2013 P Cr. L J 1535
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD AKRAM ---Appellant
Versus
The STATE ---Respondent
Criminal Appeal No.6 of 2011, decided on 13th June, 2013.
Penal Code (XLV of 1860) ---
----S. 218 ---Public servant framing incorrect record or writing with intent to save person from
punishment or property from forfeiture ---Appreciation of evidence ---Allegation against accused
was two -folds; firstly that he reduced into writing an order of a cquittal on papers of remand
pertaining to an accused, instead of conviction and the punishment awarded to said accused;
secondly, accused managed to get the remand papers signed by the Trial Court through fraud and
in consequence thereof said convict mana ged his release from the Jail ---Prosecution was required
to establish the act as alleged on the part of accused which resulted in release of convict ---Way
in which the matter was dealt with had shown mala fides on the part of the prosecution, which
could n ot be ignored ---Neither the investigation was properly made, nor all the concerned
persons were booked in the case and no Police report was submitted to their extent ---By
recording of findings only to the extent of accused would amount to administrative in justice, and
recourse to all the remaining persons, seemed to be involved in the commission of the offence, to
go free and to escape from law ---No findings would have been recorded in such like situation,
being not just or proper ---Impugned order of court below was set aside and case would be
deemed to be pending with the said court ---Investigating authorities, were directed by High
Court to re -investigate the matter, re -submit the report (challan) within the stipulated period;
thereby booking all the perso ns found involved in commission of offence and trial be held
against all the nominated persons including the present accused ---Trial Court was further
directed to finalize the matter within shortest possible time.
Noorullah Kakar for Appellant.
Ms. Sarwat Hina, Additional Prosecutor -General for the State.
Date of hearing: 14th December, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The feeling of grievance against the judgment
dated 9th February, 2011 of Additional Sessions Judge -IV, Quetta, whereby he was convicted for
the offence, and punished under section 218, Pakistan Penal Code (P.P.C.) while sentenced to
suffer rigorous imprisonment for a period of one year with fine of Rs.5,000 (Rupees five
thousand only), and in default thereof furthe r imprisonment for one month, resulted in filing of
the instant appeal. The appellant appeared with the contention that the available evidence and the
material on record was not duly considered, rather the material aspect of the case was overlooked
and the findings recorded on no grounds. Further, the prosecution witnesses failed to corroborate
each other, rather their statements appeared with dishonest improvements and contradictions,
thereby lessen their legal sanctity. Furthermore, the trial court with a n act of misreading, and
non-reading of the evidence unable to consider that the appellant's involvement in commission of
the offence was with mala fides. Further, the fact that the case as made out by the prosecution
failed to constitute any offence, was ignored. In addition thereto without any reason the defence
evidence was disregarded, and complete reliance was placed on the prosecution version, the error
so committed prejudiced his right. It was his contention that in view of the narrated facts the
benefits arising therefrom were withheld, in violation of law. Furthermore, proper findings on the
points for determination were not recorded, thereby making the decision of no legal effect. The
appellant prayed for setting aside of the conviction order and h is acquittal of the charge.
2. The perusal of the record reveals that the appellant was booked in a case pursuant to
F.I.R. No.116 of 1998, Police Station Civil Lines, Quetta, registered on 8th August, 1998, on the
report of one Muhammad Iqbal, Reader of the Court of Additional Sessions Judge -I, Quetta. It
was reported that vide judgment dated 6th July, 1998 the accused Zaman Khan, convicted in the
case, and sentenced for (14) fourteen years rigorous imprisonment with fine, while the copy of
the judgment was provided to the convict in the court, and committal warrant was handed over to
the Naib Court namely Muhammad Akram/present appellant as per practice on 6th July, 1998.
But, on re -arrest of the convict Zaman Khan by CIA Staff, and on his production bef ore the
court, the fact disclosed that on the relevant date the Naib Court Muhammad Akram played fraud
by inserting a direction on the remand papers for release of the accused describing him (convict)
being acquitted of the charge instead of conviction. Fu rther, the Naib Court/appellant managed to
get the remand papers signed from the trial Judge with misrepresentation, and fraud.
Furthermore, the warrant of committal was not received by the concerned authorities describing
it in to be misplaced.
3. On re gistration of the case, investigation was made, and on completion thereof the police
report was submitted, and the trial commenced. The charge was framed on 30th August, 2010 for
the offences under sections 420, 466, 219, 218, P.P.C. The appellant not only denied the charge,
but also claimed trial. The prosecution produced seven witnesses; while in defence the appellant
neither produced any witness, nor appeared as his own witness. The trial Court vide judgment
dated 9th February, 2011 found the appellant g uilty of the charge, punished him under section
218, P.P.C., and sentenced him to suffer rigorous imprisonment for a period of one year with fine
of Rs.5,000, and in default thereof to undergo simple imprisonment for a period of one month
with benefit of s ection 382 -B Criminal Procedure Code (Cr.P.C.). Being dissatisfied with his
conviction, the appellant before this court for setting aside of the same.
4. The learned counsel for the appellant urged false implication of the appellant in the
instant .case with mala fides. It was his contention that a Naib Court has no concern with the
papers of remand which exclusively maintained by the court through its staff. Further, in the
given circumstances the lockup in -charge, who was responsible for the movement of the under
trial prisoners, was the person responsible for the mishap. The learned counsel further contended
that the questioned order neither hand written by the appellant, nor bear his (appellant's)
signature. Further, the papers were not sent for an exp ert's opinion, to get it confirmed to be in
hand writing of the appellant. Rather the act of negligence was on the part of the jail authorities,
due to which the convict succeeded to escape. It was contended that the petitioner being an
official of lower r ank, was falsely implicated in the instant case, and in a state of fear, as the
proceedings were initiated against the trial Judge, he absconded to save himself from the agony
of trial. The learned counsel was of the view that the mere fact that the appell ant remained
absconder cannot be made a ground for awarding him conviction for an offence, only alleged not
proved by any other material.
5. The learned Additional Prosecutor -General (APG) only stated that sufficient evidence
was available against the ap pellant, and the prosecution succeeded to establish its case. Further,
the trial Court with proper appreciation of the material arrived to a correct decision. It was her
contention that the handwriting on the questioned remand paper was established to be o f the
appellant; which resulted in an order of conviction, therefore, not suffer from any illegality, and
need no interference.
6. The learned counsel for the appellant replied the arguments while stating that there was
complete failure on part of the pr osecution to make out a case for his conviction, as the
complainant retracted from his earlier statement, and also the contents of F.I.R. were not
affirmed. But, the trial Court recorded conviction while ignoring the defects appearing in the
case of the pr osecution.
7. The allegation against the present appellant was of two folds; firstly that he reduced into
writing an order of acquittal on paper of remand pertaining to an accused person namely Zaman
Khan instead of the conviction and the punishment awar ded to him (Zaman Khan). Secondly he
(appellant) managed to get the remand papers signed by the trial Judge through fraud. And in
consequence thereof convict Zaman Khan managed his release from the jail. In view of the
allegations, the prosecution was requ ired to establish the act as alleged on part of the appellant,
which resulted in release of a convict, co -accused in the instant case; from the prison. Therefore,
to substantiate the charge number of witnesses were produced. Prosecution witness No.1 (P.W.1 )
Muhammad Iqbal/the complainant. Reader of the concerned court, was the most important
witness of the occasion. While recording his statement he made identical deposition as made in
his written report. In addition thereto he (P.W.1) stated about handing o ver of copy of judgment
to the convict Zaman Khan in the court, on announcement of the order with further assertion
about handing over of the committal warrant to Muhammad Akram/the present appellant to get it
served to the in -charge of the lockup for onwa rd transmission to jail authorities. It was further his
statement that the fault disclosed on 25th July, 1998 when the convict Zaman Khan was arrested
by CIA Staff. The witness involved the appellant in commission of the offence; and described
him as the m ain culprit.
8. Ameer Muhammad the then Senior Clerk at District Quetta, appeared as P.W.2, and it
was his statement that on 6th July, 1998 on return of the under -trial prisoners the judicial remand
papers were handed over to him, wherein he found the qu estioned paper with an entry that
accused Muhammad Zaman be released, if not required in any other case, therefore, said
Muhammad Zaman was released from the jail. It was further his statement that on the very next
day the fact of awarding conviction to Mu hammad Zaman came into their knowledge. The
witness admitted the suggestion that in case of acquittal a specific order about acquittal of an
under -trial prisoner sent to the jail authorities by the concerned court, but in the referred case no
such order of acquittal was received by them (jail staff).
9. P.W.4 Saadullah Khan Assistant Superintendent District Jail, Quetta another important
witness, made deposition that on 6th July, 1998, all the under -trial prisoners were returned from
the court, while the judicial remand papers contained the date fixed for hearing of the cases,
except the prisoner Zaman. On whose (Zaman's) remand paper the direction was given for his
release being acquitted of the charge for want of proof. Therefore, in compliance of the di rection
the accused Zaman Khan was released. It was further his statement that after three weeks said
Zaman Khan was again arrested, thereby the fact disclosed that the accused was convicted, and
sentenced. Therefore, on revelation of the fact inquiry was conducted by the Sessions Judge,
Quetta, and he participated therein, while during course he was informed that the accused person
was rightly released from the jail. But, the witness admitted that in case of acquittal of an under -
trial prisoner, the concer ned court informed the jail authorities with a direction to release the
prisoner if not required in any other case, by way of an official letter.
10. In view of the material on record the case as set up by the prosecution placed sole
responsibility of th e alleged act on part of the appellant with an allegation that while performing
his duties as Naib Court in the court of Additional Sessions Judge -I, Quetta, at the relevant date,
he committed the act, which resulted in release of a convict. No other perso n was involved in
commission of the act except the appellant along with the mentioned convict. But, the material
on record failed to speak about the nature of the job assigned to a Naib Court, and to fix liability
on him. Apart from the same, the nature of the allegation and the material on record gave rise to
certain questions, which were to be replied by the prosecution. The alleged act comprises of
release of a convicted person from custody, by making wrong entry in the remand paper. As the
matter pertai ns to the procedure required to be adopted by the trial Court, as well as by the staff
and officers of the prison before releasing a prisoner, either under -trial or serving the sentence.
Therefore, before dilating to the evidence, and the available materia l and recording of findings
on merits of the case the procedure as available in the statute has to be gone through to trace out
the lapses, and thereby assessed the role of the appellant. The provisions of Criminal Procedure
Code 1898, (Cr.P.C.) contained specific procedure for intimating a conviction or an acquittal
awarded to an accused person by the court to the Officer Incharge of jail, who has to comply the
orders so communicated. Sections 384 and 385 Cr.P.C. directed issuance of a warrant of
execution of sentence of imprisonment, and the directions therein has to be complied by the
Officer In -charge of the jail or the Jailer. The Pakistan Prison Rules, 1975 (hereinafter referred to
Rules, 1975), provides a complete procedure to be adopted by the prison staff while making
admission of the prisoners in the prison, keeping them in custody, and also in case of their
release, further described the duties to be performed by the prison staff. Rule 27 of the Rules
1975, provides the procedure for examination of the warrant issued for every convicted prisoner
by the Deputy Superintendent and Assistant Superintendent. While Rule 124 of the Rules 1975,
describes the complete procedure in case of release of a prisoner. This Rule reads as under: --
"Rule 124 ---(i) An order of release of a prisoner, whether convicted or under trial, shall
be carried out with reasonable promptitude, and the prisoner shall ordinarily be released the same
day, unless his further detention is required under some other authority. If the o rder is received in
the absence of the Superintendent, the Deputy Superintendent shall release the prisoner on his
own responsibility. The warrant of such prisoner shall be signed by the Superintendent on his
next visit to the prison.
(ii) All release or ders received by post shall ordinarily be complied with on the same day and
if received late in the evening shall be acted upon the next day.
(iii) Release orders, reduction warrants, bail orders and notices intimating payment of fine
shall be sent to th e prison authorities through an official messenger of the Court or through
registered post and not through the friends or relatives of the prisoner. Release order etc, sent
locally shall be received by the Assistant Superintendent incharge of release.
(iv) Release orders, reduction warrants, etc., sent locally shall be received in the prison during
the office hours only.
(v) In case of two or more prisoners convicted in the same case, there must be a separate
release or reduction warrant, as the case may be, for every prisoner."
While Rule 130 of the Rules 1975, provided issuance of a certificate on release of a
prisoner. Rule 140 of the Rules relates to the release of lifer and long term prisoners. While Rule
142 of the Rules requires return of the warrant of released prisoner to the concerned court.
11. In present case none of these Rules were followed neither by the trial Court, nor by the
Prison Authorities. The procedure normally adopted by the trial courts in case of acquittal on
completion o f trial that the remand papers retained in the case file, while a separate release order
issued in shape of a letter addressed to the Superintendent of the Jail. But, this letter in daily
procedure handed over to the lockup Incharge to get it served on the jail authorities. But, no
intimation of the order sent to the jail through official messenger of the court. The procedure
adopted by the trial Court not in conformity with the relevant Rules and law. In addition a
specific responsibility has been placed o n the Prison Authorities by the Rules, which need strict
observance before release of a prisoner, whether convicted or under trial. But in present case it
was not adhered to which resulted in mishappening. The negligent conduct on part of the court
and the prison authority evident from the record.
12. In addition thereto in case of conviction the trial Court has to inform the order to the jail
authorities by issuance of a warrant, and its service for execution of the sentence awarded.
Sections 383, 384 an d 385, Cr.P.C. describe the procedure for execution of sentence of
imprisonment in case of conviction, required to be adopted by the trial court, to get informed the
jail authorities about the order made by the court, and on receipt of the information the jail
authorities bound to execute the sentence awarded. The Rules, 1975 elaborate the requirements
to be adopted by the prison authorities while admitting a person/convict in a prison, and
execution of the sentence. Rule 27 of the Rules placed responsibili ty on Deputy Superintendent
and Assistant Superintendent Incharge of admissions to examine the warrant of each convicted
prisoner in detail, as provided in the warrants for execution. Comprehensive procedure is
provided in the Rules, 1975, which is to be o bserved by the prison/jail authorities in respect of
warrants for execution of a sentence. Further, the prison/jail authorities are bound to return the
warrant to the court which issued it on release of a prisoner on expiry of sentence or on bail, with
an endorsement about the cause of release with date, provided in Rule 142 of the Rules, 1975.
13. The material before the court disclosed the violation of mentioned provisions of law, and
the Rules, both the ends of the trial Court and the jail authorities. In order to ascertain the real
state of facts the case file pertaining to the trial of Zaman Khan bearing No.23/1998 was called
and perused. The perusal thereof reveals that no warrant of committal followed the judgment of
the trial Court, as no such warr ant showed to be prepared at the relevant date, as no office copy
of it available in the case file describing the number and date of its issuance. Rather, an assertion
was made in the instant case that it was issued, but misplaced by the Naib Court i.e. pr esent
appellant. Rather the record reveals that on 25th July, 1998 CIA staff produced the convict
Zaman before the court for confirmation of the fact of his conviction or release. The trial Court
vide order dated 25th July, 1998 informed about the order of conviction, which was followed by
a letter to the Superintendent District Jail, Quetta along with warrant of committal. Copy whereof
available in the case file. But, the record failed to give any explanation about non -issuance of
warrants on the date, whe n the conviction was announced. Further, the remand papers, in which
alleged manipulation was made, was not produced before the trial Court, rather photocopy
thereof was seized through seizure memo Exh -P/6-A and produced in evidence as Article No.6.
14. The trial Judge not denied presence of his signature on the paper Article No.6, but the
present appellant not only denied the order to be in his own handwriting, but also denied
committing of any fraud, and helping the convicted accused for his release. It was observed with
pain that the matter was of serious nature involving officers and officials of the court and the jail,
but only the appellant was booked in the case with an allegation that he prepared the remand
order, get it signed by the Judge, and ha nd it over to the incharge of the prisons, which resulted
in release of the convict. Though there was no material whereby it can be assessed that the
relevant entry in the remand papers was in the handwriting of the present appellant, and he
managed to get it signed by the trial Judge, and handed over it to the incharge lockup. But, the
case of the prosecution was far behind that. The negligent conduct of the trial Judge and, staff of
the court, and in addition thereto the negligence on part of the jail aut horities by not observing
the provided procedure constituted criminal liability against them. The case of the prosecution
comprises of several acts done in continuance of one after another, therefore, the persons
involved therein on each stage were require d to be associated in the investigation, and the
responsibles must be before the court for trial, but it was not done.
15. Rather only a part of the offence was submitted for trial before the court, that too, to the
extent of the appellant. It was neithe r just, nor can be appreciated. The way in which the matter
was dealt with showed mala fides on part of the prosecution, which cannot be ignored. Neither
the investigation was properly held, nor all the concerned persons were booked in the case, nor
police report was submitted to their extent, which was highly unfortunate. In view thereof
recording findings only to the extent of the appellant would amount to administration of
injustice, and a recourse to all the remaining persons, seemed to be involved in c ommission of
the offence, to go free and to escape from law. Therefore, in such -like situation, it would neither
be just, nor proper to record any findings on merits of the case. Rather, an order of remand would
be appropriate in the circumstances for purp ose of re investigation and re -trial of the case.
16. In view of above discussion the judgment dated 9th February, 2011 of the Additional
Sessions Judge -IV Quetta is hereby set aside. The case is deemed to be pending before the trial
Court. But, before c ommencement of the trial against the appellant, the investigating authorities
are directed to re investigate the matter, re -submit the Police Report (Challan) within the
stipulated period, thereby booked all the persons found involved in commission of the offence,
and on receiving thereof trial be held against all the nominated persons including the present
appellant. The trial Court is directed to finalize the matter within shortest possible time.
17. It is also noted with concern that the name of Zaman Khan appeared in column No. 2 of
the challan describing him as absconding accused. It is hard to believe that a person who had
been convicted for the offence vide judgment dated 6th July, 1998 by Additional Sessions Judge -
I, Quetta, apprehended again on 25 th July, 1998, preferred appeal before the Federal Shariat
Court, which was refused and his conviction order was upheld vide order dated 25th November,
1998. Still aggrieved questioned the conviction before honorable Supreme Court of Pakistan, but
the reli ef was declined vide judgment dated 29th July, 1999, managed to abscond despite his re -
arrest on 25th July, 1998. Though his name appeared in the challan of the instant case, but order
sheets maintained failed to disclose that why the trial was not held ag ainst him. In view of the
narrated facts, the person Zaman Khan be apprehended in the present case, and produced before
the trial Court to face the trial, without any loss of time.
18. It is further desired that a comprehensive report be submitted to thi s court disclosing the
proceedings held by the investigating authorities, submission of police report to the trial Court
along with all the relevant papers for perusal in chambers.
The appeal stand disposal of in the above terms.
HBT/61/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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