' The above three appellants have filed separate appeals against the same judgment of learned Special Judge Anti-Corruption (Provincial), Karachi, dated 24-9-1980, where he had convicted all of them for offences under section 161/34, P.P.C. Read with section 5(2) of Prevention of Corruption Act II of 1947 and sentenced them to suffer R.I. For 12 months and to pay a fine of Rs,3,000 each or in default of payment of fine to undergo further R.I. For three months.
2. All the three appellants at the relevant time were serving as police constables in Police Station, Quaidabad, Karachi. On 25th March, 1976 they were on night duty on the road near Steel Mills. At about 12-30 a.m. On the night between 24th and 25th March, 1976, complainant Moinuddin alongwith his two companions Rahib and Maqsood, were returning to Karachi from Mazar of Abdullah Shah at Thatta in a Suzuki van. It is the case of the prosecution that when these persons reached the Mazar of Boorey Shah on the Highway the three appellants signalled them to stop the Suzuki. The complainant stopped his Suzuki van. It is alleged that appellants told the complainant that he was indulging in illegal business of narcotics and as such demanded Rs,2,000 from them so that he may be allowed to carry on his business without any interference. The complainant denied that he had anything to do with narcotics. Upon this all the three appellants searched the Suzuki van of the complainant, but nothing incriminating was found. It is further alleged that the appellants gave severe beating to complainant Moinuddin and compelled him to admit that he was a "Charas" smuggler. Appellant Mehboob Shah then took out Rs,435 forcibly from the pocket of the complainant, retained Rs,400 with himself and returned Rs,35 to the complainant and extorted a promise from him to pay Rs,1,600 more. The complainant is alleged to have promised to pay the amount on the next day. He also gave his address to the appellants of "Farooq Hotel" Karachi. The place and time of payment was also settled. The balance was to be paid at the same place on the next day where the complainant was held on the road.
3. Upon the undertaking of the complainant to pay the balance on the next day, he and his companions were allowed to proceed to Karachi.
' Complainant Moinuddin then came to Karachi and consulted his elders, who advised him to make a report to Anti-Corruption Police and that in the mean time he should go to the appellants at the appointed place and time to inform them that the money was being arranged and that one day's more time should be given to him to make payment.
4. The complainant accordingly went to the appointed place at the appointed time and found the appellants present there. The complainant told them that he could not arrange the amount due to closure of the Bank, therefore, one day's further respite should be allowed to him which was allowed by the appellants. It is alleged that on 26th March, 1976 at 11-00 a.m. Appellant Mehboob Shah went to 'Farooq Hotel' which was the address given to him by the complainant. The complainant was present at the Hotel. Mehboob Shah is alleged to have administered warning to the complainant that he should keep his promise, otherwise he will be implicated in a false case.
P.W. Muhammad Umer of 'Farooq Hotel', according to the prosecution case, was present at the time when appellant Mehboob Shah is said to have given this warning to the complainant. The complainant assured Mehboob Shah in presence of P.W. Umer that he would keep his promise. The latter then went away.
5. After the above alleged threat of Mehboob Shah of implicating the complainant in a false case, the complainant went to Anti-Corruption Police the same day and lodged report of the incident. Mr. Ghulam Mustafa Khan was Anti-Corruption Inspector, Karachi at that time. He recorded the F.I.R. Of Moinuddin complainant at 9-30 p.m. On 26th March, 1976. According to the F.I.R., the place of the first incident where the complainant was manhandled by the police is shown as 26 miles away from Karachi on the National Highway. Mr. Mustafa Khan took the complainant to the residence of Mr. Muhammad Sarwar Khan ACM XVII, Karachi with a request to supervise the trap. Mr. Muhammad Sarwar Khan ACM XVII, Karachi with a request to supervise the trap. Mr. Muhammad Sarwar Khan read the F.I.R. And verified the contents from Moinuddin as well as from Rahib and Maqsood, who were travelling with the complainant at the time of the first incident. They took one Zahid Shamim as Mashir and proceeded towards Malir side in three separate vehicles and reached Baloch Islamia Hotel, Malir, Mr. Ghulam Mustafa Khan handed over Rs,1,600 to complainant Moinuddin in presence of the Magistrate and Mashir Shamim and prepared a Mashirnama in which numbers of the currency notes were noted. Rahib had also signed this Mashirnama as another Mashir. From there complainant Moinuddin and Maqsood took their Suzuki van and proceeded towards the appointed place. The Magistrate and Mr. Ghulam Mustafa Khan Inspector took another car and followed the complainant's Suzuki. Other persons of the staff followed them in a Taxi. After covering 15-16 miles, the Suzuki van of the complainant and the Taxi stopped on the road when he found only accused Shah Zaman. The Inspector and the Magistrate slowed down their vehicles, bypassed the complainant's Suzuki, went one furlong ahead and stopped their car. It was dark night. All the persons were in the two vehicles. After some time driver of the Suzuki is alleged to have given signal by dipper light of the Suzuki. On receipt of this signal the Inspector and the Magistrate immediately reached the place where the Suzuki was standing and found appellant Shah Zaman standing in police uniform alongwith the complainant. The Inspector searched the person of Shah Zaman in presence of the Magistrate, Mashirs Shamim and Rahib and secured currency notes of Rs,1,600 from the front pocket of his shirt. The numbers of the currency notes were compared with the numbers of the Mashirnama and found to tally with each other. Such Mashirnama was prepared by the Inspector and read over to the Mashirs and the Magistrate. It was signed by the Magistrate and Mashirs Rahib and Zahid Shamim. The Inspector does not claim to have actually seen the passing of the tainted money from the complainant to the appellant Shah Zaman. However, Shah Zaman was arrested and brought to Cattle Colony Police Station, where he was posted. The Inspector made inquiries about appellants Mehboob Shah and Sardar Khan from the above police station and learned that they were shown on patrol duty. The Incharge of the police station was asked to produce Mehboob Shah and Sardar Khan before Mr. Ghulam Mustafa Khan Inspector. The Inspector was informed later by the Incharge of Cattle Colony Police Station that appellant Mehboob Shah was absent from duty from 26th to 29th of March, 1976.
Appellant Sardar Khan had appeared at the police station, but threw his rifle and cartridges and ran away on 26-3-1976 and also remained absent from duty upto 30th March, 1976. However, on this date both Mehboob Shah and Sardar Khan were arrested.
6. Mr. Ghulam Mustafa Khan Inspector then recorded statements of Maqsood, Rahib, Zahid Shamim, Muhammad Umer, Irshad and Abdul Malik and after completing the investigation wrote a letter to the Superintendent of Police concerned for sanction. Three separate sanctions were issued for the prosecution of the three appellants. The Inspector then submitted challan in the Court of Special Judge on 10th February, 1977 i,e, after about 10 months of the incident.
7. At the trial complainant Moinuddin (Exh. 2), Mashir Zahid Shamim (Exh. 5), Mr. Muhammad Sarwar Khan A.C.M. (Exh.7), Muhammad Umer (Exh. 11), Mr. Ghulam Mustafa Khan Inspector (Exh. 13) and Mr. Shahamat Ali Shah, S.I., Cattle Colony Police Station (Exh. 22) were examined in support of the prosecution case.
8. The appellants have not produced any witness in defence. They have denied having manhandled the complainant on the National Highway or having demanded Rs, 2,000 from them as illegal gratification for not taking any action against the complainant for his alleged offence of dealing in narcotics. Mehboob Shah has further denied having snatched Rs, 435 from the pocket of the complainant. He has denied having gone to "Farooq Hotel" and given warning to the complainant in presence of P.W. Umer that if he did not pay the balance of Rs, 1,600, he shall be implicated in a false case. On being asked whether he had remained absent from duty on 27th, 28th and 29th of March, 1976 from the police station to avoid his arrest, his answer was in the negative. He did not know as to why the witnesses Moinuddin, Zahid Shamim, Mr. Muhammad Sarwar Khan, Muhammad Umer and Mr. Ghulam Mustafa Khan had deposed against him. On being asked about his absence for three days from duty, his reply was a simple 'no'. According to the prosecution case, as stated by complainant Moinuddin, it has been alleged that Sardar Khan appellant had taken aside complainant Moinuddin, on the first time and talked to him in confidence that he should agree to pay the illegal gratification as demanded by Mehboob Shah, so that there may be no interference with Um in his Charas dealing etc. No question was, however, was asked from Sardar Khan about this aspect of the case.
9. In his statement appellant Shah Zeman has denied all the allegations and has further denied that he had accepted Rs,1,600 from the complainant at the National Highway and that the same amount was recovered from his possession by the Anti-Corruption Inspector in presence of the Magistrate and the two Mashirs.
10. Learned Special Judge relied upon the prosecution evidence of the witnensses named above and was of the view that all the three appellants were guilty of having accepted illegal gratification from complainant Moinuddin in furtherance of their common intention and as such they were guilty of offences under section 161/34, P.P.C. Read with section 5(2) of Prevention of Corruption Act II of 1947. On his finding he convicted all the three appellants as above.
11. So far as appellant Sardar Khan is concerned, there is no evidence against him to connect him with this crime. He did not demand any bribe from the complainant, nor did he accept it from him.
The only allegation against him is that he had taken the complainant and talked to him in confidence advising him to pay the bribe as demanded by his companions. Excepting this vague allegation of the complainant, there is no other evidence whatsoever against Sardar Khan.
12. So far as this role of appellant Sardar Khan is concerned, no question was put to him under section 342, Cr.P.C. So as to render an explanation. Reference in this connection has been made to the case of S.M.K. Alvi v. The Crown 1953 FC 189 in which it has been held that failure on the part of the trial Court to put question to the accused on an important ingredient of the case, would not justify taking into consideration that ingredient for coming to an adverse inference or finding against the accused. In view of the above decision and the well established law on this point, I hold that the only circumstance against the accused which has been deposed to by the complainant, but not corroborated by any other evidence, cannot be taken into consideration in finding this appellant guilty of the offence. Even P.Ws. Maqsood and Rahib have not been examined although Maqsood is brother-in-law of complainant Moinuddin. For the above reasons I find appellant Sardar Khan not guilty and acquit him.
13. So far as appellant Mehboob Shah is concerned, the evidence against him is that by using his official position, he had compelled complainant Moinuddin to agree to pay Rs,2,000 as bribe so that the complainant may not be subjected to criminal case for dealing in 'Charas'. It is also in evidence of the complainant Moinuddin that Mehboob Shah had searched the person of the complainant and taken out Rs,435 and retained Rs,400 saying that the balance of Rs,1,600 should be paid afterwards. This act of Mehboob Shah also amounted to an abuse of his position as a public servant. He was in uniform with rifle at that time. He had given beating to the complainant and compelled him to confess that he used to deal in Charas. The fact that Mehboob Shah had demanded bribe from the complainant is further proved from the evidence of Muhammad Umer (Exh. 11), who is owner of 'Farooq Hotel'. Complainant Moinuddin is also concerned with this hotel and had given his address to Mehboob Shah of the same hotel. Muhammad Umer had deposed that Mehboob Shah had come to the hotel, where complainant Moinuddin was also present and that in his presence Mehboob Shah had warned Moinuddin that if he did not keep his promise of paying the balance of Rs,1,600, he will have to face dire consequences. There is no reason to disbelieve either complainant Moinuddin or P.W. Muhammad Umer, who appear to be respectable citizens. Mehboob Shah had recovered Rs,400 from the complainant on the first occasion for the consideration that he shall not implicate Moinuddin in a false case of dealing in 'Charas'. This act of the appellant Mehboob Shah clearly falls under the definition of 'misconduct' as laid down in section 5(1)(d) of Act 11 of 1947. This sub-clause is reproduced hereunder:- "S. 5(1)-- A public servant is said to commit the offence of criminal misconduct: (a)
(b)
(c)
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person and valuable or pecuniary advantage."
14. Mr. Muhammad Anwar Tariq learned counsel for appellant Mehboob Shah has argued that the evidence of complainant Moinuddin and P.W. Muhammad Umer is tainted and should not be believed, because there is no independent corroboration. There is no substance in this argument.
Neither complainant Moinuddin nor P.W. Muhammad Umer had any reason to implicate appellant Mehboob Shah in a false case.
15. It has also been argued that the act of appellant Mehboob Shah does not fall within the four corners of section 161, P.P.C. Which runs as under:- "Section 161-- Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accept, or attemps to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person (with the Central or any Provincial Government or Legislature), or with any public servant, as such shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
16. It has been argued that neither any case was pending against the complainant at the time of the incident, nor the appellant was in a position to show any favour or disfavour to the complainant so as to compel him to pay the bribe. According to him, the act of Mehboob Shah might fall under any other section of the Penal Code, but it would not amount to any offences which have been mentioned in the Schedule to the Criminal Law Amendment Act, 1958. Even if it is conceded that act of Mehboob Shah does not fall within the mischief of section 161, P.P.C., it will amount to misconduct under section 5(1)(d) of Act II of 1947 as shown above. 1, therefore, hold that appellant Mehboob Shah was rightly held guilty of the offence of misconduct.
17. So far as appellant Shah Zaman is concerned, he has been implicated by complainant Moinuddin as well as Inspector Mr. Ghulam Mustafa Khan, the Magistrate Mr. Muhammad Sarwar Khan and the Mashir Zahid Shamim. Complainant Moinuddin has specifically alleged that both Mehboob Shah and Shah Zaman had given him beating on the first occasion and compelled him to confess that he was dealing in 'Charas' and then extorted a promise to pay Rs,1,600 as bribe, otherwise he will be implicated in a false case. A suggestion was made by defence counsel for Shah Zaman to the complainant in cross-examination to the effect that the complainant used to smuggle rice, that Shah Zaman used to interfere in his smuggling business and that due to this interference of Shah Zaman the complainant had implicated him in this case. The reply of the complainant to the above suggestion was as under:- "It is not a fact that I had implicated accused Shah Zaman so that he should not interfere into my alleged smuggling of rice."
' This suggestion supports the prosecution case that this appellant had given threats to the complainant that if he did not pay the bribe, then he shall be implicated in a case of smuggling. It was Shah Zaman appellant who had accepted Rs,1,600 from the complainant and which amount was later on recovered from his pocket by Mr. Ghulam Mustafa Khan Inspector in presence of Mr. Sarwar Khan, Magistrate and Mashir Zahid Shamim. This was tainted money and was the same which was handed over to the complainant under a Mashirnama in which the numbers of the currency notes were noted. In his statement appellant Shah Zaman has denied that this amount was recovered from him. Ocular evidence of three independent witnesses namely Mashir Zahid Shamim, Mr. Muhammad Sarwar Khan and Mr. Ghulam Mustafa Khan conclusively prove that the tainted money was recovered from the pocket of Shah Zaman. There is no reason for these witnesses to have foisted the tainted money upon the appellant.
18. Mr. Usman Ghani Rashid learned counsel for the appellant Shah Zaman has argued that the act of the appellant Shah Zaman would not fall under section 161, P.P.C. As shown above, although the act of appellant Shah Zaman may not attract the provisions of section 161, P.P.C., but it would definitely attract the provisions of section 5(1)(d) of Act II of 1947. He too was in uniform at the time of the incident and had by abusing his position compelled the complainant to agree to pay the bribe so that he should not be implicated in a false case of smuggling 'Charas'. He was, therefore, guilty of misconduct as he compelled the complainant to pay Rs,1,600. The complainant knew that the appellant was in a position to show him favour by not filing any case of smuggling against him.
According to this appellant, complainant Moinuddin was a rice smuggler. It has also been suggested in cross-examination to Moinuddin that Shah Zaman appellant used to interfere with the nefarious business alleged to have been carried on by complainant Moinuddin. Hence even if it is admitted that Moinuddin was rice smuggler, it would follow that Moinuddin was afraid of Shah Zaman and agreed to pay Rs,1,600 to him so that Shah Zaman may show him favour by not implicating him in a case of smuggling. In this view of the matter, it can be said that the act of appellant Shah Zaman would fall under section 161, P.P.C.
' The guilt of Mehboob Shah is further proved from his abscondence from the police station concerned for three days after he came to know of the report lodged by Moinuddin with the police.
This fact is by the evidence of Shahamat Ali (Exh. 22), who was Incharge of Cattle Colony Police Station at the relevant time.
' I have, therefore, no reason to differ with the decisions of the Court below that both Shah Zaman and Mehboob Shah were guilty of offence under section 5(1)(d) of Act II of 1947 and were rightly convicted. The Appeals No, 258 of 1980 and 262 of 1980 of Mehboob Shah and Shah Zaman respectively and, therefore, dismissed. They are on bail. Their bails are cancelled and they should be taken into custody and committed to prison to serve out the sentences.
Order accordingly