P L D 1952 Lahore 282 (PLP)

MUHAMMAD JAN, J.‑On 26th April 1950 a letter, in the form of memorandum No. 3680, was sent by the Deputy Com missioner of Rawalpindi to the Superintendent of Police, Rawalpindi. It was signed by Mr. Ahmad Shafi as Deputy Commissioner and showed that some pieces of cloth were stolen from the Branch Post Office at Nurpur Shahan and a case was registered at Bharacau Police Station under section 457/380 Pakistan P C against one Gulzar Khan who was convicted on 21st September, 1948, by the Sub‑Divisional Magistrate at Murree. The Superintendent, Post Offices, Rawalpindi Division, had applied for the return of the stolen property and on enquiries being made from the Office of the Superintendent of Police, the Tehsildar, Murree, and the District Nazir, it appeared that the property in question was not traceable. The S. H. O. Murree had reported that the property was handed over to the Naib Sheriff at Murree on 6th October, 1948, vide Road Certificate No.

311. The Naib Sheriff, however, said that the property was not given to him. District Nazir at Rawalpindi reported that the missing pro perty was not received in the malkhana. The letter concluded with the following words :‑ "A case of theft and criminal misappropriation may be registered at Murree Police Station and necessary investiga tion made. This might turn out to be a case of criminal mis appropriation of property by some official." The Superintendent of Police sent this latter to the P.D.S.P. for report on 28th April 1950 and the P. D. S. P. submitted his report on 1st may 1950 that a case under section 405 Pakistan P C should be registered at Police Station, Murree. The case was accordingly registered on 5th May 1950 under section 409 Pakistan P C at police Station Murree by F. I. R. No. 33, dated 5th May, 1950. On 30th June 1950 Mumtaz Muhammad Butt, Sub‑Inspector, Criminal Investigation Agency, Rawalpindi, made a report that from the investigation made by him it appeared that the property in question was sent and delivered through Muhammad Ashraf, Foot Con stable, to Muhammad Razzaq Naib Sheriff, who was put on trial. Mian Muhammad Zakir, Sub‑Divisional Magistrate, Murree, started the trial and recorded the evidence of two witnesses for the prosecution on 29th July 1950. P. W. 1, Ali Madad, Head Constable, deposed that he was Muharrir of Police Station Bharacau from May 1948. to August 1949 and that on 6th July, 1948, he sent the property in case No. 40 of 1948 under section 457 to the Court of S. D. M. Murree through Gulzar Khan, Constable, vide Road Certificate No.

139. P. W. 2 Gulzar Khan, Foot Constable, stated that he brought the property in question from Bharacau to Murree and made it over to Muhammad Ashraf, Naib Muharrir, Police Station Murree. On 7th August 1950 two more witnesses for the pro secution were‑ examined. P. W. 3 Fazal Dad, Bailiff, Civil Court, Murree, produced the register of Malkhana (Exhibit P. 1). At serial No. 49 of this register the accused had made an entry (Exhibit P‑1‑A), dated 6th October, 1948, relating to the receipt of the case property in F. I R. No. 88 under section 457 against Dheru and others. It will be noticed that the letter from the Deputy Commissioner, Rawalpindi, related to the case property of F. I. R. No. 40 of 1948. The entry in Exhibit P‑1 related to the property concerning F. I. R. No. 88 of 1948. The entry contained six items only which according to Fazal Dad P. W. 3, had been accounted for by the accused. P. W. 4 Mumtaz Muhammad Butt, Sub‑Inspector, C. I. A., who had reported against the accused and had challaned him, stated that the case property relating to F. I. R. No. 40 of 1948 and F. I. R. 88 of 1948 was sent to the Naib Sheriff at Murree by Road Certificate No. 311 (Ex. P. C.). The front of the Road Certificate (Exhibit P. C) contains entry about six items only in respect of property concerning F. I. R. No. 88, and the Sub‑Inspector deposed that he found the six articles mentioned on the front page of Exhibit P‑C duly entered in the register (Exhibit P. 1). The accused had. signed the front page of the Road Certificate (Exhibit P‑C) and all the articles mentioned on that page had been duly accounted for by the accused. On 16th August 1950 P. W. 5 Muhammad Ashraf, Foot Constable, was examined. He deposed that on 6th October 1948 he had taken property relating to F. I. R. No. 40 of 1948 and F. I. R. 88 of 1948, as detailed in Road Certificate No. 311 (Exhibit P‑C) from Police Station Murree and handed it over to the accused who was working as Naib Nazir in those days. According to Muhammad Ashraf, the property consisted not only of the six items mentioned on the face of Ex. P‑C, which were duly entered by the accused in his register and accounted for by him but of a number of other articles including property relating to F. I. R. No. 40 of 1948, mentioned on the back of Exhibit P-C and on the separate paper attached to it. After obtaining the signature of the accused on Ex. P‑C he took it to the police station and attached it to the original Road Certificate (Exhibit P‑D). The contents of Exhibit P‑C were entered in the malkhana register of Murree Police Station in due course at serial No. 2, vide Exhibits P‑E and P‑F. According to this witness, after the Road Certificates (Exhibits P‑C and P‑D) had been prepared and before he set out with the property from the police station, the Muharrir had recorded a report, No. 14 (Exhibit P‑G) relating to the disposal of the property and on his return to the police station, report No. 19 (Exhibit .P‑H) was re corded to the effect that the property in the above‑mentioned cases had been delivered to the Naib Sheriff, Murree. In cross‑examination, Muhammad Ashraf stated that he went from the police station at about 1 p.m. to the S. D. M's Court where he reached in about ten minutes. He had become free, after delivering the goods and obtaining the receipt, at about 1‑30 p.m. but he did not get back to the police station till about 3.45 p.m. He spent the intervening couple of hours in taking tea and seeing a friend. The suggestion on behalf of the accused is that he did not deliver the property mentioned on the back of Ex. P‑C. and on the paper attached to it to the accused but deposited it with his friend or otherwise disposed of it during the interval of two hours. He was asked to name the persons who were present when he delivered the property to the accused. He said, he did not remember. The remaining two witnesses for the prosecution were examined on 22nd August 1950. P. W. 6 Sultan Khan‑ identified the signature of the Deputy Commissioner on letter No. 3680, dated the 26th April 1950, and P. W. 7 Manzur Hussain Shah stated that he was posted at Murree in the year 1948 and some property relating to F. I. R. No. 88 of 1948 was brought to the Police Station, Murree, and deposited by him there. After the examination of these prosecution witnesses, the accused Muhammad Razzaq was examined by Mian Muhammad Zakir, S. D. M. He said that he had received only the articles men tioned on the front page of Ex. P‑C and not the articles men tioned on its back or on the paper attached to it. The property received by him was duly accounted for and the missing pro perty must have been misappropriated by Muhammad Ashraf. Foot Constable (P. W. 5). He was charged under section 409 Pakistan P C and at his request Fazal Dad (P. W. 3) and Muhammad Ashraf (P. W. 5) were called for further cross-examination. Fazal Dad said he was present when Muhammad Ashraf (P. W. 5) delivered the property to the accused and the entry relating to it was made in the register of the malkhana at serial No.

46. The entry was made in the pre sence of Muhammad Ashraf and be had brought only the articles mentioned in the rnalkana register (Exhibit P.1) and on the face of the Road Certificate (Exhibit P. C.). This witness, produced by the prosecution, deposed that the articles mentioned on the back of Ex. P. C. were neither shown not delivered to the accused. He said that Muhammad Ismail, Raj Muhammad and Khan Akbar were present at the time when the property was delivered by. Muhammad Ashraf to the accused. After this, it was not considered necessary to cross examine Muhammad Ashraf and he was given up. The accused then entered upon leis defence. Tie called Muhammad Ismail, Raj Muhammad and Khan Akbar and their evidence was recorded by Mian Muhammad Zakir, S. D. M., on the 29th September 1950. Muhammad Ismail was a bailiff and Raj Muhammad a process‑server in Murree. They were present in the office of the accused when the property was delivered to him, and Khan Akbar, a Zamindar of Charhan, had gone there to deposit some money. They all corroborated the evidence of Fazal Dad that only six articles mentioned on the face of Exhibit P‑C were delivered by Muhammad Ashraf, Constable, to the accused. Mian Muhammad Zakir considered it necessary to examine Muhammad Anwar Beg in order to ascertain whether the case property relating to F. I. R. No. 40 of 1948 was received at Police Station Murree and entered in the register in his presence. He was summoned as a Court witness for the 9th of October, 1950. On that day there is an order on the vernacular record by Mian Muhammad Zakir, S. D. M., that the case should be placed for hearing on 18th October, 1950, before the A. D. M., and the accused was directed to appear in that Court. The reason for this transfer of the case is not apparent on the record but the case was placed before Mr. Ahmad Shafi on 18th October 1950 when he was working as the A. D. M. He ordered that Muhammad Anwar Beg should be summoned for 2nd November 1950 at Rawalpindi with daily diaries and register No. 19 for October 1948 of Police Station Murree. It appears from the vernacular record that documents sent for were not available on 2nd November and on two subsequent hearings Muhammad Anwar Beg was not present. He was examined on 23rd November 1950, by Mr. Ahmad Shafi and stated that he was A. S. I. in Murree in August 1948 but not in October 1948. Fazal Hussain Shah was working as muharrir when the witness was attached to Murree Police Station and he could identify handwriting. Fazal Hussain Shah had given up service and the entry at serial No. 14 in Exhibit P‑G appeared to the witness to be in the handwriting of Fazal Hussain Shah. In cross‑examination by the Prosecuting Inspector, he stated that the Road Certificate (No. 298) should have been signed on the front page as it was and not at the end of all the items mentioned on the reverse. The accused was asked whether he wanted to add anything to his previous statement or to produce any further evidence, and he said that he would like to examine Fazal Hussain. Accordingly, Fazal Hussain Shah was called and examined on 14th December, 1950. He stated that he was a Muharrir Head Constable at Murree Police Station in Octo ber, 1948, and register No. 19 in which all the property received in and sent out of the police station was recorded, was in his custody. Whenever he sent any case property to the Nazir at Murree, he had the property entered in register No.

19. The Naib Nazir also had a register in which he entered the pro perty. In October 1948 the accused was Naib Nazir at Murree and he always complied with this practice. After this evidence the case was closed and Mr. Ahmad Shafi proceeded to judgment. In the course of his judgment, Mr. Ahmad Shafi observed that the signatures of the accused appeared on that sheet of the paper on which the six accounted for articles were written. On the reverse of that sheet is a long list of articles unaccounted for, and the prosecution case is that the accused has criminally misappropriated them. Foot Constable Muhammad Ashraf said that he had made over to the accused the articles mentioned on the front page as well as those mentioned on the reverse of that page and on a separate sheet of paper attached to it. The accused denied receiving any articles except six noted on the paper signed by him. The delivery of the rest of the property was averred only by the foot constable who was entrusted with this property by the Muharrir, Police Station Murree, for delivery to the Naib Nazir in the S. D. M's Court. Fazal Dad Bailiff (P. W. 3), who, according to the prosecution, was present at the time of the delivery of the property by Muhammad Ashraf to the accused, had deposed that only six articles, which had been duly accounted for, were delivered to the accused. The learned Magistrate was not satisfied with the evidence of Muhammad Ashraf Foot Constable and viewed with suspicion his failure to return to the police station for two and a half hours after finishing his work with the Nazir. As the road certificate, on which the signature of the accused was taken, remained in the custody of the foot constable, there was, in the opinion of the learned Magistrate, oppor tunity for him to write up the articles noted on its reverse. In the absence of any cogent evidence to show that the articles other than those mentioned on the page signed b5 the accused were delivered to him, it was not considered possible to find him guilty ; especially in view of the evidence of Fazal Dad (P. W. 3) and three witnesses produced in defence who had all deposed that only six articles, which had been accounted for, were delivered to the accused. He was, therefore; acquitted by Mr. Ahmad Shafi, Additional District Magistrate, Rawalpindi, on 28th December 1950. From this order of acquittal, the Advocate‑General, Punjab, has filed an appeal on the ground that the acquittal has caused grave miscarriage of justice. Considering the evidence set out above and the findings of the learned Additional District Magistrate, which appear to be perfectly reasonable, I am not at all inclined to interfere with the order of acquittal on merits. The learned A. A. G. has, however, raised a point of law and has argued that the order of acquittal is a nullity and must be set aside because Mr. Ahmad Shafi had given the original information which had led to the institution of this case against the accused. Mr. Ahmad Shafi is, in the opinion of the learned A. A. G., a party to this case and, in any event he is personally interested in it. He relies upon section 556, Criminal Procedure Code, and a decision of the Federal Court in Ghulam Rasul and others v. The Crown P L D 1951 F C

62. Section 556, Criminal Procedure Code says that: "No judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try of commit for trial any case to or in which he is a party, of personally interested, and no Judge or Magistrate shall hear an appeal from any judgment or order passed or made b himself." In the Explanation attached to this section, it is said that a Judge or Magistrate shall not be deemed a party, or personally, interested, within the meaning of this section, to or in an case by reason only that he is a Municipal Commissioner or otherwise concerned therein in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case. It appears to me that Mr. Ahmad Shafi gave information to the police relating to the loss of property in question in his public capacity. My attention was drawn to the Illustration under section 556, Criminal Procedure Code. It says :‑‑ "A, as Collector, upon consideration of information furnished to him directs the prosecution of B for a breach of the Excise Laws. A is disqualified from trying this case as a Magistrate. In this case, Mr. Ahmad Shafi did not direct the prosecution of the accused. He merely informed the police about the alleged loss of some property and concluded by saying that it "might turn out to be a case of criminal misappropria tion of property by some official." The official might have turned out to be someone attached to Police Station Bharacau where the property was deposited in the first instance. It might have been the policeman who took the property from Bharacau to Murree or some official in the Police Station Murree or the policeman who took the property from Murree Police Station to the Naib Nazir. It might have been the Naib Nazir in the S. D. M's Court or the District Nazir at Rawalpindi, where the property is sent after the disposal of the case. It cannot, therefore, be said that the case against the accused Muhammad Razzaq was started by Mr. Ahmad Shafi or that Mr. Ahmad Shafi had ordered his prosecution. In fact, it was Mumtaz Muhammad Butt, S. I., C. I. A., who made the report under section 173 Criminal P. C. on 30th June, 1950 that from the investigation made by him it appear ed that the Naib Sheriff, Muhammad Razzaq, had been guilty of criminal misappropriation. He was, therefore, taken into custody on 27th June 1950 and admitted to bail by order of the Court. The report was presented in the Court of S. D. M. Murree on 12th July, 1950 and the proceedings were commenced against the accused on the basis of this report. When Mr. Ahmad Shafi came to consider the evidence against the accused he found that there was no case against him and acquitted the accused. I am, therefore, unable to hold that Mr. Ahmad Shafi had after consideration of information furnished to him, directed the prosecution of Muhammad Razzaq and was, therefore, disqualified from trying the case as a Magistrate. As regards his being personally interested in the case, reliance was mainly placed by the learned A. A. G. on the observations made by the Federal Court in Ghulam Rasul and others v. Crown, P L D 1951, F C

62. The facts of that case are, however, quite different from the fact of the case before us. In that case Mr. Justice Kayani had as L. R. examined the evidence and definitely expressed the opinion that the accused appeared to him to be concerned in the murders and he considered it worthwhile to file an appeal from the order of acquittal, though he was not quite clear that it would result in success. In the case before us there is nothing to show that Mr. Ahmad Shafi had formed any opinion against the accused. The observations made by the Full Bench of Allahahad High Court in the petition of Ganeshi, 1 L R 15 All. 192, appear to me to be applicable to this case. Sir John Edge C. J. in deliver ing the main judgment of the Full Bench expressed the view that the public officer whose duty it is to see that the law is obeyed cannot be said to be "a person personally interested in the prosecution and trial of an offender against the law, These words, it was held, cannot refer to any remote interest in the matter but to some particular and immediate personal in terest in the case and its results. Some other cases, besides the: Federal Court judgment, have been cited by the learned A.A.G, but they do not appear to me to be relevant. In Lakhai Narayur, Ghosh v. Emperor, 11 Cr. L J 305, a Magistrate, who was also the manager of an encumbered estate, received a report from a 11 officer of the Court of Wards and ordered the prosecution of the petitioner for wrongfully cutting certain trees and also, ordered the trees to be attached, it was held that he had in authority to attach the trees. Carnduff, J. however took the view that the Magistrate had the power to take cognizance of the alleged crime. In Ganesh Chunder Ghosh v. The Queen Empress, 20 Cal. 857 the District Magistrate had initiated and directed the proceedings against certain accused person and had himself taken an active part in dispersing the unlawful assemble and subsequently took pains to collect evidence showing connec tion of the accused with the unlawful assembly. He was, there fore, held to have become disqualified from trying the case. In Anandi Parshad v The Emperor, 21 Cr. L J 394 on a report made by a Cantonment Official, the Cantonment Magistrate passed the order, "A is to blame. Prosecute A" and then proceeded to try the case himself and convicted the accused. It was held that the Magistrate should have informed the accused that he was entitled to have the case tried by an other Magistrate and should not have tried the case himself. In Lorinda Ram‑Sewa Ram v. The Crown, I L R Lah. 351 the District Magistrate, on receiving certain information regarding the working of certain factories at Lahore, directed an Extra Assistant Commissioner to make enquiries and submit a report. The Extra Assistant Commissioner reported that the factory of Lorinda Ram‑Sewa Ram had employed some women and chil dren contrary to the provisions of sections 23, 24 and 27 of the Indian Factories Act. On receiving this information the District Magistrate recorded an order sanctioning the prosecution of the owner and manager of the factory. He then took cognizance of the cases against him and convicted him on a number of charges. He was held to have been disqualified. The case of Queen Empress v. Chenchi Reddi, reported as T L R 24 Mad. 238 was reported to and distinguished in the above mentioned judgment. In Queen Empress v. Chenchi Reddi it was held that section 556 Cr. P. C. did not cover the case of a Magis trate who merely authorised but did not direct the prosecution. In Lorinda Ram‑Sewa Ram v. The Crown the District Magis trate had directed the prosecution and the illustration to section 556 Cr. P. C. was held to be applicable. On the other hand it was held In re Pandia Mahar, A I R 1924 Nag. 23 that a Court which sanctions or directs a prosecution is not thereby rendered incompetent to try the offence or to hear an appeal against a conviction for it. It is not necessary to discuss in this case all the judgments cited at the Bar and the various provisions of the Criminal Procedure Code referred to for the purpose of showing what is a complaint and who is a complain ant in a case, because of the clear and authoritative pro nouncement of the Federal Court on the question before us. In this judgment, Ghulam Rasul v. The Crown, it has been held to be highly undesirable that a judicial officer should act judicially in a case in which he had occasion to investigate extra‑judicially and in which he had formed an opinion adversely to a party against whom he had directed a prosecution or the institution of an appeal or revision In my opinion, even if it could be said that Mr. Ahmad Shafi had investigated the case extra‑judicially before he gave the information to the police, it cannot be said that he had formed any opinion adverse to the accused or that he had directed his prosecution. I, therefore, hold that there is no force in the contention of the learned A. A. G. that Mr. Ahmad Shafi was debarred from hearing or deciding this case. In conclusion I may repeat that this is an appeal from acquittal and orders of acquittal should not be lightly set aside. It has been held by the Privy Council in Sheo Swarup and others v. King Emperor that in deciding appeals from acquittal the High Court should and will always give proper weight and consideration to such matters as the views of the trial judge regarding the credibility of the witnesses, the presumption of innocence in favour of the accused, which is by no means weakened by his acquittal after trial, and the right of the accused to the benefit of any doubt arising in the case. Having carefully considered the facts of the case I am unable to hold that there has been any miscarriage of justice in this case, as alleged by the Crown, and I would dismiss the appeal. M. SOOFI, J.‑I agree. A. H. Appeal dismissed.