), (5) Saadullah (53),
(6) Muhammad Khan (43), and (7) Muzaffar Khan (35), residents of Mauza Potha Dakhli Kund, Tehsil Khushab, District Sargodha, stood their trial before the learned Additional Sessions Judge, Sargodha, under section 148, P. P. C., for committing rioting, under section 302/149, P. P. C., on two counts, for the murder of Shah Muhammad and Mst. Jawahar Khatun, under section 452/149, P. P.
C., for committing house trespass and under section 323/149, P. P. C. For causing simple injuries to Dost Muhammad, Ata Muhammad and Mst. Malkani P. Ws. The learned trial Judge vide his judgment dated 6-10-1969, convicted the appellants under section 148, P. P. C. And sentenced each of them to suffer R. I. For one year, under section 302/149, P. P. C. On two counts and sentenced each of them to suffer life imprisonment, on both counts, under section 452/149, P. P. C., sentenced each of them to suffer R. I. For one year and under section 323/149, P. P. C. Sentenced each of them to suffer R. I. For six months. All the sentences were directed to run concurrently. They have appealed against their convictions and sentences.
2. Briefly the prosecution case as stated by Ata Muhammad (P. W. 10) in his statement (Exh. P. A.), recorded by S. I. Fida Hussain (P. W. 15), at 12-30 p.m. On 20-7-67 and the formal F. I. R. (Exh. P. A/1) was recorded by H. C. Said Rasul (P. W. 5) at Police Station Khushab, at a distance of 27 miles from the spot, as follows: Mst. Jawahar Khatun, sister of Ata Muhammad P. W. Was married to Zore Khan appellant about 11 years ago and in exchange Mst. Bevi, sister of Zore Khan accused, was married to Muhammad Afzal, brother of the complainant. About eight years prior to the present occurrence the relations between the married women became strained with their husbands and both came to the houses of their parents. Zore Khan appellant suspected that Mst. Jawahar Khatun had illicit relations with Shah Muhammad deceased. This is the motive alleged.
' On the day of occurrence after sunrise the complainant along with Muhammad Yar (not produced), Muhammad Azim (P. W. 13) and Shah Muhammad deceased left for Nowshera Hospital to enquire about the health of one Muhammad Ashraf lying injured there. When they had covered a distance of about 65 karams from the village and had reached the place known as Toka Chashma, all the seven accused challenged them. Sher Ali, Saadullah, Muhammad Khan, Zore Khan and Muzaffar Khan accused were armed with a gun each and Ali Muhammad and Qasim Ali were empty handed. The accused armed with guns opened fire. The complainant, Muhammad Azim P. W. And Muhammad Yar (given up) ran towards different directions. Shah Muhammad deceased was however overtaken. Ali Muhammad and Qasim Ali accused ran after him. The accused armed with guns fired at Shah Muhammad deceased who fell at some distance. Then all the accused fired more shots at Shah Muhammad and killed him. Ata Muhammad complainant and Muhammad Azim P. W. Ran towards the house of the former and shut them inside the kotha.
Mst. Malkani (P. W. 11), her daughter Mst. Jawahar Khatun deceased and Mst. Nasim Akhtar (P. W.
14), daughter of Mst. Jawahar Khatun deceased, also entered the Kotha, which was closed from inside. Dost Muhammad (P. W. 12), father of Mst. Jawahar Khatun, also reached the courtyard where the accused were also present. The accused persons broke open the door of the kotha and dragged out Mst. Jawahar Khatun deceased and took her near the dead body of Shah Muhammad deceased where she was done to death by 1976 P Cr. L J 101 [Karachi] Before Zafar Hussain Mirza, J MUHAMMAD RAMZAN-Appellant versus THE STATE-Respondent Criminal Appeal No, 72 of 1976, decided on 13th July 1976.
(a) Criminal Law (Amendment) Act, 1958- -- S. 6(5) & 2(a) read with Province of West Pakistan (Dissolution) Order, 19 /0, Arts. 4 & 5-Sanction for Prosecution-Validity of-Expression "appropriate government" appearing in Ss. 6 & 2(a) of Act, 1958-Accused, a Government servant charged for misconduct while serving under Defunct Province of West Pakistan-Accused allocated to Province of Sind on dissolution of Province of West Pakistan and sanction for his prosecution accorded by Sind Government-Contention that accused being in the service of Province of West Pakistan at time of misconduct, Government of Sind was not "appropriate Government" to accord sanction for his prosecution-Contention repelled- Government of Sind, held, appropriate Government in terms of S. 6 of Act, 1958, for purposes of sanction for , prosecution of accused.-[Sanction for prosecution]. [p. 103],4
(b) Prevention of Corruption Act (II of 1947)- -- Ss. 5(2) & 5(1), cl. (e)-"Criminal misconduct"-Accused, a Government servant charged for criminal misconduct for constructing a house by spending a certain sum, disproportionate to his known sources of income-Accused, however, reasonably accounting for funds raised for constructing house and amply corroborated by his bold and overt disclosure of fact in his declaration of assets sent to Government from time to time-Evidence produced by accused, held, reacted upon prosecution evidence, in -circumstances-Conviction and sentence set aside. [p.
103]/3 Allah Bachaya v. State 1972 P Cr. L J 1962 ref. G. M. Shah for Appellant.
A. K. Lakhan for the State.
Date of hearing I 24th June 1976.
' This is an appeal against the judgment and order passed by Special Judge, Karachi, whereby the appellant was convicted under section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to a fine of Rs, 5,001 or in default to undergo Rigorous Imprisonment for one year.
Appellant Mohammad Ramzan Shaikh was tried under a charge under section 5 (1) (e) of the Prevention of Corruption Act, 1947 for illegally constructing a house No, 42 Muslim Cooperative Housing Society Hyderabad, by spending Rs, 90,446 on the allegation that this property was dis- proportionate to his known sources of income.
2. The charge relates to the period covering the years 1964 to 1966 when the appellant was serving in the Industries Department of Government of West Pakistan as Deputy Director. It is not known why prosecution against the appellant was launched after all these years, for, the charge-sheet against the appellant was submitted by Anti-Corruption Police Karachi on 20-8-1975 in the Court of Special Judge/Enquiry Officer Anti-Corruption Police Karachi. The sanction in this case was accorded by the Government of Sind vide. Industries and Mineral Development Department's Memo. No, SO (1) 18-35/71(11), dated 6-5-1975.
3. The background of service of the appellant is that at the time of the establishment of Province of West Pakistan, the appellant was serving in the civil service of Khairpur State as a permanent employee. On integration of the former Khairpur State in the newly created Province of West Pakistan, he was taken up as Deputy Director Industries and served at Multan and other places. It appears that during the course of his service the appellant also held additional charge as Assistant Registrar Joint Stock Companies Karachi. He was also appointed by the Government of Pakistan in the Ministry of Commerce as Assistant Registrar of Companies Incharge Trustee in respect of some companies of East Pakistan under the Companies (Appointment and Trustees)
Act, 1972. In his latter capacity there were some allegations against the appellant of some shady deals in the disposal of the stocks of one of the companies. The alleged irregularities and illegalities were communicated to the Government of Sind. On the basis of information received as stated a report was made with the Director Anticorruption Establishment. Along with the report was also sent a Memorandum from the Government of Sind Industries and Mineral Development Department dated 19-4-1973 listing various other complaints against the appellant including the allegation that "he had procured the building material through good-will of the industrialists of Hyderabad Division for the construction of his bungalow at Hyderabad." As a result, four separate cases were registered against the appellant and went up in the Court of Special Judge. The appellant was acquitted by the learned Special Judge in two of the cases for want of jurisdiction and in one he was acquitted on merits. The fourth case is the present one in which the only charge against the appellant, for which he was sent up to stand trial, was that he was in possession of a residential property namely bungalow in Muslim Cooperative Housing Society, Hyderabad, of the value of Rs, 90,446 which was allegedly, disproportionate to his known sources of income.
4. The appellant admitted the fact that he possessed the property in question but stated that the plot over which the bungalow was constructed was purchased by his father as joint family property in the name of his wife. He further stated that he had spent about Rs, 80,000 for the construction of the bungalow and that the amount for the construction was procured by obtaining a loan of Rs, 40,000 from Habib Bank and an overdraft of Rs, 10,000 from the same bank. The remaining amount of Rs, 30,000 was, the appellant explained, spent by his father from the joint- family savings. The appellant, however, admitted that he was drawing Rs, 759 as his salary as Assistant Director, but as Deputy Director he was receiving Rs, 1,350 per month as his total emoluments during the year 1964 to 1956. In addition he stated that as a result of revision of pay scale of the post of Assistant Director, he had drawn difference of pay amounting to Rs, 6,500 during that period. As regards permission for acquiring immovable property, the appellant contended that by virtue of the fact of his being originally an employee of the former Khairpur State such permission was not necessary under the rules. Even so, he had sent intimation of the fact to the Director of Industries, West Pakistan, which was duly acknowledged. According to the appellant, he had shown the house as a joint family property in his declaration of assets from time to time submitted to his superior officers. Finally, the appellant stated that land measuring about 100 acres and ten gardens in village Therri District Khairpur is the joint family property entered in the name of his grandfather in the Revenue Record, which was managed by his father on behalf of joint family. The income received from the joint family property was distributed among the family members and savings were kept by his father. It was from these savings, the appellant urged, that his father had given him Rs, 30,000 the balance required for construction of the house.
5. Before the learned Special Judge, two legal objections were also raised, assailing the validity of the sanction for prosecution and questioning the territorial jurisdiction of the Court. The learned Judge repelled both these objections and held that the sanction was validly accorded and that the Court had jurisdiction to try the appellant for the offence alleged.
6. As regards the merits of the case, the learned Special Judge took the view that the appellant had established the fact that he had obtained the loan of Rs, 40,000 and over-draft of Rs, 10,000 but came to a finding that the appellant had failed to establish how the loans were repaid or were being repaid. He also found that the appellant had not established the fact that his father advanced the remaining amount from the joint income of the family as according to the learned Judge, the joint family system was not prevalent among the Muslims and no special custom in the family of the appellant was proved. As a result of these findings the learned Judge found the appellant guilty of possessing property disproportionate to the known sources of his income.
7. Mr. G. M. Shah, learned counsel for the appellant reiterated the contention raised on behalf of the appellant in the trial Court regarding the validity of the sanction. In this connection, he first contended that at the relevant time in the years 1964 to 1966, the appellant was serving as a public servant at Multan, and therefore the Government of Sind was not the appropriate Government to accord sanction for prosecution. Now Section 6 of the Pakistan Criminal Law Amendment Act 1958 in clause (5) provides that the previous sanction of the "appropriate Government" shall be required for prosecution of a public servant for an offence under the Act. The explanation appended to this subsection stipulates that for the purposes of this subsection "appropriate Government" shall mean the Government which at the time of the commission of the offence was the "appropriate Government". The expression "appropriate Government" has been defined in section 2 (a) of the same Act which provides that in relation to persons erving in connection with the affairs of the Centre and employees of the Central Government or of the Corporations etc. Set up by the Central Government, the Central Government and in other cases the provincial Government concerned would be the "appropriate Government". But for the dissolution of province of West Pakistan, therefore, undoubtedly the Government of West Pakistan would have been the "appropriate Government" for the purpose of sanction in this case. It is not disputed that the appellant was repatriated or allocated, presumably under an order made under Article 20 of the Province of West Pakistan (Dissolution) Order 1970, of the province of Sind as, at the time of sanction he was serving as a member of provincial Civil Service of the province of Sind. According to Dissolution of West Pakistan Province (Rights, properties, Assets and Liabilities Order 971, the provident fund, the leave salaries, and pension were the liability the Province of Sind. Article 4 of the Province of West Pakistan (Dissolution) Order, 1970, provided that as from the appointed date the province of West Pakistan shall cease to exist and in its place shall be constituted four provinces including the province of Sind. Clause (2) of this article refers to the territories of the new provinces and Khairpur Division was included within the territories of the province of Sind. Accordingly, there can be no doubt that for all intents and purposes the concerned provincial Government in relation to the appellant was the Government of Sind at the time of sanction as he was the employee of that Government at that time. The next question to consider, however, is whether the Government of Sind can be said to be the appropriate Government at the time of the commission of the offence.
Article 5 of the Province of West Pakistan (Dissolution) Order, 1970 lays down that subject to the provisions of this Order, the new provinces shall be administered as if each one of them were a province existing immediately before the appointed date. The provisions relating to this section were intended as a safeguard to the civil servants from vexatious or baseless prosecutions. The power to grant sanction was therefore vested with the appropriate Government exercising administrative control over the civil servants concerned and therefore it is quite plain that the power of sanction is relatable to the administrative powers enjoyed by the provincial Government.
It, therefore, follows that under article 5 mentioned above the new province to whom the civil servant was allocated would have the power to accord sanction for offences alleged against him, for, the new provinces were to be administered as if each one of them were a province existing immediately before the appointee day. The Government of wind was, accordingly, the appropriate Government in terms of section 6 of the Criminal Law Amendment Act, 1958 for the purposes of sanction for prosecution of the appellant and therefore the sanction is not open to challenge on that account.
8. Learned counsel for the appellant then assailed the sanction by feebly submitting that during the course of his service the appellant was holding dual charges and some of the capacities in which he served were relatable to appointments under the Central Government. Accordingly, the contention was that the Central Government was the appropriate Government for the purposes of the sanction. I find to substance in this contention as well. It is on the record that both at the time of the acquisition of house property in the years 1964 to 1966 as well as at the time of according sanction the appellant was serving under the provincial Government. There is thus no question of obtaining sanction from the Central Government as the concerned Government in terms of definition of the expression "appropriate Government" was the Provincial Government.
9. Coming now to the merits of the case, the case of the prosecution is that the house property in question assessed and evaluated through the experts was found to be of the value of Rs, 90,446 the breakup of which was stated to be Rs, 6,120 as the price of the plot and Rs, 84,326 as the cost of construction. The appellant on the other hand stated in his statement that he spent about Rs, 80,000 for the construction of the house. As regards the plot the appellant stated that it was purchased by his father as joint family property in the name of his wife. Thus the value of the property is not very much in controversy. But the question for consideration is whether the possession of the property by the appellant is justified having regard to the resources available with him. It is also not disputed that the appellant was not in possession of liquid funds of his own for the construction of the house, for, his defence is that he secured the money required from other sources. As stated earlier the explanation of the appellant is that he had raised loans for raising funds to the extent of Rs, 50,000 from the bank and received Rs, 30,000 from his father. If, therefore, the appellant succeeds in creating reasonable doubt on the basis of the circumstances of the case or evidence produced by him that he may have procured funds from these sources, he would be entitled to benefit of doubt. On the other hand, if he establishes positively and fully account for the possession of necessary funds he would be entitled to clean acquittal.
10. The relevant part of section 5 of the Prevention of Corruption Act, 1947 defining the offence of misconduct in this case is clause (e) of subsection (1) which is as follows :- "A public servant is said to commit the offence of criminal misconduct.
(e) if he, or any of his dependents is in possession, for which the public servant cannot reasonably account of pecuniary resources or of property disproportionate to his known sources of income."
' A plain reading of this section, therefore, places the burden upon the accused to give a reasonable account of the pecuniary resources or the property in his possession which on the face appears disproportionate to his known sources of income.
10-A. It is in the evidence that the appellant had produced the necessary documents before the investigating officer in support of his explanation with regard to the sources from which he secured money. In this connection the appellant produced certificate from the Housing Society (Exh. 8) showing that the plot of land over which the property was constructed stood in the name of Mrs. Hameeda Begum, wife of the appellant. He also produced a certificate (Exh. 12) by Mr. Allah Warayo Shaikh, the father of the appellant stating that the house was constructed at a cost of Rs, 80,000 out of which Rs, 50,000 were raised by way of loan from Habib Bank and the balance of Rs, 30,000 were spent by him. He further produced letter (Exh. 13) dated 23-4-1966 from the Manager, Habib Bank Ltd., Station Road Branch, Hyderabad, informing the appellant that sanction for loan of Rs, 40,000 in the name of his wife against the mortgage of the house had been received. The next document is copies of the pass book (Exh. 14) in the name of the appellant showing loan of Rs, 40,000, the copy of declaration of assets for the year ending December 1973 by the appellant (Exh.
16/1) which shows the house in question as held by the appellant in the name of his wife and clearly mentions that the amount spent was secured by way of loan from the Habib Bank to the extent of Rs, 50,000 and Rs, 30,000 as advance by his father. Similarly, declarations of assets for the year 1971 and 1969 were produced.
11. In his defence the appellant has examined Mr. S. M. Jaffar Bhopali, Officer Habib Bank Ltd. Who testified to the fact that the loan of Rs, 50,000 was granted to the appellant. The Court questioned the witness regarding the repayment of loan, and the witness stated that towards 0. D. Loan of Rs, 10,0L0 the appellant was paying Rs, 600 per month. As regards the loan of Rs, 40,000 the witness was not aware as to how the same was being repaid as the account for that loan was being separately maintained. The next witness for the defence was Allah Warayo, father of the appellant, who has supported the statement of the appellant that the plot was purchased by him in the name of the appellant and that Rs, 30,000 or 35,000 were spent by him from the income of agricultural land and gardens. He has, further stated that they had been paying loan and overdraft in the bank.
He has, further, stated that the loan was still not paid fully.
12. Learned Special Judge held that the appellant established the fact that he had secured loans from the bank. However, in his view, no Effort was made by the appellant to show as to how the loan was being repaid which according to him may be for the reason that the appellant did not like to disclose the sources by which the loan was being repaid. The learned Judge further held that the prosecution has not established specifically as to how much salary the appellant was drawing at the relevant time. As stated earlier, the appellant claimed that he was drawing Rs, 1,350 per month as his salary. In absence of specific evidence on the point the learned Judge has by process of inference concluded that the appellant must be drawing a salary of Rs, 1,000 per month at the most. On this basis, he has doubted the veracity of the statement of the appellant that he was repaying Rs, 600 per month. 1 am quite unable to follow the process of reasoning adopted by the learned Judge reaching this conclusion. The Investigating Officer has admitted in his evidence that the appellant produced all the relevant documents stated above to explain the sources out of which he acquired the money. But still he admitted that he made no enquiry regarding his salary during the relevant period nor did he investigate the correctness of the assertion of the appellant that he had landed property at Khairpur. The onus to establish the ingredients of the offence cannot shift to the accused and it was for the prosecution to establish by tangible evidence firstly about sources of income available with the accused and then to show that the possession of pecuniary resources or property by him was dis-proportionate to such sources of income. In Allah Bachaya v. State (1) the facts of which case were almost similar to the present case, it was observed as follows :- ''Mr. M. Anwar, learned counsel for the appellant, raised a short legal point. He submitted that no evidence was led at the trial to show as to what were the resources of the appellant, which he is found to have exceeded and thus purchased land worth Rs, 1,200. The learned Special Judge estimated his income as Rs, 150 per month, but there is no evidence on record to show how this estimate was formed. The learned counsel is right in saying that it is just a conjecture and it is not clear how the learned Special Judge has found this figure to represent the monthly income of the appellant. We have it in evidence that the father and the father-in-law of the appellant were well to do people. The onus was on the prosecution to prove as to what were his resources and it was then for the appellant to prove that the purchases were within his resources."
' There is thus evidence on record that the appellant lawfully came to acquire resources to the extent of Rs, 50,000.
13. As to the balance of the amount stated by the appellant to have been received from his father, it was not necessary for the appellant to establish that there existed a special custom in their family recognizing joint family system. The learned Judge was also wrong in holding that the explanation of the appellant is liable to be rejected on this count, as the Muslim Law does not recognize joint family system. Here, there was no question of adjudication of rights founded on the system of joint family as is prevalent under the Hindu Law. The reasons assigned by the learned Judge are, therefore, totally irrelevant and untenable. The question was whether resources could possibly be availed of by the accused from the {{FOOT NOTE}}
(1) 1972 P Cr. L J 1962 {{FOOT NOTE}} ' property which was being managed jointly. It is quite common among the Muslim co-sharers or heirs holding undivided shares in ancestral property to jointly hold such property. There is thus nothing repugnant to the principles of Mohammad an Law in holding or managing property jointly.
The statement of the appellant in this regard is amply corroborated by his bold and overt disclosure of the fact in his declaration of assets to the government from time to time. The requirement of law so far the appellant is concerned was to reasonably account for possession of the property. The onus of proof upon the accused cannot be required to be of the same standard as the prosecution has to discharge in proving guilt of the accused. All this evidence produced by the appellant, therefore, reacts upon the prosecution evidence and considering the two sets of evidence in juxtaposition, I have come to the conclusion that the appellant may have had the resources necessary for acquiring the property.
14. In the result, I would set aside the appellant's conviction and the sentence imposed upon him.