1988 PLP 225 (MLD)

I have heard Mr.Azizullah K. Shaikh for the appellant. It is argued that complainant is a man of bad character and cases of impersonification are pending against him. It is contended that trap was not supervised by the Magistrate and tainted money was not recovered from the possession of the appellant. Therefore, the only evidence of the complainant is not sufficient for the conviction. He has referred to the cases reported in 1968 P Cr. L J 473; 1986 P Cr. L J 1973 and PLD1983SC

38. Mr. Zaheer Oureshi appearing for the State has supported the conviction and submitted that prosecution has proved the case against the appellant beyond reasonable doubt. 1t is argued that no enmity has been proved by the appellant with the complainant or the witnesses. Complainant Sardar Ali (Exh.5) has supported the case and stated that appellant was a Peshkar in the Court of Additional City Magistrate No.V, Karachi, and demanded Rs.10,000 bribe money for getting the case disposed of and ultimately appellant agreed to take Rs.4,000 which he promised to pay on the next day. He went to the Anti‑Corruption Police where he lodged the F.I.R., which he produced as Exh.6. He has stated that he was produced before the D.S.P., Anti‑Corruption Sabir Ali, who read out the F.I.R., which he admitted to be correct. Thereafter, Sabir Ali gave him Rs.4,000 as a tainted money in presence of the Mashirs namely Wali‑ur‑Rehman and Muhammad Naseem. Such Mashirnama was prepared which he produced as Exh.7. Thereafter, Inspector, Anti‑Corruption, took him to the city Court in a Suzuki Van. D.S.P. Sabir Ali Khan, two Mashirs, and police staff also accompanied him. He was directed by the Anti‑Corruption Inspector and the D.S.P. to go to the Court where the appellant was working. The Mashirs also followed him. The Inspector, D.S.P. Sabir Ali and other police staff also came behind them. Mashir Muhammad Naseem accompanied him inside the Court room where appellant was sitting near the window. He met him, who told that case would be disposed of on the next date of hearing and he enquired about the money to which he replied him in affirmative. At that time, Mashir Naseem was standing with him while Wali‑ur -Rehman was standing at a short distance. The Inspector and the D.S.P. were standing in the Verandah from where they could see the accused through the window. He has stated that he took out the tainted money from his pocket and gave the accused, who kept in the right side drawer of his table. P.W. Naseem gave signal on which Inspector, Anti‑Corruption and the D.S.P. Sabir Ali, alongwith police staff came to the accused. The Inspector and the D.S.P. enquired from Naseem as to where the accused has kept the money to which Naseem informed that money has been kept in the right side of the drawer of the table. Thereafter, Inspector Javed Aslam took out the tainted money amounting to Rs.4,000 from the drawer. The numbers of notes were compared and Mashirnama (Exh.7) was prepared. The appellant was arrested and brought to the Anti‑Corruption Office where personal search of appellant was taken. He has stated that before coming to the Anti‑Corruption Office, the Inspector secured the file of his case from the appellant and his further statement was recorded by the police. He has admitted that one Sufi Manzoor was the complainant in a case which was pending in the Court of Additional City Magistrate No.V (West), Karachi, but he has denied to have taken Rs.20,000 from the complainant, posing himself as an officer of the C.I.A. He has stated that case was transferred from Court of A.C.M. No.V to A.C.M. Court No.4, and finally he was convicted. He has admitted that case under sections 224, 332, P.P.C., is pending against him which was filed before the Additional City Magistrate No.V, Karachi (West). He has stated that appellant demanded the money when the case was at the defence stage. He has denied the suggestions of the defence that in order to get his case transferred from the Court of A.C.M. No.V, he implicated the appellant in this false case. He has admitted in the cross that certified copies are granted by the Copying Agency and not by the concerned Court and he submitted such an application to the Copying Agency for obtaining certified copies. Mashir Muhammad Naseem (Exh.8), has stated that on 24‑4‑1984, he was called to Anti‑Corruption Office. He was taken to D.S.P. Anti‑Corruption by Inspector Javed Aslam where the complainant was present and D.S.P. had given Rs.4,000 tainted money to the complainant and such Mashirnama (Exh.7) was prepared and read out to him which he signed. Thereafter, he alongwith the complainant and the Anti‑Corruption Staff including D.S.P. and Inspector, came and parked their vehicles inside the K.M.C. Office from where they got down and came to the City Court Building. He was told to go alongwith the complainant Sardar Ali. The rest of the witnesses were coming behind them. He and Sardar Ali came to the Court situated on top floor and saw the present appellant sitting on the chair near the entrance door. Mashir Wali‑ur‑Rehman stood near the short distance near the door while D.S.P. and Inspector, Anti‑Corruption, took their position near the window in the Verandah. The place where the present appellant was sitting was not visible from the place where the Inspector and the D.S.P., Anti‑Corruption, were standing but he was visible to them. The complainant talked to the appellant and sat by his side. The appellant enquire from the complainant if he had brought the money to which complainant replied m affirmative. The appellant assured the complainant that his work would be done. Thereafter, the complainant took out Rs.4,000 and handed over to the appellant, who kept the money in the drawer of his table. After the complainant passed on the tainted money to appellant, he gave a signal to Inspector, Anticorruption, who alongwith D.S.P., came inside the court‑room. The Inspector and the D.S.P., disclosed their identity to the appellant. On enquiry from the D.S.P. he informed him that appellant had kept the money in the drawer of the table. D.S.P. Sabir Ali, took out the money from the drawer of the table and compared the numbers of notes with the Mashirnama. The Inspector prepared Mashirnama to which he signed and produced as Exh.9. The Mashirnama was also signed by Mashir Wali‑ur‑Rehman, D.S.P. and the Inspector. Personal search of the appellant was taken and such Mashirnama (Exh.10) was prepared. Inspector Javed secured the case file of the complainant and prepared Mashirnama (Exh.ll). The appellant was arrested and brought to the Anti -Corruption Office, where his statement was recorded. Javed Aslam, Inspector, Anti‑Corruption (Exh.13) has stated that on 2.4 4‑1984, he recorded the F.I.R. (Exh.6) of Complainant Sardar Ali. The trap was arranged and he requested Sabir Ali, D.S.P., Anti‑Corruption, to supervise the trap proceedings. He produced the Complainant alongwith the F.I.A. He gave Rs.4,000 to the Complainant as tainted money in presence of D.S.P. and Mashirs Muhammad Naseem and Wali‑ur‑Rehman and such Mashirnama (Exh.7) was prepared. He alongwith the Complainant; D.S.P. Sabir Ali Khan, Mashirs and Anti‑Corruption Staff went to K.M.C. Building where they parked their Van. Mashir Muhammad Naseem was asked to accompany the Complainant. He alongwith the D.S.P. Sabir Ali; Mashir Wali‑ur‑Rehman, followed them. Complainant went to the second floor of the City Court Building. Complainant and Mashir Naseem went inside the Court of A.C.M. No.V (West), Karachi, while the D.S.P. Sabir Ali; Mashir Wali‑ur‑Rehman and other staff took position outside the Court at different places. He was standing near the window of the court‑room from where he could see inside the court‑room. He saw appellant who was Peshkar in the Court and was working at the table of the clerk lying near the window. The Magistrate was not sitting in the Court and two chairs were lying adjacent to the table where appellant was working. The complainant went and sat there and talked to the appellant. He then saw that complainant took out the money from his pocket and passed on to the appellant who received the money and kept it in the right side of the drawer of the table. Mashir Naseem gave signal on which he alongwith D.S.P. Sabir Ali; Mashir Wali‑ur‑Rehman and other staff came inside the court‑room where appellant was sitting. They disclosed their identity. He (Inspector) took out the right side of the drawer of the table where he saw the money lying inside which he took out and compared the numbers of the notes and such Mashirnama (Exh.9) was prepared. He took the personal search of the appellant and prepared Mashirnama (Exh.10). He has stated that on his direction the appellant took the file of the case pending in the Court No.V of A.C.M., Karachi, and produced it. After perusal, he returned the file to A.C.M. No.V. He brought the witnesses to the Anti‑Corruption Office where he recorded their statements. He also recorded further statement of the complainant. He obtained sanction for prosecution and challaned the case on 17 9‑1984. Sabir Ali Khan (Exh.14) stated that on 24‑4‑1984, he was D.S.P., Anti- Corruption Establishment, Karachi, and on that day, Inspector Javed Aslant requested him to supervise the trap proceedings of the case. He produced the complainant alongwith the F.I.R. He verified the same. The Inspector gave RsA,000 to the complainant in presence of Mashirs and such Mashirnama Exh.7, was prepared which was signed by him and the Mashirs. He alongwith, Inspector Javed Aslant, complainant, Mashirs Muhammad Nascent and Wali‑ur‑Rehman; and Anti‑Corruption Staff, went to the City Court in a Government Van and parked the vehicle inside the K.M.C. Building. They sent the complainant and Mashir Naseem to one Court which was situated on second floor of the building at City Court. He alongwith Inspector and co‑Mashir followed the complainant and came on the second floor of the building. He alongwith Javed Aslant stood near the window of the court from where they could see the court‑room. Mashir Wali‑ur‑Rehman was made to stand on the gate of the room. Complainant Sardar Ali and Mashir Nascent had already gone inside the court‑room and sat on the chair near the clerk of the Court. There was some conversation between the complainant and the appellant. Thereafter, he saw that complainant took out the money from his pocket and handed over to the appellant who kept in the drawer of his table. They went inside the court‑room and disclosed their identity to the appellant. Inspector Javed Aslant secured the tainted money from the drawer in his presence and in the presence of Mashirs and compared the numbers of the notes from the Mashirnama (Exh.7). The Inspector prepared such Mashirnama (Exh.9). Appellant was arrested. The personal search of the accused was taken and such Mashirnama (Exh.10) was prepared. The appellant produced the case file before the Inspector which was secured. Mashirnama (Exh.ll) was prepared. He prepared Raid Report and handed over to the Investigating Officer. He has produced the raid report as Exh.15, and prosecution sanction as Exh.16. Defence witness Muhammad Raeesuddin Paracha has stated that on 22 5‑1984, he was A.C.M., Court No.4 (West), Karachi, when he received a case of the appellant from the Court of A.C.M. No.V (West), Karachi. The case was at defence stage. He decided the case on 10‑9‑1984, and convicted the appellant by judgment Exh.17. He has stated that appellant after hearing the judgment of conviction ran away from the Court and caused injuries to members of the Court staff. He lodged such report (Exh.18) at Risala Police Station. Defence Witness Qamarul Haq. (Exh.21) is a Supervisor in Copying Branch of City Courts, Karachi. He has stated that Copying Branch is situated on first floor of the old building and they prepare certified copies and return the file to the concerned Court. In the case of Sardar Ali Awan, the Advocate had made an application for the certified copies of the statements of Choudhry Latif and Asif Butt, They supplied the copies to the Advocate concerned. The application was made on 14‑4‑1984, and copies were supplied on 25‑4‑1984. He produced the application (Exh.22). D.W3, Muhammad Siddiq (Exh.23) is a Peshkar of Court of A.C.M.No. VI (West), Karachi. He has stated that Court No.V and Court NoVI were in the same court-room. The Chamber of the Magistrates, is also common. The appellant was Peshkar of Court No.V (West), Karachi. Both the Magistrates used to proceed with their cases turn by turn. He used to sit on one side of the table on the dais while the appellant used to sit on the other side of the dais. The clerk and the prosecution staff also used to sit in the same court‑room. He has stated that one table and chairs for the Advocates were kept in front of the dais. The court room has three windows which were always closed. On 24‑4‑1984, at about 10‑30 or 11‑00, the Magistrates of the Courts finished their work and went to perform some other duties. He saw complainant Sardar Ali, who came inside the room and sat on one chair of the clerk which was lying vacant while the appellant was sitting on his seat at the dais. He saw Anti‑Corruption Police who came there and arrested Ishtiaq. He has stated that nothing was secured from his personal search. He has stated that at that time, Liaqat Naib‑Qasid of Court No.VII; Miskeen Prosecution Head Constable and two other persons were present in the Court. He has stated that complainant Sardar Ali used to ask the appellant for the adjournment of the case to which accused used to decline and there was exchange of harsh words between them. In his cross‑examination, he has stated that no Magistrate was present in the court‑room or in the Chamber when incident took place. He told the Magistrate of Court No.V, that appellant was innocent. He informed the Magistrate two/three days after the incident. Muhammad Miskeen, Defence Witness (Exh.25), has stated that on 24 4‑1984, he was attached to P.S.I, Muhammad Saleem who used to work in Court No.VI (West), Karachi. court‑room had three windows and used to close. The appellant used to sit on the dais. The table of the clerk was 7/8 feet away from the dais. On 24‑4‑1984, Sardar Ali came inside the Court and sat on the chair which‑was lying near the chair of the clerk. In the meanwhile Anti‑Corruption Staff came to appellant Ishtiaq and he got down from the dais and took hum to Anti‑Corruption Office. He has stated that nothing was secured from the table or anything lying around the table. Peon Liaqat was present at that time and appellant was taken away by the Anti‑Corruption Police. Muhammad Siddiq, Yeshkar of Court No.VI, was also present at that time. The appellant is a public servant and was working as Peshkar in Court No.V, Karachi (West), at the relevant time. The case against the complainant Sardar Ali was pending in that Court and was not decided when incident took place. The allegation is that appellant being a Peshkar demanded and accepted Rs.4,000 as a bribe from the complainant for getting the case decided in his favour. The case was registered and trap was arranged. Complainant Sardar Ali; Mashir Naseem; Inspector Javed Aslam and D.S.P. Sabir Ali Khan, have fully supported the case of prosecution. Mashir Muhammad Naseem was with complainant Sardar Ali when Rs.4,000 were paid to the appellant which he received and kept in the drawer of his table from where this amount was secured immediately and Mashirnama was prepared. Inspector, Anti‑Corruption Javed Aslam has stated that when amount was paid he had seen from the window which was open, that complainant took out the money from his pocket and passed on the same to the accused who kept the amount on the right side of the drawer of the table. He immediately went and disclosed the identity where the accused was sitting and amount was taken out by him and such Mashirnama was prepared. D_S.P. Sabir Ali Khan has also supported the case and stated that he himself saw the complainant from the window of the court‑room from where he could see that complainant took out‑the money from his pocket and handed over to the accused who kept it in the drawer of his table. Thereafter, he went inside and secured the tainted money from the drawer of the table and such Mashirnama was prepared. The case file of the complainant was also secured. Complainant and these three prosecution witnesses have fully supported the case and implicated the appellant. They all had seen that complainant paid the tainted amount of bribe money to appellant who kept in the drawer and immediately this l amount was secured. The appellant has failed to establish any enmity with complainant. The case of appellant is that complainant wanted to get the case l transferred from that Court. Therefore, he filed this false case which cannot be accepted on the simple ground that complainant had neither made any transfer application nor had any grievance against the Court. On the contrary, entire evidence was recorded and case was at the advanced stage. It has been proved from the evidence that complainant went inside the Court and sat there and within the sight of four persons, amount was given to the accused for getting the favour in the case which was to be decided. The other contention of the defence that copies are to be supplied by the Copying Branch has a little bearing on the merits of the case as according to the defence witness, Qamarul Haq (Exh.21), copies were supplied to the Advocate on 25‑4‑1984, after registration of the present case as well as trap proceedings. In these circumstances, the contact of the complainant when copies were not supplied to him is but natural and during that transaction the appellant demanded the money which was paid. It has been argued that trap proceedings were not supervised by the Magistrate. In this context, it may be stated that it is not mandatory in each and every case that proceedings be supervised by the D Magistrate. In a number of the cases, it has been held that Police Officer is as good a witness as others provided contrary proof or any enmity or bias is shown. On this, I may refer to a case reported in P L D 1981 S C

635. It has been held on page 637 as under‑.‑ "Even if the testimony of Mehnga, P.W.9, one of the recovery witnesses is discarded, the evidence of Asghar Ali, P.W.11, is sufficient to prove the recoveries against. As held in a number of cases, the testimony of policeman cannot necessarily be disbelieved simply because he is a policeman. Reliance in this behalf may be placed on Rahim v. the State 1976 S C M R 72; and Emperor v. Santa Singh, reported in A I R 1944 Lah.

339. The case of Mumtazuddin reported in P L D 1978 S C 114, cited by the appellants' counsel is distinguishable and not applicable to the facts and the circumstances of the case inasmuch as in that case the occular evidence was of a very weak nature." In cross‑examination, Inspector Javed Aslant stated that since the Magistrate deputed was not present, therefore, he did not request any other Magistrate for supervising the trap proceedings. This explanation was sought by the appellant which appears to be plausible and appellant was a Peshkar in the Court of Additional City Magistrate. The facts of the case cited are different. In case of Noor Muhammad v. The State reported in P L D 1983 S C 38, the evidence of only bribe‑giver was not accepted. In this case, there is evidence of four witnesses against the appellant. Now I come to the next contention of the defence that complainant is not a man of good character, therefore, his evidence should not be believed. The facts are that when present case was registered, the case was pending against the complainant in the Court of A.C.M. No.V, and there is nothing on record to show that complainant was previously convicted in any case. After this trap the case appears to have been transferred to Additional City Magistrate No.IV, Karachi (West), who decided it on 10‑9‑1984, while this case was registered long long ago i.e. on 24‑4‑1984, and another case filed, the same Judge was also registered on the same day under section 224/332, P.P.C., which is still pending and at this stage it cannot be said that complainant is a man of bad character, therefore, his entire evidence and evidence of other witnesses be discarded. Now, I come to the evidence led by the appellant in defence. Muhammad Raeesuddin who was A.C.M., Court No.4, District West, has produced the judgment which he pronounced after the present case was registered and appellant was convicted. The evidence of Supervisor, Copying Branch, is of a formal nature and he has given the procedure of supplying the copies but he has stated that copies were supplied on 25‑4‑1984, after the trap. It is, therefore, clear that by the time the appellant demanded the money, the copies were not supplied to him and normally the parties contact the Peshkars for these matters. The evidence of Muhammad Siddiq, Peshkar of Court No.VI, and Muhammad Miskeen, Head Constable, cannot help the appellant as he in his statement under section 342 (Exh.16‑A) has not stated that at the relevant time these defence witnesses were present in the court‑room where he was sitting. Muhammad Siddiq had stated that his Magistrate had completed his work and had gone for duty. There is no evidence that Magistrate had gone for duty. The appellant has stated that prosecution witnesses are friends and they have deposed against him due to enmity with Anti‑Corruption Police. The appellant was challaned by the Police and there is nothing on record that he had friendship with D.S.P. Anti -Corruption and other witnesses. The appellant is an educated man. He could have easily stated in his statement that at the time of incident those defence witnesses were present and they saw him being arrested. D.S.P. Sabir Ali Khan, in his evidence stated that Miskeen Khan and Siddiq, Peshkar, were not present at the relevant time. The presence of the defence witnesses has specifically been denied by the Inspector Javed Aslam though put in the cross‑examination. Mashir Muhammad Naseem was asked about the presence of other persons in the court room. He, in his cross‑examination, stated that one person probably Havaidar was present in the court and an old man who was probably Chaprasi was also present. The names of both the persons were not disclosed by the appellant not they had been examined in defence. Complainant has also shown ignorance about the presence of Siddiq Clerk and Miskeen Court Moharrir on the day of incident. For the reasons stated above, I am of the opinion that case against the appellant has been proved. I, therefore, dismiss the appeal. He is on bail. His bail bonds are cancelled. He shall be remanded to custody to serve out the sentence. SA./I‑53/K Appeal dismissed.