1996 SCMR 181 (PLP)

RAJA AFRASIAB KHAN, J.‑‑On 22nd of May, 1982 at 10‑00 a.m., a case under section 161, P.P.C. and. section 5(2) of Prevention of corruption Act, 1947 was registered against Muhammad Ashraf and Bashir Ahmad on the statement of Khadim Hussain with Federal Investigation Agency on allegations that they accepted illegal gratification from the complainant. The complainant was employed in Ittehad Chemicals, G.T. Road, Kala Shah Kaku, Sheikhupura. On leave, he had come to his village Manj Gaggar, Police Station Narang Mandi. There was no electricity in the village and, on query, he was told that it was suspended on 25th of May, 1982 as the transformer was reportedly burnt. He went to WAPDA Office and requested Whammad Ashraf and Bashir Ahmad (Lineman and Line Superintendent respectively) to restore electricity. A threat was issued that the petitioner and his co‑villagers were responsible to cause damage to the transformer and the Police would, therefore, be approached to register a case against them. The complainant, however, persuaded them to do the job. In lieu thereof, a demand for payment of illegal gratification was made by the accused. The parties came to understanding that Rs.800 would he given to the petitioner and his co‑accused for showing the abovesaid favour. The burnt transformer was undertaken to be repaired soon by the accused. The complainant informed the police that the petitioner was demanding illegal gratification from him. The complainant handed over Rs.800 to the Police to be used in the transaction. The currency notes were marked and their numbers were noted by the Magistrate. A raiding party consisting of Abdul Hameed Khan, M.I.C., Khadim Hussain complainant, Ikram Inspector, Shuja Haider, Inspector and Rao Muhammad Sadiq, ASI was constituted. The complainant went to WAPDA Office and gave the tainted notes to the petitioner. On signal, the said premises were raided and five hundred currency notes could be recovered from the petitioner. To prove its case, prosecution produced Abdul Hamid Khan, M.I.C. P.W.1, Shuja Haider Kazmi Inspector P.W.2, Khadim Hussain P.W3 and Muhammad Ikram D.S.P. P.W.4. In his statement under section 342, Cr.P.C., the petitioner denied the allegations. His plea was that under direction of S.D.O. a criminal case was to be registered against the complainant and others for intentionally burning the transformer. He did not commit any offence and as such, he had falsely been implicated by the complainant to save his own skin. Bashir Ahmad and Muhammad Ashraf (both the accused) appeared as D.W.1 and D.W.2, Muhammad Azani D.W3, Mushtaq Ahmad D.W.4 and Muhammad Hassan D.W.5 supported the accused that nothing incriminating was recovered from him. According to them, the accused was'taken into custody when he was performing his official functions. On 21‑5‑1989, learned trial Judge convicted and sentenced the petitioner under section 161, P.P.C. to three months' R.I. The Court, however, acquitted Bashir Ahmad by giving him benefit of doubt. A learned Judge in the Lahore High Court upheld the conviction and sentence by dismissing appeal of the petitioner vide his judgement dated 17‑7‑1995. This petition seeking leave to appeal has been instituted. Notice of the petition was issued to the State. Learned counsel submits 'that there is no evidence to connect the petitioner with the commission of crime inasmuch as version of the petitioner was proved by the facts and circumstances of the case. Learned State Counsel has supported the judgment under challenge. We have heard the learned counsel for the parties and have read the record. Abdul Hamid Khan P.W.1 admits that he did not overhear the conversation between the petitioner (bribe receiver) and Khadim Hussain (bribe giver) during the incident. He also concedes that he did not see when, in fact, the bribe money was being passed on by the complainant to the petitioner. The incident, according to him, took place inside the local WAPDA Office. Similarly, P.W.2 Shuja Haider Kazmi gave evidence to the effect that he did not hear the conversation of the petitioner with the complainant. He continued to state that' he could not see when the money was handed over to the petitioner. He stated that the petitioner and the complainant came out together from the office. They went to a nearby tea house where the money was given to the petitioner. The evidence of Police Officials and that of the complainant would thus contradict the Magistrate that incident had taken place in the office of the petitioner. It is well‑settled that in such like transactions not only the payment of bribe money to the accused by the complainant is to be seen but also the conversation between the above parties has to be heard by the members of the raiding party. This would be necessary to eliminate the chances of involvement of innocent people. Reference, in this behalf may be made to Munir Ahmad v. The State (Cr.P.No.233‑L/95). In this view of the matter, P.W.1, P.W.2 and P.W.4 cannot be held to have supported the prosecution and as such their testimony would be ignored for all intents and purposes. Likewise, Khadim Hussain P.W. did not come to the rescue of the prosecution because he altogether gave a different version of the occurrence. According to him, money was given to the petitioner in the tea room from where they (petitioner and complainant) came out together. He stated that the petitioner was arrested by Sadiq Ali, A.S.I. when he was standing in the verandah of the tea room. Sadiq AIL A.S.I. was not produced for unknown reasons. The prosecution evidence disclosed that there were other people present at the spot but they were not asked to witness the search of the petitioner. The case was that Rs.800 were given to the petitioner while only Rs.500 were recovered from him. This material contradiction could not be reconciled during trial. The version that the petitioner was apprehended from inside the office alongwith tainted money was contradicted by the complainant and the Police witnesses who stated that he was taken into custody from a verandah of the tea room. Apart from the above, prosecution witnesses did not agree to give a specific place which was raided and from where the accused were arrested. Admittedly, prosecution did not prepare site plan to show the place of occurrence. This would surely create doubt in the prosecution case. If the complainant's evidence is accepted that he and Sadiq Ali, A.S.I. apprehended the accused, then there was nothing left for the Police party to raid for their arrest and recovery of bribe money from them. In this background of discrepant evidence, prosecution story would look clumsy on the face of it. The prosecution has miserably failed to prove the guilt against the accused. The petitioner's case was that he was taken to Police Station without effecting any recovery from him. His plea is fully supported by Bashir Ahmad, Muhammad Ashraf, Muhammad Azam, Mushtaq Ahmad and Muhammad Hussain, D.Ws. who, in ou; view look to be trustworthy witnesses. It is also mentioned in the evidence that independent witnesses were present at the time of occurrence. No efforts were made to join them to see the recovery of bribe money. In pith and substance, interested testimony of Police Officials was considered to be enough to record conviction without realising that it was not warranted in law. In the background of this case, the complainant was certainly biased and as such, needed corroboration which was not made available. In almost identical circumstances, one of us (Mr. Justice Muhammad Bashir Khan Jehangiri) observed in Tariq v. The State 1991 MLD 2173 as follows:‑‑ "I am aware of the proposition that police officials are as good witnesses as any other public witness in cases of recoveries provided the plea of mala fides is neither raised by the accused nor is substantiated. In the two precedent cases Shah Nawaz v. State (PLD 1986 FSC 242) and Malik Aman v. State (1986 SCMR 4 it has‑been observed that in a case of search in a bus by Police constable provisions of section 103, Cr.P.C. would not be attracted. It has also been propounded in few other authorities that provisions of section 103, Cr.P.C. are applicable to the cases of search of the premises and not to the search of the persons. The Investigating Officers have by now dispensed with citing the public witnesses in almost each and every case of personal search of an accused and recovery of incriminating material in consequence thereof. The consequences are indeed horrible. There is very likelihood of the Police foisting recoveries of incriminating material upon innocent citizens. No doubt in a case of search in a bus the private witnesses may not be either available or be ready to witness the recovery memos. due to delays in conclusions of trials or other inconvenience to which the witnesses to criminal case in the country are put. Nonetheless, in case of personal search in a well‑populated locality where the independent witnesses are available and there is also no reason to dispense with their association therewith I see no reason why they should not be associated with search of *a person or at least one out of the 2/3 witnesses of search aforesaid. I cannot approve of the tendency of the Investigating Officers to invariably cite only the Police Officials in search of persons and recoveries in criminal cases." We, respectfully, agree with the above view and conclude that the evidence of Police officials was grossly inadequate to convict the petitioner in p the peculiar situation of this case. The petitioner was entrapped, in advance, as a result of the threat having been hurled that the complainant and his co‑ villagers would be involved in a criminal case. We, therefore, accept the plea of the accused and reject that of the complainant to meet the ends of justice. This .petition is converted into appeal and allowed. In the result, the conviction and sentence of the appellant is set aside and he is honourably acquitted of the charge. These are the reasons in support of our short order dated 17‑9‑1995. N.H.Q./R3163/S Appeal allowed.