1988 PLP 496 (MLD)

(i) That the main witnesses are not accomplices. The evidence of the P.W. Allah Dino Shah, A.C.M. furnishes full corroboration to the statement of other prosecution witnesses. (ii) The evidence of P.W. Allah Dino Shah, A.C.M. by itself sufficiently proves the factum of passing of the tainted money from the complainant to the appellant. It is a weighty evidence and cannot be brushed aside simply for the reason that he was allegedly not happy with the appellant on account of their sharing the chamber accommodation. The said difference, if any, could not prompt him to give false evidence. (iii) That the recovery of actual money from the possession of the accused was not necessary. In support of his contention he placed reliance on a decision of Lahore High Court in the case of Ali Mazhar Shah v. State reported in 1986 P Cr. L J 2780. In this case the 3 prosecution witnesses had seen the accused/appellant taking the tainted currency notes from the pocket of his pant and throwing the same on the ground floor wherefrom the same were picked up by the Magistrate. The Court held:‑‑ "The conduct of the appellant of throwing out the tainted currency notes also shows that the tainted currency notes were received by the appellant as illegal gratification otherwise he would not have thrown the same on' the ground on seeing raiding party." The case, I am afraid, does not in any manner lend support to the contention of the learned counsel for the State. (iv) That the circumstances of the case are such that notwithstanding the recovery of money not having been made from the person of the appellant yet it is proved through the evidence of P.W. Allah Dino Shah, P.W. Muhammad Aslam and P.W. Muhammad Azam, P.S.I. that the appellant had received the tainted currency notes from the complainant as and by way of illegal gratification. The manner in which it reached the drawer of the Reader of the appellant also stands proved through the evidence of the above named witnesses. Moreover, the learned counsel also emphasised; (v) That the conduct of the appellant in immediately going away from his chamber also supports the prosecution version. (vi) That the plea of the appellant to the effect that the higher ups were hostile to him is unbelievable. It is more imaginary than real. (vii) That the benefit of only reasonable doubt and not of any and every doubt is to be given to an accused whereas the evidence in the instant case sufficiently proves the case of the appellant having received illegal gratification beyond all reasonable doubt.

9. The learned counsel referred to the several decisions of which I would like to make mention of the following:‑‑ (a) Zafar Ali v. The State P L D 1962 SC

320. On page 328 of the report Kaikaus, J. who delivered the judgment of the Court has observed as follows: "An accomplice is a person who in fact participates in the commission of an offence, and not one who is simply party to a scheme for the detection of a crime.. . ."It is not necessary to labour the matter further because an accomplice is obviously a person who takes part in the commission of an offence. It is true that the Courts do not look with favour on the statements of an informer or agent provocateur but they cannot be placed in the class of accomplices and the rule requiring corroboration does not apply to them. What weight is to be attached to the evidence of a particular witness of this category must depend on the circumstances of each case, and no hard and fast rule can be laid down. The Court may having regard to the antecedents or character of a person concerned, refuse to act on his uncorroborated testimony but that relates to appreciation of evidence and is not governed by any rule like the one which applies to an accomplice." ‑ (b) Mokha v. Zulifiqar and others P L D 1978 SC 10‑‑Appreciation of evidence‑‑Discrepancies in statements of witnesses result of a slip due to passage of time and not of a kind as to create reasonable doubt in version put across by them‑‑Cannot affect credibility of witnesses‑‑Fate of case, held, does not hang on mere omission and discrepancies if not of a substantial nature creating a reasonable doubt in prosecution case." (c) Qasim and others v. The State P L D 1967 Kar. 233. "The fact that Ghulam Murtaza is a Police Inspector will not come in the way of his evidence being believed. A police officer is as good a witness an any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged". (d) Tawaib Khan and another v. The State P L D 1970 SC 13(17). "The maxim `falsus in uno falsus in omnibus' has all along been discarded by the Courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal application. In the last analysis as stated in some of the eminent judicial decisions, `the grain has to be sifted from the chaff' n each case, in the light of its own particular circumstances. (e) The State v. Manzoor Ahmad P L D 1966 SC

644. On page 680/681 it is held as under:‑‑ "It is also equally well‑settled that the circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by pre‑conceived notions. But once the circumstances have been found to be so established they may well‑furnish a better basis for decision than any other kind of evidence." ..Straining of the evidence either in .favour of the prosecution or in favour of the accused is a practice that I would deprecate but I would undoubtedly in accordance with the established principles of criminal justice in our Courts, be prepared to resolve ail genuine and reasonable doubts, if any, arising in favour of the accused person. It is always dangerous to indulge in the straining of evidence for once the process of straining begins there is no knowing where it will end." (f) Rashid Ahmed v. The State 1970 S C M R 770.‑‑ "Accomplice‑‑Corroboration‑‑Informer complainant giving information to Anti‑Corruption Authorities soon after demand of bribe and getting accused caught red‑handed with tainted money‑‑Not an accomplice‑No corroborative evidence. necessary to believe such a witness,"

10. I have carefully gone through the record of the case and have also given due consideration to the submissions made by the learned counsel for the parties. I have reached the conclusion that the case as set up by the prosecution against the appellant does not bring home guilt to him. Before proceeding further to deal, with the facts of the case I would like to point out at the very outset, that in the instant case the requirements of section 5‑A of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act) have not been complied with. Section 5‑A of the Act specifically provides that "notwithstanding anything contained in the Code of Criminal Procedure, 1898, no officer below the rank of A Inspector of Police shall investigate any offence punishable under any of the sections of Pakistan Penal Code mentioned in section 3 or any offence punishable un4pr section 5 without an order of Magistrate of First Class or make any arrest, therefor without a warrant:" It is an admitted fact that no order from a Magistrate of First Class was obtained in the instant case nor were the trap proceedings supervised by a Magistrate. The trap proceedings were actually supervised by Mr. Qamaruddin Agha, who was, at the relevant time, Director Enquiries, Anti- Corruption Wing, Karachi. No explanation is forthcoming from the prosecution as to why was it not possible for the prosecution to comply with the requirements of the above‑noted section of the above Act. It is further pertinent to note that the trap arranged on 27‑2‑1979 remained unfulfilled because of the absence of the appellant on that day. It was repeated on the following day viz. 28th February, 1979 yet no effort was made to obtain an order of Magistrate of First Class to organize a raid and proceed to lay the trap. The contention of the learned counsel for the State that the presence of P.W. Allahdino, A.C.M. in the Chamber of the appellant at the time when the tainted money was given to the appellant cured the lacuna thus occasioned on account of a Magistrate not supervising the trap ‑proceedings, does not appear to be convincing inasmuch as the whole of the proceedings were to be initiated under the orders of the magistrate which has, as stated above, not been done in the instant case.

11. On the point of passing the tainted money to the appellant there is evidence of P.W. Muhammad Aslam Awan, complainant, P.W. Allahdino Shah, A.C.M., P.W. Muhammad Azam Awan P.S.1 and P.W. Noor Muhammad, Mashir. A reading of the evidence of these prosecution witnesses is so contradictory on material aspect, that it is in my opinion, unsafe to rely upon their versions. P.W. Muhammd Aslam Awan, the informant deposed that he gave the tainted money to the appellant who after taking it from him counted the notes and then handed over the money to P.S.I. saying that it was his trust money which should be given to his Reader; whereas P.W. Allahdino Shah, A.C.M. has stated that the man (the complainant) who entered the chamber had money with him when the appellant directed the P.S.I. to count money, who after counting it said that it was all right. The appellant thereupon asked the P.S.I. to give the money to Peshkar Akhtar. The other two witnesses, namely, P.W. Noor Muhammad and P.W. Muhammad Azam have deposed the manner P.W. Allahdino Shah has deposed about this fact. What I find here is that the 3 witnesses, named above, viz. P.W. Allahdino Shah, A.C.M., P.W. Muhammad Azam Awan P.S.I. and Noor Muhammad, Mashir, all are supporting each other yet the manner in which they have deposed leads to a clear inference that their statements were the statements of tutored witnesses. The informant was the person who had passed the money on to the appellant and it was he who could have deposed as to who had taken the money from him and who counted it. His version as given above is opposed to the version of the other three witnesses. On this material aspect of the case the contradictory statements of the prosecution witnesses cannot conveniently be over looked inasmuch as it is the basis on which the entire structure of the prosecution story is built up.

12. The second important aspect, which casts a doubt on the prosecution version, is that recovery of the tainted money was not effected from the person of the appellant, who was, as a matter of fact, even not found at the time of search by the raiding party in his chamber. How could he manage to go out of his chamber when the raiding party was posted at all important points is a mystery which the prosecution has utterly failed to re‑solve. It would be in the fitness of things if I make a mention that P.W. Muhammad Aslam Awan in his deposition stated that on reaching the court‑room of the appellant he made enquiries from one constable as to whether he had come on duty upon which` he was informed that he was available in his chamber; whereas Noor Muhammad, Mashir, in this behalf has stated that the appellant was first sitting in the court and that when he left the court and went in his chamber P.W. Muhammad Aslam Awan also went into the chamber. P.W. Muhammd Aslam, it may again be noted, has categorically stated that he and Noor Muhammad, as per instructions of DIG, went to the Court of the appellant. This fact is significant particularly, in view of the fact that the appellant's case was that he was not present in the chamber or r court‑room when the trap was arranged and the raiding party allegedly recovered the tainted money. Moreover, P.W. Muhammad Azam P.S.I. has stated that when he went to the chamber of the appellant he found the complainant standing there; whereas P.W. Allahdino Shah has stated that P.S.I. Muhammad Azam alongwith another man (complainant) entered the chamber.

13. Now coming to the recovery of the tainted money, it has already been mentioned above that it was not recovered either from the person of the appellant or from his chamber. It was stated to have been recovered at the pointation of Muhammad Azam P.S.I. from the drawers of a table which according to this witness, was of the acquitted accused Akhtar Ali. The said accused was not even present in the Court‑room when the raiding party rushed to D the court‑room on getting the signal from Noor Muhammad, Mashir. Mr. Qamaruddin Agha, Director Enquiries, who was supervising the trap proceedings has given no explanation as to why the raiding party went to the court‑room when the complainant had gone to chamber to give the money to the appellant. Any‑how he has explicitly stated that the drawers of the table were searched and en quiry about the Magistrate was made from P.S.I. At that time the complainant and the Mashir allegedly informed him that they passed on the tainted money to the appellant in his chamber. It is further pertinent to note that although he has said that the search was made of the drawers of the table in court‑room, yet no recovery of tainted money was effected. The P.S.I. also did not tell him or to any member of raiding party at that time that the tainted money had been allegedly put by the co‑accused Akhtar Ali Khan, in the drawer‑of his table lying in the court‑room. This witness then rushed to the chamber of the appellant but did not find him there. P.W. Allahdino Shah, was found in the chamber, who told him that the appellant had then just left and that he had passed on the tainted money to P.S.I. He again interrogated the P.S.I. and the raiding party at the same time also searched the drawers of the table. The P.S.I. informed him that the money was lying in the particular drawer of the particular table. He stated that later on E his enquiry the P.S.I. told him that it was the table of Peshkar. The tainted money was taken out from the table at the pointation of the P.S.I. It is thus evident that it was during the second round of search of the drawers of the tables and upon the pointation of the P.S.I. that the tainted money was found from a table which was allegedly occupied by the co‑accused Akhtar Ali Khan.

14. P.W. Allahdino Shah, it is evident from the deposition that he made statement on oath before the Investigating Officer in writing on 28th February, 1979 at 11 a.m. in the office of SP. A.C.E, Karachi. He has also deposed that the Anti‑Corruption Police had cordoned his house and that at 10.30 p.m. on that very day when he came to his house he had taken serious objection to the said action of the police. The police wanted to take him immediately to the office of SP whereas on his objection he was allowed to change his dress or take meal and then at 11 p.m. he was in police car taken to the office of the SP. He has also deposed that before making the statement in writing Ex. 7, it was also tape recorded and monitored by the Anti‑Corruption Police. It is again evident from his deposition that his son who was Deputy Registrar in N.E.D. University was under the impression that he (Allahdino Shah) was arrested by the Anti -Corruption Police and dragged by the Anti‑Corruption. He also deposed that he had given Ex. 7 in his own handwriting upon direction of the SP, ACE, he has further deposed: "the reasons for me to be flabbergasted were because of previous day incident of trap proceedings ." All this indicates that P.W. Allahdino Shah, notwithstanding his being a Magistrate was being harassed and pressurised by the police to give statement implicating the appellant in the manner he has, later on, deposed in Court. In this view of the matter no importance can be attached to his evidence implicating the appellant as an accused of accepting the amount of bribe from complainant Muhammad Aslam.

15. In so far as P.W. Muhammad Azam, P.S.I., is concerned, his deposition is, as rightly pleaded by the learned counsel for the appellant, that of an accomplice. It is the case of the prosecution itself that he had accepted that tainted money and counted it as desired by the appellant and that he had given it to the acquitted co‑accused Akhtar Ali Khan. Moreover, a reading of his deposition also leaves no manner of doubt that he was also harassed by the Anti -Corruption Police. It is also evident on record that he was actually taken into custody immediately after the recovery of the tainted money although he in his deposition has denied the suggestion made to him in this behalf. He has also deposed that P.W. Allahdino Shah used to apply hearing aid instrument in his ears. And it lends support to the contention of the learned counsel for the appellant that P.W. Allahdino Shah could not hear the talks held between the complainant and the appellant at the time of alleged passing of the tainted money to the latter.

16. For the foregoing reasons 1 hold that the prosecution has failed to establish its case against the appc1lant beyond all reasonable doubts and consequently, I allow the appeal and set aside the conviction and sentence of the appellant. He is on bail. His bond stands discharged. SA./A‑385/K Appeal accepted.