' This criminal appeal is directed against the judgment of learned Special Judge, Anti-Corruption (Provincial), Karachi, dated 17-11-1987, whereby he convicted the appellant under section 161, P.P.C.
Read with section 5(2) of the Prevention of Corruption Act II of 1947 and sentenced him to undergo R.I. For four months and to pay fine of Rs,2,000 or in default of payment of fine to undergo R.I. For one month more.
2. The facts of the case in brief are, that on 7-10-1983 the appellant was posted as Assistant Sub- Inspector at Police Station Malir Extension, Karachi. On the said date one Zahid nephew of complainant Saeed Mehmood Shaheen had caused injuries to the daughter of complainant by firing revolver at her. The complainant reported the matter to the appellant against the said Zahid and Amir. The police, however, took no action against the said accused persons. The appellant is alleged to have demanded Rs,3,000 from the complainant in order to arrest Zahid and favour the complainant in the investigation of the case. On 13-10-1983 the appellant is alleged to have come to the house of the complainant demanding Rs,3,000 which the complainant promised to pay him on 14-10-1983. The complainant, however, went to the Anti-Corruption Police and lodged such F.I.R.
Which was recorded by Inspector Abdul Hameed. The complainant was asked to come to the Anti- Corruption Office on the next day at 4-00 p.m. The Anti-Corruption Inspector arranged the presence of Mr. Shankarlal A.C.M. And Mashirs Asmatullah and Muhammad Hassan and in their presence he gave Rs,3,000 to the complainant. The said Magistrate noted down the numbers of the currency notes and prepared such Mashirnama in presence of the said Mashirs. The trap party consisting of the Inspector, two Mashirs, a Magistrate and other Anti-Corruption staff went to the house of the complainant. The complainant was running temperature on that day, therefore, he lied down on a cot in the courtyard of the house. Mashir Asmatullah sat with him on the cot, while another cot was kept there for the accused person. The Magistrate and Sub-Inspector Abdul Latif were made to sit in the room of the house of the complainant, from where they could watch the courtyard from the hole in the door. The Inspector with other staff sat in the lawn of the house of the complainant which was separate from the house, but it was in the main boundary wall of the house.
' Mashir Asmatullah was instructed to give signal when the money passed to the appellant. The appellant is alleged to have come to the house of the complainant along with one Ali Muhammad and the complainant is alleged to have passed on money to the appellant which was witnessed by the Magistrate from inside the room. Mashir Asmatullah gave pre-arranged signal whereupon the entire trap party rushed to the scene of offence. However, in the meantime the appellant threw the currency notes which fell on the blanket worn by the complainant. The currency notes were collected by the Magistrate and the numbers tallied with the numbers of the tainted money given to the complainant. Such Mashirnama was prepared. The appellant and Ali Muhammad were arrested and were subsequently challaned in the Court of learned Special Judge, Anti-Corruption (Provincial), Karachi, who acquitted Ali Muhammad, but convicted the appellant as above.
3. The appellant has denied all the allegations and states that he has been implicated because he did not allow the complainant to interfere with the investigation of the case.
4. The prosecution examined the Magistrate Mr. Shankarlal P.W. No,1, complainant Saeed Mehmood Shaheen P.W. No,2, Mashir Asmatullah P.W. No,3, Inspector Abdul Hameed P.W. No,4. The appellant examined in his defence Bashir Ahmed D.W. No,1 and Muhammad Umer D.W. No,2. He also examined himself under section 340(2), Cr.P.C.
5. The prosecution witnesses have fully supported the prosecution case as narrated in the above prosecution story. The complainant states, that the appellant demanded Rs,3,000 from him for arresting accused Zahid and favouring him in the case and he lodged such F.I.R. With the Anti- Corruption Police, which he has produced as Exh.14. He states, that he was given by Anti-Corruption Police Rs,3,000 in presence of Magistrate which he passed on to the appellant, who had come to his house to collect the money, but on seeing the police party, he threw the money on the blanket on the cot from where it was secured by the Anti-Corruption Police. He is fully supported by Magistrate Mr. Shankar Lal, who has produced the Mashirnama Exh.7 in which the numbers of tainted money were noted and Mashirnama of recovery of these notes from the cot of the complainant in his house Exh.8. He also produced Mashirnamas of the search of the person of the appellant and arrest Exhs. 9 and 10 and Raid Report Exh.11. He also produced the letter of Superintendent of Police, Anti-Corruption Establishment requesting him to supervise the trap Exh.13.
He states to have seen from the hole of the door, while sitting inside the room, the complainant handing over money to the appellant. He, however, admits, that he could not hear the talk between the complainant and the appellant. He further admits that when they came to the courtyard of the house, he found the currency notes lying on the blanket which was spread over the complainant.
6. Mashir Asmatullah P.W. No,3 has also supported the prosecution case. He states, that the tainted money was given to the complainant in his presence and such Mashirnama (Exh.7) was prepared which bears his signature. He states, that he went to the house of the complainant along with the police party and that he sat on the cot with the complainant. He further states, that the money was passed by the complainant to the appellant in his presence. He further states that thereafter he went out and gave prearranged signal to the trap party. When he came he found, that the money was lying on the blanket, which the complainant had worn. He further states, that the said money was secured by the Magistrate, who prepared Mashirnama. He further states, that the Inspector arrested the applicant/appellant and co-accused Ali Muhammad and searched their persons and prepared such Mashirnama.
7. Inspector Abdul Hameed P.W. No, 4 has also narrated the same story and supported the prosecution case. He has produced the F.I.R. Which was recorded by him. He states to have recorded the F.I.R. Exh.14 lodged by the complainant. He states to have given the tainted money to the complainant in presence of Magistrate and Mashirs and to have gone to the house of the complainant alongwith the trap party. He states that on receipt of signal, he rushed to the spot where he found the accused persons, but the money was lying on the blanket, which was worn by the complainant which he secured. He has proved and produced all the Mashirnamas mentioned above.
8. The learned counsel for the appellant has assailed the prosecution case mainly on the two grounds. Firstly it is submitted that there is contradiction in the prosecution case as to where the alleged passing of the tainted money took place. Some of the witnesses state that it was in the courtyard of the house of the complainant where he was sleeping on a cot, whereas the complainant stated that he was sleeping in the room of his house.
9. Mr. Shankar Lal, Magistrate; who supervised the trap states, that the cot on which the complainant was sleeping was lying in the courtyard and so also Mashir Asmatullah and Inspector Abdul Hameed. The complainant, however, states that he was sleeping on the cot in a room inside his house.
10. It may be pointed that the Raid Report Exh.11 which was prepared on 14-10-1983 shows that the complainant was sleeping on the cot in the courtyard. Mashirnama of the recovery Exh.8 also shows that the complainant was lying on a cot in the courtyard. This Mashirnama was prepared immediately after the incident on 14-10-1983. The complainant was examined after about 2 years of the incident and it is quite possible that due to the lapse of time he may have forgotten as to whether he was lying on the cot in the courtyard or in the room. However, all the witnesses are unanimous that the incident took place inside the house of the complainant. Even the appellant in his statement under section 342, A Cr.P.C. As well as section 340(2), Cr.P.C. Has stated that he was apprehended from the house of the complainant where he was called by the complainant. All the witnesses have also stated that the Magistrate was sitting in a room from where the place where the complainant was lying on a cot, was visible through a hole. Under the circumstances this contradiction as to whether the complainant was lying in the courtyard or in the room, is not such as would render the entire evidence incredible.
11. It is further contended by learned counsel for the appellant that neither the tainted money was secured from the possession of the appellant, nor did anybody hear the appellant demanding the illegal gratification from the complainant. Admittedly the tainted money was found lying on the blanket which was worn by the complainant when the trap party entered the place of incident and recovered the tainted money. It is also admitted fact that none of the three witnesses examined in support of the complainant have stated that any demand of illegal gratification was made in their presence.
12. Learned counsel for the appellant has relied upon the case of Rahimdad v. The State 1985 P Cr. L J 2060. In that case the recovery witness had admitted to have acted as Mashir on previous occasion and furthermore he made contradictory statement that when the appellant and complainant came out of door, the money was in the hand of complainant and again said it was in the hand of appellant, who threw the same. A learned Single Judge of this Court disbelieved such a witness and further held that the complainant being an interested witness, his statement about acceptance of tainted money could not be believed.
13. Reliance is also placed on the case of Mehmood Ahmed v. The State 1984 P Cr. L J 382. In that case nobody had heard any word exchanged between the accused and the complainant and the P.W. Deposed in favour of the accused. In that case P.W. Muhammad Akram is said to have passed on the illegal gratification to the accused, but in the Court he deposed that there was no talk of money between the complainant and the appellant and that the complainant had put Rs,500 in the appellant's coat which had been hanging by the Almirah when the appellant was taking a cheque out of Almirah. A learned Single Judge of Lahore High Court, under the circumstances, disbelieved the prosecution case and acquitted the accused person.
14. In the case of The State v. Najibul Hassan 1984 P Cr. L J 3012 a Division Bench of this Court acquitted the accused, dismissing the appeal of the State against the acquittal of the accused, as the Mashir of the raid was stock witness of Anti-Corruption and belonged to different locality and that the name of the accused was not given in the F.I.R. And further the gift-deed which was object of the bribe was not given to complainant after alleged payment of money, but was secured from Almirah of the accused.
15. In he case of Mushtaq Hussain v. The State 1985 MLD 1395 a learned Single Judge of. Lahore High Court ordered de novo trial, as the tainted money was not shown to the witnesses or to the accused at the time of their examination.
16. In the case of Muhammad Arif Malik v. The State 1983 P Cr. L J 2088 a learned Single Judge of this Court gave benefit of doubt to the accused and acquitted him, where except for one prosecution witness with whom the accused alleged enmity, no other prosecution witness categorically stated that the accused demanded illegal gratification. In that case two accused were challenged. The illegal gratification is alleged to have been demanded by the appellant Muhammad Arif Malik, whereas it was secured from possession of the appellant Anwar, who stated in his 342, Cr.P.C.
Statement that he was given Rs,30 to be given to Muhammad Arif which he accepted in good faith.
It is settled law, that the law laid down by the superior Courts in criminal cases especially is not of universal application, but is only applicable to the facts and circumstances of that particular case.
Every case specially a criminal case is to be decided on its own merits. In the instant case admittedly the complainant had registered a case under section 307, P.P.C. Against his nephews Aamir and Zahid for attempting to commit murder of his daughter. Admittedly the case was being investigated by the present appellant. Admittedly the said Zahid was not arrested by the present appellant. According to D.W. No,1 Bashir Ahmed, who was S.H.O. Of the Police Station, this Zahid was arrested after the registration of the Anti-Corruption case against the appellant. The evidence of the complainant, therefore, is to be considered and analyzed in the light of this background.
17. The next salient feature of this case is that the appellant was apprehended by the police party from the house of the complainant. Ordinarily a Police Officer is not expected to visit the house of the complainant without any purpose. His explanation that the complainant's son had come to call him, stating that Zahid was available near the house of the complainant, does not .Look convincing and believable in view of the relations at that time between Zahid and the complainant. Even otherwise an accused person would not be waiting for the police at a particular place to be arrested. The appellant has produced entry in the station diary Exh.23 to show the reason as to why he had left the police station D.W. Bashir Ahmed has, however, admitted that the Roznamcha containing this entry does not bear the seal of the police station or any other seal in order to show that it is authentic.
18. In this case besides the evidence of the complainant, that he passed on the tainted money to the appellant, there is evidence of Mashir Asmatullah and Mashir Mr. Shankar Lal, that they also saw the money being given to the appellant. Admittedly the tainted money was secured from the blanket on the cot of the complainant near the place where the appellant was standing and according to the complainant he threw the money on the blanket on seeing the trap party.
19. Keeping in view all the circumstances and admitted facts, the word of the complainant, that the appellant threw the tainted money on the blanket on seeing the trap party, stands corroborated and proved. The mere entry in the Roznamcha Exh.23 does not convincingly explain the presence of the appellant in the house of the complainant at the relevant time. This Roznamcha was at the police station and as admitted by the S.H.O. It does not bear any seal to show its authenticity. This entry could have been made by the appellant at any time. There is nothing on record to show, that this entry from the Roznamcha was produced immediately before the Anti-Corruption Inspector by the appellant in his defence or he had mentioned about this entry in his statement before the Anti- Corruption Inspector. The appellant has denied in his cross-examination the suggestion, that he has made this entry later, but the facts of the case render the suggestion to be more believable.
The tainted money in this case has been shown to the witnesses when they were examined in the Court in presence of the appellant and it is nc even suggested in cross-examination of the witnesses that this money was not secured from the blanket as alleged by the prosecution. The record of the case does not clearly indicate whether the tainted money was shown to the appellant when his statement under section 340(2), Cr.P.C. Was recorded but three specific questions were put to him with regard to the tainted money of Rs,3,000 which he has denied. In the circumstances, even if the tainted money was not shown to the appellant at the time when his statement was recorded, it would not amount to prejudicing the case of the appellant, nor would it amount to such an irregularity, which would render all the proceedings void.
20. It may also be pointed, that the co-accused Ali Muhammad, who was a constable of the police station and who accompanied the appellant to the house of the complainant has not stated in his statement under section 340(2), Cr.P.C. That Ayaz son of the complainant had taken them from the police station in his car to the house of the complainant telling them that Zahid was standing near the house of the complainant.
21. In his evidence under section 340(2), Cr.P.C. The appellant has stated, that the complainant had been making spurious medicines and that appellant, time and again, had arranged pickets in his house, therefore, he was displeased with him and he has been falsely implicated. However, no such question has been put to the complainant in his cross-examination, nor any such evidence has been produced by the appellant in his support. The only motive suggested to the complainant in the cross-examination is that he had filed this case against the appellant only to pressurise him to arrest Zahid which motive has been denied by the complainant.
22. The appellant has produced Bashir Ahmed, S.H.O. Of the police station and one Municipal Councillor Muhammad Umer, who happened to be present at the police station at that time, and who stated that Ayaz had come to the police station and took the appellant with him. I have already discussed this contention and have held that under the circumstances of the case, this contention does not look probable. There is nothing on record to show that these witnesses were produced before the Anti-Corruption Inspector by the complainant in his defense immediately after the incident to prove his innocence. The S.H.O. Would naturally be interested in his own subordinates and the Councilor appears to be a regular visitor to the police station. Their evidence, under the circumstances, does not inspire any confidence.
23. I have already discussed in detail the evidence of the Magistrate, Mashirs and Anti-Corruption Inspector, who have fully supported the complainant. Their evidence has not been shaken in the cross-examination. The admitted facts and circumstances corroborate their evidence. I find no reason to disbelieve them.
' I am, therefore, in agreement with the finding of the learned trial Court that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt. The appeal is accordingly dismissed. The warrants of arrest of the appellant be issued to serve out the remaining sentence. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.