2013 P Cr. L J 1057
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
TAHIR MEHMOOD INSPECTOR OF POLICE (INVESTIGATION) ---Appellant
Versus
The STATE through Prosecutor -General, Balochistan ---Respondent
Criminal Appeal No.104 of 2010, decided on 23rd April, 2013.
Prevention of Corruption Act (II of 1947) ---
----S. 5---Penal Code (XLV of 1860), S. 161 ---Illegal gratification ---Appreciation of evidence ---
Trap raid case ---Judicial Magistrate, absence of ---Non-hearing of conversation ---Accused
persons were convicted and sentenced by Trial Court for accepting illegal gratification ---
Validity ---Trap raid was made in absence of Judicial Magistrate, therefore, violative of law and
doubtful but non -associating Judicial Magistrate in trap raid did not v itiate all proceedings, as it
was not a mandatory requirement ---Present was a case of illegal gratification received by public
servant with further allegation in rebuttal against three public servants to involve accused in
commission of offence ---Keeping i n view the nature of case, some specific evidence was
required to establish charge ---Contradictions in statements of eye -witnesses destroyed case of
prosecution ---Trial Court failed to consider evidence in its true perspective and also failed to
dilate upo n contradictions appearing in statements of witnesses, which had made evidence as less
reliable ---None of witnesses heard conversation between accused and complainant, nor had seen
exchange of money ---Fact of recovery of tainted money from accused was also not free from
doubts ---Prosecution was required to discharge burden to prove that there was demand and
acceptance of illegal gratification by public servant but failed which made it a case of acquittal ---
High Court set aside conviction and sentence awarde d to accused by Trial Court and he was
acquitted of the charge ---Appeal was allowed in circumstances.
Liaquat Ali v. The State 1999 PCr.LJ 1974; Muhammad Anwar v. The State 1984 PCr.LJ
1399 and Dewan v. The State 1994 PCr.LJ 2302 ref.
Muhammad Aslam Chishti and Abdul Ghani Mashwani for Appellant.
Pervaiz Akhtar, Deputy Prosecutor -General for the State.
Date of hearing: 3rd October, 2012.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The appellant Tahir Mehmood being aggrieved
of the judgment dated 27th October, 2010 of the Special Judge, Anti -Corruption Balochistan,
Quetta, preferred the instant appeal, thereby questioned his conviction for the offences under
section 161, Pakistan Pen al Code (P.P.C.), and section 5(2), The Prevention of Corruption Act,
1947, and sentence awarded to him whereby he had to suffer rigorous imprisonment for a period
of (2) two years with fine of Rs.2,000 (Rupees two thousand), and in default further
impriso nment for a period of ten days, and simple imprisonment for a period of (2) two years
with fine of Rs.2,000, respectively. It was contention of the appellant that the complainant Shafi
Muhammad, and Muhammad Zaman, Zafarullah and Muhammad Akbar, though app eared as
prosecution witnesses, but their deposition failed to provide any support to the case of the
prosecution, therefore, the evidence of all the four witnesses cannot be relied upon. But, the trial
Court while misappreciating the evidence, ignored the fact that the evidence of the remaining
witnesses was not enough to bring the charge at home. Further, erred to treat the F.I.R. as
substantive piece of evidence. Therefore, this misappreciation resulted in erroneous findings,
which are liable to be set a side. It was further contended that though he (appellant) was also
booked for the offences under sections 223, and 224, P.P.C., but he was acquitted of the charge,
and also not found guilty in the inquiry departmentally held. It was prayed that the impugne d
judgment be set aside, and he (appellant) be acquitted of the charge in the instant case too.
2. The brief facts as appeared from the record that the appellant was booked in a case F.I.R.
No.232 of 2009 Police Station Satellite Town, Quetta, for the of fences under section 161, P.P.C.,
and section 5(2) of Prevention of Corruption Act, 1947, with an allegation of demanding and
taking illegal gratification from the complainant Shafi Muhammad. It was alleged that an amount
of Rs.40,000 (Rupees forty thousan d) was paid by the complainant to the appellant, but there was
further a demand of Rs. 30,000 (Rupees thirty thousand), when a trap raid was arranged, and the
appellant was got apprehended red -handed. The trial Court framed charge on 23rd November,
2009 as under: --
"That on 2 -10-2009, you while posted as Police Inspector Police Station Satellite Town
Quetta received an amount of Rs.40,000 as illegal gratification from the complainant for release
of his relative Zafarullah detained in a Narcotic case. Mor eover, on 4 -10-2009 when the
complainant come to you, you asked him to arrange more amount of Rs.45,000 for release of
other brother of the said detainee Haji Muhammad Nawaz then you will set free both the said
detainees together. On 5 -10-2009, the complai nant met the S.P. Saryab, and told accordingly, in
the meanwhile you phoned the complainant who asked you that he could arrange a sum of
Rs.30,000, the S.P, initiated on each currency note as such you were arrested with red handed
and recovered the tainted money from your possession, but you escaped from the custody by
giving dodge to the police personnel.
Thus you have committed offences punishable under sections 161, P.P.C. read with
section 5(2) Act of 1947 and read with 155 -C of Police Order 2002 wit hin the cognizance of this
court."
3. The appellant being the accused person denied the charge, and claimed trial. The
prosecution produced eight witnesses in support of their case, while the accused/appellant not
only recorded his statement on oath, but also produced four witnesses in his defence. On
completion thereof the trial Court arrived to the conclusion that the prosecution successfully
established the charge, thereby convicted the appellant for the offences, and awarded punishment
details whereof provided in preceding paras.
4. During course of argument the learned counsel for the appellant stated that the
prosecution failed to establish a case free from all reasonable doubts, therefore, the possible
result in the circumstances would be an order of acquittal, but a contrary order was made,
thereby an error was committed. The learned counsel further stated that the raid was conducted
without associating Magistrate to the process, while only the police personnel witnessed the
occasion, therefore, t he proceedings held were of less significance, and cannot be relied upon.
Furthermore, the fact that prior to date of incident the appellant was already transferred from the
Police Station Satellite Town, Quetta, therefore, had no concern or authority with the cases, and
the prisoners at the Police Station. It was contention of the learned counsel that four of the
prosecution witnesses (P.Ws.) P.W.3 Muhammad Nawaz, P.W.4 Shafi Muhammad, P.W.5
Zafarullah, and P.W.7 Muhammad Akbar turned hostile, therefore, t heir evidence cannot be
relied upon, nor conviction can be based on statements of such witnesses. Further, the statements
of the remaining witnesses i.e. P.W.1 Naseebullah, and P.W.2 Abdul Khaliq were formal, and
failed to support the prosecution's case, t herefore, of less worth. The learned counsel further
contended that the complainant Shafi Muhammad (P.W.4) was also declared as hostile, as he
failed to support the case of the prosecution, therefore, the very basis of the case was destroyed.
5. The lear ned counsel further stated that the evidence before the trial Court was not
properly assessed, and the points for determination were not properly formulated. Further, the
decision of the trial Court unable to explain that how the case of the prosecution wa s supported
by the witnesses already declared hostile. He further stated that the documents already admitted
were ignored. Further, the circumstantial evidence was also not enough to establish the charge,
as several facts were found missing. The learned co unsel urged that an Investigating Officer
while acting as such cannot become member of a raiding party, but, this formality was ignored,
and the inclusion of the Investigating Officer in the raid process placed a question mark on his
impartiality, which ca nnot be ignored. Further, the fact that he (appellant) was neither SHO of
the concerned Police Station, nor the Investigating Officer of the mentioned cases, having no
influence in the matter, therefore, a demand for gratification was illogical in the circ umstances.
Furthermore, the appellant was exonerated by the Inquiry Officer, and he was also acquitted in
the connected case. These facts also supported the defence version. The learned counsel urged
that all these facts create reasonable doubt, benefit wh ereof was to be extended in favour of the
appellant, but the trial Court failed to exercise the discretion, thereby committed illegality. The
learned counsel relied on:
Liaquat Ali v.The State 1999 PCr.LJ page -1974,
Muhammad Anwar v. The State 1984 P Cr.LJ 1399
Dewan v. The State 1994 PCr.LJ 2302
The learned counsel for the appellant emphasized that the offences for which the
appellant was charged were non -cognizable in nature, therefore, without obtaining permission of
the Magistrate registratio n of F.I.R. was illegal. But, in case in hand this provision of law was
also violated, the mala fides on part of the Investigating Authorities were apparent from the
conduct adopted by them.
6. In reply the learned Deputy Prosecutor -General (DPG) stated that though the complainant
(P.W.4) while appearing before the trial court failed to recognize the appellant, but during cross -
examination there was clear admission of the fact that the currency notes were handed over to
Asad Nasir SP by him (complainant). Further, though the complainant (P.W.4) was declared as
hostile, but he never denied the occurrence, and the accompanying facts, which can be relied
upon. The learned DPG further stated that it was to be realized that the persons for whose release
the gra tification was demanded, though released thereafter, but due to apprehension of re -arrest,
the presence of said persons cannot be secured, nor they can be compelled to give evidence. It
was further stated that P.W.1 Naseebullah, P.W.2 Abdul Khaliq, and P.W .6 Asad Nasir were
remained consistent in their statements, and the seizure memo corroborated the statement of the
complainant, therefore, rightly relied upon. Furthermore, at the relevant date the appellant was
working in the same Police Station as Invest igating Officer, and it was not a denied fact. The
learned DPG urged that though some of the witnesses were declared hostile, but their evidence
cannot let out of consideration as they corroborated the case of the prosecution.
7. The appellant was charged for the offences under section 161, P.P.C., and section 5(2) of
the Prevention of Corruption Act, 1947, and the trial Court found him (appellant) guilty of the
offences, thereby convicted, and sentenced him. The contents of the F.I.R., and the Poli ce Report
alleged receiving and further making demand for gratification by the appellant from the
complainant Shafi Muhammad for release of his relatives involved in some narcotics cases, and
were under custody in the Police Station Satellite Town, Quetta. Further, an act of receiving an
amount of Rs.45,000 (Rupees forty five thousand) was alleged against the appellant, while an
amount of Rs.30,000 was also demanded for the purpose. It was case of the prosecution that the
complainant approached the police a uthorities after payment of Rs.45,000, on receiving of the
second demand, whereupon Asad Nasir Superintendent Police (SP) Sariab managed trap raid,
and marked the currency notes valuing Rs.30,000. In result thereof the appellant was arrested
when he receiv ed the amount from the complainant Shafi Muhammad, and at the spot marked
currency notes were recovered from his front pocket, which were timely seized.
8. To establish its case the prosecution produced the complainant Shafi Muhammad as
P.W.4, who depose d that on 13th September, 2009, four persons namely Nawaz, Zafarullah,
Attaullah, and Mehrullah were arrested, and booked in several criminal cases, on receiving
information he reached Quetta. But, some DSP and SHO contacted him (P.W.4) on mobile, and
raised a demand for money to get release of the mentioned persons. Whereupon he (complainant)
paid the money to a police personnel, visited in a rickshaw. It was further his statement that this
act was done near the Police Station Satellite Town Quetta. He fur ther stated that at first instance
he paid an amount of Rs.40,000, and thereafter, Rs.30,000. While his thumb impression was
obtained on a piece of paper. As he failed to identify the appellant before the court, therefore, on
the request the witness was de clared as hostile, cross -examined by the District Attorney
appearing for the State. Despite denial of recognition of the accused he deposed about making
demand for money with further assertion that an amount of Rs.24,000 was handed over to Asad
Nasir SP, w ho noted down the numbers of the notes, and put his signatures thereon. The thumb -
impression present on the written report was also recognized and admitted by him (P.W.4).
9. P.W.5 Zafarullah, one of the persons for whose release gratification was given, denied
recording of his any statement during the course of investigation, therefore, declared as hostile,
and cross -examined by the Public Prosecutor. During cross -examination he admitted that on 29th
September, 2009 he was under custody in a case of ille gal arms, while several other persons were
also arrested along with him. He denied that any of his relative visited from Jacobabad to Quetta,
and had a contact with the appellant Tahir Mehmood to get them released.
10. P.W.3 Muhammad Nawaz, was also one of the persons arrested on 29th September,
2009, it was his statement that they were involved in a false case, and were confined in the Police
Station Satellite Town Quetta. During course they were tortured, and there was demand for
money. He further state d that Tariq Manzoor Deputy Superintendent of Police (DSP), and Abdul
Khaliq Station House Officer (SHO) had a contact with their relatives for a demand of money.
This witness was also declared hostile. But, during course of cross -examination there was an
admission to the effect of confinement of him, and his brothers namely Mehrullah and Attaullah
on 29th September, 2009 at Police Station Satellite Town, Quetta.
11. P.W.7 Muhammad Akbar another witness, declared to be hostile, made deposition to the
effect that on 13th September, 2009 a friend of him, on his visit told him about involvement of
his some friend namely Nawaz in a criminal case, confined in Police Station Satellite Town
Quetta, and for whose release there was a demand of money. The witness fu rther deposed that he
along with Shafi Muhammad visited the Police Station, while Shafi Muhammad went inside the
building for making the payment, and he remained outside, and on his return Shafi Muhammad
told him about payment of the amount. During cross -examination the witness admitted the fact
that an amount of Rs.40,000, was already paid, with a demand of Rs.45,000 for release of some
accused persons was disclosed to him by Shafi Muhammad. He further stated that when they
were on their way towards Police Station, Shafi Muhammad received a call on his mobile phone
in rickshaw, in which they were travelling, which was in respect of payment of the demanded
money. But he showed his ignorance about recovery of the tainted money from possession of the
appellant by Asad Nasir SP at the relevant time. He (witness) also refused to recognize the
appellant before the court.
12. The remaining witnesses were police officials. The evidence of P.W.1 Naseebullah ASI
was only to the extent of taking into custody the copi es of the F.I.Rs. registered against
Muhammad Nawaz and others. The seizure memo Exh.P/1 -A, and Articles P/1 to 6 were
tendered by him being its signatory. But, in cross -examination he affirmed that on 5th October,
2009 the appellant was not in custody, ra ther he was in the court with reference to some cases.
13. P.W.2 Abdul Khaliq was described to be an eye witness of the occasion, and also
signatory of the seizure memo Exh.P/2 -A as witness, whereby the recovered currency notes were
taken into custody. I t was his statement that on 5th October, 2009 a person namely Shafi
Muhammad submitted a written report to Asad Nasir SP, making complaint against Tahir
Mehmood present appellant, that for release of his (complainant) relatives namely Muhammad
Nawaz, Zafar ullah, and others, being involved in cases pertaining to recovery of narcotics and
unlicensed arms, the appellant Tahir Mehmood, being Investigating Officer of the said cases,
making a demand for illegal gratification. Further, the person disclosed payment of an amount of
Rs.40,000, and showed his grievance on further demand of the nature. On the report Asad Nasir
SP (P.W.6) signed the currency notes valuing Rs.30,000, and he (witnesses) along with
DSP/SDPO and Asad Nasir SP reached to the Police Station Sa tellite Town, and handed over the
marked currency notes to Shafi Muhammad. It was further his (witness) statement that on their
arrival Shafi Muhammad gave a missed call on mobile phone of Asad Nasir SP from the nearby
lane. On receiving thereof the raid w as made, and the appellant was apprehended having in
possession the tainted money, which was taken into custody, and parcel was prepared. The
witness produced the parcel, and the currency notes as Art: P/8 to Art: P/44. He recognized the
appellant being th e real culprit. Though in cross -examination there was an admission of the fact
that on the date the appellant was already transferred from the Satellite Town Police Station to
Gawalmandi Police Station, but it was with an addition that till date he was not relieved from the
services, as certain cases were left for investigation assigned to him (appellant).
14. In addition thereto P.W.6 Asad Nasir DSP/SDPO Sariab Circle was the main character of
the trap raid, as he was described as its organizer. He made repetition of the facts that the
complainant Shafi Muhammad approached him, informing him about the demand raised by the
appellant for money as gratification, and payment of an amount of Rs.40,000, on the same with a
further demand of an amount of Rs.30,00 0. The currency notes were marked, as he (witness)
signed them, and the complainant Shafi Muhammad was sent towards the Police Station Satellite
Town Quetta. Further, he (witness) along with Tariq Manzoor DSP, Abdul Khaliq SHO also
proceeded towards the Po lice Station Satellite Town. It was further his statement that on their
arrival they waited outside, while inside the gate of the Police Station the appellant Tahir
Mehmood was demanding money from the complainant, who arrived earlier in time, and when
the complainant signaled about his intent of handing over of the money to the accused, and the
act was factually done, the appellant was apprehended, and from his front pocket tainted money
was recovered, which was taken into custody. The seizure memo prepare d, and the articles
recovered were confronted to him in the court. During course of cross -examination he was
completely ignorant of the fact that whether any effort was made to associate a Magistrate for
purpose of conducting of the trap raid. The witness deposed that the appellant was not the
Investigating Officer of the cases against Zafarullah and others, but on 5th October, 2009, the
date of incident, he (appellant) was performing his duties as Investigating Officer at Police
Station Satellite Town, Que tta. The witness denied existence of any enmity between him and the
appellant, pertaining to a person namely Isam Shah, for whose release he (witness) was pressing
hard.
15. P.W.8 Mubarak Ali, one of the Investigating Officers, only stated about recordin g of
statements of the witnesses, and taking into custody of the case property, and submission of the
challan as Exh.P/8 -B prepared by his predecessor -in-office. But, he admitted holding of
departmental enquiry against the appellant, and his appearance as witness therein. Further, the
facts that the appellant was not the Investigating Officer of Zafarullah's case, rather he (witness)
himself was conducting the investigation, and transfer of the accused from Police Station
Satellite Town to Gawalmandi Police Station prior to 5th October, 2009, were admitted. He
(witness) showed his ignorance about existence of some enmity between the appellant and Asad
Nasir SP, Tariq Manzoor DSP, and Abdul Khaliq SHO, which resulted in his false implication in
the instant ca se.
16. The appellant was examined under section 342, Criminal Procedure Code (Cr.P.C).
While in defence the appellant recorded his statement on oath, and produced four witnesses,
further placed on record copy of the judgment made in another case, whereb y he was acquitted
from the offences under sections 223, 224, P.P.C.
17. It is a case of receiving, and demanding of illegal gratification by a public servant, with a
motive for doing undue favour, and to get release certain accused persons in custody bo oked in
several cases. In order to constitute an offence under section 161, P.P.C., primarily the status of
the person against whom the allegation is made as of a public servant or expected to be so it is to
be determined. The act of acceptance of the grat ification, or an agreement for the same, or an
attempt to obtain the same either for himself or for any other person, and the motive and the
intent behind this acceptance of gratification, for doing or forbearing to do an official work are
required to be e stablished. This act also includes an act of showing or forbearing to show any
favour or disfavour to any person, during exercise of official duty of such person. Therefore, to
constitute an offence under the section it is not mandatory that the public ser vant to whom
gratification was offered must be capable of doing some favour, rather it would be enough to
constitute an offence if a person giving bribe thinks that such public servant has an opportunity
to show him a favour. In view thereof the mandatory requirement to constitute an offence under
the section would be that the money paid as a motive or reward, for inducing a public servant, to
exercise his personal influence to show favour or disfavour to the giver of the money in exercise
of his official d uties. Therefore, to establish the charge to the extent the only testimony of a
decoy witness would not be enough, rather some other evidence would require for purpose of
corroboration. Therefore, primarily the prosecution has to establish passing of money to a public
servant, whereupon the onus shifted on the person who received the money to establish that this
money was not for any illegitimate purpose. Therefore, recovery of the tainted money from such
person, if established, shifted the burden on such p erson to explain that how he received it, and
for what purpose.
18. Now the instant case has to be assessed on these principles. In present case the main
allegation against the appellant, being the accused person, that he made a demand for
gratification to the complainant Shafi Muhammad, and in response thereof received an amount of
Rs.40,000, but further demanded for an amount of Rs.30,000, to do a favour and get release
some persons apprehended in connection to some criminal cases. His apprehension whil e
receiving the money for the purpose was also alleged. Therefore, the initial burden was on the
prosecution to establish that the appellant being a public servant made a demand, accepted
gratification, and apprehended having in custody the tainted currenc y notes. If the prosecution
succeeded the burden would shift to the accused/appellant to explain having in custody the
tainted money. The complainant Shafi Muhammad (P.W.4) described as decoy witness, who
handed over the money to the appellant. While P.W.7 Muhammad Akbar described to
accompany him (complainant) when he proceeded to pay the money to the appellant. But, both
these witnesses, while appearing before the court, refused to identify the appellant as the person
to whom the money was paid. P.W.7 Muh ammad Akbar though admitted accompanying the
complainant to the Police Station Satellite Town, Quetta, but denied to have a glance of the
appellant at the site. Rather, he showed himself to be seated in rickshaw, and the complainant
Shafi Muhammad alone we nt inside the police station, and paid the money. On the other hand
the complainant P.W.4 Shafi Muhammad though affirmed payment of the tainted money to some
police official, but unable to identify him, he also refused to identify the accused person
(appel lant) in the court as such. P.W.5 Zafarullah, and P.W.3 Muhammad Nawaz, were the
persons, nominated in other cases, and for whose release the alleged gratification was demanded,
and paid. Both these witnesses though admitted their involvement in criminal c ases, and their
detention at the Police Station Satellite Town, Quetta, but their deposition was only to the extent,
and they did not name the appellant being the person behind the act. Therefore, their testimony
provide less support to the case of the pro secution.
19. In the circumstances the most important witnesses would be the persons in whose
presence the money was offered, and received by the appellant, which resulted in arrest, and
recovery of the tainted money from his custody. Only three persons fulfilled this criterion
namely Abdul Khaliq SHO Police Station Satellite Town, Quetta, Asad Nasir, SP and Tariq
Manzoor DSP. The first two appeared as P.W.2 and P.W.6, while the third person was not
produced. The seizure memo Exh.P/2 -A pertains to recover y of tainted money also bears
signatures of Tariq Manzoor, and Abdul Khaliq as witnesses, while asserted to be prepared by
Asad Nasir P.W.6. P.W.2 Abdul Khaliq while recording his statement stated about the
preparation of the trap raid, signing down the cu rrency notes by Asad Nasir SP, which were
handed over to the complainant. The witness further narrated the occurrence thereby stated that
at Sariab Police Station the complainant Shafi Muhammad, and the accused Tahir Mehmood
have conversation on mobile pho ne in their presence. But, when they reached at Police Station
Satellite Town, Quetta, the complainant from a nearby lane of the Police Station made a missed
call at cell phone of Asad Nasir SP, whereupon he along with Tariq Manzoor DSP, and Asad
Nasir SP raided and apprehended the accused, from whose possession the tainted money was
recovered, which was taken into custody and seizure memo Exh.P/2 -A was prepared. He also
produced the tainted currency notes as Art: P/7 to Art: P/44. P.W.6 Asad Nasir, the sec ond eye -
witness of the occasion, also deposed the steps taken for arranging the trap raid, further deposed
that .he along with Tariq Manzoor DSP and Abdul Khaliq SHO proceeded towards Police
Station Satellite Town, Quetta. But, prior to their arrival the c omplainant Shafi Muhammad
along with Tahir Mehmood appellant were already present inside the gate of the police station,
and the accused was making demand of money. It was further his statement that they remained
out side of the police station, the complai nant indicated his intent and on its factual happening,
they raided and he along with his companions got hold of the accused person and from his
personal search from front pocket an amount of Rs.30,000 consisting of tainted currency notes
were recovered.
20. Three of the witnesses were declared as hostile, as they were not giving statement in
support of the case of prosecution. A court is empowered to declare a witness hostile if he is
found to be unfavourable to the case of the prosecution or it appears that he is not desirous to tell
the truth. In existence of the facts the court can allow the person), who called such witness, to put
any question to him which might be put in cross -examination by an adverse party. Article 150 of
the Qanun -e-Shahadat Order, 198 4 is clear to this extent. But only declaring a witness as hostile
in no way make a witness unworthy of reliance, nor his evidence can be brushed aside. Rather,
his statement if found to be true and credible it can be relied upon. But, if such witness spea ks
and took a contrary stand while recording his statement, the evidence given has to be assessed
with care and caution keeping in view the circumstances of the case.
21. Keeping in view the relevant provision and the intent behind it the evidence produc ed by
the prosecution in shape of P.W.3, P.W.4, P.W.5, and P.W.7 would not be out of consideration,
rather considered with remaining material, but with due care. The evidence of P.W.3 Muhammad
Nawaz, and P.W.5 Zafarullah only established the case of the pr osecution to the extent that both
these persons were involved in some other criminal cases, and were in custody on the day when
the incident occurred. As far as P.W.7 Muhammad Akbar is concerned. He also supported the
case of the prosecution to the extent that the complainant paid some amount to some police
official as gratification. As far as P.W.4 Shafi Muhammad is concerned, he being the
complainant though admitted preparation made for the trap raid, signing of the currency notes,
and payment to some per son. But, he neither named the person as appellant, nor recognized him
in the court. Therefore, his statement was only in conformity with the case of the prosecution to
the extent that the complainant approached the police authorities, and on his complaint trap raid
was conducted. The burden still rests with the prosecution to establish that in fact the appellant
was the person who demanded the money, and also received it, and was apprehended having in
custody the tainted money.
22. Before proceeding ahea d it would be appropriate to consider the plea taken in defence.
The appellant asserted that Asad Nasir SP, Abdul Khaliq SHO, and Tariq Manzoor DSP were
inimical towards him (appellant), and he was falsely involved in the instant case. It was his plea
that on the date of incident i.e. 5th October, 2009 he was busy before different courts for purpose
of taking remand of some persons nominated in different cases. Further, he was not the
Investigating Officer of the cases pertaining to P.W.3 Muhammad Nawaz, an d P.W.5 Zafarullah,
further, he was already transferred from the Police Station Satellite Town, Quetta to the Police
Station Gawalmandi, Quetta. He also produced relevant papers as Exh.D/1 to Exh.D/1 -F,
Exh.D/1 -J. These papers are of less help to the appel lant, as not able to establish that at the
relevant time he was busy in the courts. The Departmental Enquiry Report Exh.D/1 -H with a
recommendation for his (appellant) exoneration of the charge, was of less help, as no final order
followed, was tendered in the evidence. The appellant also produced a copy of judgment of the
Judicial Magistrate -V, Quetta dated 26th December, 2009 as Exh.D/1 -I, whereby he was
acquitted from the case for the offences under sections 223, 224, P.P.C., an offence committed in
continuation of the instant case. The trap raid was objected being made in absence of Judicial
Magistrate, therefore, violative of law, and doubtful. But, non -associating a Judicial Magistrate
in trap raid would not vitiate all the proceedings, as it was not a mandatory requirement.
Furthermore, the main defence of the appellant that Abdul Khaliq SHO P.W.2, Asad Nasir SP
P.W.6 and Tariq Manzoor DSP having enmity with the appellant, resulted in his involvement in
the instant case. P.W.3 Muhammad Nawaz supported the defence version, while stating that the
demand of money was on part of Tariq Manzoor and Abdul Khaliq.
23. Therefore, in view of above discussion the prosecution witnesses P.W.3 Muhammad
Nawaz, P.W.4 Shafi Muhammad, P.W.5 Zafarullah, and P.W.7 Muhamm ad Akbar only
established one part of the prosecution case, that there was demand of gratification, and payment
was made by the complainant, but the aspect still remains to connect the appellant with
commission of the offence being the real culprit, and th e prosecution had to establish the same.
Therefore, for the purpose there were only two pieces of evidence before the court i.e. the
statements of P.W.2 Abdul Khaliq and P.W.6 Asad Nasir, and the seizure memo Exh.P/2 -A.
Both the persons were described as e ye-witnesses, therefore, their evidence must be consistent to
each other, and inconsistency appearing in their statements will destroy the prosecution's case.
According to P.W.2 plan for trap raid was made in Police Station Sariab, and during the course
the complainant had conversation with the accused on his cell phone. Further, stated that upon
reaching at Police Station Satellite Town, Quetta while a call was received on cell phone of Asad
Nasir, which was made by the complainant from nearby lane, whereu pon raid was conducted and
tainted currency notes were recovered from the accused. But contrary to this statement P.W.6
Asad Nasir stated that when they reached at Police Station Satellite Town, Quetta they stayed
outside the premises of the Police Station , while the complainant was inside the gate of the
police station and he signaled to him (P.W.6) that he had given the money to the accused,
whereupon raid was made and money was recovered from his (appellant's) front pocket. The
only inference which can b e drawn from the statement of P.W.6 that there was giving and taking
of the money, but no one witnessed the same. Further, it appeared that both the witnesses were
inside the police station, and the act of giving and taking of money was held outside the pr emises
of the police station. Further, P.W.6 also not affirmed receiving of any call on his cell phone
made by the complainant. One of them described presence of accused and complainant inside the
Police Station and the other one outside the building. Both the witnesses varied on material
points.
24. Furthermore, the seizure memo Exh.P/2 -A was also not in conformity with the statement
of P.W.2. The contents of Exh.P/2 -A speak about holding of conversation between the
complainant Shafi Muhammad and accused Tahir Mehmood, which was heard by the two
witnesses (P.W.2 and P.W.6), and Tariq Manzoor DSP, further they saw act of giving and taking
of the money. But, both the witnesses remained silent to the effect they, as per their own
statements, neither saw the exchange of the money, nor heard the conversation between the two.
Furthermore, P.W.6 and Exh.P/2 -A sated recovery of the money from the front pocket of the
shirt wearing by the appellant, but P.W.2 was silent to the effect. The shirt was also not taken
into custody.
25. The material on record further reflects that the appellant was neither arrested, nor
detained on 5th October, 2009, the date, of incident, despite the assertion that he was
apprehended red -handed. The date of his (appellant) arrest nowher e appeared in the record. The
Investigating Officer Mubarak Ali appeared as P.W.8, also asserted his presence at relevant time,
described him as author of Exh.P/2 -A the seizure memo, which was prepared in the office of
SHO. But, he (P.W.8) neither made any statement describing the facts of the case, nor his
presence at the site was confirmed by P.W.2 and P.W.6, which made his presence at site not free
from doubt.
26. Though the involvement of the appellant in a case, with a charge that he escaped from
confinement while in custody in the instant case, was an admitted fact, but he had been charged,
tried, and acquitted vide order dated 26th December, 2009 of Judicial Magistrate -V, Quetta. It is
an accompanying fact, thereby considered, but as an acquittal or der had been recorded in favour
of the appellant by a court of competent jurisdiction, which was not shown to be questioned in
appeal, therefore, no adverse findings can be given to said extent.
27. In view of the above discussion the trial Court has wro ngly held that the witnesses
consistently made statements, and thereby established the case. But, it was a case of gratification
received by a public servant, with further, allegation in rebuttal against three public servants to
involve the appellant in co mmission of the offence, therefore, keeping in view the nature of the
case some specific evidence was required to establish the charge. But, the contradictions, as
noted hereinabove, appearing in the statements of the eye -witnesses destroy the case of the
prosecution. The trial Court failed to consider the evidence in its true perspective and also failed
to dilate upon the contradictions appearing in the statements of the witnesses, which make the
evidence as less reliable. Furthermore, none of the witnesse s heard the conversation between the
appellant, and the complainant, nor saw the exchange of money. The fact of recovery of tainted
money from the appellant was also not free from all doubts. The prosecution was required to
discharge the burden to prove th at there was a demand and acceptance of illegal gratification by
a public servant, the appellant, but they failed, which makes it a case of acquittal.
28. In view of above discussion the judgment of the trial Court dated 27th October, 2010 of
Special Jud ge, Anti -Corruption, Balochistan, Quetta is hereby set aside. The appellant Tahir
Mehmood son of Naik Muhammad, is acquitted of the charge in case pursuant to F.I.R. No.232
of 2009, Police Station Satellite Town Quetta, from the offences under section 161, P.P.C. and
section 5(2) of the Prevention of Corruption Act, 1947. The appellant is on bail, his bail bonds
stand discharged.
MH/40/Q Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.