1986 PLP 1057 (MLD)

Date of hearing: 9th March 1986. This appeal is directed against the judgment dated 17‑1‑1985 passed by the Special Judge Anti‑Corruption (Provincial), whereby he convicted the appellants under section 161/34, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced each of them to undergo R.I. for two months and to pay fine of Rs. 2,000 each or in default to undergo R.I. for one month more.

2. A The facts of the case are that on 30‑5‑1982 Kismat Khan appeared before Inspector Faqeer Muhammad (P.W.3) and informed him that he is harassed by the Traffic Police posted from Mauripur to Suhrab Goth and they take from him Rs. 50 to Rs. 100 at different places. Such entry was made in the daily diary and Inspector Faqeer Muhammad requested Nazar Muhammad Magistrate to supervise trap proceedings. Inspector Faqeer Muhammad gave Rs. 100 as tainted money to P.W. Kismat Khan in presence of the Magistrate Nazar Muhammad Kismat Khan proceeded to the Mauripur truck stand: He was accompanied by P.W. Mazharak. Inspector Faqeer Muhammad alongwith the Magistrate and the police staff also. went to Mauripur truck stand. The Magistrate and P.W. Muzarak Khan sat on the truck of Kismat Khan which was driven by Kismat Khan himself., Inspector Faqeer Muhammad followed the truck in g car. When the truck crossed Gul Bai Traffic Post, it was stopped by the accused. P.W. Kismat Khan got down from the truck. The Magistrate and the Mashir also got down and they gave pre‑arranged signal to the, Inspector and surrounded the accused P.W. Mazarak told the Inspector that P..W. Kismat Khan had given Rs. 50 to accused Muhammad Sarwar on the direction of accused Farhat Sultan. On the personal search of accused Muhammad Sarwar Rs‑. ‑350 were secured from his pocket. Tainted‑ money of Rs. 50 was also recovered from him. Rs. 435 were secured from the personal search of accused Farhat Sultan. P.W. Kismat Khan returned remaining amount of Rs. 50 to the Inspector Anti‑Corruption. After usual investigation the‑ case was challaned in a Military Court. Thereafter the challan was returned to the Inspector with the direction to put up the same before the‑Civil Court. Thereafter the accused were challaned before the Special Judge Anti‑Corruption (Provincial), Karachi.

3. In order to bring home the charge against the accused, the prosecution examined P.W.1 Mazarak Khan P.W.2 Kismat Khan, P.W.3 Faqeer Muhammad Inspector and P.W:4 Nazar Muhammad, Magistrate. The trial Judge after assessing the evidence convicted and sentenced the appellants as stated above.

4. The appellants being aggrieved by the judgment of the learned trial Judge have filed two separate appeals, which are being disposed of by this common judgment. According‑to Mashir Niazarak Khan the Sub‑Inspector Farhat Sultan and constable Muhammad Sarwar demanded the papers relating to the truck from the driver. After checking the papers Sub‑Inspector told the driver to give Rs: 80/100 to the Constable. Kismat Khan gave Rs. 50 to the constable. Kismat Khan has stated that he gave Rs. 50' out of the money giver, to him by the Inspector Faqeer Muhammad. Accused Muhammad Sarwar took the money and put it in the pocket of his pant. P.W. Nazar Muhammad has stated that truck was stopped by one Sub‑Inspector. Kismat Khan tdld the Sub‑Inspector that all his documents were complete and he should not be harassed. The constable standing with Sub‑Inspector demanded Rs. 50 from Kismat Khan. Kismat Khan took out Rs. 50 from his pocket and gave it to the constable Muhammad Sarwar. Constable Muhammad Sarwar kept the money in his pocket. The Magistrate has admitted that no talk whatsoever had takenI place between accused Farhat Sultan and P.W. Kismat Khan. There wall no talk between Mashir Mazarak Khan and accused Farhat Sultan. After accused Muhammad Sarwar was taken into custody, accused Farhat Sultal continued to stand near another truck which was stopped by the accused before our arrival at the spot.

5. Thus from the perusal of the evidence of these witnesses it is clear that nothing has been secured from the appellant Farhat Sultan. The Magistrate who is an independent witness and a responsible office bras belied the statement of the Mashir Mazarak Khan and Kismat Khan B that the amount was paid to the Constable Muhammad Sarwar on the direction of Sub‑Inspector Farhat Sultan. Mashir Mazarak Khan has stated that Rs: 80/100 were demanded by, the Sub‑Inspector whereas Kismat Khan has stated that Rs. 50 were demanded. Nothing was securedI from Farhat Sultan. There was no allegation in the First. Information Report against the appellant Farhat Sultan. The complainant approached the police on his general allegations against the traffic police. In the absence of any recovery from the appellant Farhat Sultan, he cannot be convicted. There is no other incriminating evidence against him. His appeal is, therefore, accepted and the conviction and sentences recorded against him are set, aside. He is on bail and his bail bond are discharged.

6. As regards the appeal of, constable Muhammad Sarwar, all the witnesses have deposed that the tainted money was given to him and the same amount was recovered from him. He could not, give an explanation for the same. The raid was made in presence of the Mashi who supervised the proceedings. No enmity has been alleged against any of the witnesses. The witnesses even did not know the accused prior to the incident. As such the case against accused/appellant Muhammad Sarwar has been established beyond all reasonable doubt. Learned counsel for the appellant has stated, that he remained in custody for about one month after he was arrested and before his case was sent up to the Civil Court for trial by the Military Court. Keeping in view all these facts, while dismissing the appeal of appellant Muhammad Sarwar, the imprisonment which he had already undergone before his'6ial shall be considered as a substantive sentence and the sentence is reduced to already undergone and fine of Rs. 100 in default to suffer R.I. for one month. With this modification the appeal stands dismissed. S.A. ‑‑‑‑ Appeal partly accepted