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Criminal Appeal No. 160 of 1970, decided on 7^th July, 1981,

-------S. 161 and Prevention of Corruption Act (II of 1945), S. 5 (2) Appeal (criminal)-[Trap-case]-Conviction of accused based on solitary evidence of Raiding Magistrate-Complainant not support ing prosecution case while Police officials participating as members of Raiding Party, not examined by prosecution-Conversation between complainant and accused as heard by Raiding Magistrate not giving a complete picture to make out offence with which accused charged beyond any doubt--Conviction and sentence set aside, in circumstances.

Sh. Nisar Qutab for Appellant.

Muhammad Nawaz for the State.

Date of hearing : 28th April, 1981.

By his judgment of the 31st March, 1970, the learned Special Judge, Anti-Corruption, Lahore, convicted Talib Hussain (55 years), Police Head Constable, and Ali Akbar Shah (49 years). Police Constable, of commission of offence punishable under section 161 of the Pakistan Penal Code read with section 5 (2) of the Prevention of Corruption Act, 1947, for allegedly acceting illegal gratification of Rs. 50.00 from Muhammad Sharif (P. W. 2) on the 25th August, 1966, and sentenced them to suffer rigorous imprison ment for nine months and pay a fine of Rs, 500.00 or in default of payment thereof to pass further rigorous imprisonment for three months each. The convicts have come up in appeal against the judgment of the learned Special Judge to this Court.

2. The facts of the prosecution case laid against the appellants may be briefly described in the following words. One Muhammad Siddique, nephew and son-in-law of Muhammad Sharif (P. W. 2), was a proclaimed offender in a case registered under sections 406, 420 and 468 of the Pakistan Penal Code at Police Station City Sargodha on the 7th March, 1964. The appellants were given the warrant of arrest of Muhammad Siddique and they were on the look out for him. They pestered Muhammad Sharif (P. W. 2) to produce him. Muhammad Sharif promised to pay them Rs. 500.00 so that they could get him out of the case. Meanwhile Muhammad Sharif contacted the Anti-Corruption Police which planned to trap the appellants. On the 25th August, 1966, Muhammad Sharif was produced before Malik Muhammad Azim, the then Magistrate of Lahore, P. W. 4, who took down his statement and returned him five ten-rupee currency notes produced by him after noting down their numbers. The raiding party consisting of Malik Muhammad Azim, Magistrate, P. W. 4, Muhammad Aslam Khan, Inspector of Police, Anti-Corruption, Muhammad Din, Constable, Anti-Corruption Police, and Muhammad Sharif (P. W. 2) went at about 7-30 p.m. to the house of Mukhtar, brother-in-law of Muhammad Siddique proclaimed offender, who along with his brother, Sattar, was also co-accused in that case, at Abbot Road, Lahore, where the appellants were supposed to have arrived from Sargodha. The appellants were found in the house sitting on a sofa in the drawing room. Malik Muhammad Azim (P. W. 4), Muhammad Aslam Khan and Muhammad Din sat in the adjoining room from where they could see the appellants through glass pane of the door. The appel lants were served with food. In the meantime the Magistrate, Inspector of Police and constable shifted themselves to another room, adjoining the drawing room on the other side, from where they could see through curtains of the door between the two rooms as to what was happening in the drawing room. Muhammad Sharif (P. W. 2) and Mukhtar were with the appellants in the drawing room. Talib Hussain appellant asked Muhammad Sharif that if he made payment and produced Muhammad Siddique, they would show leniency. After considerable conversation in which Mukhtar also participated Talib Hussain received from Muhammad Sharif (P. W. 2) Rs. 50.00 which he made over to Ali Akbar Shah appellant. Muhammad Sharif told Talib Hussain that he would pay the balance and would produce Muhammad Siddique the next day. At that moment the Magistrate, Inspector and constable entered the drawing room. On the Magistrate's inquiry Ali Akbar Shah appellant took out five ten-rupee currency notes from his pocket and produced them before the Magistrate. Ali Akbar Shah told that the money had been received by Talib Hussain appellant from Muhammad Sharif (P. W. 2) and he had given to him. The numbers of the currency notes were the same as the Magistrate had noted before making over the notes to Muhammad Sharif for passing them on to the appellants. Talib Hussain did not admit before the Magistrate that he bad received the amount. The appellants' statements recorded by the learned Magistrate at that time were never put to the appellants during the trial of the case.

3. The appellants admitted that they had gone to Lahore on the 25th August, 1976, in connection with investigation of the case against Muhammad Siddique and had visited and stayed at the house of Mukhtar. Talib Hussain appellant explained that he had earlier arrested Mukhtar and Sattar as accused in that case while Muhammad Siddique was a pro claimed offender. He added that Mukhtar and Sattar had telegraphically summoned him from Sargodha but in collusion with the Anti-Corruption Establishment had got him falsely involved in the case out of grudge. Ali Akbar Shah appellant said that he had accompanied Talib Hussain on his first visit to Lahore. The appellants denied having received any amount from Muhammad Sharif or that tainted money had been recovered from their possession. They pleaded their innocence. They did not choose to produce any evidence in defence.

4. Muhammad Sharif (P. W. 2) did not support the prosecution case. He was declared hostile and cross-examined by the public prosecutor. Muhammad Aslam Khan, Inspector of Police, Anti-Corruption, and Muhammad Din, constable, as also Mukhtar who witnessed the occurrence were not examined by the prosecution. The statement of Malik Muhammad Azim (P. W. 4) is the only incriminating evidence against the appellants. Placing reliance upon the same the learned Special Judge recorded the appellants' conviction and passed sentence upon them.

5. The learned counsel for the appellants contended that the testi mony of Malik Muhammad Azim, uncorroborated as it was by any other evidence, was to be treated as evidence of any ordinary witness and that no additional importance could be attached to it simply because he happened to be a Magistrate. He added that Malik Muhammad Azim, as he had admitted in cross-examination, bad made statement by looking in Court during the course of his examination at his report and other docu ments which he had prepared at the time of the raid. As a matter of fact these documents were lying before him when he made his statement. Therefore, the learned counsel urged that his statement, which he ought to have made orally without having access to the written material prepared by him earlier, would be taken to be of lesser value and authenticity and should be scrutinised with great care to draw therefrom any inference touching the guilt of the appellants. The learned counsel maintained that the prosecution could not use the appellant's statements recorded by Malik Muhammad Azim at the time of raid because they had never been put to them during the course of trial of the case. With reference to the site plan, Exh. P. F., the learned counsel pointed out that Malik Muhammad Azim could not have heard conversation between the appel lants and the complainant when he was in the first room as there was a wall between them and the distance was no fewer than five yards. The learned counsel contended that the assertion of Malik Muhammad Azim that he had seen the appellants and the complainant through window panes could be accepted only with a grain of salt as his own presence could have been detected by the appellants as he would have himself been also visible through the window panes and this fact might have aroused suspicion which would have brought the raid to a sudden unsuccessful end. The learned counsel submitted that Malik Muhammad Azim's action of taking a detour for going to the other room if it was accepted at face value, would have consumed time and would have made him unable to see what was supposed to be happening in the drawing room as also to hear what wag being talked about. The learned counsel maintained that from behind the curtains of the door of the other room Malik Muhammad Azirn being at some distance could not have possibly heard with clarity as to what passed between the complainant and the appellants. According to Malik Muhammad Azim, Ali Akbar appellant did not utter a word. The learned counsel submitted that keeping the above facts in view Malik Muhammad Azim's statement would not prove that the appellants com mitted the offence with which they were charged and of which they have been convicted.

6. The above contentions of the learned counsel are not without significance especially when even according to the deposition of Malik Muhammad Azim whatever he heard passing between the complainant and the appellants cannot be said to make out a complete picture constituting beyond doubt the offence of which the appellants have been convicted and sentenced. Consequently the prosecution evidence brought on the record fails to make out and prove case of acceptance of bribe by the appellants. Accordingly the appeal is accepted, the conviction of the appellants recorded and the sentence awarded to them in respect thereof by the learned Special Judge are set aside and they are acquitted. They are on bail. They are discharged of the obligations attending to the bail bonds executed by them.

Appeal allowed

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