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Criminal Appeal No.200 of 1981, decided on 5th May, 1986.

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S. 161‑‑Bribery‑‑Evidence, appreciation of‑‑F.I.R. lodged with delay‑‑Prosecution story of accused going to shop of complainant and bringing cheque book for making' payment of illegal gratification, appearing to be imaginary‑‑Prosecution mainly relying on oral testimony of interested witnesses and complainant inimical towards accused who apprehended him and seized contraband goods from his shop‑‑No documentary evidence brought, substantiate charge while oral statement of witnesses not inspiring confidence‑‑Case against accused, held, was not established beyond all reasonable doubt, in circumstances .

A.Q. Halepota for Appellant.

M. Makhdoom A . Wali for the State.

Dates of hearing: 20th and 27th April, 1986.

The appellant has been tried alongwith three co‑accused by the learned Special Judge Anti‑Corruption, Karachi. The three co‑accused have been acquitted but the appellant has been convicted under section 161, P.P.C. read with section 5(2) of Act II of 1947 by the judgment dated 20‑10‑1981 and sentenced to suffer R.I. for two years and to pay fine of Rs.3,000 in default to suffer further R.I. for six months.

2. The facts in brief are that Mumtaz Hussain P.W.7, Anti‑Corruption Inspector was entrusted with the investigation of the case on application Exh.35 given by complainant Wali Muhammad. On 20‑2‑1976 formal F.I.R. was recorded by the Inspector who lodged the report on behalf of the State. It is alleged that the appellant alongwith police party raided the shop of the complainant on 14‑9‑1975 and recovered some articles from the shop. The accused also arrested the complainant and his two sons Shaukat Ali and Anwar Ali, It is alleged that the appellant demanded Rs.15,000 from the complainant and gradually came down to Rs.10,000 but complainant refused to make any payment of illegal gratification. The appellant again went to the shop of the complainant and brought some articles and also removed a sum of Rs.3,500 from the shop of the complainant. He also brought the cheque book from the shop of the complainant was made to sign a cheque for Rs.2,000. When the complainant signed the cheque and amount was given to the appellant the complainant was released on bail on the next date.

3. The prosecution examined complainant Wali Muhammad as P.W.1, his son Shaukat Ali P.W.2, his another son Muhammad Ali P.W.3. P.W.6 Sadiq Ali is allegedly intervened and was present at the time when the amount of Rs.2,000 was paid to the appellant. P.W.4 Tafazzul Hussain was the Manager of Habib Bank Ltd. Ranchore Lines, Karachi and according to him a cheque amounting to Rs.2,000 was encashed on 15‑9‑1975. The appellant was released by S.H.O. Ghulam Hussin vide entry No.9 and produced by Sultan Mahmood as P.W.5. The appellant denied the charge, and examined four witnesses in defence. D.W.1 Atta Muhammad Head Constable produced the Roznamcha showing the entry with regard to the goods being taken away by the customs authorities and brought to the police station. D.W.2, S.A.H. Rizvi Senior Preventive Officer deposed that 16 items were deposited with the customs authorities. D.W.3 Hameed, Mashir corroborated the Mashirnama Exh.31, D.W.4 Muhammad Idrees produced applications Exh.35 dated 12‑11‑1975 Exh.36 dated 31‑12‑1975.

An application was moved to the then Prime Minister Mr. Bhutto. This application was sent to the S.P. City Division who held the enquiry and found the allegations as false.

4. Learned counsel for the appellant has stated that no case has been made out against the appellant. P.W. Anwar Ali was given up by the prosecution and P.W. Shaukat Ali in his 164 statement has stated that he came to know about this case after his father had gone to the Anti‑Corruption police. He has not personally disclosed this fact to anybody. He heard about Hanif Soldier member of Pakistan Peoples Party Ranchore Line. He does not know if Sadiq brought a chit from Hanif Soldier to the police for the release of his father. He has not admitted that they used to bring smuggled goods to the shop but the complainant Wali Muhammad appeared before the Superintendent of Customs. The case against him stood proved and the goods were seized and confiscated under section 156(90) of the Customs Act. The other items were in smaller quantities and they were released. The S.P. had conducted an enquiry on the complaint of the complainant. Various articles were seized by the police from the shop of the appellant under a proper seizure memo. and Muhammad Hanif Soldier got the accused bailed out and the witnesses examined by him have stated that no money whatsoever was either demanded or accepted by the S.H.O. Nabi Bux Police Station. The allegation levelled by the applicant against the S. H .O. Nabi Bux Police Station and his staff seems to be after thought and appears to have been motivated to bring a bad name to the police.

Then Exh. 16 is Station Diary which shows that the complainant Wali Muhammad was released on bail by S.H.O. Malik Ghulam Hussain and the allegation that the complainant was released on bail after taking illegal gratification from the complainant was incorrect. Then there is a report of Hanif Soldier, President, Pakistan Peoples Party dated 31‑12‑1975 wherein it is stated that he summoned the complainant and the accused officials in his office on 30‑12‑1975 in the night and discussed matter with both the parties. At that time Messrs Fazal Babu, Feroze Malik Ramzan and others were also present and the complainant admitted that he submitted a false application against the officials of Nabi Bux Police Station and that he would withdraw the application provided that no action would be taken against him. This report of Hanif Soldier shows that the complainant had admitted before him that he had filed a false complaint against the police. Though Hanif Solider has not been examined as a witness but this document has not been disputed by the State. P.W. Sadiq Ali is alleged to have intervened and was present when the amount of Rs.2,000 was paid to the appellant but his name does not appear in the first information report. He is Khoja by caste and has business dealings with the complainant who is also a Khoja. The alleged incident had occurred on 15‑9‑1975 but the earlier application submitted to the then Prime Minister is dated 6‑10‑1975 that is father after considerable delay. Though the complainant was admitted to bail on 15‑9‑1975 but he did not file any application or complaint against the police after he was released on bail. The first information report was lodged after a considerable delay. The Manager of the Bank who .has deposed about the encashment of cheque has not stated that the payment was made to the appellant. The story that the appellant went to the shop and brought the cheque book appears to be imaginary because it cannot be believed that the appellant would go to the shop of the complainant and would bring the cheque book for making payment. There is oral testimony of interested witnesses and the complainant has a grievance against the appellant as he had apprehended him and seized the goods from his shop which were subsequently, found to be contraband goods.

5. Mr. Makhdoom Abdul Wall learned counsel appearing for the State has not supported the judgment on the ground that no documentary evidence has been brought on record to substantiate the charge and the oral statements of the witnesses do not inspire confidence.

6. Keeping in view the facts and circumstances of the case. I am of the view that the case against appellant has not been established beyond all reasonable doubt. The appeal is, therefore, accepted and the conviction and sentence recorded against the appellant is set aside. He is on bail. His bail bond is discharged.

The appeal was accepted by a short order. The above are the reasons for the same.

S. G. D. Appeal allowed.

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