P L D 1958 Karachi 449 (PLP)

" I have been informed by some spy that this man namely Tajo son of unknown by caste Brohi, residence Bakhshlani is an absconder in a theft case. On getting this information I produce this Tajo Brohi before you under S. 54, Cr. P. C. The report will be submitted later on." Mashghul made the following entry in the station diary, Ex. 7 . " At 12 o'clock in the night mounted Constable produced Tajo Brohi and he deposed that Tajo is an absconder. He should be arrested and sent to jail. Further details are given in the diary." The other entries are not important for the present purposes and it is sufficient to state that in consequence of these incidents Taj Muhammad was sent to the sub‑jail and remained there in confinement until he was released on the 6th of August 1953. The argument of the learned counsel of the appellants is that if the story of the prosecution is believed then Taj Muhammad was wrongfully confined by being handcuffed by Allahditto while he was on his usual round and that Allahditto ceased to have any authority to deal with Taj Muhammad after he produced him before Mashghul who was in charge of the police station. If Allahditto is guilty of an offence then according to the learned counsel his crime falls under S. 342, P. P. C. Mr. D'Souza actually lodged his report under S. 342 read with section 120, P. P. C. Mashghul, being in charge of the police station, had the authority to commit the accused to confinement and whatever he did in exercise of this authority is a separate offence which can fall under S. 220, P. P. C. This distinction, according to the learned counsel, has not been appreciated by the trial Court and the two offences have been treated as one and the same. The first question which was put to Mashghul by the committing Court was as follows :‑ " You have heard prosecution evidence that you and Allahditto in your official capacity effected the arrest of Taj Muhammad illegally and maliciously on 1‑8‑53 for preventing Taj Muhammad from rendering any active assistance to Ali Khan and Wazir in crime No. 35 of 1953 under S. 406, P. P. C. of Garhi Khairo Police:" Similarly, the first question put to Mashghul by the trial Court was " The statement made by you in the lower Court, Ex. 48 is read over to you. Did you make it and is it correct ?" A common charge was framed against the appellants and it is as follows : That you on or about 1st August 1953 at about 12 night being Head Constable and Mounted Constable Garhi Khairo Police Station maliciously committed Tajo son of Mari Khan Brohi in confinement knowing that in doing so you were acting contrary to law and thereby committed an offence punishable under S. 220 of the Pakistan Penal Code and within cognizance of this Court of Sessions, Sukkur. The contention of the learned counsel is that the two sets of facts forming two distinct offences have been mixed up so that it was not possible for the accused to know whether the arrest and confinement by Allahditto Mounted Constable and the confine ment by Mashghul were the joint responsibility of both the accused or whether they had to defend themselves for each set of facts attributable to them separately. I propose to discuss first the first objection of the learned counsel namely Ex. 5 is the F. I. R. and Ex. 18 is not admissible in evidence. Ex. 5 as stated above is an application by Ali Khan in which he recounted the facts of harassment by the police to himself and his brother. As one of the instances of harassment he mentioned that Taj Muhammad was kept in jail illegally merely on the ground that he was trying to help the two brothers. He stated in the application : " If your goodself is pleased to record our statements personally then we promise to expose the misdeeds of, the police." Further " Sir, now I most humbly beg to request your kind honour to make immediate enquiry in this matter and your goodself can get much about this conspiracy of making secret enquiry from constable A. Haq of Garhi Khairo who would tell the whole facts." The application of Ali Khan was therefore a general complaint against Garhi Khairo police station regarding the treatment meted, out to himself and his brother and it was taken to be so by the S. P.. who has stated in his cross‑examination as follows " As it was a complaint against Garhi Khairo police I did not sent it for enquiry to S. T. P. Garhi Khairo and I deputed a responsible gazetted officer to make the enquiry." D'Souza who made the enquiry under the orders of the S. P. collected relevant documents and conveyed his impressions to the S. P. personally. It appears that he found that there were reasonable grounds for lodging a report against Allahditto and Mashghul with regard to the offence of wrongful confinement and for investigating the offence. The S. P. ordered him to lodge a report. After lodging the report, EX. 18, D'Souza recorded the statements of witnesses under S. 162,‑Cr. P. C. This is clear from the, order recorded" which the proceedings of the investiga tion had been recorded" The learned counsel of the appellants contended that statements of witnesses must have been recorded by D'Souza at the time of securing various documents because the documents could not be taken into possession without preparing Mashirnamas and without recording the statements in the Mashirnamas of the persons who delivered the documents to him. This is however not correct. No Mashirnamas are on the record and they need not have been prepared because the documents were taken into his personal possession from official custody. The procedure followed by D'Souza before lodging the report was not the procedure of an investigation in pursuance of a first information report but of a departmental enquiry under the orders of a superior officer. The allegation contained in the application of Ali Khan Ex. 5, that Taj Muhammad was kept in jail illegally was too incomplete for an investigation to proceed on it solely. There was for instance no mention in this information of the names of the offenders ; in fact, the name of Mashgul does not appear in the list of the 6 persons who were named 4in the application of Ali Khan, and Allahditto is not named as one .who illegally confined Taj Muhammad. The object of‑ the learned. counsel in raising the contention that the application Ex. 5 is the first information report is to raise the consequential contention that Mashgul's name, having been omitted in the application, his subsequent inclusion in the proceedings is untrustworthy because an accused whose name is not mentioned in the first information report should be regarded to have been implicated on a design and falsely. The omission of which he means to take advantage is really one of the circumstances which show that the application, Ex. 5, was not meant to be a first information report regarding the wrongful confinement of Taj Muhammad. The object of the application was "to expose the misdeeds of the police" as stated in the application itself. Moreover, the statement which are excluded from an enquiry or trial under section 162 of the Cr. P. C., are those which are made " in respect of any offence under investigation at the time " when such statements are made. It was, therefore, necessary for the learned counsel, in order to succeed in getting Ex. 18 C excluded from evidence to show that this report was made at a time when the offence of wrongful confinement was under investigation. The fact is that D'Souza was not investigating this offence but was concerned with the general conduct of the police regarding the harassment of Wazir and Ali Khan so as to be able to apprise the Superintendent of Police of it. His search disclosed to him the commission of an offence and he lodged a report regarding it under orders of the Superintendent of police. I hold, therefore, that Ex. 5 was not meant to serve and could not by itself serve as the first information report for purposes of section 154, Cr. P. C., and that in any case Ex. 18 is not inadmissible in evidence under section 162 of the Cr. P. C. The second objection of the learned counsel regarding the joint trial can be said to be a dangerous weapon as far as the appellants are concerned. This is not a case in which there may be a doubt regarding the material facts of the case and therefore the result of the acceptance of this contention can be expected to be a retrial only. The appellants have been sentenced to six months' rigorous imprisonment for an offence for which maximum punishment provided by the Penal Code in seven years. If the appellants are retried for two offences then I am not at all sanguine that they can achieve a better result. I would have issued a notice for enhancing punishment in this case if two years had not passed since the appellants were sentenced. The learned counsel of the appellants has however pressed the objection and I have to examine it in order to discover its validity. I should point out that both the appellants have given lengthy statements with regard to the part played by each of them and furnished an elaborate explanation of their individual conduct. The only prejudice which the learned counsel was able to point out is that no distinction has been drawn between two sets of facts constituting two offences, whereas each set relates to one of them only. Actually, both of them have been held to be liable for one offence only, and if there were two offences, then one of them has apparently escaped notice. The charge sheet relates to the facts which took place from arid after 12 p.m. in the night. The learned counsel contended that the offence which escaped the attention of the trial Court is obviously the alleged confine ment of Taj Muhammad by Allahditto. The learned Additional Sessions Judge did draw up a list of 5 points for consideration and under point No. 2 has discussed the facts of wrongful confinement by Allahditto, but this was done because these facts formed the background of the association of Allahditto with the subsequent events and no punishment has been awarded to either accused on their basis. The learned counsel has conceded that the facts which formed the background could be brought on record, but has contended that Allahditto at least has been made liable for the arrest and confinement in Sub‑Jail by Mashgul with which Allahditto had no concern. This objection can be met after its basis is explained. The defence counsel of Allahditto argued before the Additional Sessions Judge of Jacobabad that under section 220, P. P. C., Allahditto had no authority to detain Taj Muhammad and the A. P. P., conceded this. The Additional Sessions Judge has not discussed this aspect of the case in his judgment. The learned counsel of the appellants has argued that since Allahditto had no authority to confine or keep persons in confinement in terms of section 220, P. P. C., the most important ingredient of the section was missing as far as Allahditto was concerned. He contended that in these circumstances joint trial of Mashgul and Allahditto was illegal and so was the conviction of Allahditto under section 220, P. P. C. The objection regarding joint trial really speaking does not arise from the facts of the case because joint trial under section 239, Cr. P. C., is permissible on the basis of the accusation made against the accused and a subsequent discovery that the allegations were not established does not always invalidate the trial. Moreover in this case the accusation did not include the facts of the arrest of Taj Muhammad at his house at 11 p.m. by Allahditto. The charge which was framed against the appellants is clear in this regard. The argument of illegal joint trial has been advanced on the basis of counsel's own argument that there were two offences of which neither the prosecution nor the defence was fully aware at the time of trial. If Allahditto committed an offence by taking Taj Muhammad into his custody and bringing him to the police station then there has been no effect of it on the result of the trial except, that the facts constituting the offence have been used to establish that both appellants had ‑the inclination to confine and harass Taj Muhammad. Section 220, P. P. C., is applicable to those who have the legal authority to commit persons for trial or to confinement and to keep persons in confinement. There is no doubt that Mashgul enjoyed this authority under section 54, Cr. P. C. A glance at this question shows that this authority is not enjoyed by those police officers only who are in charge of police stations but by any police officer. According to the allegations made against Taj Muhammad he was connected with a cognizable offence namely theft and was an absconder. In these circums tances, if they were genuine, Allahditto could arrest Taj Muhammad without an order from a Magistrate and without a warrant. The learned counsel of the appellants has contended that the real basis of his objection is not that Allahditto did not at all have the legal authority to confine Taj Muhammad, but that after Taj Muhammad was brought to the police station, under section 60, Cr. P. C., it was the duty of Allahditto to hand over the charge of Taj Muhammad to Mashgul and to leave it to him to take such action as was considered proper. In other words, the point of his argument is that Allahditto washed his hands of' the affairs after placing Taj Muhammad in the charge of Mashgul and his authority which was exercisable under section 54, Cr. P. C., ceased to be effective Advantage is sought to be taken of this argument for interpreting facts. It is suggested that as a matter of fact Allahditto could not associate and did not associate himself with the acts of Mashgul ; but this is not true because their enmity towards Taj Muhammad was deeper than can be consistent with impersonal performance of their individual duties. The necessity of establish ing this background led the prosecution to establish those facts which reveal the common intention of the appellants. May be that this object of the prosecution has become blurred in the discussion of the evidence by the learned Additional Sessions Judge but it amounts to a misinterpretation of the evidence of the prosecution and of the judgment to contend that the appellants have been questioned, charge‑sheeted and convicted for more offences than one. The effect of section 60, Cr P. C. on the liability of Allahditto is nothing more than a change in the angle of view. At the police station Allahditto abetted the crime committed by Mashghul. He produced Taj Muhammad with a tentative report in writing, Ex. 15, in which he stated that Taj Muhammad was a resident of Bakhshali and was an absconder in a theft case. He produced Taj Muhammad under section 54, Cr, P, C, The detention, in confinement of Taj Muhammad by Mashghul was the direct result of the aid and instigation provided by Allahditto. Mashghul is, therefore, liable under section 220, P. P. C., and Allahditto is liable under section 220, P. P. C read with section 109, Cr. P. C. The conclusion is that joint trial was validly held under clause (a) of section 239, Cr. P. C., in terms of the accusation made against the appellants and under clause (b) of section 239 in view of the facts as they have been proved. No prejudice has been caused to the appellants on account of the form of the charge or the questions put to them under section 342, Cr. P. C. The second objection of the learned counsel of the appellants is therefore overruled. Before parting with this case I should refer to two minor objections raised by the way during the discussion by the learned counsel of the appellants. One of them is that S.

1. P. Said Ahmed was present at the police station when Taj Muhammad was produced, that he had an enmity towards Taj Muhammad and his friends on account of the incident relating to the purchase of ice, that he ordered the confinement of Taj Muhammad, and therefore the entire responsibility of wrongful confinement rests on him. Both the appellants have stated in Court that he was present at the police station and Taj Muhammad himself had also said so. I do not believe these statements to be true. It appears to me that the appellants have tried to implicate the S. I. P. in the hope of saving themselves and that Taj Muhammad has deposed regarding the presence of the S.

1. P. due to a deception of his memory. I do not believe that S.

1. P. Said Ahmed had any ill feeling against Taj Muhammad on account of the incident relating to the purchase of ice because according to Wazir it was he who made Allahditto to apologize to him. Even if the allegation against the S.

1. P. were correct, they could not absolve the appellants of their responsibility under law. I may add in order to disclose my mind fully that 1 do not believe the statement made in the report, Ex. 15, of Allahditto that a spy had given him the information that Taj Muhammad was an absconder ; nor do I believe the statement of Mashghul made in Court that he did not order Allahditto to arrest Taj Muhammad. The acts of the appellants were done in pursuance of a common design however much it might have been devoid of preconceived details. The second of the two minor contentions of the learned counsel is that Taj Muhammad has been shown by the prosecution to be a businessman of some repute but actually he is nothing but a servant and stooge of the two brothers, Wazir and Ali Khan. A certified copy of a judgment dated the 3rd September 1956 by the Additional Sessions Judge, Jacobabad, against Wazir and Taj Muhammad has been produced in order to show that both of them are convicts under section 325/34, P. P. C. and that neither the prosecution evidence is wholly trustworthy nor Taj Muhammad and Wazir are reliable witnesses. This copy was taken on the file, on an application, by me because the counsel for the State had no objection to it and because I wanted to give the appellants full opportunity to present their case in the High Court. The conviction took place in 1956 on the allegation of the complainant Ilahi Bux that Wazir and Taj Muhammad de Molished his `minah' and inflicted injuries on two or three persons. The accused pleaded guilty and the proceedings resulted in their conviction. The fact that they were convicted under section 324/34, P. P. C. does not throw any doubt on the facts that the appellants were inimically disposed towards Ta j Muhammad on account of the previous incidents and that they wrongfully confined him in order to prevent him from helping Wazir and Ali Khan. These facts have been established beyond any reasonable doubt with the help of documentary evidence. The appeal is dismissed subject to the modification that Mdshghul is convicted and sentenced under section 220, P. P. C. and Allahditto is convicted and sentenced under section 220 read with section 109, P. P. C. The appellants are on bail. They have to surrender themselves and undergo the remaining term of the sentence. K.B.A. Appeal dismissed.