1984 P Cr (PLP)

Date of hearing: 10th April, 1984. Appellant Mohibullah was tried alongwith Muhammad Aziz in a case under section 161, P.P.C. read with section 5(2) of Act II of 1947, by Special Judge Anti-Corruption (Provincial) Karachi, who convicted Mohibullah and sentenced him to undergo R.I. for 15 days and to pay a fine of Rs. 1,000 or in default to suffer R.I. 15 days more vide Judgment dated 23rd October, 1983. Briefly the case of the prosecution is that complainant Muhammad Iqbal applied for a post of constable to the S.P. Headquarter Karachi. On 13th November, 1981 he was given a letter for medical fitness certificate. He went to the Police Headquarter Hospital Karachi where he was examined on 14th January, 1981 by one Abdul Aziz Laboratory Assistant who told him to pay Rs. 200 for issuance of his fitness certificate. He also contacted appellant Mohibullah who also told him that he will have to pay Rs.200 as Rs.150 Special fee for Doctor and Rs.50 for them. He was asked to give bribe money at any time and get his certificate after paying 85.200 either to him or Aziz, Muhammad Iqbal went and lodged the report which was registered by Anti-Corruption Inspector on 15th January, 1981. Inspector Faqeer Muhammad arranged for Mashirs and requested Muhammad Adam Kasmi, A.C.M. to supervise the trap. The raiding party alongwith the complainant and police staff went to hospital. The Mashir and complainant went and handed over money to appellant while Magistrate and other staff waited in the verandah. After about 5/10 minutes, Inspector, Magistrate and other staff went towards the place to enable to ascertain. The tainted money was lying in O.P.D. Register. Appellant Mohibullah took out the money from the register and produced it before the Inspector who prepared the Mashirnama. After necessary investigation Muhammad Aziz and Mohibullah were challaned. The Special Judge acquitted Muhammad Aziz but convicted the appellant as stated above. Prosecution in support of the case examined (5) five witnesses. P.W.1, Muhammad Hashim Exh.2, P.W., Khalil Ahmed, Mashir Exh.3, P.W.3, Muhammad Adam Qasmi Magistrate who supervised the raid, P.W.4 Muhammad Iqbal Exh.9, complainant and P.W.5 Faqir Muhammad Police Inspector Exh.11. Appellant in his statement under section 342, Cr.P.C. has denied the allegations and stated that the witnesses have been set up by complainant Muhammad Iqbal who was not issued medical certificate on account of his absence. Appellant examined Latifuddin Exh.18, Muhammad Riaz Exh.19, and Muhammad Amir Exh.21, in his defence. Mr. Azizullah Shaikh, learned counsel appearing for the appellant has stated that co-accused who actually demanded the money has been acquitted on the same set of evidence hence present appellant's case is also identical to that of co-accused. He has argued that there are material contradictions in the evidence of complainant and other witnesses. The appellant was not competent to issue certificate as he is mere a compounder in the hospital. Mr. Agha Ghulam Ali learned counsel appearing for the State has not supported the conviction and argued that prosecution case has not been proved beyond reasonable doubt. Muhammad Iqbal complainant has stated in his evidence that he went to the hospital and met with accused Aziz who examined him and then demanded bribe of Rs.200 and he was told to bring money on the next day and in case he was not available in the office he should hand over amount to appellant Mohibullah. He has deposed that he contacted appellant Mohibullah who asked him if he had brought the money on which he replied in affirmative on this he gave Rs.200 when the Magistrate, Police Officers and other staff immediately came and recovered money from the register which was lying on the table in front of Mohibullah. He has not deposed anywhere in his statement that the appellant had ever demanded money except that on the day of trap he asked him whether he had brought the money. In his cross-examination he has clearly stated that bribe was demanded by acquitted co-accused Aziz P.W. Hashim is a formal witness and has stated that on 14th January, 1981 complainant Muhammad Iqbal came for his examination in the Laboratory who was examined by Muhammad Aziz and the concerned papers were forwarded to appellant Mohibullah the Incharge of the Laboratory. He was Assistant in Laboratory Police Hospital at that time. Khalil Ahmed is Mashir. He is resident of Gulshane Iqbal and runs a sweetmeat shop. He was picked up from Burns Road where he went to purchase milk. He has stated that they proceeded to Police Hospital situated near Jubilee Cinema and parked their car and taxi outside the police hospital. He and Muhammad Iqbal went to the room of appellant whereas Magistrate stood outside the room in the verandah. The appellant was present at this seat who enquired from Iqbal if he had brought the money for which he replied in affirmative. Thereafter he gave tainted money of Rs.200 to him who counted and put the money inside the register which was on his table. He has deposed that he went outside the office and gave signal to the police party, when Anti-Corruption Inspector and Magistrate came inside the room. Inspector enquired from Mohibullah who took out the money from the register and produced the same before the Inspector. The Inspector tallied the numbers of the currency notes from the numbers mentioned in the Mashirnama Exh.4, and the numbers were found to be the same. 'He has admitted in his cross-examination that he is residing at a distance of 12 miles from Burns Road. He has admitted that the Magistrate and others were standing outside the verandah at the laboratory. They could not see the Magistrate. P.W. Muhammad Adam has stated that on 15th January, 1981 he was Additional City Magistrate South Court No.6, Karachi, when on that day Anti-Corruption Inspector Faqeer Muhammd requested him to supervise the raid. He went alongwith the party to Police hospital. Complainant and Mashir Khalil went inside the room and after 10 minutes complainant and Mashir both gave signal from inside the office then he and the Insepctor alongwith raid party wept inside the office and Inspector demanded money from appellant Mohibullah which he took out from his register. He has stated that it is incorrect to suggest that complainant and Mashir came out of the office and gave signal in the verandah. He has not stated in his deposition that he had heard any between the complainant and the appellant. The raid report also that appellant voluntarily pointed out and produced the tainted money from O.P.D. Register Page No. P.9585, which was lying on the table in front of appellant. P.W. Faqir Muhammad Anti-Corruption Inspector has registered the case and he accompanied with complainant and others tr. Police hospital where complainant gave these Rs.200 to appellant. He ha,, stated that complainant and Mashir gave signal they rushed towards the place where the appellant was sitting and he demanded tainted money or-, which appellant Mohibullah took out Rs.200 from O.P.D. Register has also produced sanction which is at Exh.12. The case of the prosecution is that co-accused Muhammad Aziz demanded money from the appellant. There are material contradictions the F.I.R and the evidence of complainant Iqbal on this point. The tainted money was not given to appellant in presence of Magistrate who even did not hear the conversation between complainant and the appellant before the raid. Therefore the possibility that the complainant might have talked on some other point in the circumstances when the demand was originally made by co-accused Muhammad Aziz. On this point I have referred to case of Allah Ditta v. The State reported in 1982 P Cr. L J 729, which provides guide lines for deciding trap cases. I also refer case of Muhammad Jamil v. Summary Military Court reported in 1982 P Cr.LJ

557. The other favourable stand of the appellant is that money was not recovered from his possession. It is admitted fact that tainted money was lying in the O.P.D. Register. In view of the above discussion appeal is accepted and appellant is given benefit of doubt consequently he is acquitted. He is on bail h bail bonds stand cancelled. M.Y.H. Appeal accepted