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Criminal Appeal No. 62 of 1962, decided on 25th February 1964.

S. 5(2)‑‑‑No independent evidence to corroborate testimony of prosecution witnesses so as to prove prosecution case beyond reasonable doubt ‑ Accused given benefit of doubt and acquitted.

Noor Muhammad v. The State P L D 1963 S C 38 ref.

Diwan Bashir Ahmad for Appellants Nos. 1and 3.

Muhammad Hayat Junejo for Appellant No. 2.

Murtaza Hussain for the State.

Dates of hearing: 21st and 25th February 1964.

Of the three appellants who have been convicted by the learned Special Judge, Karachi on 27th January 1962, appellant Saeeduddin has been convicted under section 5(2) of Act 11 of 1947 and sentenced to 18 months R. I. and to a fine of Rs. 1,250. or in default to undergo R. I. for six months, and the other two appellants have been convicted under section 5(2) of Act of 1947 read with section 109, P. P. C. to similar sentences. The facts briefly put are these:

One Suleman who had not been examined by the prosecution lodged a report with the Special Police Establishment, Karachi on 29th August 1960, at 11‑20 a.m. that some persons have been laying bogus traps on various shops and been threatening the shop‑keepers to prosecute there by impersonating themselves as police officers. They let go the shop‑keepers after accepting bribe from them. Suleman alleged that they had planned a raid on Shop No. 1259 at Lalu Khet on that day (29‑8‑60). The report mentioned the name of owe Zaheer Ahmed, Sub‑Inspector, C. I. D. The raid was to take place with the help of Suleman. The Investigating Officer Zaheer Ahmed contacted Mr. Muzaffar Ali Shah, Accounts Officer of the Civil Supplies Department and requested him to extend his help to lay the trap.

2. It was arranged that Zaheer Ahmed along with others will go to the Shop No. 1259, Lalukhet at about 2‑30. A sum of Rs. 1,000 in hundred‑rupee currency notes were given to Sultan under mashirnama Exh. 5 and two currency notes of Rs. 10 were also given to him. The mashir P. W. Majid and Suleman were made to sit inside the shop, while the Investigating Officer Mr. Zaheer Ahmed along with others stayed in the adjoining room. The actual passing of the money between Sultan and appellant Sher Ali Beg was witnessed by P. W. Majid only. There was another mashir Yousuf also who was present in the same room with Suleman but the prosecution has for some reason not examined him. The money is said to have been recovered by Zaheer Aimed in the presence of P W. Sultan and Majid.

3. The defence of appellant Sher Ali Beg was that he was in need of sugar for the marriage of his daughter. He knew Suleman who promised him to give some sugar, and wrote him to meet him at the shop of Sultan. It was in response to this note that he came to the shop of Sultan. As Sultan demanded black money on sale of sugar he went to make

a report to the police. When he met at the bus stop of Lalukhet appellant Saeeduddin, he told him as to what had transpired. Saeeduddin accompanied him to the shop of Sultan. Saeeduddin recovered the currency notes from the person of Sultan and was preparing a mashirnama when the police raided and arrested the appellants.

4. After having heard the learned Advocate Mr. Hayat Junejo and Mr. Bashir Ahmed for the appellants and Mr. Murtaza for the State, I am of the view that this case must be considered in the light of the observations made by their Lordships of the Supreme Court in the case of Noor Muhammad v. The State (P L D 1963 S C 38). In that case the complainant stated that he paid the amount of Rs. 25 under duress. Their Lordships observed while considering the evidence of the complainant in that case as under:

"As, however, the case mainly rests on his evidence, it should be scanned with much caution and the Court must be satisfied that he is a witness of truth, specially when no other person was present at the time when he paid the alleged ' illegal gratification.

The value of his testimony would, therefore, depend on diverse factors such as the nature of his evidence; to what extent and in what manner he is interested; the probability and improbability of his story and how he has fared in the cross‑examination, etc. In other words Courts must consider whether the facts and circumstances render it probable that his story is true and it is reasonably safe to act upon it.

Keeping the above observation of their Lordships of the Supreme Court in view I would consider the evidence of the prosecution witnesses in the background of certain circumstances, which I would presently mention.

(5) It is the prosecution case that Sut9matl went to, Zaheer Ahmed to file a report against the appellant Saeeduddin and that he did so at about 11‑20 a.m. on 29th August 1960. It is further tire case of the prosecution that Sultan who used to sit at the whop at which the raid was arranged came to see the Accounts Officer Mr. Muzaffar Ali Shah of the Supply Department who directed him to go and gee Zaheer Ahmed. The prosecution has failed to explain as to how P. W. Sultan came to know that his shop was going to be raided. The suggestion of the defence is that Suleman and Sultan were in league. While Sultan went to see the Supply Department Suleman went to lodge the report. The suggestion of the defence further is that Suleman knew that the shop of Sultan was going to be raided, that day: He warned Sultan about it. They, therefore, wanted to forestall the party, which wanted to raid their shop. The prosecution has not at all explained as to how Sultan would come to know about this raid except through the agency of Suleman.

6. The other circumstance that the prosecution has failed to explain is that Suleman who already knew Sher Ali Beg who was employed as Inspector In Central Excise and Land Customs did not mention his name in the report. All that he stated in the report was that Saeeduddin in league with unknown other persons lays bogus traps and gets bribe from people. It has not been explained by the prosecution as to why Suleman did not disclose the name of Sher Ali who was already known to him if he was also in league with Saeeduddin. The suggestion of the defence is that the possibility of Sher Ali coming to the shop in response to the note of Suleman cannot be ruled out.

7. In the third place the F. I. R. is said to have been taken down at 11‑20 a.m. while Sultan stated that he came back after visiting Muzaffar Ali Shah and Zaheer Ahmed to his shop at about 11 a.m. The discrepancy about the time may not be very material but it would show that there is something wrong.

8 There is another circumstance, which may also be mentioned, though not of much importance. According to the statement of Zaheer Ahmed, it would appear that he went to the office of Muzaffar Ali Shah where he contacted Sultan and brought him to his Office. While it would appear from the statement of Muzaffar Ali Shah that he directed Sultan to see Zaheer Ahmed. It does not appear from the statement of Muzaffar Ali Shah that Zaheer Ahmed met Sultan in his office when Zaheer Ahmed came to see him and sought his help. P. W. Sultan stated that he saw Zaheer Ahmed in his office.

9. A fair conclusion of the circumstances that I have disclosed above would come to this: that the prosecution has not come with clean hands to the Court. The statement of the witnesses, therefore, has to be scrutinised with great caution. In this connection Mr. Hayat Junejo also urged and relied upon the statement of the defence witnesses to show that the relationship between the Special Police Officers and his client namely Sher Ali was, not happy. It is not necessary to give any definite finding as to the relationship between the appellant Sher Ali and the Special Police Department. One thing is clear that Sher Ali had appeared as a witness against one Anwar who was a Sub‑Inspector in the Special Police Department and who had been dismissed as a result of that enquiry. Be that as it may, the prosecution will succeed only on the strength of its own case.

10. I would now consider the important facts, which, if made out, would be sufficient to lead to the conclusion that the learned Special Judge has arrived at (sic). In the first place, the question is about the passing of the money. There is much discrepancy amongst the prosecution witnesses on this issue. It would be difficult to place reliance upon them implicitly without any corroboration, which admittedly there is none. There are only two witnesses so far as the passing of the money is concerned, namely, P. Ws. Sultan and Majid. According to P. W. Sultan he paid the amount of Rs. 1,000 to Saeeduddin who passed it on to Sher Ali. He stated as under:

"I took about Rs. 1,000 from my drawer and paid it to accused Saeeduddin. Mr. Saeeduddin paid the amount to Mirza Sher Ali Beg. Accused Sher Ali Beg kept the money in the pocket of the pants."

On the other hand, P. W. Majid stated as under:

"Sultan wanted to pay the money to accused Saeed who directed him to pay the money to accused Mirza Sher Ali Beg. Sultan paid the money to accused Sher Ali Beg. Accused Mirza Sher Ali kept the money in the pocket of the pants."

It would have been better for the prosecution if they had produced the other mashir Yousuf also who had witnessed the passing of the bribe. There is nothing on the record to show as to why the prosecution did not produce Yousuf. I consider this discrepancy in the passing of the money to be an important one. There is a great difference in accepting the money and then passing it on to someone else and merely directing Sultan to pay it to some one else. This is an important fact about which there should have been no contradiction between the eye‑witnesses if they had actually witnessed the passing of the money. The suggestion of the defence is that no money passed. The money according to the' defence, remained all along with Sultan who, on the arrival of the police party, threw it on the floor from where it was picked up by Zaheer Ahmed.

11. So far as the recovery of the money from Sher Ali is concerned, the evidence is that of Zaheer Ahmed, Sultan and Majid. Sultan stated that Sher Ali was asked by Zaheer Ahmed to produce the money at which he took it out from his shirt pocket. Majid stated that on being asked by Zaheer Ahmed, Sher Ali took out the money from his pant pocket. On the other hand, it would appear from the statement of Zaheer Ahmed that Sher Ali did not produce the money either from his pants pocket or from his shirt pocket. It was Zaheer Ahmed who, on search, recovered the money from the pant pocket of Sher Ali. It would be useful to reproduce the relevant statement of Zaheer Ahmed in this connection: ‑‑

"I then demanded the money from accused Sher Ali Beg. He was hesitating to produce the money. I took the personal search of accused Mirza Sher Ali Beg and secured the money from the right pocket of his pants. The money was Rs. 1,000."

The discrepancy as to the recovery of the money from the person of Sher Ali when considered as against the defence of the appellant Sher Ali makes the recovery doubtful. The defence was that no money was recovered from the person of Sher Ali. The money was thrown, on the floor and it was picked up by Zaheer Ahmed. To my mind, the discrepancy in the statement of the witnesses is important and makes the defence plausible.

12. There is no other evidence against the appellants Saeeduddin and Ayub except the statement of Sultan and Majid. So far as Saeeduddin is concerned, the recovery in the mashir nama of the amount paid to Sultan as the price of the sugar would be compatible with his defence that he was going to challan Sultan when the police party came and arrested him. So far as appellant Ayub is concerned all that has been said by P. W. Sultan and Majid is that he pond as a Head Constable. There is no independent evidence to corroborate the testimony of the prosecution witnesses so as to prove the prosecution case beyond reasonable doubt.

13. I may mention, while disposing of this appeal, that the conduct of the police in suppressing the note which was admittedly alleged to have been recovered from the person of Sher Ali and was written by Suleman goes against the prosecution. The defence was that the note related to the purchase of sugar from the shop in question. The presumption will be in favour of the appellant Sher Ali that if the note had been produced it would have been in his favour and against the prosecution.

14. I would, for the reasons given above give benefit of doubt to the appellants, set aside their conviction and the sentence passed by the learned Special Judge. They are on bail. Their bail bond is cancelled.

Appeal accepted,

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