1984 P Cr (PLP)

Appellants abovenamed, being aggrieved by judgment dated 28-2-1981 of the learned Special Judge, Anti-Corruption (Provincial), at Karachi, by which appellants have been convicted under section 161, P.P.C., read with section 5 (2) of Prevention of Corruption Act, 1947, and sentenced to suffer R.I. for 4 months each and pay fine of Rs.500 each or in default to undergo R.I. for one month, have preferred the above appeal, on the following facts and grounds:- The case of prosecution succinctly put is, that on the eventful day at about 4-30 p.m. Complainant Ghulam Murtaza and P.W. Nazeer, who were working as, masons in Dhorajee Colony, were returning to their house on one cycle and when they reached the main road, appellant Jehangir, who was in plain clothes stopped them, whereas appellant Khane Zaman was standing at a distance of 10 paces from Jehangir, appellant Jehangir told them, that they had committed an offence as two persons could not sit on one cycle therefore they should accompany him to the Police Station. Both the appellants took them to the Police Station, where appellant Jehangir searched their person, when a small pen knife was recovered from the person of Nazeer, the appellants were told to pay an illegal gratification of Rs.1,000 failing which they would be challaned under Arms Ordinance. Since they had no money to pay, the demand of the appellants could not be complied with. The appellants however allowed Nazeer to go and arrange for the money whereas complainant Ghulam Murtaza was detained by the appellant at the Police Station. Nazeer brought co-accused Abdul Rehman and P.W. Ghulam Mustafa the brother of complainant Ghulam Murtaza to the Police Station. The appellants demanded a bribe of Rs.1 ,000 from Ghulam Mustafa for the release of his brother complainant Ghulam Murtaza and P.W. Nazeer. Ghulam Mustafa showed his inability to pay Rs. t ,000 to the appellants. Appellants Abdul Rehman enquired from Ghulam Mustafa as -to how much amount he was having at the moment, to which he informed him that he had no money of his own, but he was having Rs.200 which was the trust money of one Asghar Shah. Ghulam Mustafa paid Rs.200 to appellant Khane-Zaman through accused Abdul Rehman. The earlier demand of bribe of Rs.1,000 made by the appellants was ultimately reduced to Rs.600 out of which Rs.200 were paid to the appellants. The rest of the amount was payable to the appellants on the next day as accused Abdul Rehman had pledged his watch with the appellants until the amount of Rs.400 was paid to the appellants. The appellants then left complainant Ghulam Murtaza and P.W. Nazeer, when the complainant directly went to the Anti-Corruption Office, where he lodged the report, which was recorded by the Police and duly verified by the Magistrate. The Anti-Corruption Inspector and the Magistrate arranged for the trap proceedings by sitting in house of Ghulam Murtaza, where it was proposed by the appellants, that they would come and would collect the remaining amount of bribe of Rs.400. The trap proceedings could not be materialised, as the appellant did not turn up. Police after making other usual investigation including getting the statements of the witnesses recorded under section 164, Cr.P.C. and after getting the prosecution sanction of the appellants, challaned the appellants. When the substance of the allegation was read out and explained to the appellants, they pleaded not guilty and claimed to be tried. The case of the appellants is of false implication at the instance of one Ghulam Murtaza the retired Sub-Inspector of Police, as they had challaned one Boota the Bad Character, who was the man of Ghulam Murtaza the retired Sub-Inspector. Learned trial Court taking into consideration evidence adduced before it, acquitting co-accused Soofi Abdul Rehman, convicted and appellants abovenamed as hereinbefore mentioned and consequently appellants have filed the above appeal on the grounds mentioned in the memo of appeal. The learned counsel for the appellants in support of the above appeal submitted as under:- (a) Only demand of bribe is said to have been made according to P.W.1 Ghulam Mustafa and P.W.2 Ghulam Murtaza. (b) Co-accused acquitted on same set of evidence and as such conviction of the appellants unwarranted in law. (c) There is no independent corroboration, as P.W.1 8 P.W:2 are accomplices and as such conviction of the appellants illegal. In support of the above 'submissions learned counsel relied upon cases reported in 1972 S C M R 74, 1969 P Cr. L J 1225, P L D . 1963 SC 39, 1977 P Cr. L J 256, 1969 P Cr. L J 1124 and 1973 P Cr. L J 1036 .: The learned Advocate for the State, at the outset submitted that he was not supporting the impugned judgment, as bribe-givers are accomplices and their statements required independent corroboration, which is not available in present case. I have carefully considered the above submissions made by the learned counsels before me and have gone through R 8 P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for appellant. I find great force in the contentions raised by learned Advocate for the appellants, I find learned trial Court did not believe evidence of P.W.1 8 P.W.2 in respect of acquitted co-accused Soofi Abdul Rehman, but believed the P.Ws. as far as present appellants are concerned. In view of these cases reported in 1972 S C M R 74 and 1969 P Cr. L J 1225 fully apply to the case of present appellants. In addition to this, bribe-giver are accomplices and as such their statements require independent dent corroboration. In present case there is no such independent corroboration available and as such conviction of the appellant on this ground also cannot be maintained. Cases cited by learned Advocate for appellants in this connection, fully support his conviction, specially case of Hon'ble Supreme Court reported in P L D 1963 S C

39. In my opinion prosecution, has failed to establish its case against even present appellants beyond A reasonable doubt, as no-reliance ought to have been placed on statements of P.Ws. under section 164, Cr. P.C., which were recorded in the absence of the appellants, for purposes of corroboration. Therefore I allow the above appeal and set aside conviction of the f appellants and acquit them by giving them benefit of doubt and discharge the bail bonds executed by the appellants in above appeal. M. Y. H. Appeal allowed.