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Criminal Appeal No. 126 of 1965, decided on 6th November 1967.
S. 162-‑Illegal gratification to influence public servant‑‑Complainant inimical towards accused--Solitary statement of complainant that money was demanded aw accepted by accusers for influencing public servant without corrobora tion‑‑Evidence of prosecution witness suffering from material discrepancies‑‑Accused given benefit of doubt and conviction set aside.
Aftab Qazilbash for Appellant.
Manzoor Hussain, A.A.G. for the State.
Date of hearing: 6th November 1968.
The appellant has peen convicted under section. 162, P. P. C. and sentenced to three years' rigorous imprisonment and to pay a fine of Rs. 4,000.00 or in default to suffer further nine months, rigorous imprisonment by the order of Special Judge‑cum -Inquiry Officer, Hyderabad Camp at Karachi, on the 25th of February 1965. He has come up in appeal to dais Court against his conviction and sentence.
2. Briefly stated, the case of the prosecution is that few days before the 20th of May 1963 the appellant was responsible for moving the local administration in which he lodged a com plaint against Abdul Aziz complainant, his brother and other persons that Abdul Aziz was selling adulterated tea leaves and in that connection Mr. Zaigham Hussain, Additional City Magistrate, Karachi, as well as certain other Magistrates raided the shops of Abdul Aziz complainant and others and sealed in all 14 shops and godowns. According to the prosecution story the appellant, in the first instance, demanded a sum of Rs. 10,000.00 front the complainant Abdul Aziz, whose shop had been sealed by the Magistrate, and promised that he will induce Mr. Zaigham Hussain, Additional City Magistrate, for getting the shop of the complainant as well as that of his brother unsealed but ultimately the appellant agreed that he will accept Rs. 4,000.00 for passing it on to Mr. Zaigham Hussain.
3. In order to get the appellant caught red‑handed Abdul Aziz complainant approached Mr. Abu Fakhar, S. I. Police, Karachi, with an application Exh. 7. In this application Abdul Aziz stated that on Wednesday, previous to 20th of May 1963, Mr. Zaigham Hussain, accompanied by the appellant and the Police staff, sealed his shop and there after the appellant appro ached him and demanded Rs. 4,000.00 as illegal gratification fox getting his shop desealed from Mr. Zaigham Hussain. This appli cation was received by Mr. Abu Fakhar, S. I. Police on the 2Otb of May 1963 and he forwarded it to Mr. A. K. Jafari, Deputy Superintendent of Police, on the same d y. The Deputy Superintendent of Police deputed Mr. Zaheer Ahmed to register e case under section 1621420, P. P. C. and authorised him to investigate the same. Mr. Zaheer Ahmad prepared Mashirnama Exh. S in Cafe Kamal, opposite to the City Courts, in the presence of two witnesses Yar Muhammad Shah and Muhammad Qasim P. Ws. Forty notes of the denomination of Rs. 100 each, amounting to Rs. 4,000.00 were given to Abdul Aziz P. W. for passing on to the appellant as the same was demanded by him for inducing a public servant to deseal the shop of the complainant. Zaheer Ahmad, Inspector arranged a trap for passing this money; and instructed the complainant to give an appointed signal when the money had been passed on to the appellant. The Inspector searched the person of Abdul Aziz complainant but nothing was found on him and, therefore, the settled sum of Rs. 4,000.00 consisting of Rs. 100 each was entrusted to him. The com plainant, followed by the mashirs, went towards the Sessions Court where he was followed by the Police party. Abdul Aziz went at the back of the Sessions Court near the mosque where a baby taxi was standing in which the appellant was sitting on the back seat and the complainant went inside the taxi and sat on the front seat. It is alleged that the mashirs took their positions just near the taxi under a tree and after 10 minutes the com plainant came out of tire taxi and gave the appointed signal. Thereupon Zaheer Ahmad, Inspector, accompanied by Abu Fakhar, S. I. rushed to the spot. He disclosed his identity to the appellant and asked him to produce Rs. 4,000.00 which he had taken from the complainant on which the appellant produced the bag (Article "A') which was lying on his legs.
4. The Inspector opened the bag in presence of the mashirs. It contained the same currency notes the numbers of which had already been recorded by him in the mashirnama. He prepared another mashirnama after the recovery of the money Exh. 10. The Inspector also searched the person of the appellant and prepared mashirnama Exh. 16. The appellant was carrying a sum of Rs. 3,792.00 alongwith other articles but all of them were returned to the appellant as they had nothing to do with the incriminating amount of Rs. 4,000.00.
5. In support of its case the prosecution examined Abdul Aziz complainant, one of the recovery witnesses Muhammad Qasim and Zaheer Ahmad, Inspector of Police, Karachi. The accused when examined under section 342, P. P. C. denied the charge and also examined two witnesses in his defence.
6. I have heard the learned counsel for the appellant as well as the learned Public Prosecutor at some length and have also examined in detail the oral and documentary evidence produced by the prosecution in this case. Learned counsel for the appellant pointed out that the occurrence took place in the broad daylight in the compound of the Sessions Court where according to the prosecution the sum of Rs. 4,000.00 was passed on by the complainant to the appellant which was ultimately recovered from a bag. In this context he drew my attention to the material contradictions in the statements of the prosecution witnesses. It was pointed out that Abdul Aziz complainant has stated in Court that he had got the money in bag (Article "A") and when he was opening the bag to pay the money to the appellant he said that the money should remain in the bag and he should hand over the bag to the appellant. But this state ment of the complainant does not find corroboration on this point of passing of the money by the other prosecution witnesses, namely, Muhammad Qasim P. W. 2 and Zaheer Ahmad Khan, Inspector of Police. Muhammad Qasim has stated that he was posted near a tree at a distance of three four feet from the taxi where the appellant asked the complainant if the complainant had brought the money and when the complainant replied in the affirmative he opened the chain of the bag "a little" but the appellant asked him to close it again. There is a minor difference of description between the statements of Muhammad Qasim P. W. and that of complainant Abdul Aziz and I might have ignored it from consideration but when I see the statement of Zaheer Ahmad Khan I find that the entire prosecution story gets blasted up when the statement of Zaheer Ahmad Khan is read for the purpose of determining how the money was passed on from the complainant to the appellant. Zaheer Ahmad Khan, who was standing at some distance and was watching the appellant and Abdul Aziz complainant in the motor Taxi, has stated that after talking for about 10 minutes the complainant took out the tainted notes from his bag and offered them to the appellant who indicated by his hand to keep them " in the same bag. Thereafter the complainant kept back the notes in the bag and handed over the bag to the appel lant. This is a serious contradiction which cannot easily escape judicial notice. Obviously Zaheer Ahmad Khan is trying to make out a fool proof case for the prosecution. Muhammad Qasim P. W. was sitting at the back of the car at a distance of three or four feet and, therefore, the small movements of hands by which the complainant might have shown his desire to open the bag to pass the money on to the appellant might not have been noticed by him. But at the same time Muhammad Qasim makes an improvement upon the story when he states that the complainant opened the chain of the bag "a little". This does not find mention in the statement of the complainant itself who has only stated this much that he was opening the bag which obviously meant that he wanted to open the bag when the appellant asked him not to do so. Zaheer Ahmad Khan, there fore, comes forward with a different story that he had seen the complainant taking out the notes from the bag and then by indication of the hand the appellant asked him to keep them in same bag and the complainant did so at his asking. The prosecution, therefore, failed to prove that the appellant took the bag from the complainant with the conscious knowledge that it contained the tainted currency notes of Rs. 4,000.00. Zaheer Ahmad Khan, being a responsible Police officer, was perhaps conscious of this weakness of the statements of Muhammad Qasim and Abdul Aziz and thus he made a bold statement and stated that the complainant took out the money, showed, it to the appellant and kept it back in the bag at the asking of the appellant. Neither the complainant nor Muhammad Qasim support the Inspector in this respect that the money was taken out from the bag and then kept back again in it. In these circumstances no credibility can be attached to the statements of either of the prosecution witnesses so far as the passing of Rs. 4,000.00 to the appellant in the bag (Article "A") is concerned.
7. I cannot help pointing out at this stage that the prosecu tion has failed to produce the other witness of recovery, namely, Yar Muhammad nor they have produced the taxi driver, in whose taxi the entire incident took place. These two persons were important prosecution witnesses and their absence casts enough doubt upon the entire prosecution case.
8. The appellant in his statement under section 342, Cr. P. C. has stated that the complainant had told him that he had obtained some order from the higher authority for the desealing of his shop and that order he wanted to show to the appellant but he found that that order was missing and, there fore, he left the bag in the taxi on the pretext of getting it from outside. This explanation of the appellant appears to be more plausible. In these circumstances the possibility that the complainant might have left the bag on one pretext or other inside the taxi cannot be excluded altogether keeping in view the above material contradiction in the statement of the prosecution witnesses.
9. I have noticed that so far as the complainant is con cerned, he has built up absolutely a different story than the story which was given by him in his application Exh. 7 addressed to Mr. Abu Fakhar, Sub‑Inspector of Police. This application forms the basis of the F. I. R. and according to the statement of allegations contained therein the story given by the complainant is to the effect that Mr. Zaigham Hussain went to the shop of the complainant along with the Police and the appellant. They sealed his shop and on the next day Mr. Zaigham Hussain again went to the shop of the complainant with Police and the appellant and after unsealing it, he took some samples of the tea leaves and thereafter he resealed the shop, It was can the second day that the appellant took the complainant aside and asked him to see him at Cafe-de‑Khan on the same day at 10 p. m. The complainant reached Cafe‑de‑Khan at 10 p.m. and the appellant told him that he had settled the matter with Mr. Zaigham Hussain, Magistrate, at Rs. 10,0 10.1,0 to close the case. On that the complainant replied that Rs. 10,000 was too much and that he will consider over the matter. In Cafe‑de‑Khan tile appellant told the complainant to meet him in Siraj Hotel situated on Bunder Road on Saturday at 5 p.m. and in the meanwhile the appellant undertook to speak to Mr. Zaigham Hussain for this purpose. The complainant again reached Siraj Hotel at 5 p.m. on Saturday previous to the date of occurrence where the appel lant reached at 6 p.m. and asked him to pay the amount of Rs. 10,000.00. The complainant expressed his inability to pay the huge amount of Rs. 10,090.00 and after some conversation the appellant told the complainant that Mr. Zaigham Hussain was not prepared to accept less than Rs. 5,000.00 the com plainant once again called it to be excessive and ultimately the bargain was settled at Rs. 4,000.00 and it was agreed that the amount of Rs. 4,000.00 will be paid near the mosque of Sessions Court on Monday, the 20th of May 1963.
10. The salient features of this story are that Mr. Zaigham Hussain went to the shop of the complainant twice, once, on Wednesday and at the second time on the Thursday. The shop of the complainant was sealed on the first occasion and it was on the second occasion that the appellant took aside the com plainant and asked him to see him in Cafe‑de‑Khan. This story is quite different from the story told in Court by the complainant. According to his statement in Court it was Mr. Hamid Ali who sealed the shop in presence of the appellant and he had taken his photographs vide Articles "B'" and "C". There is not a word about that Mr. Zaigham Hussain went there at first and that the next day he desealed the shop and took the sample and sealed the shop again. Neither there is a word about this fact that the appellant took the complainant aside and asked him to see him in Cafe‑de‑Khan. The entire story as put in Exh. 7 about the meeting or the complainant at 10 p. m. on Thursday and, secondly, at Siraj Hotel on Saturday at 5 p. m. does not find mention in the statement of the complainant before the trial Court. It is thus obvious that the story narrated in the F. I. R. has not been corroborated by the subsequent statement made by the complainant in Court.
11. It is surprising that from Thursday onwards when negotiations went on between the complainant and the appellant till Monday, the 20th of May 1963 the complainant does not mention the presence of any one of the 14 shop‑keepers whose shops and godowns were also sealed together with his shop by the three magistrates. Even his brother. whose shop was also sealed, is not named as a witness. This circumstance makes the entire prosecution story unbelievable. This aspect of the case did not receive proper attention at the hands of the trial Court . The learned Public Prosecutor frankly conceded that there was a material difference in the story put in the F. I. R. and that narrated on oath in Court and that the learned trial Judge has not adverted to this aspect of the case at all.
12. Learned counsel for the appellant vehemently argued that there was no corroboration of the statement of the com plainant that the money was demanded by the appellant for the purposes of inducing Mr. Zaigham Hussain, a public servant, to show him some favour to the complainant in his case. Learned counsel pointed out that it was in tile evidence of the prosecution witnesses that the shop of the complainant was sealed by Mr. Hamid Ali and not by Mr. Zaigham Hussain. It was further pointed out that the case of the sealing cot the shop was tried in the Court of Mr. Ibrar Hussain, another magistrate of Karachi, and not by Mr. Zaigham Hussain and, this was in the knowledge of the complainant before the 20th of May 1963 that Mr. Zaigham Hussain had no connection whatsoever with the case of the complainant. There is lot of force in the argument of the learned counsel for the appellant. The complainant bears a grudge against the appellant because according to the photographs "B" and "C," the appellant was responsible for getting his shop sealed through Mr. Hamid Ali, Magistrate and the appellant was also present at that time. The statement of the complainant, therefore, cannot be accepted on its face value without corroboration on the point that the money was demanded arid accepted for the purposes of getting a favour from a public servant. There is no witness to support tile case of the prosecution that or Thursday when Zaigham Hussain went for the second time and desealing and resealing of tile shop took place, the appellant took aside the com plainant. Neither there is any corroboration of the statement of the complainant that this money was required for getting a favour from a public servant. The only statement is that of Muhammad Qasim P. W. who was posted at the back of the taxi in which the transaction took place at a distance of three or four feet and it is difficult to believe that the conversation inside the taxi could have been ever heard by Qasim from outside the taxi at such a distance. The appellant and the complainant met each other in the compound of the Sessions Court and the alleged act of passing of the money took place inside the taxi. I am, therefore, left with the solitary statement of the com plainant that the money was demanded for influencing a public servant and this cannot be accepted without strong corrobora tion as the complainant was inimical towards the appellant.
13. Taking into consideration the material discrepancies in the statement of Zaheer Ahmad Khan and the improvements made by the complainant in his statement before the Court and the strained relations of the parties and the absence of corrobora tion of the statement of the complainant that the money was demanded and accepted by the appellant for inducing a public servant. I consider that it is a fit case in which the appellant can he given the benefit of doubt, I therefore, accept his appeal and set aside his conviction and sentence. The appellant is at present on bail. His bail bond may be cancelled. The, amount of fine, if realised, may be refunded to him. The appellant has not claimed the sum of Rs. 4,000.00 and the bag which contained the amount. The same may be returned to Abdul Aziz P. W.
Appeal accepted.
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