Find a Lawyer

Criminal Appeal No. 799 of 1980, decided on 20th June, 1982.

--Ss. 114, 161, 165-A, 170 a 420--Prevention of Corruption Act (II of 1947) , S . 5(2)--Evidence, appreciation of--No direct evidence establishing that accused having impersonated, misrepresented themselves as traffic constables and extorted money from truck drivers--Presence of accused at place of occurrence at relevant time also doubtful--Conviction found to be based on hearsay evidence- Conviction set aside and appeal accepted in circumstances.

Chutto v. State P L. D 1958 Kar. 1.8 ref.

Athar Rehman Khan and Sultan Alam for Appellants.

Syed Murtaza Ali Zaidi for the State.

Date of hearing: 20th June, 1982.

Ashiq Hussain and Muhammad Ashraf Constables, were tried by Special Judge, Anti-Corruption, Multan, on the allegation that on 21-3-1977 they were found wearing uniform of Traffic police and checking the traffic unlawfully without being assigned any traffic duty and then demanded and accepted Rs.20 each from three truck drivers as illegal gratification by inducing them to deliver Rs.20 each dishonestly, by misrepresenting that they were of Traffic police and had the authority to check them, while their co-accused Muqarrab Khan allegedly abetted .them. The learned trial Judge by his order, dated 26-7-1980 convicted Ashiq Hussain and Muhammad Ashraf under sections 170, 161, P.P.C. read with section 5 (2) of Prevention of Corruption Act, 1947, and section 420, P.P.C. and sentenced them to rigorous imprisonment for one month on each count. Similarly, Maqarrab Khan was convicted under sections 165-A and 420, P.P.C. read with sections 114 and 170, P.P.C. and sentenced him to undergo rigorous imprisonment for one month on each count. The sentences were ordered to run concurrently.

2. The convicts have challenged both their conviction anti sentences through this appeal.

3. Briefly stated the facts of the case as deposed by Mahmood Bakhsh Anjam, Inspector Police (P.W.9) are that on 21-3-1977, he was returning from Sarai Sadhhu and going to Khanewal alongwith Syed Mehmood Hassan Ali, Magistrate Section 30, Muzaffargarh (P.W.6), Raja Muhammad Basharat, S.I., S.H.O. Police Station Kabirwala (P.W.8), Hafeez Ullah A.S.I. (P.W.4), Khan Gul P.W. (given up) and Ghulam Sarwar Constable (P.W.7), after performing law and order duty at Sarai Sadhhu. Muhammad Anwar (P.W.1), a public man, was also in their company at that time. When they reached two miles ahead at Bagar Bridge, they saw a car and 3/4 trucks parked on the road side. They saw two constables checking the trucks and, therefore, they returned their vehicles back to see them. Meanwhile the two constables boarded the car and drove away towards Shorkot. The truck drivers present there, namely, Muhammad Sharif, Muhammad Sharif son of Sultan and Abdul Qayyum informed them that the accused constables had charged Rs.20 per truck from them. The party headed by Mahmood Bakhsh Anjam, Inspector of Police (P.W.9) chased the car. About three miles short of Shorkot in the area of village Dab Kalan, they found the car struck in the damaged road but the accused had already disappeared. During search of the car, they recovered a bag which contained Rs.110 in shape of currency notes of Rs.10 P.2 to P.12 from a plastic bag P.1, one challan book P.13 and a chit sanctioning leave Exh. P.14 pertaining to one Ashiq Hussain. All these articles were seized through memo Exh.P.E. Muqarrab Khan appellant was found present near the car and was arrested. The two accused who disappeared were identified to be Ashiq Hussain and Muhammad Ashraf, Constables of District police, Multan. A case F.I.R. No.42, dated 22-3-1977 (Exh.PB) was registered at the instance of Mahmood Bakhsh Anjam (P.W.9). After usual investigation the accused were challaned to Court.

4. At the trial, prosecution examined nine witnesses in support of its case. The Public Prosecutor produced the orders Exhs.P. A . A . and P.B.B. sanctioning the prosecution of the appellant.

5. The appellants denied the allegations in toto and denied to produce any defence evidence.

6. Learned Special Judge found that Mahmood Bakhsh Anjam (P.W.9), Syed Mahmoodul Hassan Ali (P.W.6), Hafeez Ullah (P.W.4) and Ghulam Sarwar (P.W.7) belong to the department of Ashiq Hussain and Muhammad Ashraf, appellants, therefore, he inferred that they had favoured the accused. According to the learned Special Judge, the conduct of the hostile witnesses was understandable as they tried to favour the accused yet and therefore convicted and sentenced the appellants, as indicated above.

7. I have heard the learned counsel for the appellants as well as for the State. With their assistance I have gone through the record.

8. Mahmood Bakhsh Anjam (P.W.9) stated that on 21-3-1977 he was returning from Sarai Sadhhu from law and order duty in the company of Syed Mahmood Hassan Ali, Magistrate Section 30 (P.W.6), Raja Muhammad Basharat, S.I.(P.W.8), Hafeez Ullah A.S.I. (P.W.4). Khan Gul (given up P.W.), Ghulam Sarwar, Constable (P.W.7) and Sh. Muhammad Anwar (P.W.1) at about 9 p.m. On reaching about 2 miles ahead of Begar Bridge they saw 2/3 trucks parked on the eastern side of the road while a car was found parked on the other side of the road. When they passed near them, they saw that some constables were carrying out checking of those vehicles and, therefore, he and his party turned round and went upto them but in the meantime Muhammad. Ashraf and Ashiq Hussain, appellants, boarded the car and drove away towards Shorkot. Muhammad Sharif, truck driver (P.W.2), Abdul Qayyum, truck driver (P.W. not produced) and Muhammad Sharif son of Sultan, truck driver (P.W.3) told the Inspector (P.W.9) that the constables who had run away had demanded and received Rs.20 per truck from them. The party chased the car and overtook it as it was found stuck in the damaged road. Muqarrab Khan was found sitting therein while the remaining accused had already disappeared. During the search of the car, currency notes valued Rs.110, P.2 to P.12, a challan book P.13 and chit P.14 were seized through memo Exh.P.F. and the car No. MNA 8262 was signed through memo Exh.P.A. Mahmood Bakhsh Anjam (P.W.9) drafted complaint Exh.P.B. and sent for registration of the case. Muhammad Aslam Head Constable (P.W.5) drew up formal F.I.R. Exh.P.B./1 on the basis of Exh.P.B. Mahmood Bakhsh Anjam (P.W.9) investigated the case, prepared the site plan Exh. P.D. and challaned the appellants.

9. In this case, the main evidence is of Muhammad Sharif (P.W.2) and Muhammad Sharif son of Sultan (P.W.3). Originally the prosecution case was that the appellants had demanded and accepted Rs.20 per truck from the aforesaid P.Ws. (truck drivers) by misrepresenting themselves as constables on traffic duty and thus cheated them by impersonation. These truck drivers then informed Mahmood Bakhsh Anjam (P.W.9), Mahmood Hassan Ali (P.W.6) and their companions about -the offences committed by the appellants. It is worth noting that none of these witnesses supported the prosecution story at the trial and they were declared hostile by the prosecutor. The members of the so-called raiding party, namely, Mahmood Bakhsh Anjam Inspector of Police (P.W.9), Hafeez Ullah A .S.I. (P.W.4), Mahmoodul Hassan Ali M.I.C. (P.W.6), Ghulam Sarwar, Constable (P.W.7), Raja Muhammad Basharat S.I. (P.W.8) and Sh. Muhammad Anwar (P.W.1) are not the eye-witnesses of demand or acceptance of Rs.20 each by the appellants from the truck drivers. Syed Mahmoodul Hassan Ali M. I. C. (P. W .6) did not claim to have identified the appellants at the relevant time at the spot. He further stated that no complaint regarding the demand or acceptance of bribe by the appellants was ever made to him. Sh. Muhammad Anwar (P.W.1) also did not support the prosecution case. He stated that no recovery of currency notes, challan book or other articles was effected from the car in his presence. He further stated that his signatures were obtained on blank paper and thus he disowned the contents of the recovery memo Exh.P.F.

10. No doubt that the prosecution witnesses, namely, Ghulam Sarwar, Raja Muhammad Basharat, Hafeez Ullah Khan and Mahmood Bakhsh Anjam have stated that they identified the appellants in the light spread by the headlights of the jeep while they were running away from the spot, but it does not in any way help the prosecution, because there is no direct evidence available on the file to establish that the appellants having impersonated,, misrepresented themselves as traffic constable, extorted money from the truck drivers and thus cheated them. Even their presence at the relevant time at the scene of offence is doubtful. Even if it is believed that they were found present near trucks parked and were checking them, even then to my mind, the appellants committed no offence, because the main allegation that they had demanded and accepted illegal gratification by impersonating themselves as members of traffic staff from Muhammad Sharif (P.W.2), Muhammad Sharif son of Sultan (P.W.3) and their companion Abdul Qayyum, truck drivers has fallen through for want of evidence. The remaining witnesses claimed to have gained the knowledge from the said truck drivers about the demand and acceptance of the money. But, as observed earlier, the truck drivers did not support this part of the prosecution story, hence the evidence of these witnesses on this point teas become "hearsay", which, being inadmissible is worthless. This proposition hardly needs to be supported by any authority yet a 'reference to Chutto v. State PLD 1958 Kar. 18 would be sufficient to allay all doubts pertaining to this proposition of non-admissibility of 'hearsay' evidence. The relevant observation reads as under: -

"Witness,--A deposing what was alleged to have been stated to him by other witnesses, B and C . B and C not deposing as to what is said to have been stated by them to A--In absence of any statement on part of B and C, A could not have been questioned on that point--Statement of A to that effect thus was not admissible.

The learned Special Judge has, therefore, fallen in error by accepting the, 'hearsay' evidence brought on record through the aforesaid Police officials against the appellants. Recovery of certain documents and money also stands disapproved as the only public witness Sh. Muhammad Anwar refused to support, the same. In short, it is a case of no evidence.

11. For the foregoing reasons, I have no option but to allow this appeal. The conviction of the appellants is set aside and they are acquitted. They are on bail. They are discharged of their bail bonds.

S.A. Acquittal ordered.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.