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Petitioner: TAHIR MEHMOOD INSPECTOR OF POLICE (INVESTIGATION) VS Respondent: The STATE JUDGMENT
Court Name: Balochistan High Court Judge(s): Syeda Tahira Safdar Title:TAHIR MEHMOOD INSPECTOR OF POLICE (INVESTIGATION) vs The STATE
JUDGMENT
Reported As: KLR 2013 Criminal Cases 364, 2013 P Cr. L J 1057 Result: Appeal allowed Judgment 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 Penal 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 imprisonment 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 appeared 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 aside. 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 impugned 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 offences under section 161, P.P.C., and section
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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 thousand) 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. Moreover, 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 complainant 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 within 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, the 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, their 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, therefore, 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 learned 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 was 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 counsel 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,
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which cannot 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 circumstances. 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 whereof 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 PCr.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 registration 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 gratification 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 Investigating 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 Police 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 authorities 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 received 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 deposed 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
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the Police Station Satellite Town Quetta. He further 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 declared 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, who 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 illegal 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 stated 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 further 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 Shaft 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 copies 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, rather 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. It 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, Zafarullah, 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
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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 Satellite 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 was 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 the 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,30,000. 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 Police 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 prepared, 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, Quetta. The witness denied existence of any enmity between him and the appellant, pertaining to a person namely Ism Shah, for whose release he (witness) was pressing hard. 15. P.W.8 Mubarak Ali, one of the Investigating Officers, only stated about recording 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 case. 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, whereby 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 booked in several cases. In order to constitute an offence under section 161, P.P.C., primarily the status of the person
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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 gratification, 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 established. 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 servant 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 duties. 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 person 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 while 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 currency 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 Muhammad 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 went 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 (appellant) 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 cases, 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 prosecution. 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 recovery of tainted money also bears signatures of Tariq Manzoor, and Abdul Khaliq as
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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 currency 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 phone 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…
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