JUDGMENT MRS. SYEDA TAHIRA SAFDAR, J. - The appellant Tahir Mehmood being aggrieved of the judgment dated 27th October, 2010 of the Special Judge, Anti- Corruption, Baluchistan. Quetta, preferred the instant appeal, thereby questioned his conviction for the offence under Section 161, Pakistan Penal Code (PPC), and Section 5(2) The Prevention of Corruption Act, 1947, and sentence awarded to him whereby he had to suffer rigorous imprisonment for a period of (2) two years with fine of Rs. 2,000/- (Rupees two thousand), and in default further imprisonment for a period of ten days, and simple imprisonment for a period of (2) two years with fine of Rs. 2,000/-, respectively, It was contention of the appellant that the complainant Shafi Muhammad and Muhammad Zaman, Zafarullah and Muhammad Akbar and Muhammad Zaman, Zafarullah and Muhammad Akbar, though appeared as prosecution witnesses, but their deposition failed to provide any support to the case of the prosecution, therefore, the evidence of all the four witnesses cannot be relied upon.
But, the Trial Court while misappreciating the evidence, ignored the fact that the evidence of the remaining witnesses was not enough to bring the charge at home. Further, erred to treat the F.I.R, as substantive piece of evidence. Therefore, this misappreciation resulted in erroneous findings, which are liable to be set aside, It was further contended that though he (appellant) was also booked for the offences under Section 223, and 224, PPC, but he was acquitted of the charge, and also not found guilty in the inquiry departmentally held, It was prayed that the impugned judgment be set aside, and he (appellant) be acquitted of the charge in the instant case too.
2. The brief facts as appeared from the record that the appellant was booked in a case F.I.R. No. 232 of 2009 Police Station, Satellite Town, Quetta, for the offences under Section 1761, PPC and Section 5(2) of The Prevention of Corruption Act, 1947, with an allegation of demanding and taking illegal gratification from the complainant Shafi Muhammad, It was alleged that an amount of Rs. 40,000/- (Rupees forty thousand) was paid by the complainant to the appellant, but there was further a ' demand of Rs. 30,000/- (Rupees forty thousand) was paid by the complainant to the appellant, but there was further a demand of Rs.
30,000/- (Rupees thirty thousand), when a trap raid was arranged, and the appellant was got apprehended red-handed. The Trial Court framed charge on 23rd November; 2009 as under:-- "That on 2.10.2009, you while posted as Police Inspector, Police Station Satellite Town, Quetta received an amount of Rs. 40,000/- as illegal gratification from the complainant for release of his relative Zafarullah detained in a Narcotic case. Moreover, on 4.10.2009 when the complainant come to you, you asked him to arrange more amount of Rs. 45,000/- for release of other brother of the said detainee Haji Muhammad Nawaz then you will set free both the said detainee together. On 5.10.2009, the complainant met the S.P. Saryab, and told accordingly, in the meanwhile you phoned the complainant who asked you that he could arranged a sum of Rs. 30,000/-, the S.P., initiated on each currency note as such you were arrested with red- handed and recovered the tainted money from your possession, but you escaped from the custody by giving dodge to the police personnel.
Thus you have committed offences punishable under Section 161, PPC r/w Section 5(2) Act of 1947 and r/w 155-C of Police Order, 20O2 within the cognizance of this Court."
3. The appellant being the accused person denied the charge, and claimed trial. The prosecution produced eight witnesses in support of their case, while the accused/appellant not only recorded his statement on oath, but also produced four witnesses in his defence. On completion thereof the Trial Court arrived to the conclusion that the prosecution successfully established the charge, thereby convicted the appellant for the offences, and awarded punishment details whereof provided in preceding paras.
4. During course of argument the learned counsel for the appellant stated that the prosecution failed to establish a case free from all reasonable doubts, therefore, the possible result in the circumstances would be an order of acquittal, but a contrary order was made, thereby an error was committed. The learned counsel further stated that the raid was conducted without associating Magistrate to the process, while only the police personnel witnessed the occasion, therefore, the proceedings held were of less significance, and cannot be relied upon. Furthermore, the fact that prior to date of incident the appellant was already transferred from the Police Station, Satellite Town, Quetta, therefore, had no concern or authority with the case, and the prisoners at the Police Station, It was contention of the learned counsel that four of the prosecution witnesses
(PWs) PW-3 Muhammad Nawaz, PW-4 Shafi Muhammad, PW-5 Zafarullah, and PW-7 Muhammad Akbar turned hostile, therefore, their evidence cannot be relied upon, nor conviction can be based on statements of such witnesses. Further, the statements of the remaining witnesses i.e. PW-1 Naseebullah, and PW-2 Abdul Khaliq were formal, and failed to support the prosecution's case, therefore, of less worth. The learned counsel further contended that the complainant Shafi Muhammad (PW-4) was also declared as hostile, as he failed to. Support the case of the prosecution, therefore, the very basis of the case was destroyed.
5. The learned counsel further stated that the evidence before the Trial Court was not properly assessed, and the points for determination were not properly formulated. Further, the decision of the Trial Court unable to explain that how the case of the prosecution was supported by the witnesses already declared hostile. He further stated that the documents already admitted were ignored. Further, the circumstantial evidence was also not enough to establish the; charge, as several facts were found missing. The learned counsel urged that an Investigating Officer while acting as such cannot become member of a raiding party, but, this formality was ignored, and the inclusion of the Investigating Officer in the raid process placed a question mark on his impartiality, which cannot be ignored. Further, the fact that he (appellant) was neither SHO of the concerned Police Station, nor the Investigating Officer of the mentioned cases, having no influence in the matter, therefore, a demand for gratification was illogical in the circumstances. Furthermore, the appellant was exonerated by the Investigating Officer, and he was also acquitted in the connected case. These facts also supported the defence version. The learned counsel urged that all these facts create reasonable doubt, benefit whereof was to be extended in favour of the appellant, but the Trial Court failed to exercise the discretion, thereby committed illegality. The learned counsel relied on:-- Liaquat Ali v. The State (1999 P.Cr.L.J, page 1974), Muhammad Anwar v. The State (1983 NLR (Criminal) page 332), Dewan v. The State (1995 NLR AC page 295).
The learned counsel for the appellant emphasized that the offences for which the appellant was charged were non-cognizable in nature, therefore, without obtaining permission of the Magistrate registration of F.I.R, was illegal. But, in case in hand this provision of law was also violated, the mala tides on part of the Investigating Authorities were apparent from the conduct adopted by them.
6. In .Reply the learned Deputy Prosecutor General (DPG) stated that though the complainant (PW- 4) while appearing before the Trial Court failed to recognize the appellant, but during cross- examination there was clear admission of the fact that the currency notes were handed over to Asad Nasir, SP by him (complainant). Further, though the complainant (PW-4) was declared as hostile, but he never denied the occurrence, and the accompanying facts, which can be relied upon. The learned DPG further stated that it was to be realized that the persons for whose release the gratification was demanded, though released thereafter, but due to apprehension of re-arrest, the presence of said persons cannot be secured, nor they can be compelled to give evidence, It was further stated that PW- 1 Naseebullah, PW-2 Abdul Khaliq, and PW-6 Asad Nasir were remained consistent in their statements, and the seizure memo, corroborated the statement of the complainant, therefore, rightly relied upon. Furthermore, at the, relevant date the appellant was working in the same Police Station as Investigating Officer, and it was not a denied fact. The learned DPG urged that though some of the witnesses were declared hostile, but their evidence cannot be let of consideration as they corroborated the case of the prosecution.
7. The appellant was charged for the offences under Section 161, PPC, and Section 5(2) of the Prevention of Corruption Act, 1947, and the Trial Court found him (appellant) guilty of the offences, thereby convicted, and sentenced him. The contents of the F.I.R., and the Police Report alleged receiving and further making demand for gratification by the appellant from the complainant Shafi Muhammad for release of his relatives involved in a some narcotics cases, and were under custody in the Police Station, Satellite Town, Quetta. Further, an act of receiving an amount of Rs.
45,000/- (Rupees forty five thousand) was alleged against the appellant, while an amount of Rs.
30,000/- was also demanded for the purpose, It was case of the prosecution that the complainant approached the police authorities after payment of Rs. 45,000/-, on receiving of the second demand, whereupon Asad Nasir, Superintendent Police (SP) Sariab managed trap raid, and marked the currency notes valuing Rs. 30,000/-. In respect thereof the appellant was arrested when he received the amount from the complainant Shafi Muhammad, and at the spot marked currency notes were recovered from his front pocket, which were timely seized.
8. To establish its case the prosecution produced the complainant Shafi Muhammad as PW-4, who deposed that on 13th September, 2009, four persons namely Nawaz, Zafarullah, Attaullah, and Mehrullah were arrested, and boqked in several criminal cases, on receiving information he reached Quetta. But, some DSP and SHO contacted him (PW-4) on mobile, and raised a demand for money to get release of the mentioned persons. Whereupon he (complainant) paid the money to a police personnel, visited in a rickshaw, It was further his statement that this act was done near the Police Station, Satellite Town, Quetta. He further stated that at first instance he paid an amount of Rs. 40,000/-, and thereafter, Rs. 30,000/-. While his thumb 'Impression was obtained on a piece of paper. As he failed to identify the appellant before the Court, therefore, on the request the witness was declared as hostile, and cross- examined by the District Attorney appearing for the State. Despite denial of recognition of the accused he deposed about making demand for money with further assertion that an amount of Rs. 24,000/- was handed over to Asad Nasir, SP, who noted down the numbers of the notes, and put his signatures thereon. The thumb impression present on the written report was also recognized and admitted by him (PW-4).
9. PW-5 Zafarullah, one of the persons for whose release gratification was given, denied recording of his any statement during the course of investigation, therefore, declared as hostile, and cross- examined by the Public Prosecutor. During cross-examination he admitted that on 29th September, 2009 he was under custody in a case of illegal arms, while several other persons were also arrested alongwith him. He denied that any of his relative visited from Jacobabad to Quetta, and had a contact with the appellant Tahir Mehmood to get them released.
10. PW-3 Muhammad Nawaz, was also one of the persons arrested on 29th September, 2009, it was his statement that they were involved in a false case, and were confined in the Police Station, Satellite Town, Quetta. During course they were tortured, and there was demand' for money. He further stated that Tariq Manzoor, Deputy Superintendent of Police (DSP), and Abdul Khaliq, Station House Officer (SHO) had a contact with their relatives for a demand of money. This witness was also declared hostile. But, during course of cross-examination there was an admission to the effect of confinement of him, and his brothers namely Mehrullah and Attaullah on 29th September, 2009 at Police Station, Satellite Town, Quetta.
11. PW-7 Muhammad Akbar another witness, declared to be hostile, made deposition to the effect that on 13th September, 2009 a friend of him, on his visit told him about involvement of his some friend namely Nawaz in a criminal case, confined in Police Station, Satellite Town, Quetta, and for whose release there was a demand of money. The witness further deposed that he alongwith Shafi Muhammad visited the Police Station, while Shafi Muhammad went inside the building for making the payment, and he remained outside, and on his return Shafi Muhammad told him about payment of the amount. During cross-examination the witness admitted the fact that an amount of Rs. 40,000/-, was already paid, with a demand of Rs. 45,000/- for release of some accused persons was disclosed to himb y Shafi Muhammad. He further stated that when they were on their way towards Police Station, Shafi Muhammad received a call on his mobile phone in rickshaw, in which they were traveling, which was in respect of payment of the demanded money. But he showed his ignorance about recovery of the tainted money from possession of the appellant by Asad Nasir, SP at the relevant time. He (witness) also refused to recognize the appellant before the Court.
12. The remaining witnesses were police officials, the evidence of PW-1 Naseebullah, ASI was only to the extent of taking into custody the copies of the F.I.Rs. Registered against Muhammad Nawaz and others. The seizure memo. Ex. P/1-A, and Articles P/1 to 6 were tendered by him being its signatory.
But, in cross-examination he affirmed that on 5th October, 2009 the appellant was not in custody, rather he was in the Court with reference to some cases.
13. PW-2 Abdul Khaliq was described to be an eye-witness of the occasion, and also signatory of the seizure memo. Ex. P/20-A as witness, whereby the recovered currency notes were taken into custody, It was his statement that on 5th October, 2009 a person namely Shafi Muhammad submitted a written report to Asad Nasir, SP, making complaint against Tahir Mehmood/present appellant, that for release of his (complainant) relatives namely Muhammad Nawaz, Zafarullah, and others, being involved in cases pertaining to recovery of narcotics and unlicensed arms, the appellant Tahir Mehmood, being Investigating Officer of the said cases, making a demand for illegal gratification. Further, the person disclosed payment of an amount of Rs. 40,000/-, and showed his grievance on further demand of the nature. On the report Asad Nasir, SP (PW-6) signed the currency notes valuing Rs. 30,000/-, and he (witnesses) alongwith DSP/SDPO and Asad Nasir, SP reached to the Police Station, Satellite Town, and handed over the marked currency notes to Shafi Muhammad, It was further his (witness) statement that on their arrival Shafi Muhammad gave a missed call on mobile phone of Asad Nasir, SP from the nearby lane. On receiving thereof the raid was made, and the appellant was apprehended having in possession the tainted money, which was taken into custody, and parcel was prepared. The witness produced the parcel, and.The currency notes as Art. P/8 to Art. P/44. He recognized the appellant being the real culprit. Though in cross-examination there was an admission of the fact that on the date the appellant was already transferred from the Satellite Town Police Station to Gawalmandi Police Station, but it was with an addition that till date he was not relieved from the services, as certain cases were left for investigation assigned to him (appellant).
14. In addition thereto PW-6 Asad Nasir, DSP/SDPO, Sariab Circle was the main character of the trap raid, as he was described as its organizer. He made reputation of the facts that the complainant Shafi Muhammad approached him, informing him about the demand raised by the appellant for money as gratification, and payment of an amount of Rs. 40,000/-, on the same with a further demand of an amount of Rs. 30,000/-. The currency notes were marked, as he (witness) signed them, and the complainant Shafi Muhammad was sent towards the Police Station, Satellite Town, Quetta. Further, he (witness) alongwith Tariq Manzoor-, DSP, Abdul Khaliq, SHO also proceeded towards the Police Station, Satellite Town, It was further his statement that on their arrival they waited outside, while inside the gate of the Police Station the appellant Tarhiq Mehmood was demanding money from the complainant, who arrived earlier in time, and when the complainant signaled about his intent of handing over of the money to the accused, and the act was factually done, the appellant was apprehended, and from his front pocket tainted money was recovered, which was taken.Into custody. The seizure memo, prepared, and the articles recovered were confronted to him in the Court. During course of cross- examination he was completely ignorant of the fact that whether any effort was made to associate a Magistrate for purpose of conducting of the trap raid. The witness deposed that the appellant was not the Investigating Officer of the cases against Zafarullah and others, but on 5th October, 2009, the date of incident, he (appellant) was performing his dutjes as Investigating Officer at Police Station, Satellite Town, Quetta. The witness denied existence of any enmity between him and the appellant, pertaining to a person namely Isam Shah, for whose release he (witness) was . Pressing hard.
15. PW-8 Mubarak Ali, one of the Investigating" Officers, only stated about recording of statements of the witnesses, and taking into custody of the case property, and submission of the challan as Ex.
P/8-B prepared by his predecessor in office. But, he admitted holding of departmental enquiry against the appellant, and his , appearance as witness therein. Further, the facts that the appellant was hot the Investigating Officer of Zafarullah's case rather he (witness) himself was conducting the investigation, and transfer of the accused from Police Station, Satellite Town to Gawalmandi Police Station prior to 5th October, 2009, were admitted. He (witness) showed his ignorance about existence of some enmity between the appellant and Asad Nasir, SP, Tariq Manzoor, DSP and Abdul Khaliq, SHO, which resulted in his false implication in the instant case.
16. The appellant was examined under Section 342, Criminal Procedure Code (Cr.P.C.). While in defence the appellant recorded his statement on oath, and produced four witnesses, further placed on record copy of the judgment made in another case, whereby he was acquitted from the offences under Sections 223, 224, PPC.
17. It is a case of receiving, and demanding of illegal gratification by a public servant, with a motive for doing undue favour, and to get release certain accused persons in custody booked in several cases, In order to constitute an offence under Section 161, PPC, primarily the status of the person against whom the allegation is made as of a public servant or .Expected to be so it is to be determined. The act of acceptance of the gratification, or an agreement for the same, or an attempt to obtain the same either for himself or for any other person, and the motive and {{PART MISS}} servant made a demand, accepted gratification, and apprehended having in custody the tainted currency notes. If the prosecution succeeded the burden would shifted to the accused/appellant to explain having in custody the tainted money. The complainant Shafi Muhammad (PW-4) described as decoy witness, who handed over the money to the appellant.
While PW-7 Muhammad Akbar described to accompany him (complainant) when he proceeded to pay the money to the appellant. But, both these witnesses, while appearing before the Court, refused to identify the appellant a the person to whom the money was paid. PW-7 Muhammad Akbar though admitted accompanying the complainant to the Police Station, Satellite Town, Quetta, but denied to have a glance of the appellant at the site. Rather, he showed himself to be seated in rickshaw, and the complainant Shafi Muhammad alone went inside the Police Station, and paid the money. On the other hand the complainant PW-4 Shafi Muhammad though affirmed payment of the tainted money to some police officials, but unable to identify him, he also refused to identify the accused person (appellant) in the Court as such. PW-5 Zafarullah, and PW-3 Muhammad Nawaz, were the persons, nominated in other cases, and for whose release the alleged grat4ification was demanded, and paid. Both these witnesses though admitted at the Police Station, Satellite Town, Quetta, but their deposition was only to the extent, and they did not name the appellant being the person behind the act. Therefore, their testimony provide less support to the case of the prosecution.
19. In the circumstances the most important witnesses would be the persons in whose presence the money was offered, and received by the appellant, which resulted in arrest, and recovery of the tainted money from his custody. Only three persons fulfilled this criteria, namely Abdul Khaliq, SHO Police Station, Satellite Town, Quetta, Asad Nasir, SP and Tariq Manzoor, DSP. The first two appeared as PW-2 and PW-6, while the third person was not produced. The seizure memo. Ex. P/2-A pertains to recovery of tainted money also bears signatures of Tariq Manzoor, and Abdul Khaliq as witnesses, while asserted to be prepared bv Asad Nasir PW-6. PW-2 Abdul Khaliq while recording his statement stated about the preparation of the trap raid, signing down the currency notes by Asad Nasir, SP, which were handed over to the complainant. The witness further narrated the occurrence thereby stated that at Sariab Police Station the complainant Shafi Muhammad, and the accused Tahir Mehmood have conversation on mobile phone in their presence. But, when they reached at Police Station, Satellite Town, Quetta, the complainant from a nearby lane of the Police Station made a missed call at cell phone of Asad Nasir, SP, whereupon he alongwith Tariq Manzoor, DSP, and Asad Nasir, SP raided and apprehended the accused, from whose possession the tainted money was recovered, which was taken into custody and seizure memo. Ex. P/2-A was prepared.
He also produced the tainted currency notes as Art. P/7 to Art: P/44. PW-6 Asad Nasir, the second eye-witness of the occasion, also deposed the steps taken for arranging the trap raid, further deposed that he alongwith Tariq Manzoor, DSP and Abdul Khaliq, SHO proceeded towards Police Station, Satellite Town, Quetta. But, prior to their arrival the complainant Shafi Muhammad alongwith Tahir Mehmood appellant were already present inside the gate of the Police Station, and the accused was making demand of money, It was further his statement that they remained outside of the Police Station, the complainant indicated his intent and on its factual happening, they raided and he alongwith his companions got hold of the accused person, and from his personal search from front pocket an amount of Rs. 30,000/- consisting of tainted currency notes were recovered.
20. Though three of the witnesses were declared as hostile, as they were not giving statement in support of the case of prosecution. A Court is empowered to declare a witness hostile if he found to be unfavourable to the case of the'prosecution or it appeals that he is not desirous to tell the truth, In existence of the facts the Court can allow the person, who called such witness, to put any question to him which might be put in cross-examination by an adverse party. Article 50 of the Qanun^e-Shahadat Order, 1984 is clear to this extent. But only declaring a witness as hostile in no way make a witness unworthy of reliance, nor his evidence can be brushed aside. Rather, his statement if found to be true and credible it can be relied upon. But, if such witness speaks and took a contrary. Stand while recording his statement, the evidence given has to be assessed with? Care, and caution keeping, in view the circumstances of the case.
21. Therefore, keeping in view the relevant provision and the intent behind it the evidence produced by the prosecution'in shape of PW-3, PW-4, PW-5 and PW-7 would not be out of consideration, rather considered with remaining material, but with due care. The evidence of PW-3 Muhammad Nawaz, and .PW-5 Zafarullah only established the case of the prosecution to the extent that both these persons were involved in some other criminal cases, and were In custody on the day when the incident occurred. As far as PW-7 Muhammad Akbar is concerned. He also supported th case of the prosecution to the extent that the complainant paid some amount to some police official as gratification. As far as PW-4 Shafi Muhammad is concerned, he being the complainant though admitted preparation made for the trap raid, signing of the currency notes, and payment to some person. But, he neither named the person as appellant, nor recognized him in the Court. Therefore, his statement was only in conformity with the case of the prosecution to the extent that the complainant approached the police authorities, and on camoiaint trap raid was conducted. The burden still feats with the prosecution to establish that in fact the appellant was the person who demanded the money, and also received it, and was apprehended having in custody thS tainted money. * Tahir Mehmood V. The State (Mrs. Syeda Tahira Safdar, J.)
22. Before proceeding ahead it would be appropriate' to consider the plea taken in defence. The appellant asserted that Asad Nasir, SP, Abdul Khaliq, SHQ and Tariq Manzoor, DSP were inimical towards him (appellant), and he was falsely involved in the instant case, It was his plea that on the date of incident i.e. 5th October, 2009 he was busy before different Courts for purpose of taking remand of some persons nominated in different cases. Further, he was not the Investigating Officer of the cases pertaining to PW-3 Muhammad Nawaz, and PW-5 Zafarullah, further, he was already transferred from the Police Station, Satellite Town, Quetta to the Police Station, Gawalmandi, Quetta.
He also produced relevant papers as Ex.D/1 to Ex.D/1-F, Ex.D/1-J. These papers are of less help to the appellant, as not able to establish that at the relevant time he was busy in the Courts. The Departmental Enquiry Report Ex.D/1-H with a recommendation for his (appellant) exoneration of the charge, was of less help, as no final order followed, was tendered in the evidence. The appellant also produced a copy of judgment of the Judicial Magistrate-V, Quetta, dated 26th December, 2009 as Ex.D/1 -I, whereby he was acquitted from the case for the offences under Sections 223, 224, PPC, an offence committed in continuation of the1" instant case. The trap raid'was objected being made in absence of Judicial Magistrate, therefore, violative of law, and doubtful. But, non- associating a Judicial Magistrate in trap raid would not vitiate all the proceedings, as it was not*a mandatory requirement. Furthermore, the main defence of* the appellant that Abdul Khaliq, SHO PW-2, Asad Nasir, SP PW-6 and Tariq Manzoor, DSP having enmity with the appellant, resulted in his involvement in the instant case. PW-3 Muhammad Nawaz supported the defence version, while stating that the demand of money was on part of Tariq Manzoor and Abdul Khaliq.
'
23. Therefore, in view of above discussion the prosecution witnesses PW-3 Muhammad Nawaz, PW-4 Shafi Muhammad, PW-5 Zafarullah, and PW-7 Muhammad Akbar only established one part of the prosecution case, that there was demand of gratification, and payment was made by the complainant, but the aspect still remains to connect the appellant with commission of the offence being the real culprit, and the prosecution had to establish the same. Therefore, for the purpose there were only two pieces of evidence before the Court i.e. The statements of PW-2 Abdul Khaliq and PW-6 Asad Nasir, and the seizure memo. Ex. P/2- A. Boih the persons were described as eye-witnesses, therefore, their evidence must be consistent to each other, as inconsistency appearing in their statements will destroy the prosecution's case. According to PW-2 plan for trap raid was made in Police Station, Sariab, and during the course the complainant had conversation with the accused on his cell phone. Further, stated that upon reaching at Police Station, Satellite Town, Quetta while a cell was received on cell phone of Asad Nasir, which was made by the complainant from nearby lane, whereupon raid was conducted and tainted currency notes were recovered from the accused. But contrary to this statement PW-6 Asad Nasir stated that when they reached at Police Station, Satellite Town, Quetta they stayed outside the premises of the Police Station, while the complainant was inside the gate of the Police Station and he signaled 'to him (PW-6) that he had given the money to the accused, whereupon raid was made and money was recovered from his (appellant's) front pocket. The only inference which can be drawn from the statement of PW-6 that there was giving and taking of the money, but no one witnessed the same. Further, it appeared that both the witnesses were inside the Police Station, and the act of giving and taking of money was held outside the premises of the Police Station. Further, PW-6 also not affirmed receiving of any call on his cell phone made by the * complainant. One of them described presence of accused and complainant jnside the Police Station and the other one outside the building. Both the witnesses varied on material points.
20I3 Tahir Mehmood V. The State Cr.C.383 (Mrs. Syedn Taliira Safdar, J.) ,
24. Furthermore, the seizure memo. Ex. P/2-A was also not in conformity with the statement of PW-2. The contents of Ex. P/2-A speaks about holding of conversation between the complainant Shafi Muhammad and accused Tahir Mehmood, which was heard by the two witnesses (PW-2 and PW-6), and Tariq Manzoor, DSP, further they saw act of giving and taking of the money. But, both the witnesses remained silent to the effect they, as epr their on statements, neither saw the exchange of the money, nor heard the conversation between the two. Furthermore, PW-6 and Ex. P/2-A stated recovery of the money from the front pocket of the shirt wearing by the appellant, but PW-2 was silent to the effect. The shirt was also not taken into custody.
25. The material on record further reflects that the appellant was neither arrested, nor detained on 5th October, 2009, the date of incident, despite the assertion that he was apprehended red- handed. The date of his (appellant) arrested no where appeared in the record. The Investigating Officer Mubarak Ali appeared as PW-8, also asserted his presence at relevant time, described him as author of Ex. P/2-A the seizure memo, which was prepared in the office of SHO. But, he (PW-8) neither made any statement describing the facts of the case, nor his presence at the site was confirmed by PW-2 and PW-6, which made his presence at site not free from doubt.
26. Though the involvement of the appellant in a case, with a charge that he escape from confinement while in custody in the instant case, was an admitted fact, but he had been charged, tried, and acquitted vide order dated 26th December, 2009 of Judicial Magistrate-V, Quetta, It is an accompanying fact, thereby considered, but as an acquittal order had been recorded in favour of the appellant by a Court of competent jurisdiction, which was not shown to be questioned in appeal, therefore, no adverse findings can be given to said extent.
27. In view of the above discussion the Trial Court has wrongly held that the witnesses consistently made statements, thereby established the case. But, it was a case of gratification received by a public servant, with further allegation of rebuttal against three public servants to involve the appellant in commission of the offence, therefore, keeping in view the nature of the case some specific evidence was required to establish the charge. But, the contradictions, as noted hereinabove, appearing in the statements of the eye-witnesses destroy the case of the prosecution. The Trial Court failed to consider the evidence in its true perspective, and also failed to dilate upon the contradictions appearing in the statements of the witnesses, which make the evidence as less reliable. Furthermore, none of the witnesses heard the conversation between the appellant, and the complainant, nor saw the exchange of money. The fact of recovery of tainted money from the appellant was also not free from all doubts. The prosecution was required to discharge the burden to prove that there was a demand and acceptance of illegal gratification by a public servant, the appellant, but they failed, which make it a case of acquittal.
28. In view of above discussion the judgment of the Trial Court dated 27th October, 2010 of Special Judge, Anti-Corruption, Balochsitan, Quetta is hereby set aside. The appellant Tahir Mehmood son of Naik Muhammad, is acquitted of the charge in case pursuant to F.I.R. No. 232 of 2009, Police Station, Satellite Town, Quetta, from the offences under Section T61, PPC and Section 5(2) of the Prevention of Corruption Act, 1947. The appellant is on bail, his bail bonds stand discharged.
Criminal .
2013 Muhammad Jamil, etc. V. The State Cr.C.385 (Manzoor Ahmad Malik, J.)