1989 PLP 4563 (MLD)

A formal charge was framed against the appellant to which he pleaded not guilty. At the trial prosecution examined Mr. Abdul Ahad the then A.C.M. and First Class Magistrate P.W.1, he has produced the Mashirnama under which tile tainted money of Rs.100 was handed over to the complainant as Exh.6. He has also produced the Mashirnama of recovery of tainted money from the accused prepared by the Inspector as Exh.7, the Mashirnama of arrest and the recovery of watch on personal search as Exh.8, and raid report as Exh.9. Complainant Gohar Rehman P.W.2, Constable Rehman Court witness No.1, he has produced the statement of one Zafar Exh.13. The summons issued against Mashirs Rehmat Ali and Javed Akhtar as Exh.14, and his report as Exh.15, Mr. Abdul Hameed Inspector Anti-Corruption, Karachi P.W.3, he has produced the F.I.R. as Exh.l7 and sanction to prosecute the accused as Exh.18. After close of the prosecution case the statement of the appellant was recorded under section 342, Cr.P.C. in which he has denied the allegations. He has further slated that he did not give duty to Gohar Rehman according to his choice and, therefore, he was annoyed with him. The remaining witnesses have deposed against him at the instance of Anti-Corruption Police. He was on inimical terms with Gohar Rehman. He has further stated that on 13-4-1983 he was sitting in his Office situated in Super Market when Gohar Rehman came to him that passengers were standing there, lie got the passengers cleared through Chowkidars Nazir and Hanif, in the meanwhile Anti-Corruption Police came there and arrested him. He has examined Nazir Ahmed and Muhammad Aslam Shah (himself) as envisaged by section 310(2), Cr.P.C. in his defence. The learned Special Judge while taking into consideration the c6kicncc produced by the prosecution convicted and sentenced the appellant as described above vide judgment, dated 19-4-1988. The present appeal is directed against the above judgment of conviction. Complainant Gohar Rehman has deposed that he was working as Chowkidar in K.M.C. since last 32 years. On 16-1-1983 he was transferred and posted as Chowkidar at Super Market Liaquatabad. Accused Aslam Shah was Inspector Lands at the time of his transfer to Super Market. Accused told him that he should give him Rs.100 every month as illegal gratification. He told the accused that he will make the arrangement and pay Rs.100 on 3-4-1983. He went to the Anti-Corruption Office and lodged his F.I.R. Thereafter the Inspector called one Magistrate and he was produced before the Magistrate alongwith F.I.R. The Inspector gave him Rs.100 as tainted money in presence of the Magistrate and two witnesses, which consisted of two notes of Rs.50 each. Inspector had prepared such Mashirnama and obtained signatures of the Mashirs. Thereafter he alongwith Magistrate, witnesses and Police staff went to Super Market Liaquatabad. He went to the Office of the accused which was situated on the 2nd floor, followed by the Magistrate, Inspector and his staff and Mashirs. The Magistrate and others waited outside the office. There was transparent glass fixed in the door of the office of the accused. There was also a glass fixed in the wall of the office. The persons standing outside the office could see the accused sitting inside the office through the glass. 3/4 persons were already sitting in the office. When he entered in the room of the accused, the accused enquired from him if he had brought money with himself, he replied in affirmative. Accused then took him downstairs for a round and again took him back to his office. When they came back to the office of the accused, he found the Magistrate, Inspector and others standing outside the office of the accused. They could see them inside the office through glass. The accused then demanded Rs.100 from him, he took out two notes of Rs.50 and gave to the accused. The accused kept the notes in his pocket. Thereafter the Magistrate, Inspector, and the Mashirs came inside the office of the accused. The Inspector and the Magistrate disclosed their identity to the accused. The Inspector Anti-Corruption took out the tainted money from the pocket of the accused. The Inspector compared the numbers of the notes secured from the possession of the accused with the numbers mentioned in the Mashirnama of handing over money to him and found them to be the same. Inspector prepared such Mashirnama, read out to the Mashirs and obtained their signatures. The Inspector took personal search of the accused and prepared such Mashirnama. He then brought the accused to the Anti-Corruption Office. His further statement was not recorded by the Inspector Anti-Corruption. Accused Aslam Shah is same whom he had paid Rs.100 as bribe. In cross-examination he has deposed that he had gone to the Anti-Corruption Office, to lodge report at 1-30 or 2-00 p.m. He had remained there for about one hour after lodging F.I.R. The Magistrate was called in the office about half an hour after lodging of F.I.R. Thereafter they left for Super Market. The persons standing outside the office of accused could not hear the conversation which took place between him and the accused. Those 4/5 persons who were sitting in the office of the accused were the members of staff. The Inspector had arrested the accused in presence of those members of the staff. There had been no money transaction between him and the accused prior to the incident. The accused had demanded illegal gratification from him about 10 days prior to this incident, and therefore, the relations between him and the accused were strained. The accused was competent to transfer him from one place to another. He has denied that prior to this case the accused had transferred him to different places and that he had implicated the accused in a false case. Mr. Abdul Ahad Ist Class Magistrate P.W.1 has fully supported complainant Gohar Rehman from the point of handing over of tainted money to the complainant, going to the office of the accused, payment of Rs.100 to the accused as bribe and consequent recovery. According to him he had taken out the notes from the shirt pocket of the accused. He then passed on the same to the Inspector who verified the numbers of the currency notes from the Mashirnama Exh.6 and found them to be the same which were given to the complainant. Inspector prepared such Mashirnama and obtained his signatures and that of Mashirs. He has produced the Mashirnama as Exh.7. Thereafter Inspector took personal search of the accused, secured one watch, and prepared such Mashirnama in his presence and that of the Mashirs. He has produced the Mashirnama as Exh.8. He has produced the tainted money as Article `A'. After his arrest the accused was brought to the Anti-Corruption Office. He and other members of the trap party also came there. He had prepared raid report in his office and sent it to the Inspector. He had mentioned all the facts in detail in the raid report, which he has produced as Exh.9. In cross-examination he has deposed that he did not hear the talk between the complainant and the accused at any stage. The Mashirnamas of recovery of tainted money from the possession of accused and also that of the personal search of accused were prepared in the office of the accused. None of the shopkeepers came in the office of the accused to witness the incident. He has denied that the accused was found standing in one hotel from where he and the raiding party took him to Anti-Corruption Office. He has denied a suggestion that the tainted money was foisted on the accused in the Anti-Corruption Office. Inspector Abdul Hameed has deposed that on 3-4-1983 he was Inspector Anti-Corruption at Karachi. On that day complainant Gohar Rehman came and lodged report which he recorded at his dictation. It was read out to him and he put his thumb-mark, the F.I.R. has been produced as Exh.17. The rest of the investigation carried on by him has been mentioned in the earlier part of this judgment. In cross-examination he has deposed that it was not correct that accused Aslam Shah met them for the first time in Sabzi Market. He has also denied that the accused had told the complainant to go and wait in his office. He has denied that when they went from Sabzi Market to the office of accused 4/5 persons were already sitting there. He has also denied that any staff member was sitting in the office of the accused, when he came there from Sabzi Market. It was also denied that he had taken away accused in presence of those 4/5 persons. The accused had given round of Sabzi Market and underground market for about 45 minutes or one hour. No shopkeeper was with the accused when he came back to his office after giving round of Sabzi Market. He has denied that the office of the accused was on the 2nd floor. It was also denied that the Magistrate went to the first floor while he remained at the ground floor. He did not make any enquiry if there was any enmity between the accused and the complainant. He has denied a suggestion that he had implicated the accused in a false case. There were shops adjacent to the office of the accused. Those shops were opened. He did not take any of the shopkeepers to act as Mashir. Muhammad Ramzan Constable Anti-Corruption was examined as Court witness. According to him he was given process against P.Ws. (Mashirs) Rehmat Ali and Jawed Akhtar for service. He was also given the process in respect of Rehmat Ali prior to this also. Rehmat Ali used to reside with Muhammad Shari an employee of K.D.A. He had gone on the address of Rehmat Ali but Muhammad Shafi told him that Rehmat Ali had gone to Punjab and his address was not known to him. He has produced the statement of Muhammad Shafi as Exh.12. He also went to the address given in the summons of P.W. Jawed Akhtar. His brother Zafar Iqbal met him and told him that Jawed had gone to some unknown place after getting annoyed with the family. He could not say about the present address of whereabouts of Jawed Akhtar. He recorded statement of Zafar which he has produced as Exh.13. He has also produced the summons of the Mashirs as Exh.14 and his report as Exh.15. According to him there was no likelihood of service of process on Rehmat Ali and Jawed Akhtar in the near future: This witness was not cross-examined by any of the parties. After close of the prosecution case the statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations. He has further stated that he had not given duty to Gohar Rehman according to his choice and therefore he was annoyed with him. The remaining witnesses have deposed against him at the instance of Anti-Corruption Police. He was also on inimical terms with Gohar Rehman: That on 3-4-1983 he was sitting in his office situated to Super Market when Gohar Rehman came to him and told him that hawkers had occupied the passage. He got the passage cleared through chowkidars Nazir and Muhammad Hanif. In the meanwhile Anti-Corruption Police came there and arrested him. He has examined Nazir Ahmad in his defence and has also examined himself on Oath. Nazir Ahmad, D.W.1, has deposed that he knows the accused and the complainant. About 4 years back he was chowkidar in Super Market Liaquatabad, Karachi. When at about 2 or 2-30 p.m. while he was sitting in the office of K.M.C. Karachi, which is situated in Super Market. That office was of accused Aslant Shah. Gohar Rehman was also Chowkidar in the Super Market. Gohar Rehman told the present accused that some Thelewalas had caused obstruction on the road. He alongwith Aslam Shah and Gohar Rehman came to the place where obstruction was caused. They saw some policemen standing downstairs, who arrested Aslam Shah and took him away. In cross-examination he has stated that he had worked for about 4 years under Aslam Shah. He did not remember th e date or month when Aslant Shah was arrested. About 2/3 officers were with the Police which arrested Aslam Shah. He has denied that Gohar Rehman had no; made any complaint to the present accused about the hawkers. He has denied that he was not present at the time when accused was arrested. He has also denied that he has given false evidence as he happens to be subordinate of Aslam Shah. Appellant has stated on Oath that on 10-3-1983 complainant Gohar Rehman was transferred as Chowkidar to Super Market Liaquatabad, Karachi. He joined his duty on 16-3-1983. Gohar Rehman did not perform his duty well. He often used to remain absent from duty. He, therefore, complained against him on 30-3-1983. He has produced photostat copy of his report as Exh.26. Gohar Rehman had threatened him with dire consequences on 3-4-1983, he was sitting in his office, alongwith 2/3 Chowkidars when Gohar Rehman came and told him that the hawkers had occupied the passage of coming in and going outside the Super Market. He went down to remove hawkers from the passage. In the meanwhile Van of Anti-Corruption Police came there and they took him away. Gohar Rehman had made a false case against him on account of report made by him against him. In cross-examination he has deposed that on account of his report against Gohar Rehman his absence from duty was treated as without pay. He has denied that he had not made any report against the complainant. He has admitted that he had disclosed the contents of the above application to his Advocate on the last date of hearing. The Magistrate and the Inspector were not known to him prior to this incident. He had no enmity with them. He has denied that the Magistrate and Inspector had seen him taking money from the complainant and they had arrested him on the spot, and that tainted money was secured from his possession. The learned Special Judge` after taking into consideration the evidence produced by the prosecution and the appellant has convicted him as described above. The present appeal is directed against the above judgment of conviction. I have heard Mr. Muhammad Saleh G. Memon learned counsel appearing for the appellant, Mr. M.A.I. Qarni learned counsel appearing for the State, and have also gone through the R & P of the case. It was contended by Mr. Muhammad Saleh G, Memon learned counsel appearing for the appellant, that the Mashirs of recovery were not examined by the prosecution and, therefore, the learned Special Judge had erred in convicting the appellant. It was further contended that the evidence regarding recovery was contradictory and unreliable and the learned Special Judge had erred in relying upon the same. It was further contended that the complainant was on inimical terms with the appellant and, therefore, the appellant was implicated falsely. Mr. M.A.I. Qarni learned counsel appearing for the State, has contended that evidence of complainant was fully corroborated by Mr. Abdul Ahad First Class Magistrate and Investigating Officer Mr. Abdul Hameed and the appellant was rightly convicted. I have considered the contentions of the learned counsel. As far as the first contention of Mr. Muhammad Saleh G. Memon was concerned, the evidence of Constable Muhammad Ramzan shows that he had received process for service on Mashirs Rehmat Ali and Jawed Akhtar but both were not available on given address nor their whereabouts were known. He had made enquiries and had recorded statements of Muhammad Shaft and Zafar brother of Mashir Jawed which have been produced as Exhs.13 and

14. According to him there was no. likelihood of service of process on Rehmat Ali and Jawed Akhtar in the near future. He was not cross-examined by the learned counsel appearing for the accused and for the State. From the above evidence and the statements produced by the process-server it was clear that the Mashirs were not withheld by the prosecution for any motive but they were not available at their given address, nor their whereabouts were known and, therefore, they could not be examined. In view of the above circumstances, no adverse presumption could be raised against the prosecution Adverting to the second contention of the learned counsel appearing for the appellant, it has been admitted by the appellant himself in cross-examination that Mr. Abdul Ahad, F.C.M and Inspector Abdul Hameed Investigating Officer had no enmity with him. The F.I.R. and the evidence of Gohar Rehman shows that appellant/accused had demanded Rs.100 front him as illegal gratification and that he had paid the same to the appellant after lodging report and after the above amount was paid to him by Inspector Abdul Hameed. That the Magistrate Mr. Abdul Ahad was standing outside and he had seen the transaction of payment being made to the accused through the transparent glass. That the tainted money of Rs.100 was secured by the Magistrate and Investigating Officer from the possession of the appellant. The complainant is fully supported by Mr. Abdul Ahad First Class Magistrate and Inspector Abdul Hameed Investigating Officer. There is no doubt that there is a contradiction with regard to the fact as to who compared the notes after the Magistrate took out money from the pocket of the appellant/accused. According to Mr. Abdul Ahad First Class Magistrate shows that he took out money from the pocket of the accused comprising of two notes of Rs.50, he then passed on the same to the Inspector who verified the numbers of the currency notes from the Mashirnama as Exh.6 and found them to be the same which were passed on to the complainant. The raid report Exh.9 also shows that the tainted money was recovered by the Magistrate and handed over to the Inspector who compared the same with the numbers mentioned in the Mashirnama. According to complainant Gohar Rehman Inspector Anti -Corruption took out tainted money from the pocket of the accused. He compared the numbers of the notes secured from the possession of the accused with the numbers mentioned in the Mashirnama of handing over the tained money and found them to be the same. According to Inspector Abdul Hameed after getting signal from the complainant and Mashir Rehmat All they all rushed inside the office of the accused. They disclosed their identity to the accused. Thereafter the Magistrate took out the tainted money from the left side pocket of the shirt of the accused. He compared the numbers of notes with the numbers mentioned in the Mashirnama prepared earlier and found to be the same. However, the incident took place on 3-4-1983 while the witness Abdul Ahad was examined on 25-9-1984, about one and a half years after the incident. Inspector Abdul Hameed was examined on 27-1-1987 nearly four years after the incident, while the complainant was examined on 30-11-1985 and 13-7-1986 i.e. about more than one and a half years and therefore, such minor contradictions were bound to be there. The evidence of complainant Gohar Rehman, Mr. Abdul Ahad F.C.M. and Inspector Abdul Hameed appears to be natural straight-forward and reliable. There was no reason for them to implicate the accused/appellant falsely. Even the appellant has admitted that Mr. Abdul Ahad and Inspector Abdul Hameed had no enmity with him. As far as the third contention was concerned, the defence taken by the appellant appears to be after thought and unreliable. No question was suggested to complainant Gohar Rehman in cross-examination that the appellant had made any report against him. No person from the office of Inspector Market Group has been produced to prove that the report Exh.26 was actually made by the appellant. Even the record was not summoned from the office to show that the report was actually made as alleged. The evidence of defence witness Nazir Ahmad is also of no help to the appellant inasmuch as he has admitted that he had remained as subordinate of the appellant for 4 years. He did not remember the date or month when the appellant was arrested. Moreover he did not state before the Court that the tainted money was not recovered from the appellant. From the above discussion, it is clear that the defence taken by the appellant is afterthought and cannot be relied upon. From the above discussion, I am of the considered view that the prosecution had proved its case: against the appellant beyond reasonable doubt and he was rightly convicted. However, I have given my anxious consideration to the question of sentence. The appellant was prosecuted in the year 1983 and, he had to undergo agony of protracted trial for nearly 5 years, and therefore, the ends of justice will be amply met if substantive sentence is reduced from three months to 15 days. However the sentence of fine is maintained, in default to payment of line the appellant to undergo further R.I. for one month more. The learned Special Judge shall issue warrant of arrest against the appellant so that he should serve out the remaining period of his sentence. With this modification the above appeal is dismissed. S.A./M-766/K Sentence reduced.