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Criminal Appeal No. 77 of 1980, decided on 15th March, 1984.

---S.161--Prevention of Corruption Act (II of 1947), S.5(2)--t3ribery- Mashir of recovery not independent--Manner in which raiding; party went and stayed in house of a relative of complainant and specifically directing complainant and Mashir to go and contact accused where money was given to him not appealing--Anti-Corruption Inspector and raiding Magistrate not entering house of complainant and waiting till accused came out of house and arrested--Case against accused, held, not pro--circumstances--Conviction and sentence set aside.

M. A. Kazi for Appellant.

A.A. Muhammad Ally A.A.-G. for the State.

Date of hexing: 8th March, 1984.

Appellant Allah Ditta has been convicted under section 161, P.P.C. AIM read with section 5(2)-II- of Act 1947, and sentenced to suffer R.I for 12 months and fine of Rs. 1,000 in default of payment of fine to undergo R.I. for 3 months more, by Special Judge Anti-Corruption Karachi, vide judgment dated 24th March, 1980.

2. Being aggrieved with his conviction, he has filed this appeal. Prosecution case in brief is that one Shamim worked with Abdul Quddus for about one week in 1973, and took away Rs.45 from him which he did not return in spite of demands from time to time. It is alleged that Allah Ditta Police Head Constable Landhi Police Station came at house of Abdul Qaddus and told his family members that one Shamim has made application against Abdul Quddus therefore he should come at the Police Station. He went and met Allah Ditta (now appellant) who told him that Shamim has made an application in which he has written that he (Abdul Quddus) had beaten him and torn his clothes. Appellant demanded Rs.400 for disposal of that application in his favour. He agreed to meet his demand. Abdul Quddus went to Anti Corruption Inspector who recorded his F.I.R. The trap was arranged the tainted money was recovered from the possession of appellant, in presence of Mashir Abdul Jabbar. The raid was supervised by Mr. Ghulam Sarwar Magistrate. The appellant was challaned.

3. Prosecution in support of the case examined Abdul Quddus complainant Exh.2, Abdul Jabbar Mashir Exh.7, Muhammad Sarwar Magistrate Exh.8, Muhammad Naseeruddin Exh.11, and Ghulam Mustafa Exh.14.

4. Appellant in his statement under section 342 Cr.P.C. had denied the allegations and stated that complainant Abdul Quddus and Mashir Abdul Jabbar are friends and partners in carpet business. They are in habit of filing false cases against Police Officers. He has produced certified copies of F.I.R. Exhs. 18 and 19. He has further produced copy of judgment by which he has been acquitted in 13-D, Arms Ordinance case. In his further statement he has produced copies of deposition of Abdul Jabbar in 13-D case and entries of Roznamacha. He has alleged enmity with Chulam Mustafa, Anti-Corruption Inspector. He has not examined any witness in his defence.

5. P.W. Abdul Ouddus has supported his F.I.R. and stated that appellant demanded Rs.400 which he agreed to pay. He lodged report and then he was taken to City Court where Magistrate certified the facts thereafter they proceeded to Landhi in two taxis. The Anti-Corruption Inspector and Magistrate stayed in the house of the relative of the complainant whereas complainant and Abdul Jabbar under the instruction of the Officers went to appellant at Landhi Police Station and asked him to collect the amount from the house of complainant. He has further stated that appellant came to his house where he paid him Rs.400. The amount was recovered from the pocket of the appellant. He tried to escape and fought with Ghulam Mustafa, Inspector. The Police was also called by Anti-Corruption Inspector from Landhi Police Station for help. Police secured tainted money, one knife and other articles from appellant. He has admitted that he is friendly with Mashir Abdul Jabbar and both are doing carpet business. He has stated that appellant was challaned for possessing knife. He acted as Mashir in one Anti-Corruption case prior to this incident in which P.W. Abdul Jabbar was complainant. He admits that Magistrate and Police Officers could not hear the conversation between them and they had not seen the money being passed to appellant. P.W.2 Abdul Jabbar Exh. 7, has stated that the Inspector Ghulam Mustafa took him to City court from where he along with complainant Magistrate and Anti-Corruption Inspector, went to the house of one relative of complainant and he was directed to accompany complainant to Landhi Police Station therefore, they went and contacted appellant who demanded Rs.400 as bribe. He requested him to reduce the amount but he did not agree. Then it was decided that appellant should come to the house of complainant and receive the amount. He has further deposed that they came and informed Anti-Corruption Inspector and others. They went and sat in the house of complainant where appellant came and took Rs.400 from complainant and put in the pocket of his Kurta. They came out from the house when on getting signal Anti-Corruption Inspector and Magistrate came and apprehended appellant and secured tainted money and prepared Mashirhama. On personal search Rs.800, knife and other articles were also secured. He has produced Mashirnama.

In his cross-examination he has stated that

"The accused was taken to the Anti-Corruption Officer where was secured from his possession: Again says the money was from the possession of the accused at the Vardat and was also prepared there but same papers were prepared Police Station."

He has stated that he used to visit Anti-Corruption Office as had filed case against one Yaseen of K.M.C. and Abdul Quddus of this case was his Mashir in that case. He also was Mashir appellant in 13-D, case.

5. Muhammad Sarwar Exh.8, Additional City Magistrate supervised the raid. He corroborated the version given by and stated that they went and stayed in the quarter of one of relatives of complainant. They directed complainant and Mashir Jabbar to contact the appellant who came back and informed that appellant will come to the house of complainant and receive the amount.

He further stated that complainant Abdul Jabbar and appellant out from the house of complainant and they on getting signal rushed the Vardat and secured tainted money of Rs.400 from the Kurta of appellant and also one knife with 4" blade. The appellant resisted therefore they sought help of Landhi Police and took the appellant to Anti-Corruption Office.

6. P.W. Muhammad Naseeruddin Exh.11, is Head Constable at Landhi Police Station. He has stated that the application received from Baig was given to Allah Ditta Head Constable on 24th April, 1976, enquiry. He has produced entry Exh.12.

7. Ghulam Mustafa Exh. 14, is Anti-Corruption Inspector who the F.I.R. and took the complainant and Mashir Abdul Jabbar to the Magistrate and they proceeded to Landhi in two taxis and waited in the quarter of one of the relatives of complainant from where they sent complainant and Abdul Jabbar to Landhi Colony Police Station to contract the appellant.

8. He has stated that complainant and Mashir came back and informed that appellant has agreed to come and collect bribe money from the house of complainant. On getting information they surrounded the house complainant and as soon as complainant, Mashir Abdul Jabbar and appellant came out from the house, he caught hold of appellant and secured tainted money from his Kurta, and prepared Mashirnama. On personal search he secured Rs.800, one knife and wristwatch for which separate Mashirnama was prepared. The appellant resisted to which Fatehuddin Sub-Inspector Anti-Corruption, was sent to Landhi Police Station who brought Sub-Inspector Riazuddin with whose help appellant was brought to Anti-Corruption Police.

9. Mr. Muhammad Ashraf Kazi the learned counsel for the contended that appellant has been involved due to enmity. The separate case under section 13-D was filed in which appellant was acquitted this case is full of improbabilities.

10. Mr. A.A. Muhammadally the learned A.A. -G. does not support judgment and states that Shamim has not been examined by prosecution and Mashir is not independent person.

11. In this case it is admitted fact that Mashir Abdul Jabbar complainant are friends and complainant previously acted as Mashir Anti-Corruption case filed by Mashir Abdul Jabbar against one Employee thus Abdul Jabbar Mashir cannot be termed as Mashir. - It is a case of prosecution that while securing tainted long knife 4" blade was also secured from the appellant for separate case under section 13-D, Arms Ordinance was from that case appellant was acquitted. Appellant in his statement copies of judgment Exh.20, as well as copy of deposition of Abdul Jabbar, which is Exh. 21, Mashir Abdul Jabbar in that statement has accused was then taken to the office of the Anti-Corruption where Inspector Ghulam Mustafa informed him that knife was also secured from the possession of the accused (appellant). He has totally given different version of the incident before S.D.M. in 13-D case and his statement before Special Judge Anti-Corruption is different. In his statement Exh. 21, he states that one Quddus called him and took him to his place and informed him that Allah Ditta was demanding money from him as they had some dispute. He has further stated in cross-examination that first time Police showed him knife at the Anti-Corruption Office and he had never seen that knife prior to this and Mashirnama of securing of other articles was prepared for the first time at the Anti-Corruption Head Office.

12. The Mashirnama Exh. 5, was prepared at 2.20 p.m. which shows that tainted money was recovered from the right pocket of Kurta of appellant whereas Mashirnama Exh. 6, prepared at 2.30 p.m. does not show from where cash of Rs.800, keys and knife were secured from the appellant. The possibility of securing these articles from the pocket of the appellant cannot be overruled as according to prosecution he was wearing Kurta and Mashirnama is silent. This creates doubt.

13. Shamim has not been examined. The application of Shamim has not been recovered.

14. The way raiding party went and stayed in the house of relative of complainant and specifically directed complainant and Mashir to go and contact appellant at Police Station and they surrounded the house of complainant where money was given to the appellant but in spite of that Anti-Corruption Inspector and Magistrate have not entered in the house of complainant and were waiting till appellant came out of this house and then he was arrested. This does not appeal. The circumstance that appellant has been acquitted in 13-D case and evidence of witnesses on the point of recovery has not been believed.

15. The upshot of the above discussion is that case against the appellant has not been proved.

In the result his appeal is allowed. The conviction and sentences are set aside. He is acquitted. He is on bail. His bail bonds stand cancelled.

M.Y.H. Appeal allowed.

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