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Final
Judgment - English
In the name of Allah the beneficent the merciful
United
Arab Emirates
Ministry of Justice
Department of Legal Judgment
Legal Court of Appeal -Abu Dhabi
Fourth
Dept.
In the public session held on 2nd Muharram 1417
H corresponding to 19/5/1996 under presidency
of the Judge: Abdul Baqi Abdul Hakam
and the membership of the two judges:
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Hasan Shareef Al- Jafri
-
Mohammad AI -Aboodi
and in the presence of the secretary Mr.Najeeb
Ahmed, we have pronounced the following judgment
regarding the appeal recorded under NO. 188/1996
dated 18/4/1996
Raised by: The
public prosecution Abu Dhabi
Against:
1.
Panikkaveetil Kottilugal Jabir. (Indian National)
2.
Panikkaveetil Moideen Abdul Jabbar, Indian National
related the judgment pronounced by the legal
Court of first incident on 10/4/1996 regarding
the case NO. 152/1996 offenses
The
Court
After hearing the defense, looking into the
matter and deliberation and whereas the facts
show that the Public Prosecution has charged
both the appellee that they had used force against
government employee Ahmed Abdullah Abdul Kadir,
to prevent him from discharging his duties.
They did not achieve their objective as it is
shown in the documents.
They purposely hit the plaintiff Mr. Hasan Saeed
Hasan inflicting on him injuries which were
indicated in the medical report and which has
prevented him from performing his own work for
a period of 20 days approximately. The Court
of first incident has looked into the case as
it is shown in the registers of this session.
In the session dated 27/3/1996 the Court listened
to the statement of the plaintiff Mr.Hasan Saeed
Hasan, who declared that he has no evidence
that both the appellee have assaulted him except
the state of the policeman Ahmed Abdullah further
added that he disclaim from his complaint and
no more claims from both the appellees.
The lawyer of the appellee submitted a declaration
affirmed before notary public on 17/3/1996,
encompasses the denouncement of the policemen
from his complaint.
In the session of 7/4/1996, the Court heard
the statement of the first appellee who declared
that the first plaintiff came to his office
along with the second plaintiff with the intention
of attack on him and his brother therefore he
tried to contact the police, but Mr. Ahmed Abdul
Kadir pulled the phone from him then he called
for help and so Mr.Zulfiqar (Pakistani) called
the police. The police rushed to the spot
and assaulted them both in the street and in
the van .
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In the session of 8/4/1996 the second appellee
denied the charges against him. In the session
of 10/4/1996 the Court listened to the evidence
Mr. Saleem Raza who said that both the plaintiff
have come to the appellees shop while one of
them stood outside the shop while the shop was
closed. The first appellee asked me to call
the police. The other who was standing outside
the shop was holding an iron rod of one meter
of length in his hand with which he was hitting
the door of the shop and warning anyone from
coming near the shop and was saying "Pakistani,
Bengali, Indian all are thieves and procurers".
Accordingly when Saleem called the police they
rushed to place and Jabir opened the door. The
two policeman assaulted both the accused. The
Court then listened to the statement of Mr.
Zulfiqar A1i who gave similar statement, the
previous witness moreover he added-that the
appellee have neither resisted the police nor
they have beaten anyone from the patrolling
squad and that the appellee are of good nature
"I am a Pakistani and they are Indian, no relations
are between us, and my testimony is based on
truth only further the Court listened to the
statement of the 3rd witness Mr. Shirban Kalobar
whose testimony came similar to the declaration
of the first two witness, therefore in the presence
of all parries the Court declared the judgment
of being both the appellee innocence from charges
levied upon them, and to forward the documents
to the public prosecution to investigate the
incident of assault committed by the plaintiff
and the policeman mentioned in the papers...
The Court of first instance in it's judgment
mentioned that the public prosecution did not
submit any evidence to condemn the both accused
and the witnesses to whom the Court of first
instance and public prosecution listened had
witnessed that the both the appellees neither
attacked the plaintiffs nor they resisted the
police men. The Court is satisfied about his
matters due to disclaims of the first plaintiff
before the Court. while the second plaintiff
renounced the some before notary public. The
Court further added that the above evidences
prove that the both plaintiffs have assaulted
the appellees as well as the policeman, and
the Public Prosecution did not carry any investigation
with them in relation there to. Therefore Court
deems it necessary to send them to the Public
Prosecution to conduct the investigations with
them in accordance with the provision of article
17 from the penal procedure code.
The public prosecution contested this judgment
on 18/4/1996 and submitted a memorandum reasoning
the contestation in which it has mentioned that
the evidence of accusation is manifested in
the statement of both the plaintiffs that the
defendants have attacked and used force against
them and the statements of the witnesses during
the investigation of the Public Prosecution
shows that they have not seen the incident but
they only heard the voice of one of the defendants
saying " policeman " while the investigator
Mr. Ahmed Abdul Kadir was kicking the door with
an iron bar in his hand with which he was- trying
to open the door for the defendant who was imprisoned
inside by them. This is an evidence.
Which was overlooked by the Court of first incident
and it did not discuss the same to act upon
it. It should be noted that this evidence could
effect on changing the option about this legal
proceeding. In addition to that the article
208 procedure provides for non-obligation of
the Court by the what is recorded in the initial
investigation. And that the Court is entitled
to investigate the case in its own way and give
judgment based upon the result of the first
investigation. If the Court do not do this,
its argument will be imperfect with lacking
reasoning and improper inference and by contravention
of what is testified by documents therefore
it should be invalidated.
Further, the Public Prosecution has further
asked formal acceptance of the appeal and in
connection there to, to cancel the appealed
judgment and prejudging with agreement of points
of views to inflict the legally stated punishment
on the accused.
The Court of appeal looked in to the contestation
in the session of 5/5/1996. The public prosecution
asked for a judgement on the appeal according
to what has come in the memorandum of appeal.
Both the appellees denied the charge directed
to them and the first appellee stated that the
policeman did not identify himself and the plaintiff
Mr. Hasan Saeed was accompanying the plaintiff
and as they avoided at his work place they assaulted
him and he is not satisfied them. The second
appellee stated that he had seen two persons
beating his brother the first appellee. His
brother asked him to close the door and inform
the police about the incident. The Court decided
to enclose a copy of the arrest warrant and
to hear the statement of the plaintiffs.
In the Session of 13/5/1996, the Court listened
to the statements of the policeman Ahmed Abdullah
who stated that he was ordered by lieutenant
Saif Al- Khaili to arrest the first appellee
to arrest the first appellee, so he took a copy
of the arrest warrant in his hand and went to
the place of the required person wanted in his
informal dress and the plaintiff accompanied
him. Then he met the wanted person wanted and
saluted him and the first appellee replied the
salute, Saif Al- Khaili handed the copy of the
arrest warrant to the first appellee who went
on reading it and invited the lieutenant for
a cup of tea but he refused the invitation and
told him to move to the police station. At that
moment, the first appellee ordered the second
appellee to close the door and he did. Jabir
caught Hamad Abdullah from the back and they
assaulted him by hands. However he could get
the key and went out of the shop but Hasan could
not get out and remained there. The policeman
who was outside the shop heard the quarrel inside,
so he took an iron bar in his hand and stood
at the door to prevent gathering of Indians
there, and he heard both appellee saying that
they are thieves, then he called the police
who rushed to the place and the appellees were
arrested. The arrest warrant is in the register
because he handed the copy which was to the
police headquarters after arresting both the
appellees while questioning Hasan Saeed, he
stated that he has made on agreement with first
appellee to invest in a building and therefore
the first appellee gave Mr. Hasan Saeed a cheque
of 74,000 Dirham. Thereafter, he came to know
that the cheque was dishonoured consequently
we informed the police. And after some day's
first appellee informed him that he has raises
a civil case against him in connection to the
matter, and that he has deposited for him an
amount of 74000 Dirham in the Court. But he
did not believe that.
Later on, he found the first appellee in the
company so he contacted the police this remaining
declaration was similar to that of the policeman.
And whereas the Court has ordered the police
prosecution to submit a copy of the arrest warrants,
and on checking the same, it was found that
it was dated on 26/10/1995 and concludes that
the first appellee was wanted by the police
of the capital under the accusation of issuing
a cheque of 74000 Dirham in favor of the he
complaint Mr. Hasan Saeed without having balance
in account.
Where as the Court has decided to hold the case
for pronouncing the judgment on today's session
and as the appeal has raised at proper time
therefore it is accepted formally, and whereas
it related to the matter, the public prosecution
has brought up both the appellees under the
charge of applying force against a government
employee for purpose of preventing him from
discharging his duties. However, they could
not achieve their aim, and they have assaulted
the plaintiff Mr. Hasan Saeed inflicting injuries
prevented him from his work for a period of
20 days.
There is not any evidence which can prove the
first accusation but in contrary it is proved
from the saying of the policeman that the first
accused has received him hospitably when invited
him for a cup of tea, and all the accused has
done was that he ordered his brother, " the
second accused" to close the door and to call
the police, which is logical conduct and free
from any resistance or prevention to the policeman
from performing his duties. All the evidences
indicates to the properness of his behavior,
some of these evidences are :-
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The
accused was confident being innocence as
he has informed in advance that he has deposited
the amount of the cheque -
Which is subject of accusation at the treasury
of the legal Court and the plaintiff has
confirmed the same in the investigation.
(Note: the papers include a receipt of deposit
of the amount vide printed NO. 19608 dated
25/20/1995 i.e. before the said incident.)
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The
policeman and the plaintiff came in civil
dress on 26/3/1995, which means that the
plaintiff by this time was aware that the
amount is deposited in the Court. Moreover,
the policeman was holding shackles, inspite
of all that, the first accused has only
ordered his brother to close the door and
asked him to contact the police, which is
a logical matter that can be adopted by
any man in such a situation.
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The
policeman said that he was frightened after
the door was closed so he was scared of
what? it is confirmed that only the accused
and his brother were in the shop, and the
plaintiff was with the policeman.
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The
policeman declared that he has taken the
key, opened the door and went out. This
means that there was no resistance from
both the accused and if they had prevented
Hasan from going out, it was because they
understood that he came to attack them ,
after they had informed him
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They
had deposited the due amount of cheque in
the Court.
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The
escape of the policeman from the shop proves
that he was wrong and has no legal authority
to arrest the accused. And what the both
accused have done was that they only asked
to inform the Police about the matter. In
fact the policeman should do this and he
has to wellcome this action, and he should
not run away and stand at the door holding
an iron bar in hand threatening anyone who
come near the place, and the witness Saleem
Riza Ozri was the one who informed the police.
(
Refer to his statement before the Court
of first incidents. )
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It
is confirmed that the policeman moved with
the plaintiff upon oral instruction to summon
the first appellee. On the reading the arrest
warrant, a copy of which was presented before
the Court of appeal, it seems that the warrant
encompassed that the first appellee was
to appear before the police of the capital,
and no where it is mentioned to arrest the
appellee and it was duty of policeman to
act according to the contents of the warrant
,i.e., to asked the accused to come with
him to the police station and if he refuses
then the policeman had to contact the headquarter
which will there after take suitable decision
regarding the accused as the accused is
not red handed according to the provisions
of article 42 of Penal Procedures and the
following.
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Verily
the Islamic Law and the entire Positive
Laws have honoured Man and protected his
freedom, his honour, his property and his
soul. Hence, if a man was killed, while
protecting these, he is considered to be
a martyr. And limitation of his freedom
without any rights is an unforgiving crime
and the same is mentioned in the provisions
of articles 2 and 3 of the Penal Procedures
Code. And it is proved in this case that
the policeman along with the plaintiff went
to arrest the accused and to limitate his
freedom. Therefore, it is right of the
accused to verify the reason behind which
he going lo be arrested, and to take help
of the security men and to defend his freedom.
The accused had exactly done the same when
he asked to inform the police to inquire
into the matter and to conduct the necessary
Investigation in respect of this assault.
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It
is strange to find a declaration enclosed
with the papers executed by the policeman,
attested by the Notary Public under number
2314/96 dated 17/3/1996 concluding his disclaims
from his rights in this legal case which
is a clear cut evidence showing that he
felt his mistake and so he wanted to relinquish
! The Court is wondering, from what he wants
to relinquish ? Does he want to abandon
the security of the country? Then this is
a solid evidence that both the accused did
not resist the policeman.
All the above mentioned presumptions confirm that both the accused are free from accusation of applying force against the policeman. In reply to the contestation of the Public Prosecution that the Court of first incident did not consider the statement of the plaintiff that both the appellees have committed both the crimes imputed to them. The Court says that the sayings of the plaintiff must be supported by any other evidence or presumption and the Court can not rely upon their simple statement because the Prophet Mohammad may Peace and Blessing of Allah the A1mighty be upon him said: ( If people were to be given according to their claims, some would have claimed the blood and belongings of others, but the plaintiff is the one which should prove it.)
And it is proved as mentioned above, that all the presumptions affirm the innocence of both the accused from the charges imputed to them, as well as the evidences indicate to falsehood of the narration of both the plaintiffs. In respect of the statement of the Public Prosecution that the policeman was standing at the door of the closed shop with an iron bar in hand trying to open the door to take out the plaintiff, it is considered to be an irresponsible conduct from the policeman. Instead of that he should have informed the concerned police authority to come, and this is what both appellees had done. And about the Public Prosecution's statement that the Court of the first incident should have investigated the matter itself, it is proved also that the Court of first incident had done its job in the best manner. It has called the witnesses and heard their statement and all of them stated as it is affirmed from their sayings recorded in connection to this judgement, that both the defendants did not commit any mistake there.
In this connection, the Court has nothing in hand but to show that the thing that put the policeman in an unenviable position is the falsehood of the plaintiff in his complaint as he has informed the police about the place of the accused to arrest him with ill intention although he knows that the amount of the dishonoured cheque is already deposited at the Legal Court. And in the claim of the plaintiff Mr. Hasan Saeed that both the appellee have assaulted him, is not supported by any legal evidence to affirm it. And his falsehood in this claim is proved by his denouncement of the same at all the stages of the investigation.
Further, the medical report dated 26/10/1995 showed that the above mentioned is afflicted with an abrasion and some scratching on his left arm. These wounds occurred while he was trying to get out from the shop when he fe1t that he had committed a mistake against both the appellees, and the situations are against him after complaining the police with ill intention to arrest them though he knows that the amount of the cheque is already deposited at the safety the Court. In addition to that he stated that he had no evidence to prove both the appellees have assaulted him except statement of the policeman. In this connection, the Court can not rely upon the statement of the policeman because he was accompanying the above mentioned.
And the all witnesses to whom the Court of first incident listened, have disproved these sayings and they stated that both the appellees did not attack any body, but they were attacked and injuries were found on them according to medical report.
Hence, the true form of the incident as mentioned in the papers is that the both the appellees have prevented the plaintiff Mr. Hasan from going out so he tried to get out forcibly, but he could not exit. and at that time he was injured. Similarly the injuries of both the appellees happened and the appellees were in position of defenders protecting their freedom by holding the person who came to infringe and to put a limit to this freedom without any right, which necessitates the innocence of both appellees from this charge also.
Whereas and upon the above mentioned and for the reasons that the Court of first incident presented which are in confirmity with these reasons and for implementation of article 211 of Penal Procedure Code, it is obligatory to pronounce the following judgment, therefore :
The Court has adjudged to accept the appeal
formally, and subject wise to reject the appeal
and to confirm the previous judgment.
May Peace and Blessings of Allah the Almighty be upon His Messenger
Mohammad, and his family and his companions.
SD(
)
SD ( )
Fuad Ali Mahmood .
Abdul Baqi Abdul Hakam
Secretary
Head of the Jury
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