1993 PLP 2177 (SCMR)

SAAD SAOOD JAN, J: ‑‑These are two appeals by special leave from the judgment of Lahore High Court, whereby it upheld the convictions of the respondents on charges under sections 323 and 504 read with section 34, Pakistan Penal Code, but enhanced their sentences. These appeals have been preferred by the complainant, Talib Hussain, who still feels that the respondents have been lightly treated and thus miscarriage of justice has taken place.

2. On a complaint filed by Talib Hussain, the respondents were tried by the Sessions Judge at Toba Tek Singh under sections 295, 325, 326, 330, 347, 394, 452, 500 and 504, read with section 149, and section 148, Pakistan Penal Code. The learned Sessions Judge found them guilty of offences under sections 323 and 504 read with section 34, alone. For the offence under section 323, he sentenced them to imprisonment till the rising of the Court and a fine of Rs.500 each. For the offence under section 504 he sentenced them again to imprisonment till the rising of the Court and a fine of Rs3,000 each. From the judgment of the learned Sessions Judge, Talib Hussain as well as the respondents filed appeals before the High Court. A learned Single Judge upheld the convictions of the respondents on the charges under sections 323 and 504, but enhanced their sentences of fine only.

3. From the judgment of the learned Single Judge both parties sought leave to appeal from this Court. The petitions preferred by the respondents were dismissed but leave was granted to Talib Hussain with the following observations:‑‑ "We find no merit in the petitions filed by Raja Anar Khan, Muhammad Siddique and Rehmatullah. Hence Criminal Petitions Nos333‑L, 353‑L and 381‑L of 1990 are dismissed. However, we feel greatly disturbed by the actions and doings of the local administration including the magistracy and the police responsible for maintaining law and order on the fateful day and consider that this Court should also examine the matter in greater depth to satisfy itself whether the orders passed by the Courts below satisfy in adequate measure the demands of justice? Leave is, accordingly, granted in Criminal Petition No. 287‑L of 1990 and Criminal Petition No.288‑L of 1990." It may be mentioned that the petitions in which leave has been granted were filed by Talib Hussain.

4. During the pendency of the appeals, Rehmat Ullah Khan Niazi, respondent No.2, died. Thus, so far as he is concerned the appeals have abated. Muhammad Siddiq, respondent No.3, has not cared to contest the appeals.

5. Immediately after the elections to the National and Provincial Assemblies held in March 1977 public agitation started all over the country with allegations of wide‑scale rigging. It was organized by the Pakistan National Alliance which represented a number of political parties. On the afternoon of 21‑3‑1977, about 15 or 16 sympathisers of the Alliance in Kamalia Town and surrounding villages gathered in the house of Bashir Ahmad Shamsi (P.W.2) who was the local Amir of Jamaat Islami, and held a meeting to consider how they should protest against the allegedly rigged elections.

6. At the relevant time Anar Gul Khan, respondent No. 1, was posted as Inspector of Police at Kamalia. Rehmat Ullah Khan Niazi, respondent No.2, was Station Hou‑e Officer at Police Station, Kamalia, while Malik Abdur Rashid, respondent No.4, was posted as Head Constable at the said Police Station; Muhammad Siddiq was the Resident Magistrate at Kamalia. When they learnt about the meeting they went to the house of Bashir Ahmad Shamsi (P.W.2) with a posse of about 250 men and surrounded it.

7. Those present at the meeting decided that some of them should go out and offer themselves for arrest. Accordingly, seven persons emerged from the house with copies of the Holy Book around their necks. The rest latched the door of the house from inside. The respondents and some members of their force set upon these seven persons and severely mauled them. Some of them had their bones broken. Soon thereafter the respondents alongwith some of their companions entered the house of Bashir Ahmad Shamsi (P.W.2) by forcing open the door. Those present inside took shelter in different parts of the house. The respondents hauled them from their hiding places and gave them a severe beating. They then forcibly removed the Shalwars of these unfortunate persons. Talib Hussain (P.W.1) was selected for special treatment. Anar Gul Khan took off his batch pin and pierced it through his nose. From his Chaddar Anar Gul Khan tore off a strip and twisted it into a rope. He tied the rope with the pin passing through the nose of Talib Hussain. He then forced Talib Hussain to dance like a monkey naked through the streets of Kamalia alongwith his other companions whose Shalwars had been taken off and took them to the local bus stop where after giving them another beating he scattered them. All through the way Anar Gul Khan kept mocking at his helpless captives.

8. After the incident Talib Hussain (P.W.1) tried to lodge a report with the police but no one would register a case at his instance. He then tiled a Constitution petition in the High Court. On the direction given by the High Court a case was ultimately registered at Police Station Kamalia against the respondents. In the meanwhile, Talib Hussain (P.W.1) also filed a complaint with the Ilaqa Magistrate. Subsequently, the High Court transferred the complaint to the Court of Session for trial.

9. At the trial, the respondents pleaded not guilty to the charges against them. Anar Gul Khan, Rehmat Ullah Khan Nazi and Malik Abdur Rashid stated that they were not present at Kamalia at the relevant time. Muhammad Siddiq, respondent, stated that on the day of occurrence he learnt that a group of persons had gathered in a street in violation of the order made by the District Magistrate under section 144, Criminal Procedure Code. However, when he reached there he found that a police party with the help of the Federal Security Force had already dispersed the agitators. They examined 22 witnesses in their defence.

10. In support of the allegations which he made, Talib Hussain (P.W.1), apart from examining himself, produced 7 witnesses. Most of them were also beaten by the police at the time of occurrence as the injuries on their persons indicated.

11. After appraising the evidence led by both parties the learned trial Judge found that the allegations made by Talib Hussain (P.W.1) were substantially true. In this context, he observed: "I therefore, hold that the Nukail was put in the nose of Talib Hussain (P.W.1). As already remarked by me that Mian Mahboob Alan Advocate (P.W.8) has not tried to exaggerate the version of the occurrence, so in the light of his evidence read with other evidence on the record, I hold that some of the P.Ws. were made naked and they were paraded in that condition." In appeal the High Court reappraised the evidence and upheld the findings of the learned trial Judge. It observed: "Seven witnesses are unanimous at one point that Nukail was put into the nose of P.W.1 Talib Hussain and a string was made from the Chaddar of Talib Hussain. The narration of the occurrence by Mian Mehboob Alam, Advocate, is natural, he has not exaggerated the version in any manner, thus, it only stands proved on the record that P.Ws were stripped off naked and were made to parade in that condition." In view of these concurrent findings which, in the absence of any plausible ground, we are not prepared to disturb, the conviction of the respondents under sections 323 and 504 read with section 34, is hardly open to any doubt.

12. All that can be said in favour of the respondents is that Talib Hussain (P.W.1) and those who remained inside the house had abetted disobedience to the order promulgated by the District Magistrate under section 144, Criminal Procedure Code, and thus had committed the offence under section 188, read with section 109, Pakistan Penal Code. However, there is no evidence that they had resisted arrest or posed any threat to the respondents. The offence under section 188 was a bailable one. In the circumstances the beating given to them by the respondents was entirely unjustified and could hardly be related to the performance of their official duties. The respondents' further conduct in forcibly taking off their Salwars, putting a Nukail on Talib Hussain (P.W.1), parading them in the streets of Kamalia and again beating them at the bus stand was wholly illegal and, to say the least, inhumane.

13. The major role in the occurrence has been ascribed to Anar Gul Khan, respondent No.1. It was he who had the clothes of Talib Hussain (P.W.1) and his companions removed, stuck his batch pin in the nose of Talib Hussain, tore a strip from the Chaddar, twisted into a rope, fixed the rope on the pin to serve as a Nukail, paraded Talib Hussain (P.W.1) and his companions through the streets of Kamalia in naked state, made Talib Hussaoin (P.W.1) to dance like monkey, taunted them on the way and beat them up at the bus‑stop. While hearing the appeals I wondered if any civilized person could treat another human being in this fashion much less a senior police officer whose primary duty was to protect the honour of the citizens. Its perpetrator showed a perversity of mind which was nothing but sheer sadism. We are surprised that the department to which he belonged did not care to hold any inquiry into the allegations, made against him for we find that he is still in the service and has in fad been promoted to the next rank. Criminal proceedings apart, his department could not abrogate its own responsibility in a matter where its officials had treated the citizens in such a shameful manner. Disciplinary proceedings against the officials ought not to have been postponed till the conclusion of the criminal case. This Court has already held that criminal proceedings and departmental action can go on side by side and may even end in varying results. See Deputy Inspector -General of Police v. Anis‑ur‑Rehman Khan PLD 1985 SC

134. The reason for this is very simple. In departmental proceedings the desirability of a civil servant to continue in service is under examination whereas the object of the criminal proceedings is to determine and enforce the criminal liability of an accused. The nature of evidence and the standards of proof are different in the two proceedings.

14. Ours is one of the few Constitutions in the world which recognises the dignity of man as one of his fundamental rights. It is true that at the relevant time a proclamation of emergency was in force and for that reason many of the Fundamental Rights enshrined in our Constitution could not be enforced through a Court of Law, yet it did not absolve the functionaries of the State from their duty in respecting them; in fact, these could be tread upon only to the limited extent that was absolutely necessary for serving the objects of the proclamation. After all when such a proclamation is in force the country cannot be treated as one under siege; there are no rulers and the ruled in Pakistan and there is no licence for any one no matter how high his office may be to degrade the citizens or toy with their rights on any pretext whatsoever.

15. For the reasons stated above, we are of the opinion that the enormity of the conduct of the respondents clearly called exemplary punishment for at least the main culprit and we are surprised that both the High Court and the trial Court let off all of them with almost a meaningless sentence of imprisonment till the rising of Court which is ordinarily reserved for technical offences. Talib Hussain (P.W.1) was therefore justified in complaining against the gross inadequacy of the sentences awarded in this case.

16. Malik Abdur Rashid, respondent No.4, was merely a Head Constable. Alongwith him were arraigned the Station House Officer and the Inspector of Police. Although, our Legal Order does not recognize the plea of a subordinate in support of his palpably illegal action that he was acting under the directions of his superior yet, at times, it may be treated as a relevant factor in assessing the quantum of sentence that may be passed upon him. We would therefore not enhance the sentence already imposed upon him by the Courts below. As regards Muhammad Siddiq, respondent No.3, he played a secondary role. He is no longer in service. Although, he should have stopped Anar Gul Khan from behaving in the manner in which he did, we doubt very much if the latter would have listened to him. We would therefore refrain from interfering with the sentence already awarded to him. So far as Anar Gut Khan, respondent No.1, is concerned there are no extenuating circumstances in his favour. We would have without any hesitation passed upon him the maximum sentence of imprisonment provided by the Pakistan Penal Code for the offences under sections 323 and 504, but then we find that the occurrence took place more than sixteen years ago and he has already undergone the agony and expense of prolonged trial. Taking these circumstances into consideration we consider that the interest of justice would be served if he is directed to undergo rigorous imprisonment for a period of six months under section 323 and for a similar period under section

504. We order accordingly and also direct that the two sentences shall run concurrently. The sentences of fine imposed upon him do not require our interference. The District Magistrate, Toba Tek Singh shall now take steps to ensure that Anar Gul Khan undergoes the sentences awarded to him. The two appeals are disposed of accordingly. M.BA./T‑88/S Appeals posed of.