IN THE HIGH COURT OF SINDH, KARACHI
Crl.
Appeal No.
S- 231 of 2014
Haji Sanaullah
...
..
...Appellant
Versus
The
State
..
.........
Respondent
--------------------------------
Crl.
Appeal No.
S- 240 of 2014
Ali Hassan
and another
...
..
...Appellant
Versus
The
State
..
.........
Respondent
Mr.
Mehmood A. Qureshi, advocate
for appellants
Mr. Zafar Ahmed Khan, Additional
Prosecutor General
Mr.
Muhammad Ramzan, advocate for complainant
Date of hearing: 25.07.2017
Date of Judgment: 25.07.2017
J
U D G M E N T
FAHIM
AHMED SIDDIQUI, J- Through
this common judgment, the above captioned appeals will be disposed of. These
appeals impugn the judgement dated 04-09-2014 passed by the Special Judge of
Anticorruption (Provincial) at Karachi in Special Case No. 48 of 2011 (The
State v. Haji Sanaullah & others). By passing the
impugned judgement, the aforesaid trial Court convicted and sentenced the
appellants as under:-
i)
Sentence of RI for one year under Sections 342 PPC
read with Section 5 (2) Prevention of Corruption Act, 1947.
ii)
Sentence of RI for two years under Sections 151, 34
read with Section 5 (2) Prevention of Corruption Act, 1947.
After
the above verdict, the appellants challenged the same before this Court and
simultaneously, they moved an application under Section 426 CrPC,
which was allowed and the appellants were admitted to bail during pendency of
appeal. Now these appeals have come before me for final disposal.
2.
The matrix of facts is that the complainant alleged
in her complaint that she is a resident of Street No. 12, Badar
Commercial, DHA, Karachi. On 01-05-2010 at 7:30 AM,
she along with her husband and maid servant were going
to See View Area in their car. They stopped their car at a hotel for breakfast,
simultaneously a police mobile came there from which ASI Ali Hassan with his
four constables alighted and snatched hers and her husbands mobile phones. She
called from her maidservants phone to 15 (police emergency centre) but that phone
was also snatched by ASI Ali Hassan, who then called the SHO and took them to
PS Darakhshan. At the police station, they were misbehaved
by the police and her husband was tortured and put in lock-up and they used
filthy language with her. She also alleged that SI Saeed
and ASI Ali Hassan after discussion with SHO gave her a chit scribe with
'arrange Rs. 20,000/- (as illegal gratification) for
the release of her husband otherwise they would involve him in false cases. She
then went to her house and arranged the said amount, which was handed over to
SI Saeed as a bribe, who then ordered to release her
husband from lock-up and warned her not to disclose this incident to anyone otherwise
they would again arrest them.
3.
The inquiry was conducted during which the
statements of witnesses were recorded. During inquiry, the complainant made
similar allegations as to her complaint with certain additions. In inquiry, she
stated that when SI Saeed and ASI Ali Hassan handed
over a chit to her for demanding Rs. 20,000/-, she
went to her house and borrowed Rs. 10,000/- from her
neighbour namely Munir and Rs.
10,000/- from Amjad and after arranging the demanded
amount of Rs. 20,000/-, she returned to police
station and handed over the said amount to SI Saeed,
who after accepting that amount released her husband. After completing the
formalities, the Investigation Officer submitted an interim Final Report to the
Court of Special Judge Anticorruption (Provincial), Karachi. The Special Judge
took cognizance and framed the charge against the appellant/convict to which
they pleaded 'not guilty' and claimed trial.
4.
During trial, the prosecution examined as many as
seven witnesses in the following order: -
|
i. |
PW1-Mst Lubna w/o Naveed Ahmed (Ex.6) |
She is complainant who produced photocopy of order
passed by IIIrd Additional Sessions Judge, Karachi
South (Ex.6/1), Order of this Court (Ex. 6/2), FIR No. 409/2010 (Ex. 6/3),
her application to ACE (Ex. 6/4) and proof of calling to '15' (Ex. 6/5). |
|
ii. |
PW2-Ms Faiza (Ex.7) |
She is the alleged maidservant of the complainant. |
|
iii. |
PW3-Naveed Ahmed (Ex.8) |
He is the husband of the complainant, who was
allegedly wrongfully confined by the appellants/convicts and it was alleged
that after taking bribe by the appellants, he was released. |
|
iv. |
PW4-Amjad Shah Muhammad (Ex.9) |
He is the person from whom it was alleged that an
amount of Rs. 10,000/- was taken by the complainant
to fulfill the demand of appellants. |
|
v. |
PW5-Gul Hassan Shaikh (Ex.10) |
He is the Assistant Director, ACE and he appeared
before the trial court as official witness. |
|
vi. |
PW6-Munir Hussain (Ex.11) |
He is the other person from whom it was alleged that
an amount of Rs. 10,000/- was taken by the complainant
to fulfill the demand of appellants. |
|
vii. |
PW7-Hyder Bux Shehwani (Ex.12) |
He is the Investigation Officer, who produced CFR
(Ex. 12/A). |
After recording the evidence of the prosecution,
the trial Court recorded statements of the accused (appellants) under Section
342 CrPC in which they denied all the allegations levelled against them by the prosecution witnesses.
Regarding evidence of the important and star prosecution witnesses, the
contention of the appellants is that they deposed falsely with the intention to
protect their criminal activities, and complainant wants to blackmail them.
However, they did not opt for examining themselves on oath and also to produce
any defence witness.
5.
The learned counsel for the appellants prefers his submissions at length. During his
submissions, he describes the entire case and specifies the contradictory,
ambiguous and incongruous portions of the narrated facts and deposition of the
prosecution witnesses. He also throws light on the morality of the witnesses,
especially complainant and also describes the alleged backdrop of initiating
criminal proceedings against the appellants.
6.
The learned counsel for the
complainant refutes the contentions raised by the learned counsel for the
appellants. He supports the impugned judgment by contending that the same is
based on a proper appreciation of evidence and reasoning. Regarding the
discrepancy of dates in the complaint and deposition, he submits that in
complaint, it was mentioned by her by mistake. The learned APG prefers to adopt
the arguments of the learned counsel for the complainant and he does not add anything in the same.
7.
I have heard the arguments
advanced and have gone through the entire material placed before me with the
able assistance of the learned members of the bar as well as learned APG. In
the instant case, the prosecution has to establish the following aspects of
charge in order to bring the guilt of the accused (appellants) at home;
i) the incident was taken place on 01-05-2010 at 7:30 AM
ii) the availability of complainant party and appellant/convict Ali Hassan
along with his subordinates at Kakar Hotel
iii) snatching of mobile phones by appellant ASI Ali Hassan from the
complainant and her husband
iv) torturing of the husband of the complainant at the police station
v) demanding of Rs. 20,000/- through a chit on
which such demand is mentioned and accepting the said amount by SI Saeed
8.
In the instant case, certain
aspects are important and it would be appropriate to highlight the same. There
is variation in dates of the incident in the complaint and the statements
recorded during the trial. Although, the discrepancy in dates is of one day
only, but the same is very significant. The contention of the learned counsel
for the complainant is that due to mistake it was mentioned by the complainant
in her complaint and the actual date is disclosed by her during her deposition.
In this respect, my observation is that the earlier date mentioned by the
complainant is not limited to complaint, but nearly all the documents,
including application before the Sessions Court, FIR lodged on the direction of
learned Additional Sessions Judge and even statements recorded during the
inquiry, FIR No. 31 of the 2011 lodged at ACE and even in the final report, it
is mentioned that the incident has taken place on 01-05-2010 and then suddenly
the complainant and other star witnesses have turned to their heels and stated
that it has taken place on 02-05-2010. If it was due to some mistake, then it
is surprising that the said mistake was repeatedly done in several documents.
It appears that the complainant has purposely changed the date of the incident
in her deposition to bring it in consonant with the Billing Record of
cellular company (Ex 6/5).
9.
Although the learned counsel
for the appellant has raised the question of authenticity of Billing Record
but if it is considered as gospel truth, even then it will provide least
support to the prosecution case. Rather, it is disastrous for the prosecution
and has drawn out the foundation stone of the prosecution case. Before entering
into further discussion regarding this point, I would like to discuss an
important aspect of the complainant's narrative regarding the incident. The
complainant in her examination in chief has described the initial portion of
the incident in the following words:
"On the way at Kakar Hotel we stop for
having breakfast. A police mobile of PS Darakhshan
was already available there. While I and my husband were deciding for the items
for having breakfast, meanwhile one official who disclosed his name as Ali
Hassan came to us and asked my husband to get out from the car. My husband
enquired about the matter who had been ordered to get
down by the said official. On his getting of from the
car the above said official snatched his cellular phone. Sensing the situation,
I also came out from the car and asked about the problem, the said official Ali
Hassan also snatched my cellular phone and directed us to reach to the PS Darakhshan. I called '15' from my another cell phone which
was with my maid, while I was talking to the official concerned about the
incident at '15' accused Ali Hassan came to me and also snatched the other cell
phone. Since I had already connected to the '15' the official Ali Hassan after
snatching the cell phone is spoke to the official online and told him that he
is taking us to PS Darakhshan on the directions of
SHO Haji Sanaullah of same PS."
It is important that when during cross-examination, a question was asked
regarding proof of calling '15', the complainant
replied that she could produce such proof and then she produce Call Billing
Record (Ex 6/5). It appears that the cellular phone, which was with the maid of
the complainant is actually a postpaid connection. The
said record is showing calls made from the said cell phone to '15' i.e. Police
Emergency Help. It is worth mentioning that in the Billing Record (Ex 6/5), the
duration of both the calls is mentioned as "00:00" and the charges of
both the calls is also '0.000'. Meaning thereby that the same was a missed
call and no conversation was taken place, apparently the said calls were made
to create a record to involve the appellants in this case. The most interesting
thing is that the complainant and other witnesses say that the incident has
taken place at 7.30 AM but the time of those missed calls in Ex-6/5 is
mentioned as 12.11 PM. According to the complainant, she has called '15' and talked
the official of '15' and later on the phone was snatched by accused Ali Hassan,
who also talked to the official of '15'. If it was so, then the call made to
'15' should have shown the duration of talk time, besides the time of calls
also not tallies with the time described by the complainant and other
witnesses. It appears from the record produced by the complainant during her
examination before the trial Court that no conversation took place with the
official of '15' at or about 7.30 AM on 1-5-2010 or even on 2-5-2010, as such,
it has thrown thick clouds regarding the happening of the incident.
10.
The prosecution is also
required to establish that on 01-05-2010 or 02-05-2010 at 7:30 AM, the
complainant along with her husband and maid had stopped at Kakar
Hotel where the appellant Ali Hassan with his subordinates was already
available in a police mobile. It is worth noting that on this point, the
prosecution could not produce any impartial and independent witness. Regarding
this point, the prosecution has examined complainant, her husband and her maidservant,
and all of them are interested witnesses as such their testimony requires
corroboration. The investigation of the case was done firstly by Mr Gul Hassan Sheikh, who was at
that time posted as Asst. Director, ACE, Karachi and later on it was assigned
to Inspector Haider Bux of
ACE South, Karachi. In his deposition, Mr Gul Hassan Sheikh stated that during investigation, he did
not record the statements of the owner of Kakar Hotel
or any of the employees working in that hotel. However, Inspector Haider Bux has stated before the trial
Court that he enquired from the owner of the hotel regarding incident who
disclosed that no incident occurred before him. It is worth noting that during
the investigation, no material was collected in the shape of the entry of the
daily diary of PS Darakhshan, to establish that on
that date appellant Ali Hassan was on mobile duty at or near about the said
hotel. In such a situation, this aspect of the case is highly doubtful.
11.
As far as the snatching of
mobile phone by the appellant Ali Hassan is concerned, as per the discussion
above this aspect of the case is also highly doubtful. The complainant and her
two witnesses have stated that the appellant has snatched the mobile phones,
including the mobile phone, which was in possession of the maidservant of the
complainant. In the above discussion, it is mentioned that there were only two
missed calls from the said mobile phone and the time of missed call also
contradictory to the time mentioned by the complainant in her complaint. The
existing position of affairs belies the snatching of mobile phones and
regarding this point also prosecution could not produce any impartial
independent witness.
12.
It has also come on record
that the appellants/convicts demanded Rs. 20,000/- as
bribe and in this respect, they have given the complainant a chit, but said
'chit' was not produced before the learned trial Court or even before this
Court. In this respect, a plea was taken that the said 'chit' was taken back by the police officials. In this respect, my
observation is that it is a unique thing that a demand for bribery is done by
inscribing a chit, and at least such a thing is not possible by a man of
prudent mind. The said chit was not produced during the investigation and
trial, and during examination of the complainant. However, during
cross-examination when PW-3 Naveed Ahmed (husband of
the complainant) was asked about the production of the said chit, he replied
that he could not produce the same. Later on, he voluntarily added that the
said chit was taken back by the appellant Saeed. It is worth mentioning that this important aspect of
the case, that the chit was taken back
by the appellant Saeed, is not mentioned in
her complaint or other applications. It is also worth mentioning that the
complainant in her deposition has stated that she arranged the amount from
persons namely Amjad and Munir.
It is worth noting that in her complaint, she did not disclose that she
arranged the said amount from those persons. In her application, the
complainant stated that the police have released them after one hour by taking
bribe of Rs 20,000/- but in her examination before
the court, she says that she firstly went to her home in her car and then she
went to Amjad Bhai and
after getting Rs. 10,000/- from him, she went to Munir Bhai from whom she borrowed
another amount of Rs. 10,000/-. If the time consumed
by her on different places, is calculated it differs her statement of releasing
her husband after one hour. In response
to a question, she discloses that during this time policeman Mehboob Alam was driving her car,
while PW-6 Munir says that the complainant came to
his home in Bhitai Colony Korangi
in a Rickshaw. I think it is major contradiction, which belies the whole story
of arranging money for bribery. Considering the facts of initial application,
it appears that the insertion of these two witnesses is actually a later on
improvement of the story. Another aspect regarding the deposition of PW-4 Amjad is considerable. This witness on the query of Court
replies that his occupation is 'Architect' but in cross-examination he admits
that he is 'illiterate'. I am of the view that such a witness is highly unreliable, as such the story of giving loan to complainant
by him is seriously doubtful.
13.
There are certain other
facets and features of the case require consideration. In the story of the
prosecution, it is mentioned that the appellant Ali Hassan has snatched three
cellular phones from the complainant party, but none of those phones were
either made as case property, nor the same were produced before the trial Court
as 'object or real evidence'. Even, during the course of the investigation, no
record of CDR of those phones as well as phone of appellant Ali Hassan was
collected to establish that at the given time the appellant and complainant
party were in close proximity. As mentioned above, the 'chit' was not produced
during the trial and nothing was collected during investigation regarding
non-availability of the said 'chit', as such the adverse presumption may be
taken against the prosecution as per provision of Article 129 (g).
14.
It is the defence plea that the complainant party intends to protect
their unlawful activities and in order to blackmail them,
they cooked up a false story to involve the concerned police officials. This defence plea is very much available in the statements of
appellants recorded under Section 342 CrPC. It has
come on the record through the deposition of the complainant and her husband
that the complainant is a housewife while the earning of her husband is only Rs. 10,000/- to Rs. 15,000/- as
barber and he has two wives who are residing in different rented houses at the
monthly rent of Rs. 3000/- and Rs.
5000/- respectively, while one of his wives is paying Rs.
3000/- to her maid. In such position of affairs, a question arises what are the
other sources of his earning to cater his expenses. If this aspect of the case
is placed in juxtaposition with the defence plea, the
same appears to be rational.
15.
The upshot of the above
discussion is that the prosecution has miserably failed to establish the case
against the appellants, as such the instant appeal is allowed and they have
been acquitted from charge through my short order dated 25-07-2017, and the
above are the reasons for the same.
J U D G E