1977 P Cr (PLP)

"Police had fraudulently extorted money from them in this case and hence they had grudge against police and therefore I was made victim of this (sic). The complainant and mashirs are teachers." He examined two witnesses Dilshad Ali and Hassan Ali in his defence. The first one was the Head Constable at Jati Police Station who produced the entry in the station diary of that police station showing that on 22-8-71 the applicant had received the case papers of Crime No. 50/70 on that dad and had signed in token of having received the same. The other witness Hassan Ali Was the surety of Nazeer. He stated that he accompanied complainant Luqman to the otak of Nazeer where the appellant was sitting. He requested the appellant to accept some money and leave the parties for some time. Luqman had told the witness that Mst. Mariam was against them and if she was produced before the Court she would have implicated them. He who insisted that he would take the parties to the Court on the next day did not accept the request made to the appellant. The appellant then went to Chak No. 8 to bring witnesses from there. Luqman then informed the witness that he would speak to the Deputy Collector at Tando Muhammad Khan, who was a Bengali, and then arrange with the Anti-Corruption Police to implicate the appellant who had abused him. On the next day Luqman had brought the Anti-Corruption Police and he told the witness to accompany him and see the fun. The witness went to the otak of Nazeer but the appellant was not there. However the Anti Corruption Police was in the otak. In his presence the appellant was called and Luqman offered him money which the appellant refused. Thereafter Luqman raised the alarm and the Anti-Corruption police came and arrested the appellant and asked him to change his dress. This witness had refused the direction of the Anti-Corruption police to act as a mashir because he was not prepared to speak falsely. The learned counsel for the appellant has contended that although the appellant is alleged to have threatened to take Nazeer, Zulfiqar, Shafiq and.19st. Mariam. none of these persons have been examined in Court. According to the F. I. R. filed by complainant Luqman before the Circle Officer, Anti Corruption the prosecution case was `'now on 26-8-71 two constables of Police Station Jati came to our Chak and they have taken Nazeer into their custody. They demanded Rs. 300 as bribe else to produce the woman and other witnesses. We do not know the names of the police constables. They are sitting in the otak of Nazeer". But in his deposition in Court the complainant Luqman gave a different version altogether. The date of the arrival of the appellant was shown in the F. I. R. as 26-8-71 while in Court he gave it as 27-8-71. He did not say that Nazeer was arrested and that the money was demanded as bribe only for not securing the woman and other witnesses but he said that the demand was as he threatened to arrest Nazeer, Zulfiqar, Shafiq and Mariam and to take them to D. S. P. at Sujawal. Although he did not take the name of Hayat as a person who had accompanied him and approached the appellant but in Court he has mentioned Hayat as his companion in whose presence appellant first deman ded Rs. 500 and later on entrainments reduced the demand to Rs.

300. According to the learned counsel the omission of the name of Hayat from the first report and also the omission of prosecution to have examined him in Court is a serious omission, which in the context of the facts of this case had the effect of rendering the very demand of illegal gratification as doubtful. He submitted that unless the demand of money was first established. even the securing of the same would not be effectively incriminating. The Second contention raised by the learned counsel was that the prosecution witness Muhammad Jumans who had acted as a mashir of recovery had not, supported the prosecution case. In this respect he said the complainant went to the otak where accused was sittira. He said, "It was a put. I got standing across the wall on the side of the house. I could see inside the otak from a hole in the wall. Then I saw that Luqman was offering money to the accused was refusing to accept. After 5-10 Luqman came and told the party that he had made the payment. Then we all went to otak from one door and others from the otter door. When 1 reached I saw policemen and Bengali bating the accused. There fore I kept back and did not go there. I went afterwards. I found a `purse' in the hands of Circle Officer and he stated that he had secured it from the accused. On opening the `purse' the same notes were found to he there which were given by the circle officer to the complainer then I was getting late and Circle Officer obtained the signatures from me on blank papers and I left." This witness according to the learned counsel was as independent person as lie did not belong to the caste of the complainant or the appellant and a primary teacher in the sank village. His evidence therefore was more reliable and that the prosecution declaring him hostile had, lost the advantage of the evidence of an independent The third contention of the learned counsel with regard to the statement of the appellant Exh. 20 which was recorded on 28-8-71 at the time when the amount of Rs. 300 was secured from him, and in which statement he bad c. explained the possession of this amount as under : - "I was sitting in the otak of Nazeer. Luqman came there who gave me Rs. 300. and asked that the bullock cart of his harries was coming as they were going to purchase manure from Golachi and I should give that money to them and that he was also going with them. I believed him and kept the same in my purse. In the mean while the Anti. Corruption staff came there and conducted the search of my person and recovered the money." The above Statement was recorded by P. W. Muhammad Usman, the Circle Officer as admitted by him, but was also signed by the Head Munshi, recorded the above statement and IIIrd Class Magistrate, Tando, Muhammad Khan, P. W. 2 Sultan Ali. The latter has made a reference of this statement in his report also but has, not claimed to record the statement himself. The appellant in hill statement has denied to have made this statement or even to have signed tile same. The contention therefore, was that the trial Court had erred in considering this statement as a substantial piece of evidence against the appellant. I have gone through the record of this case and the evidence led by the prosecution as well as the appellant with the assistance of the learned counsel and Mr. Manzoor Hussain Barrister, the learned counsel appearing for the State. There appears to be any amount of force in the submission of the learned counsel for the appellant that the amount recovered from the possession of the appellant i.e. Rs. 300 cannot be considered as illegal gratifi cation unless it was positively proved that the amount was in fact demanded and was thus an amount of bribe. As stated above the prosecution has failed to examine Hayat who could be a proper witness on this point. There is no other witness who stated that the appellant had demanded Rs. 300 or for that matter any other amount as an illegal gratification for the purpose of not taking the parties to the Court. Even at the time of actual payment to the appellant tyre conversation, if any, between Luqman complainant anti the appellant is not proved through any witness to be incriminating. Oil the other hand P. W. Juman did not support the prosecution and defence witness Hassan Ali gave the favourable version to the appellant on that point. It is an established rule of law by now that the amount recovered from ails accused person in a trap case must be shown to have been accepted by him as illegal gratification. The burden of proving this fact is on tile prosecution and therefore it is incumbent that evidence be led to prove that the appellant actually demanded the money as illegal gratification. Ill the present case the word of witness Luqman alone does not carry much weight particularly on account of the changing statements made by him in the first report and in Court. An adverse inference cannot be drawn against the appellant even if it be assumed that the amount of Rs. 300 is proved to have been secured from him. The fact itself is not free from doubt as not only it is denied by him, but witnesses who have been examined, support him and depict a picture of the circumstances which makes the whole transaction doubtful. It is not understood why the Magistrate himself did not record the statement of the appellant and why he merely signed the statement, which was recorded, admittedly, by the Police Officer. The learned counsel has referred to the case of Muhammad Sarwar v. State (P L .D 1.969 S C 278) in which, with regard to such sort of statements it was observed on page 293 as under: - "As far as the admissibility of a statement made by ail accused person regarding the recovery of the tainted money from him, this would depend oil the purpose for which the statement is being used qua the offence to which it relates. If it is found to have been made in the course of the investigation of an offence and is of a confessional nature it must conform with the requirements of section 364 of the Criminal Procedure Code, if it is proposed to use it as such in proof of that offence. if it falls short of a confession, it is to be recorded under section 164 (2) of the Code in such manner as prescribed for tile recording of evidence in Court, which in the opinion of the recording -Magistrate is best fitted to the circumstances of the case. have been opened by that time. It would rather be a surmise and surmises cannot take the place of proof. There is another important aspect of the case. In that two sons of Allah Rakha, i.e., Iqbai Masih, for whom the hand of Mst. Nasreen had been demanded and one Inderyas, were also named as accused to have participated in the occurrence. Inderyas was shown to have been empty handed while Iqbal Masih was assigned the role of having inflicted a simple injury. The fatal injury was assigned to the appellant. The grievances and the annoyances of the complainants would have been more directed against Allah Rakha and his sons than the appellant, because of the annoyance they had shown on the refusal of hand of Mst. Nasreen by the complainants. If the complainant or his brothers had any intention of fabricating a case, he or they would have assigned the role of infliction of fatal injury to either of the sons of Allah Rakha and would not have chosen the appellant. There is apparently no reason to consider that the complainants specifically had chosen the appellant for the gravest part of the occurrence. In fact, the role assigned to him shows that the complainants did not try to take benefit of the occurrence to bring in any person whom they hated most or considered enemy.

12. The statements of the eye-witnesses against the appellant find corroboration from the recovery of blood-stained Chhuri, at his instance, from the house where he was residing. The witness from public who testified the recovery of blood-stained Chhuri at the instance of the appellant, is related to the appellant through paternal-aunt's husband, i.e. Allah Rakha. He is not directly related to the complainant. His testimony, in turn, also finds corroboration from the deposition of the Inspector/S.H.O. (P.W. 10). Medical evidence also lends corroboration to the ocular account.

13. The upshot of the above discussion is that there appears to be no merit in the appeal. The same is dismissed. However, the amount of fine of Rs. 8,000 and the direction of payment of Rs.10,000 as compensation, is reduced to RS.2,000 and Rs.5,000 respectively, considering the fact that the appellant is a young boy and had come all the way long from a different district to Gujranwala to work at the workshop of a relative and so he might not be in a position to pay such an amount of fine and compensation. The sentence for non-payment of fine, is reduced from two years' R.I. to one year R.I. and sentence of six months' R.I. in lieu of non-payment of amount of compensation is maintained. SA./J-38/L Appeal dismissed.