1971 P Cr (PLP)

10. A mashirnama was prepared of the scene of offence and, the said notes were collected and secured. Thereafter, the state ment of appellant Shahab-ud-Din was recorded by Mr. Jamal-ud- Din (Exh. 3/D).

11. In the meanwhile, Mr. Moin-ud-Din -accompanied by Fazal Muhammad and mashir Muhammad Ibrahim went out towards the culvert where appellant Rasul Bakhsh was sitting at that time and brought him to the house of appellant Shahab-ud -Din. But the two notes of Rs. 10 each that had been given to him by Fazal Muhammad earlier, were not with him in course of his personal search. His statement was also recorded by, Mr. Jamal-ud-Din (Exh. 3/E), soon after he had been personally searched in his presence.

12. Soon afterwards, a case was registered against both the appellants-and the investigation started. After the investigation was over, both the appellants were prosecuted for the offence they have been convicted of in this case.

13. According to his version, Fazal Muhammad approached appellant Shahab-ud-Din at Warrah a few days before the occurrence under consideration arid requested him to help him out of the situation in which he, along with his companions, had been placed by his opponents. Appellant Shahab-ud-Din replied to him that his case will be decided on its own merits and he could do nothing for him in that connection. On getting the reply Fazal Muhammad went away and accompanied by his counsel Mr. Amanullah, approached appellant Shahab-ud-Din again at Larkana and invited him to have a lunch with him But appellant Shahab-ud-Din refused it accept this invitation.

14. On the day of the occurrence in the evening Fazal Muhammad accompanied by another man called at appellant Shahab-ud-Din's house while he was playing bagatelle. When, he came out on being informed by appellant Rasul Bakhsh about his visit, Fazal Muhammad along with his companion, congratulated appellant Shahab-ud-Din on the birth of his son. He (appellant Shahab-ud-Din) replied that it was unnecessary for them to do so. Nearly at the same time Fazal Muhammad took out a cheque and showed it to appellant Shahab-ud-Din saying that it was a false cheque for Rs. 9,500 and had been passed oil to him by his partner, whose whereabouts were not known to him, and requested him (appellant Shahab-ud-Din) to call the brother of his partner and question him about his (Fazal Muhammad's partners) where abouts and thus help him in getting hold of him. While making this request Fazal Muhammad offered to pay 1/3rd of the amount of the cheque to appellant Shahab-ud-Din in case he should succeed in recovering it with his help. Appellant Shahab-ud-Din, however, turned down this suggestion and refused to help him. Thereupon, Fazal Muhammad requested him to- accept the bail of the absconder (referring to himself) in his case if he should appear in this Court on the following day. Appellant Shahab-ud-Din again refused to listen to him. At this stage, Fazal Muhammad said that he was being harassed by his opponents and, therefore, would like to give him some chaie pani and kharche so that he (appellant Shahab-ud-Din) should help him in course of his trial: Appellant Shahab-ud-Din again turned down this suggestion too, and asked him to go and seek the advice of his counsel in regard to his case. 15.After this conversation appellant Shahab-ud-Din sent away Fazal Muhammad and went back in his house and started playing bagatelle with his friends Daud Sh. Shaukat Ali and Ghaffar Khan Sarwart. Shortly afterwards someone knocked at his door. Thereupon, appellant Shahab-ud-Din's son Salim opened the door, as his servant was busy otherwise. Nearly at the same time someone threw some notes in his house and the Police party came in, and got him falsely trapped in this case.

16. Appellant Shahab-ud-Din denied like appellant Rasul Bakhsh that he had at any time received any money from Fazal Muhammad as alleged by the prosecution. According to him, appellant Shahab-ud-Din, along with his peon appellant Rasul Bakhsh, had been falsely implicated in this case by and at the instance of Mr. Jamal-ud-Din (Sub-Divisional Magistrate, Kambar) who was his enemy and had otherwise been harassing him for some time.

17. The case for the prosecution against appellant Shahab-ud-Din is mainly based upon the evidence of Mr. Jamal-ud-Din, Mr. Moin-ud-Din, Fazal Muhammad and mashir Muhammad Ibrahim. So far as appellant Rasul Bakhsh is concerned, the prosecution relies on the evidence of Fazal Mu6ammad and mashir. Muhammad Ibrahim only. On the other hand, Dr. Asan Das Tapedar Faiz Muhammad and. Sh. Shaukat Ali have been examined in defence.

18. According to his version, referred to above, appellant Shahab-ud-Din had been falsely implicated in this case by the prosecution witnesses named above for one reason or the other. Complainant Fazal Muhammad is said to have implicated him falsely because he belonged to a different religious sect and had been inbouring under the impression that he (appellant Shahab-ud- Din) was hostile to him. This view, however, does not appear to be well-founded. Even if Fazal Muhammad had some religious differences with appellant Shahab-ud-Din, like so many others, it could hardly be believed that on that account he had particularly chosen to victimise appellant Shahab-ud-Din in such a case. Moreover, there is nothing to show that in course of the proceed ings of his case appellant Shahab-ud-Din had done anything which could have created an impression in the mind of Fazal Muhammad that he was against him, and, therefore, would not treat him fairly and impartially in course of his trial.

19. Fazal Muhammad's evidence against appellant Shahab- ud-Din is supported by Mr. Jamal-ud-Din, (Sub-Divisional Magistrate, Kambar), Mr. Moin-ud-Din (Circle Officer, Anti -Corruption Establishment) and mashir Muhammad Ibrahim. According to his version appellant Shahab-ud-Din had been falsely implicated in this case by Mr. Jamal-ud-Din on account of certain remarks made by him in course of his official correspon dence with him some titre before the occurrence under conside ration. It is, however, unbelievable that Mr. Jamal-ud-Din had gone so far as to implicate him in such a case, simply because he bad annoyed him earlier by making some unpleasant remarks in course of his correspondence with him.

20. So far as mashir Muhammad Ibrahim is concerned, it is urged by the learned counsel for the appellants in course of his arguments that his version should not be accepted, as he was an employee of one Abdul Aziz, a retired Anti-Corruption Inspector, and had, it appears, given false evidence against them at the instance of Mr. Moin-ud-Din. This contention again is obviously untenable. It could hardly be believed that Mr. Moin-ud-Din was, in any way interested in getting either of the two appellants falsely implicated in this case and that is why lie had secured the services of mashir Muhammad Ibrahim through the influence of Mr. Abdul Aziz so as to support the prosecution case against them. As observed by the learned Special Judge, it was in order to ensure the secrecy of the arrangements for the trap that he had chosen to bring mashir Muhammad Ibrahim from Larkana when he had come-over along with Mr. Jamal-ud-Din. There was apparently nothing wrong in his doing so even through the influence of Mr. Abdul Aziz who was apparently known to him being a retired Anti-Corruption Inspector.

21. Mashir Muhammad Ibrahim has supported the prosecu tion case throughout against both the appellants. As pointed out by the learned Special Judge, "no malice or bias is suggested against him. He is a member of Jamait Islami and as such, he would claim to belong to the opposite- religious sect of the complainant. He has deposed in a straight forward manner and there is no reason to disregard any portion of his sworn testimony at all."

22. So far as Mr. Moin-ud-Din is concerned, it is urged by the learned counsel for the appellants that he had falsely implica ted them in this case, as he was an Anti-Corruption Officer. Merely because he was interested in the success of the trap it could not possibly be presumed that he had tried to implicate either of the two appellants falsely in this case. There is no reason whatso ever to disbelieve his evidence against them.

23. Both Mr. Moin-ud-Din and Mr. Jamal-ud-Din have deposed to the effect that they had seen appellant Shahab-ud-Din taking out the notes from his pocket and throwing them away. According to their version, they had struck against the wall and were scattered on the ground and on the cot lying near-by. At the time when he had done so, a petromax lamp was burning and there was enough light at the scene of offence to enable them to watch what he had done. It is, no doubt, true that mashir Muhammad Ibrahim had' stated to the effect that he had not actually seen appellant Shahab-ud-Din taking out the notes from his pocket and throwing them away, because he had lagged behind and Mr. Moin-ud-Din, Mr. Jamal-ud-Din and the Police Constable were in front of him at that moment. He had, however, noticed them (the notes) lying scattered at the scene of offence when he had gone in along with the party. Moreover, he has stated that he had seen Fazal Muhammad handing over eight Rs. 100 notes to appellant Shahab-ud-Din some time before the raid was made.

24. As already pointed out, three witnesses have been examined in defence in this case. One of them is Dr. Asan Das, Medical Officer, Civil Hospital, Larkana, who had examined appellant Rasul Bakhsh. He did not, however, find any mark of violence on his person; although he had noticed a few hair of his moustaches on the right side missing. He could not, however, say when it had been done. Appellant Rasul Bakhsh had been produced after his arrest before a Magistrate for remand. He does not appear to have complained to him of any maltreatment at- the hands of the Police. If he had, in all probability, he would have straightaway been sent by him to tile Medical Officer for examination. In any case, this fact in itself would not go to show that he had been falsely implicated in this case by Fazal Muham mad and mashir Muhammad Ibrahim.

25. Another witness examined in defence is Tapedar Faiz Muhammad. According to him, the southern wall of appellant Shahab-ud-Din's house was so low that a man standing outside could have thrown in the notes in question. His evidence again does not show that the notes in question had actually been thrown in appellant Shahab-ud-Din's house by someone standing outside.

26. Sh. Shaukat Ali is the last witness who has been examined in defence. He has supported the case of appellant Shahab-ud-Din throughout, But he is admittedly his friend and playmate and, therefore, naturally interested in supporting his version. His evidence in support of his case could not possibly be accepted as true, in view of what reliable prosecution witnesses, such as, Mr. Jamal-ud-Din, (Sub-Divisional Magistrate, Kambar), and Mr. Moin-ud-Din, (Circle Officer, Anti-Corruption Establish ment) have deposed, to.

27. As bas already been pointed out, none of the witnesses examined for the prosecution in this case appears to be having any grudge or ill-feeling against either of the two appellants. None of them had, therefore, any reason to implicate either of them falsely in this case. Their version against the appellants appears to be natural and reasonable. Their evidence, on the whole, goes to show that Fazal Muhammad had produced eight notes of Rs. 10 each and two notes of Rs. 10 each before Mr. Jamal-ud-Din and others while the raid was being arranged. The numbers of these notes had been noted down in a mashirnama and they were returned to Fazal Muhammad for being passed on to the appel lants. Two notes of Rs. 10 each were according to the plan, to be given to appellant Rasul Bakhsh and eight notes of Rs. 100 each were to be handed over to appellant Shahab-ud-Din. This was accordingly done and later on, eight notes of Rs. 100 each were seen being thrown out by appellant Shahab-ud-Din and were picked up from the scene of offence. The two notes of Rs. 10 each, that had been passed on by Fazal Muhammad appellant Rasul Bakhsh in the presence of mashir Muhammad Ibrahim, could not, however, be recovered, as he had, in all probability, disposed them of before he was caught hold of by Mr. Moin-ud -Din and taken to the scene of offence. But there is no reason to disbelieve Fazal Muhammad and mashie Muhammad Ibrahim on this point.

28. In view of these facts and circumstances, I find that the convictions of both the appellants are warranted by the evidence produced for the prosecution in this case.

29. As already pointed out, appellant Shahab-ud-Din has been sentenced to suffer rigorous' imprisonment for seven years and to pay a fine of Rs. 2,000 or in default of payment of fine to suffer rigorous imprisonment for one year more, while appellant Rasul Bakhsh has been sentenced to undergo rigarous imprison ment for two years and to pay a fine of Rs. 50 or in default of payment of this fine to suffer rigorous imprisonment for three months more. The learned counsel for the appellants has strongly urged that these sentences are too severe and may be substantially reduced even if the convictions of the appellants are maintained. Considering the facts and circumstances referred to above, I ant inclined to agree with him and accordingly reduce the sentences of bo!h the appellants as indicated below :- (1) Appellant Shahab-ud-Din's sentence of rigorous imprison ment for seven years is reduced to rigorous imprisonment for two years. His sentence of fine of Rs. 2,000 is, however, maintained. He will suffer rigorous imprisonment for six months more in case of default and not for one year as ordered by the learned Special Judge. (2) Appellant Kasul Bakhsh's sentence of rigorous imprison ment for two years is reduced to the period already under gone by him. His sentence of payment of fine of Rs. 50 is, however, maintained and in case of default he will suffer rigorous imprisonment for three months more, as ordered by the learned Special Judge. Appeal dismissed. Sentences reduced.