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Criminal Appeal No. 678 of 1985, decided on 8th February,1986.

‑‑‑S. 5‑‑Accused, a policeman, allegedly catching hold of complainant and releasing him after accepting illegal gratification and after some days accused again catching hold of complainant recovering some money from him and subjecting him to torture‑‑F.I.R. lodged with considerable delay‑‑Prosecution witness of first incident not supporting complainant and statement of complainant alone remaining in field‑‑Plea of alibi raised by accused supported by oral as well as documentary evidence‑ Statements of prosecution witnesses of second incident suffering from material contradictions‑‑Prosecution failing to prove its case beyond reasonable doubt‑‑Defence evidence believed‑‑Accused acquitted circumstances.

Mian Nusrat Ullah for Appellant.

R.A. Jeremy for the State.

Date of hearing: 8th February, 1986.

This Criminal appeal arises from the judgment of the learned Special Judge, Anti‑Corruption, Sargodha and Faisalabad Divisions with headquarters at Sargodha, whereby he on 16‑11‑1985 convicted Muhammad Nazir appellant under section 5 of the P.C.A. 1947 and sentenced him to three months' R.I. and a fine of Rs.1,000 or in default thereof one month's R.I. It was directed that the fine if realised, Rs.700 be paid to Muhammad Sharif complainant.

2. The appellant is a police constable. The allegations against him are that eon account of his personal grudge, he caught hold of Muhammad Sharif complainant on 20‑12‑1983 and released him after accepting Rs.300 as illegal gratification and that on 8‑1‑1984 he again caught hold of Muhammad Sharif complainant, recovered Rs.400 from him, wrongfully confined him, dragged him to the police station and there subjected him to torture. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution examined four witnesses, Muhammad Sharif complainant appeared as P.W.1. He supported the allegations against the appellant. Muhammad Ameen P.W.2 was witness of the incident, dated 8‑1‑1984. He did not depose against the appellant. Muhammad Khan P.W.3 had investigated the case. Sardar Muhammad P.W.4 stated that the appellant had taken the complainant into his custody and released him after receiving Rs.300 as illegal.

4. When examined under section 3‑42, Cr.P.C. the appellant denied all the incriminating circumstances. As for the incident of 20‑12‑1983, he raised plea of alibi that he was at Multan on that date. In defence he produced three witnesses. Muhammad Rafiq Muharrir D.W.1 produced documents D.E./1 to 6, D.C. and D.D. reports in the Roznamcha etc. in support of his plea of the alibi, Mushtaq Ahmad, Head Clerk D.W.2 and Muhammad Alam, Foot Constable D.W.3 stated that the appellant was in Multan on the day of occurrence.

5. The learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubt; that Muhammad Sharif and Sardar Muhammad are not reliable witnesses; that Muhammad Ameen P.W.2 has not supported the prosecution case and that from the defence evidence, it is very much proved that the appellant was at Multan on 20‑12‑1983. Conversely, the learned counsel for the State has supported' the judgment of the trial Court.

6. I have considered the submissions made by the learned counsel: for the parties with care. I find that there is a considerable delay in lodging the F.I.R. The first incident took place on 20‑12‑1983 but the complainant did not make any report immediately after the incident. The second incident took place on 8‑1‑1984 and the F.I.R. was lodged A 15 days thereafter. Muhammad Ameen P.W.3 has not supported Muhammad Sharif and as such so far as the incident, dated 8‑1‑1984 is concerned, the statement of the complainant alone remains in field. As for the incident, dated 20‑12‑1983,I find that there is ample documentary evidence produced by D.W.1 which is supported by D.Ws.2 and 3 to the effect that the appellant was at Multan on 20‑12‑1983, I do not see any reason to disbelieve the statement of D.Ws.2 and 3 which find support from documents D.E./1 to 6, D.C. and D.D. I also find that the statements of Muhammad Sharif and Sardar Muhammad suffer from material contradictions. Muhammad Sharif stated that Rs.300 were given by Sardar Muhammad from his own pocket to the appellant. Whereas Sardar Muhammad stated that the money was paid by Muhammad Sharif himself. For all these reasons, I am of the view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt.

For what has been stated above, the appeal is accepted and the appellant is acquitted of the charge.

H.A.K. Appeal accepted.

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