1984 P Cr (PLP)

S. 5(2)--Penal Code (XLV of 1860), S.161--Illegal gratification--Accused running away from spot when raided--Such running away of accused from spot, held, would not corroborate prosecution case. Sardar Faiz Muhammad Khan Khosa for Appellant. Ch. Nazir Ahmad for the State. Date of hearing: 26th April, 1983. Amir Ahmad alias Amir Muhammad, Constable of district police D. G. Khan has been convicted and sentenced under section 161, P.P.C read with section 5(2) of the Prevention of Corruption Act, 1947 by Special Judge, Anti-Corruption Multan to one year R.I. and a fine of Rs.500 or in default to undergo R.I. for six months. The convict has appealed against his conviction and sentence. 2. The prosecution case in brief is that Faqir Bakhsh (P.W.3), a resident of village Noor Wah came to see Horse and Cattle fair at D.G.Khan on 27th March,1976. He was hauld up by one Shabbir Ahmad Constable and brought to Amir Ahmad Constable who confined him at Police Post No.8. His step-brother Peer Bakhsh first informant (P.W.2) learnt about the incident and came to D.G.Khan and found Faqir Bakhsh present at the Police Post No.3, D.G.Khan. He contacted Amir Ahmad appellant who demanded Rs.100 from him as illegal gratification .for releasing Faqir Bakhsh. Having promised to pay the said amount, he contacted lmdad Ali Shah S.I. (P.W.4) of Anti-Corruption Establishment and lodged F.I.R. Exh. P.B. with him on 29th February, 1976. The Sub-Inspector approached the S.D.M. for deputing a Magistrate to supervise the raid who directed Mr. Fayyaz Tehseen Magistrate Ist Class (P.W.7) of Anti-Corruption to do the needful. Peer Bakhsh P.W produced six currency notes comprising one 50 rupee note and five ten rupee notes before the Magistrate who after noting down their numbers returned to him for giving the same to the appellant on demand after contacting to him at his police post. Peer Bakhsh left on bicycle while Fayyaz Tehseen Magistrate proceeded on his motor-cycle. Imdad Ali S.I. and Faiz Muhammad Constable, other members of the raiding party reached there on foot at about 12.40 p.m. Mr.Fayyaz Tehseen waited in the courtyard of the Court of A.D.C.(C) situated opposite to the Police Post No.3 and waited there for the appointed signal from the complainant. After a short while the complainant. accompanied by the appellant came out of the barrack and gave the appointed signal whereupon the Magistrate rushed to the stop. Reaching there his inquired as to who was the Moharrir? The appellant replied that it was he. The Magistrate having introduced himself to the appellant asked him to produce the tainted currency notes, he had accepted as illegal gratification from the complainant. The appellant felt reluctant, whereupon the Magistrate started his personal search. The appellant said that he would himself produce the money. The Magistrate loosened his grip and the appellant instead of producing the money ran away. The raiding Magistrate, S.I. lmdad Ali and Faiz Muhammad Constable chased him upto a little distance but failed to capture him. The Magistrate found Faqir Bakhsh P.W (step brother of Peer Bakhsh informant) present in the courtyard of the police post. The Magistrate recorded his statement. Faqir Bakhsh disclosed that he was arrested from the Cattle Fair and then confined at the police post and was also beaten. The Magistrate then went to Police Station City D. G. Khan and inquired from Noor Muhammad A.S.I. Moharrir if any case against Faqir Bakhsh had been registered at that police station. S.I. Noor Muhammad replied in the negative. The raiding Magistrate then drew up his report P.M. and handed it over to lmdad Ali S.I. for registering the case. He also granted him permission for investigation. S.I. lmdad Ali having completed the investigation, and obtaining sanction for prosecution of the appellant put the case in Court for trial. The appellant was charged on three counts by Special Judge on 25th May, 1980 to which he pleaded not guilty. The prosecution in support of its case examined as many as 7 witnesses. Of them Peer Bakhsh (P.W.2) is the bribe-giver, Faqir Bakhsh (P.W.3) is the detenu who was illegally confined and for whose release the appellant had demanded Rs.100 as bribe. Fayyaz Tehseen M.I.C. (P.W.7) is the raiding Magistrate while lmdad Ali, S.I. (P.W.4) is the Investigating Officer. 3. The appellant denied that Faqir Bakhsh. P.W. was ever detained and tortured by him at the police post No.3 or that he demanded or accepted Rs.100 from Peer Bakhsh for releasing his brother Faqir Bakhsh. He explained that due to the enmity with the raiding Magistrate he was involved in the case. He produced five witnessed in his defence. 4. The defence plea as spelt out from the defence evidence adduced by the appellant is that the complainant Pir Bakhsh (step-brother of Faqir Bakhsh P.W.), was a domestic servant of Fayyaz Tehseen Magistrate Ist Class. Sometime before the occurrence, the Magistrate sent two trucks loaded with crushed stones to his house at Multan through a Goods Forwarding Agency, but one of the two trucks did not reach the destina tion. The Magistrate, asked his Reader Muhammad Ashraf (D.W.3) to solicit help of the police for sorting out the matter of missing truck with the Goods Forwarding Agency. Muhammad Ashraf contacted Amir Ahmad appellant who did not act to the satisfaction of the Magistrate. However, Shams-ud-Din (D.W.4), Ada Munshi of Masood Goods Forwarding Agency stated that the price of the lost crushed stones was paid to the Magistrate. The other cause of annoyance to the Magistrate according to the defence was that one Ata Ullah his relative quarrelled with a brother of Liaqat Ali Khan (D.W.5). Ata Ullah visited the police post several times, but no action against Liaqat was taken. So in order to take revenge from the appellant, it is alleged, the Magistrate put up his own domestic servant, Peer Bakhsh (P.W.2) as the bribe-giver and concocted the instant case. The appellant also produced the reports of the Rozenamcha Exhs. D.A., D.B. dated 29th March,1976 to show that at the relevant time he was ailing and had gone to the doctor for taking medicines. 5. The learned trial Judge on consideration of the evidence on record disbelieved the defence version (of course for cogent reasons) but held the prosecution case as proved. In reaching this conclusion he fully believed the evidence given by the raiding Magistrate Fayyaz Tehseen (P.W.7) who according to the trial Court, could not be accepted to have made strenuous efforts to implicate Moharrir of a Police Post just because he did not oblige him by getting the missing truck traced out. The learned trial Court further held that the Magistrate's evidence was a natural narration of the proceedings of the raid, who himself saw the currency notes in the pocket of the accused (appellant) and that non recovery of the tainted money was of no significance in view of the defence taken up by the appellant. He, therefore, convicted the appellant on the charge of having demanded and accepted Rs.100 as bribe from Peer Bakhsh for releasing faqir Bakhsh but acquitted him from the charges under section 323/343, P.P.C. for keeping him in wrongful confinement or beating him. 6. I have heard the learned counsel for the appellant as well as for the State and also perused the record with their assistance. 7. The first and foremost question to be determined in this case is to whether Faqir Bakhsh was hauld up on 27th February,1976 and wrongfully confined by the appellant at the police post because according to the prosecution, the appellant had demanded and obtained illegal gratification of Rs.100 from Peer Bakhsh P.W. as a motive or reward for releasing his brother Faqir Bakhsh P.W. It is to be noted that the appellant was specifically charged for keeping Faqir Bakhsh in his illegal confinement and also for having beaten him during the period. The evidence on record shows that Faqir Bakhsh no doubt was present at the police post at the time of raid but he neither found confined nor under the surveillance of any police official. Faqir Bakhsh stated that he was released before the arrival of the Magistrate for urination. He belied his own brother Peer Bakhsh (P.W.2) who stated that Faqir Bakhsh was chained with the cot when he reached the police post for bribing the appellant at the time of the raid. It is however, no body's case that Faqir Bakhsh was released by the appellant after having accepted the bribe money. There is every possibility that Faqir Bakhsh went and sat there of his own. It is significant that the learned trial Court has acquitted the appellant from both the charges of keeping Faqir Bakhsh in confinement and beating him. It means that the very foundation of the prosecution case that the appellant demanded and accepted the bribe money for releasing Faqir Bukhsh from his confinement is completely blown up. For establishing a charge under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, the prosecution is bound to prove as a matter of fact that the illegal gratification was accepted as a motive or reward g for showing/doing some favour of rendering any service to the person concerned. In the instant case Faqir Bakhsh 'was not held as wrongfully confined, for whose release the appellant had allegedly demanded or accepted the bribe. 8. There is yet another aspect which needs serious notice. In this case the only evidence or the point that the appellant demanded and obtained bribe money is that of solitary witness namely, Peer Bakhsh. The passing of the tainted money was not seen by the Magistrate or any other members of the raiding party nor the conversation which transpired between them was overheard. On prosecution's own showing the money was passed to the appellant inside the room. Faqir Bakhsh P.W. though tried to pose himself as an eye-witness to the passing of the money to a appellant but he conceded that he was in the courtyard at the relevant `' time, therefore, it was not possible for him to see the transaction. The version of Peer Bakhsh P.W., the bribe-giver, in my view, requires to be corroborated by some independent evidence before it should be acted upon. It has been repeatedly held by the superior Courts, that a bribe giver is an accomplice who should not be believed without very strong corroboration. A reference may be made to Muhammad Ramzan v. The State 1970 P.Cr.L.J. 675 and Abdul Shakoor v. The State 1977 P.Cr.L.J. 256. In the first authority the dictum laid down in Muhammad Ayyub Khoru v. Pakistan P L D 1960 S C 237 was followed wherein their Lordships held that the evidence of an accomplice must be corroborated by an independent evidence. In the second authority, the decision was based on the rule laid down in Noor Muhammad v. The State P L D 1963 S C 39, wherein their Lordships of the Supreme Court held that the evidence of bribe-giver must be scanned with great care. In this case their Lordships had specially considered the question whether a conviction for taking bribe can be sustained by the evidence of the bribe-giver alone. It was held that where the case mainly rests on the evidence of such a witness it should be scanned with much caution and the Court must be satisfied that he is a witness of truth specially when no other person was present at the time when he paid illegal gratification. 9. The prosecution may ask for taking into consideration the factum of appellant's having run away from the spot as a corroborative circum stance to the prosecution case, coupled with the statement of the learned raiding Magistrate that he saw certain currency notes in the front pocket of the coat of the appellant, before he ran away. It may be at once stated in this regard that the presence of currency notes in the pocket of the appellant does not by itself establish beyond doubt that they were the tainted currency notes. As for the appellant having run away from the spot, I may say that different persons are differently constituted and sometime an innocent person afraid of being involved in a criminal case would choose to run away to avoid the ordeal of criminal trial. Therefore, this conduct of the appellant being capable of explanation favourable to the appellant also is not sufficient to furnish judicial guarantee as to his guilt, hence it cannot be taken as corroborative evidence to the prosecution case. 10. For the foregoing reasons I am of the view that evidence on record falls short of disclosing an offence under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947. In the circumstances I have no option but to allow this appeal. The conviction and sentence of the appellant are set aside and the appellant is acquitted. He is on bail. He is discharged of the bail bond. M. Y. H . Appeal accepted.