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Criminal Appeal No. 321 of 1963, decided on 29th April 1966.

S. 161 read with Prevention of Corruption Act (II of 1947), S. 5(2)‑Sentence‑Accused Convicted and sentenced to 2 years' R. 1. about 3 years before‑conviction of accused resulting in loss of his Government service and amenities connected therewith‑Accused also undergoing mental anxiety and torture of mind‑Sentence of 2 years' R. 1. in circumstances, reduced to period of imprisonment already undergone by accused, Criminal Procedure Code (V of 1898), S. 423.

Shamshuddin for Appellant

Kazi Akhtar Ahmad, A. A‑V. for the State.

Date of hearing: 29th April 1966.

The appellant Umed Khan son of Dad Mohd. a Foot Constable attached to the City Police Station Jacobabad was tried along with S. I. Khalilur Rehman then S. H. O. of the same Police Station by the Senior Special Judge, Jacobabad for an offence under section 165, P. P. C. read with section 5(2) of Act 11 of 1947. The charge against the S. H. O. was under section 161, P.. P. C. read with section 5(2) of Act 11 of 1947. In the result, the S. H. O. was acquitted and the appellant alone convicted and sentenced to suffer R. 1. for two years. He has appealed from this conviction and sentence.

2. The brief facts giving rise to this case are that on 8‑4‑1962 an F. I. R. was registered at City Police Station Jacobabad by one Haibat complaining of theft of money and gold ornaments. It was the case of the complainant Haibat that accompanied by his wife he had set out on the afternoon of that day for making purchases in the Bazar and for getting cleaned a gold Dur belonging to her which she had taken along with herself to Bazar. She had kept this ornament along with cash in her pocket and while they were in a Crockery Shop her pocket was picked and the contents thereof removed. Co‑accused S. I. Khalilur Rehman then S. H. O. City Police Station Jacobabad took upon the investigation into this complaint and on 15‑4‑1962 he searched the house of one Allahwasayo whose two sons were suspected of being the thief. This S. H. O. recovered nothing from the house of Allahwasayo but, never theless, he took Allahwasayo, his wife, the two sons Dad Mohd. and Ahmed and an infant son to the Police Station where they were detained. The next evening Allahwasayo's wife and minor son were released but Allahwasayo himself and the two elder boys Dad Mohammad and Ahmed were kept in custody during which time they were beaten, abused and slapped. It is also alleged by Allahwasayo that during the period of his custody S. I. Khalilur Rehman and four constables used to ask him time and again to pay illegal gratification to them which sum from Rs. 1,000, was ultimately reduced to Rs. 600. The appellant was one of these constables who repeatedly demanded payment on behalf of the S. H. O. Ultimately, on Allahwasayo agreeing to pay Rs. 600, he was released and he went straight to the D. I. G. Khairpur who was then camping at Nawabshah and presented an application to him (Exh. 6). He was referred to the S. P. Jacobabad and on returning to Jacobabad he discovered that the S. P. was out on tour and that his two sons had by then also been released by the S. H. O. with a warning that unless their father paid up the agreed sum of Rs. 600 he would be involved in some case or the other. During the succeeding days Allahwasayo remained hidden in his house at Jacobabad and on 25‑4‑62 he contacted the Anti Corruption Inspector there Muhammad Nawaz P. W. 8 who that same day recorded his statement and arranged for a trap giving Rs. 400, to be passed on to the S. H. O. That evening Mr. Din Mohd. P. W. 2 Head Munshi and 3rd Class Magistrate, Jacobabad, while sitting concealed in the house of Allahawasyo along with the Anti‑Corruption Inspector Muhammad Nawaz and two Mashirs Iddan and Faiz Muhammad were informed by Allahwasayo's son that a Foot Constable the appellant had come outside to collect the money which he had passed on to him. According to this boy Ahmed P. W. 3 the Foot Constable appellant Umed Khan after receiving the four marked currency notes of Rs. 100 each had also demanded his own Kharachi' and Allahwasayo had sent Ahmed back into the house on the pretext of bringing Rs. 10, for the appellant but really for the purpose of informing the Trap Party sitting inside that the marked notes had changed hands. Mr. Din Mohammad Magistrate accompanied by the Anti‑Corruption Inspector and Mashirs immediately came out of the house and found appellant Umed Khan standing there holding the money in his hands. Din Mohd, disclosed his identity and secured the marked notes of Rs. 400, from the ‑ hand of appellant Umed Khan under Mashirnama Exh. 11, in which the numbers of the four currency notes of Rs. 100, each were set out. He then recorded the statement of appellant Umed Khan (Exh. 12) submitted his report Exh. 15 to the Anti‑Corruption Inspector Jacobabad who same evening at 7 p.m. registered his F. I. R. and arrested the appellant. On 28‑4‑62 the appellant was released on bail and on 30‑4‑62 he was produced before Mr. Allahbux Khan P. W. 6 then City Magistrate, Shikarpur, who recorded his Judicial confession Exh. 20. After obtaining the necessary sanction Exh. 26 from the S. P. Jacobabad the appellant was challaned in Court.

3. The appellant to his statement under section 342, Cr. P. C. admitted that he was then posted as a constable at the City Police Station Jacobabad under co‑accused S. H. O. Khalilur Rehman but he denied demanding any illegal gratification on behalf of the S. H. O. from Allahwasayo and his family. He, however, admitted his visit to the house of Allahwasayo on the evening of 25‑4‑62 receiving Rs. 400, in cash from him but he claimed that he collected this money as Amanat' on behalf of his S. H. O. under whose insturctions he had one to Allahwasayo that evening for that purpose. He admitted the correctness and truth of his judicial confession in which he stated that pursuant to the instructions of his S. H. O. he had gone to the house of Allahwasayo that evening to collect Rs. 400, by way of Amanat', that he met the son of Allahwasayo to whom he conveyed his message, that Allahwasayo himself came out and gave him Rs. 400, which no sooner had he received them the Head Munshi of the Mukhtiarkar accompanied by the Anti‑Corruption Inspector and two Mashirs came out from Allahwasayo's house and secured this money from his hands. He led no evidence in defence.

4. The case for the prosecution against this appellant rests upon the evidence of Allahwasayo P. W. 1, Mr. Din Mohammad Heed Munshi and 3rd Class Magistrate P. W. 2, Ahmed son of Allahwasayo P. W. 3, Mr. Allahbux Khan City Magistrate, Shikarpur P. W. 6, and Muhammad Nawaz Anti‑Corruption Inspector, Jacobabad, P. W. 8. The evidence of Allahwasayo and Ahmed has already been noticed when setting out the prosecution story in para. 2 above. Both of them have narrated how along with their other family members they were taken by the co accused S. H. O. Khalilur Rahman to his police station where they were abused and beaten and, kept in custody during which time demands for illegal gratification were made from them by the S. H. O. and his subordinate Constables. The amount was finally fixed at Rs. 600, and hllahwasayo was released to go and collect the sum but instead he went and made a report first to the D. 1. G. Khairpur, then camping at Nawabshah and later to the Anti‑Corruption Inspector, Jacobabad. The appellant amongst other constables used to come to their house to demand this money and ultimately a trap was laid on 25‑4‑62 into which walked the appellant and collected the money only to be caught red‑handed by the Magistrate and the Anti Corruption Inspector and Mashirs who on receiving intimation came rushing out of Allahwasayo's house and recovered the marked notes of Rs. 400, from the hands of the appellant. They are supported in their testimony by Mr. Din Mohammad Third Class Magistrate P. W. 2 and the Anti‑Corruption Inspector Muhammad Nawaz P. W. 8, Din Muhammad there and then recorded the statement of the appellant in which he came out with a quear story that on coming to the house of Allahwasayo that evening to tell him that he was wanted by the S. I. P. at the Police Station, Allahwasayo gave him Rs. 400, to deliver to Dad Mchammad Talani to whom he owed this amount towards the purchase of a bullock. He added that Allahwasayo had further directed him after paying the sum to Dad Mohammad Talani to return with a Tonga in which he would accompany him to the Police Station. It is readily noticeable that this statement made by the appellant on the spur of the moment at 6 p.m. on 25‑4‑62 is very different to his statement under section 342, Cr. P. C. and to the story given by him in his judicial confession. In both these later statements his version was that he had come there that evening in obedience to the instructions of his S. H. O. to collect from Allahwasayo the money to be given by him to the S. H. O. by way of Amanat'.

5. The appellant having admitted both in his statement under section 342, Cr. P. C. as well as in his confessional statement that he was secured with the marked notes in his hands the only point that requires consideration in this appeal is whether his version that this money was given to him by way of Amanat' is true and can be accepted. As pointed out above, this version is quite different to the version put forwad by him that very evening in his statement to Mr. Din Mohammad Magistrate; Exh. 12. It was contended on behalf of the appellant by his advocate that the appellant had no knowledge that. this money was meant as a bribes but the close association of the appellant with the S. H. O. in his investigation into the F. I. R. lodged by Haibat on 8‑4‑62 and the subsequently happenings such as confining Allahwasayo and his two sons at the police station for several days thereafter and making repeated demands from him for payment of a bribe all go to show that the appellant knew that this sum of Rs. 400, that he had taken from Allahwasayo was towards payment of the bribe money. Ahmed son of Allahwasayo has also stated in his evidence that in between his release from Police custody and 25‑4‑62 the appellant came to their house on more than one occasion demanding the bribe money on behalf of the S. H. O. Thus, there can be no doubt that the appellant received this money knowing that it was the bribe demanded by his S. H. O. from Allahwasayo and his sons.

6. The only question of importance for consideration in this appeal is as to the quantum of sentence to be imposed upon the appellant. It is admitted by Mr. Kazi Akhtar Ahmed the learned A. A.‑G. appearing on behalf of the State that the appellant has been made a scape‑goat on account of the greed of his S. H. O. As a result of his conviction in this case q appellant has lost his Government service together with the othe amenities such as Provident Fund, etc. connected therewith. Hw was convicted on 31‑8‑63 and he remained in Jail from that data till after 19‑9‑63 on which day he was granted bail by this High Court. There is also the question of the mental anxiety an,: , torture of mind that the appellant must have undergone in the course of these past four years. In view of these circumstances I am reluctant to send the appellant back to jail and, therefore while dismissing this appeal I would reduce the sentence impose upon him to the period already under gone. The appellant is on bail. His bail bond is hereby cancelled.

Appeal dismissed.

Sentence reduced.

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