DR. GHOUS MUHAMMAD, J.- This appeal is directed against the judgment dated 1.7.1995 whereby the learned Special Judge Anti-Corruption, Karachi (Mr. Munir Ahmed Khawaja) convicted the appellant for the offence? Under section 161 C.P.C, read with Section 5(2) of Prevention of Corruption Act II of 1947) and sentenced him to undergo R.I. For three months and to pay fine-of Rs. 2,000/- or in default of payment to under-go R.I. For 2 months more.
2. Briefly stated the prosecution story as unfolded in the F.I.R, which was lodged by complainant Raees Ahmed, is that on 19.8.1993 at 12.45 p.m. He was going on Jamshed read in Yellow Cab No. EG-1317 to drop his cousin Mst. Nasreen and when they reached at Jail road to persons in civilian dress stopped them and introduced themselves as police constables Sagheer and Muhammad Akram. They told the complainant party that he was sitting with a stranger lady therefore they should accompany them to the police station. The taxi was being driven by P.W. Rasheed Ali. The complainant informed the policeman that the lady passenger was his cousin and he was going to drop her at her residence but allegedly the policeman refused to listen to the complainant and insisted for taking them to the police station to cause them humiliation. The complainant was then pulled out of the taxi and Rs. 9880/- were taken out by the policeman from his pocket and they demanded further amount of Rs. 1,00,00/- for their release but ultimately it was agreed that Rs.
5,000/- shall be paid on 21.8.1993 to the policemen at 3.15 p.m. At NIPA round about (Chowrangi).
They informed the complainant that they would reach on motor cycle or on any other vehicle to collect their "Kharchapani". They also snatched driving licence, NIC Card and diary from the complainant. Being aggrieved the complainant went to the Anti-Corruption police station and lodged his report. After registration of case a raid was arranged under the supervision of a Magistrate and the to policemen were habbed on the spot for having accepted the tainted money.
After due investigation appellant Muhammad Sagheer was challaned. He was tried and convicted by the learned Special Judge Anti-Corruption (Province Karachi). P.C. Muhammad Akram was let of by the police.
3. During the trial the prosecution examined five witnesses. Muhammad Raees (P.W. 1) is the complainant and he produced his F.I.R. (Ex. 3-A). Rasheed Ali (P.W.2) was the taxi driver. A.S.I. Altaf Hussain (P.W.3) acted as one of the mashirs. Inspector Khursheed Ali (P.W. 4) is the investigation officer and he also produced raid report (Ex. 6). Haibat Khan (P.W.5) is the learned A.G.M. Court No. 15 Karachi East. He supervised the raid. The prosecution then closed-its side (vide statement Ex. 8).
The appellant in his statement recorded under section 342 Cr.P.C, denied all allegations and pleaded innocence. He also alleged that the tainted, money was foisted on him by the EO. Due to grudge as he was annoyed because of the intervention of the appellant to rescue the let of of accused Muhammad Akram. In. His defence the appellant examined Rasheed Ahmed. The learned trial Court formulated the following points:- "(1) Whether during the relevant period, accused Muhammad Saghir was serving as police constable in SRP, Gulshan Base No. 1, Karachi?
(2) Whether the accused Muhammad Saghir by abusing his official position alongwith let of accused Muhammad Akram on 19.8.1993 slopped the taxi of complainant Rais Ahmed and snatched Rs. 9880/- from him and further m^de a demand of Rs. 1,00,000/- as a motive or reward for releasing complainant, and his cousin Mst. Nasreen and ultimately . Agreed to accept Rs.
5,000/- on 21. 8,1993 at NIPA Chowrangi ?
(3) Whether accused Muhammad Saghir was caught hold of by the trap party at NIPA Chowrangi having accepted tainted money of Rs. 5,000/- from complainant which were recovered from him ?
(4) What offence has been committed by the accused ?
4. I heard Mr. Gul Zaman Khan learned counsel for the appellant and Mr. Agha Zafir learned advocate for State and perused the record.
5. Learned counsel for the appellant submitted that the to material witnesses namely Raees Ahmed (complainant) and Rasheed Ali, taxi driver were declared hostile and their evidence also suffers from material contradictions. He further submitted that the evidence of three official, witnesses does not inspire confidence and compliance, of Section 103 Cr.P.C, was also not made by the to. Lastly he submitted that this is a case of no evidence and the learned trial Court convicted the appellant on misappreciation of evidence. Mr. Agha Zafir supported the impugned judgment.
6. The complainant in his statement has supported the contents of the F.I.R, about the initial incident which took place on 19.8.1993. He also deposed that at the appointed time and place the to police constables reached near NIPA Chowrangi and the complainant had conversation with them. The raiding party was stationed at a distance of 25 paces away from them. However he deposed that he paid the tainted amount to Muhammad Akram but as soon as the police party reached he threw the money on the ground but both of them were arrested on the spot. He was declared hostile and was cross-examined by the PDSP. In cross- examination he denied the suggestion that the police had secured the tainted currency notes from the possession of the appellant. He further stated that he could not say whether the -appellant and another person with him namely Muhammad Akram had taken cash of Rs. 9880/- from him as he was not in proper state of mind at that time. Rasheed Ali (P.W.2) has also in his examination-in-chief supported the incident when his taxi was stopped and the complainant was harassed and Rs. 9880/- were also snatched from him by the culprits. He deposed that it was settled that Rs. 5,000/- should be paid by the complainant to the policemen as per arrangement, but he disclosed the name of the present appellant as Muhammad Saleem being one of the accused persons. He also deposed that police apprehended both the culprits but denied the suggestion that money was recovered from the pocket of-the other person. He to was declared hostile and in cross-examination he denied the suggestion that the tainted currency was paid by the complainant to the appellant or that the same was secured from his pocket in the presence of witnesses.
7. So far point No. 1 is concerned this is not at all in dispute as the appellant at the relevant time was serving as police constable in SRP Gulshan Base No. I Karachi. The remaining three points are vital.
Although complainant Muhammad Rasees and Rasheed Ali (P.Ws. 1 & 2) have supported the initial incident when the appellant alongwith P.C. Muhammad Akram stopped the complainant and his cousin and he was deprived of Rs. 9880/- and both of them have consistently deposed that the to police constables threatened the complainant to pay Rs. 1,00,000/- or he would be humiliated at the police station and ultimately it was settled that Rs. 5,000/- should be paid to them on the appointed day. They have also Supported the prosecution version regarding the reporting of the matter to the Anti-Corruption police and handing over of tainted money to the complainant. They have further deposed that in the taxi of P.W. 2 they went to the designated place near NIPA Chowrangi and both the culprits reached there. So far the payment of tainted money is concerned on this point the complainant deposed that he had paid the amount to Muhammad Akram and he expected the presence of the appellant on the spot. Likewise P.W. 2 also deposed that the raiding party apprehended both the policemen but the tainted money was recovered from the pocket of other person "and not from the pocket of the appellant." Both of them were declared hostile, but even having been declared hostile the evidence of these to witnesses cannot altogether be ignored. In Kaloo and to others v. The State t (1973 P.Cr.L.J, p. 334) a learned Division Bench of this Court held as under:- "When dealing with a hostile witness it is open to the Court to act on such particulars in the evidence of a hostile witness as may be considered to be true in relation to the circumstances of the case. It would be wrong to assume that the evidence of a hostile witness has to be discredited wholly. There may be a case when a witness may be trying to exculpate one out of several accused for some personal reasons and all the same giving true evidence regarding the rest. In such case it can not be said that the entity evidence of a hostile witness should be left out of consideration.
8. In Zarid Khan v. Gul Sher and another (1972 SCM R 597) it was held by a full bench of the Hon'ble Supreme Court that when a witness turns hostile at t the trial the Court has to take into consideration his entire evidence and see whether f any part of his evidence was worthy of belief in the light of other evidence. Following this principle in the fact and circumstances of the instant case in mv humble view the testimony of Pws. 1 and 2 deserves to be considered like the evidence of any other witness but with a caution to see whether their statements are in conformity with the remaining evidence. They have fully supported. The initial incident as well as lodging, of the F.I.R, arrangement regarding passing of the tainted money. Therefore notwithstanding the fact that although obliging statements have been made by them in the latter part of their examination-in- chief their consistent statement is worthy of credit on almost all material points.
9. Now taking up evidence of the three official witnesses they have also fully supported the prosecution version on all material points. All three of them witnessed the payment of tainted money and its recovery from the possession of the appellant-. Once money is shown to have passed on to the accused through a decoy witness a rebuttable presumption arises under section 4 of the Act II of 1947 that the tainted money was received as illegal gratification. The appellant has failed to rebut that presumption. The learned trial Court has taken note of some contradictions in the statements of these three witnesses but has rightly held them to be of trivial nature. The appellant has alleged false implications. As according to him he had tried to intervene and was arrested on the spot due to grudge of the I.O. His witness has also advanced the same theory. The plea of grudge is not at all plausible. Yet another important aspect is that he admitted his presence on the spot at the time of raid but the question is why did he intervene when the whole operation was being supervised by a Magistrate. Therefore keeping in view the entire evidence on record I see no reason to upset the findings of the learned trial Court which are just and proper. So far the sentence is concerned the learned trial Court has taken a lenient view but in my humble view in a case of this nature when corruption is rampant in the country and every now and then one comes across a large number of cases of corruption and extortion by members of the law-enforcing agencies, award of lighter punishment instead of serving any useful purpose acts an inducement to corruption. In my humble view it would be relevant to appreciate the significance of the sentencing process in the context of individualization in the administration of criminal justice.
Individualization means that instead of fitting the offence, the criminal sanction should fit the offender. The first movement towards rational sentencing was launched by the English classical school as a reaction against the arbitrary nature of the punishment prescribed for a variety of offences. In eighteenth-century England, over 200 crimes ranging from pick-pocketing to murder were punishable with the death sentence. In other words, far from fitting. The offenders, the punishments did not fit even the offences. Bentham sought to achieve some element of rationality in the penal policy by advocating punishments of different magnitudes for different kinds of offences. He provided the following guidelines for the gradation of offences in terms of different punishments:-
(1) The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence.
(2) When to offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less.
(3) The punishment should be adjusted in such manner to each particular offence that for every part of the mischief there may be a motive to, restrain the offender from giving birth to it.
(4) The punishment ought in no case be more than what is necessary to bring it into conformity with the rules here given.
10. The other rules propounded by Bentham laid down that the quantum of punishments prescribed should be in inverse proportion to the possibility and time factor involved in the infliction of punishment. In other words, punishment ought to be greater in situations where detection of the offence and the consequent punishment is either uncertain or remote in terms of time.
11. Regarding the fixation of punishment in the range permissible by law, Bentham said that the quantum should vary according to the offender's capacity to suffer. He has enumerated thirty-to variables of capacity for suffering, ranging from sex, age, physical and mental health to climate, religion and lineage which, in the words of Nigel Walker, was an astonishingly modem piece of writing for an eighteenth-century penologist.
12. The classical school, therefore, paved, the way for distinguishing the various crimes according to their gravity and the prescription of different punishments for them. The Pakistan Penal Code (as amended) is an example of the influence exercised by Benthamites in relation to penal legislation in the nineteenth century and even thereafter. Thus grading of the various offences is based on their gravity as understood by the legislature; and the gravity of an offence is. Generally assessed in terms of social danger, alarm, social disapproval, harm and wickedness involved in it. (See Rupert Cross. The English Sentencing System (197T) p. 139). It may be further observed .That the sentencing authority should have sufficient information regarding the various personal factors of the accused and in this regard pre-sentence report can provide valuable basis for sentence and treatment of the individual offender. The Congress of the Institutional Penal and Penitentiary Commission in Brussels held in 1951 recognise the utility of pre-sentencing reports and some of the resolutions reproduced below indicate the scope and context of such reports likely to be helpful in the sentencing process:-
(1) In the modem administration of criminal justice, a pre-sentence report covering not merely the surrounding circumstances of the crime but also the factors of the constitution, personality character and sociocultural background of the offender is a highly-desirable basis for the sentencing, correctional and releasing procedures.
(2) The scope and intensity of the investigation and report should be adequate to furnish the judge with enough information to enable him to make a reasoned disposition of the case.
(3) In this connection it is recommended that criminologists in various countries conduct researches designed to develop prognostic methods ('.Prediction tables', etc.)
(4) It is-further recommended that the professional preparation of judges concerned with penecorrectional problems include training in the field of criminology.
"Quoted Ahmed Siddiqui; Criminology IVth Ed. p. 324 Delhi 1997.
13. The pre-sentence reports are now a regular feature of the English and American criminal law systems. In the U.S.A, the various States have enacted laws for the supply of these reports and they have also been the subject-matter of the Constitutional issues arising due to the requirement in many jurisdictions that the reports must be kept confidential. In England, the Home Office had powers since 1967 to require any kind of Criminal Court to obtain a 'social inquiry report' before imposing a custodial sentence on whatever category of offender the Home Office may prescribe.
In our country, however, there is no such provision in the laws relating to the administration of criminal justice except those relating to juvenile offenders. The potential utility and sociological value of pre-sentencing reports can not denied in a good administration of justice. Therefore this vital issue deserves to be given due consideration by Pakistan Law Commission and our legislators.
It would not be out of place to further suggest that improving sentencing skills should be an important part of any scheme which aims to make sentencing practices more consistent. The trial Judges should .Be made well- conversant with all the alternative sentences and their application in appropriate situations. They should be trained to evaluate pre-sentence and psychiatric reports in cases where they are made available to them. In the U.S.A, there is a National College of State Trial Judges where short but intensive training is imparted to the newly-appointed Judges. Besides, seminars wholly devoted to sentencing are frequently held for the benefit of judges in the Federal system and also in a few States. (Ahmed Siddiqui, supra). (See also The Psychology of Judicial Sentencing- Catherine Fitzmaurice and Ken Peasis-Manchester University Press 1986 Manchester U.K.).
14. Following the above guideline and principles in the facts and circumstances of the instant case I deem it appropriate to maintain the conviction and sentence awarded by the learned trial Court.
Accordingly the appeal having no merits is dismissed. The benefit of section 382-B is granted to the appellant, Since he is on bail and is called absent therefore, he should be got arrested by the learned trial Court in accordance with law so that he undergoes the sentence as mentioned above.