2007 PLP 128 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present appeal are that on 21-9-1998 the appellant Muhammad Hayat arrested P.W.3 Ali Murad and brought him to the police station. The complainant Ahmed Khan brother of P.W.3 Ali Murad and P.W.2 Khamiso, son of P.W.3 went to police station, Thul where they met with the appellant Muhammad Hayat. He demanded illegal gratification of Rs.3,000 for the release of P.W.3. After negotiation the matter was settled at Rs.700. The complainant then went to police station and lodged the report before the Anti-corruption police. A raiding party was formed under the supervision of Magistrate. The raiding party reached the police station where they found appellant Mir Muhammad (now dead) sitting there. The complainant and mashir went to him who informed them that the amount of Rs.700 was to be paid to him as per the direction of appellant Muhammad Hayat. The complainant paid the said amount to appellant Mir Muhammad thereafter mashir gave signal to the raiding party. The said party apprehended the appellant Mir Muhammad and secured the tainted money. The police after usual investigation challaned the appellant and Mir Muhammad in the Court. The learned Special Judge Anti-corruption tried and convicted both the appellants for offence punishable under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, sentenced each of them to suffer R.I. for one year and fine of Rs.1,000 or in default thereof to suffer R.I. for two months under the impugned judgment dated 28-11-1998. Pending adjudication of the appeal, appellant Mir Muhammad died; therefore, the appeal was ordered to abate against him. The appeal proceeded against appellant Muhammad Hayat. The learned counsel for the appellant has argued that the case rests upon the evidence of two witnesses; that the prosecution has failed to prove that the amount was recovered from the possession of the appellant, therefore, the appellant is entitled to be acquitted. Conversely, the learned A.A.-G. has stated that the appellant had demanded illegal gratification from the complainant party, the allegation has been proved from the evidence of P.Ws. 1 and 2; that the allegation against the dead accused was of receiving the bribe money but the said accused is dead. He has supported the impugned judgment. I have given due consideration to the arguments, gone through the evidence with the assistance of the learned counsel for the appellant and found that the allegation against the appellants was the demand and agreed to accept illegal gratification that is an offence punishable under section 161, P.P.C. and section 5(2) of Act-II of 1947. In order to prove the said charge the prosecution examined three witnesses viz. P.W.1 Ahmed Khan, P.W.2 Khamiso and P.W.3 Ali Murad, the alleged detenu. The evidence of P.W.3 reveals that he was called by the appellant at the police station and thereafter he was put in the lockup. The evidence of P.Ws.1 and 2 reveals that after coming to know about the detention of P.W.3 they went to police station, Thul where they met with the appellant who demanded Rs.3,000 for the release of P.W.3. After negotiation the amount was reduced to Rs.700. The evidence of both the witnesses on the above aspect of the case went unchallenged, as the defence counsel did not cross-examine the witnesses on the said point. Not a single question was asked from these witnesses denying the said fact by alleging that the appellants did not demand illegal gratification of Rs.3,000 from the complainant party or that after negotiation it was reduced to Rs.700. Thus the allegation of demand and agreed to accept the illegal gratification has not been disputed by the appellants in the cross-examination. The remaining evidence is in respect of payment to Mir Muhammad who is dead. The appellant in his statement recorded under section 342, Cr.P.C. took the plea that one Motan had filed an application on which he called the complainant party. They agreed for a private faisla. Therefore they went to Haji Baqa Muhammad for effecting faisla. Thereafter on the day of trap Haji Baqa Muhammad and Abdul Razzak were present when the magistrate and anti-corruption police arrested him. Such defence was not taken at the time of cross-examination to the witnesses 1 and

2. However, the appellant did not examine himself on oath but examined Haji Baqa Muhammad and Haji Abdul Razzak. They deposed that they held the faisla between one Motan and the complainant party. They produced two affidavits concerning that faisla. A perusal of these affidavits shows that they were sworn on 21-9-1998 after registration of the case. It appears that the said affidavits were sworn subsequently to make it a defence of the appellant. Even otherwise through this defence no enmity or ill-will has been suggested between the complainant party and the appellant. On the contrary the appellant took the plea that he simply referred the parties to a private faisla. There is no evidence that the complainant party was annoyed over such faisla so as to falsely implicate the appellant in the case. The appellant has also examined WHC Qurban Ali who produced the station diary of police station, Padidan and stated that the complainant Ahmed Khan was involved in some cases in the years 1968, 1972 and 1989. The said evidence is not helpful to the appellant. It is possible that the cases might have been registered against the complainant but no proof has been filed to show as to whether the said cases were proved against the complainant and he was convicted. As such without the proof of conviction no adverse inference can be taken against the appellant. The said cases do not show that the appellant was posted at police station, Padidan at the relevant time and he had played any part in falsely implicating the complainant. Thus, the said evidence is of no help to the appellant. After considering the material available on the record, I am of the considered view that the prosecution has proved the case against the appellant beyond any reasonable doubt. Above are the reasons of my short order dated 30-8-2006 by which I had, dismissed the appeal. H.B.T./M-153/K Appeal dismissed.