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Petitioner: ABDUL HAFEEZ KAZI VS Respondent: THE STATE
1988 M L D 496
1988 M L D 496
[Karachi]
Before Muhammad Mazhar Ali, J
ABDUL HAFEEZ KAZI‑‑Appellant
versus
THE STATE‑‑Respondent
Criminal Appeal No. 110 of 1985, decided on 22nd July, 1986.
(a) Penal Code (XLV of 1860)‑‑
‑‑‑S.161‑‑Prevention of Corruption Act (II of 1947), Ss. 5(2) & 5‑A‑‑Trap proceedings supervised by Director Enquiries, Anti‑Corruption Wing‑‑No order of Magistrate to investigate case or make arrest obtained‑‑Trap remaining unfulfilled was again arranged on next day, yet no order for the purpose from Magistrate obtained nor any effort made to organise raid under supervision of Magistrate‑‑Provisions of S. 5‑A, Prevention of Corruption Act, 1947, held were not complied with.
(b) Penal Code (XLV of 1860)‑‑ ‑‑‑S.1 61‑‑Prevention of Corruption Act (II of 1947), Ss. 5(2) & 5‑A‑‑Evidence, appreciation of‑‑Complainant ‑contradicted by other witness as to passing of tainted money to accused‑‑Witnesses appearing to be tutored‑‑Tainted money not recovered from person of accused who was not even present at time of search‑ Complainant, however, stating to have passed on money to accused‑‑Prosecution failing to resolve mystery of disappearance of accused from his chamber in spite of raiding party supervising the proceedings‑‑Tainted money recovered from drawer of table of acquitted co‑accused on pointing out of a witness‑‑Co‑accused not even present in Court room‑‑No explanation given for raiding court‑room when money passed on to accused in his chamber‑‑Tainted money recovered on second round of search on pointing of witness‑‑Witness being P.S.I. of Court passing on money from accused to co‑accused and pointing out drawer for recovery, an accomplice‑‑Witnesses harassed by police for giving evidence‑ Contradictory statements of witnesses on material aspects of case could not conveniently be overlooked‑‑Prosecution, held, had failed to establish its case beyond reasonable doubt‑‑Conviction and sentence set aside in circumstances.
Saghir Hussain Shah v. The State 1977 P Cr. L J 78; Abdul Shakoor and another v. The State 1977 P Cr. L J 741, Aijaz Hussain v. The State P L D 1982 Kar. 255; Muhammad Hanif v. The State 1983 P Cr. L J~1673; Qamarul Islam v. The State 1978 P Cr. L J 32; Muhammad Sadiq v. The State 1975 P Cr. L J 1286; and Muhammad Ramzan v. The State 1976 P Cr. L J 273; Abdul Rehman v. The State 1978 P Cr. L J 247; Zafar Ali v. The State P L D 1962 SC 320; Mokha v. Zulfiqar and others P L D 1978 SC 10; Qasim and others v. The State P L D 1967 Kar. 233; Tawaib Khan and anothcx v. The State P L D 1970 SC 13(17) and The State v. Manzoor Ahmed P L D 1966 SC 644 ref.
Usman Ghani Rashid for Appellant.
S. Murtaza Hussain for the State.
Dates of hearing: 10th, 11th, 14th, 15th, 16th, 18th, 22nd, 23rd and 24th June,1987.
JUDGMENT
This appeal is directed against the judgment of the learned Special Judge Anti‑Corruption (Provincial), Karachi, whereby he had convicted the appellant under section 161, P.P.C. r/w section 5(2) of the Prevention of Corruption Act, 1947, and sentenced him to undergo R.I. for 6 months and to pay fine of Rs. 10,000 or in default to undergo R.I. for 3 months more. The co‑accused Akhtar Ali Khan has been acquitted.
2. The prosecution case is that the complainant was working as driver of Mr. Muzaffar Hasan for about 2 months. Prior to that he was employed as heavy duty driver in Macknons and Macknons Company, Karachi, and on 4‑9‑1978 he met with an accident on Super Highway in which the cleaner named Abdul Jabbar Khan was injured. A case was registered at Police Station Gadap, Karachi. After completing the investigation the police challaned him in the Court No. 1, which was presided by Qazi Abdul Hafeez, Magistrate, City Court, Karachi Appellant. After the usual trial of the case, the appellant asked him to produce. the injured Abdul Jabbar. On 12‑2‑1979, he (complainant) informed him that injured Abdul Jabbar had left the service of the company and had gone to Punjab. The appellant demanded bribe of Rs. 2,500 for deciding the case in his favour. The case was adjourned to 20th February, 1979 when the complainant saw the appellant in his chamber and informed him that he could not arrange for the money demanded by him. The appellant thereupon told him that he should pay Rs. 2,500 else he would convict him. The case was adjourned to 27th February, 1979 when the complainant was directed to bring the said sum. The complainant, however, on 27th February, 1979 at 9.20 a.m. lodged F.I.R. with P.W., Fakir Muhammad, Inspector Assets Cell, A.C.E. Karachi. The Chairman, Directorate A.C.E., deputed Oamaruddin Khan, Director Enquiry Wing to supervise raid. P.W. Fakir Muhammad, Inspector took the complainant and Mashirs to the office of Oamaruddin, Director Enquiries, who verified the contents of the F.I.R. from the complainant. The Inspector then handed over Rs. 2,500 as tainted money to the complainant in the presence of Mr. Qamaruddin and Mashir Noor Muhammad. He also noted down the numbers of the notes‑ in the Mashirnama. The raiding party then went to the City Courts, but the appellant Qazi Abdul Hafeez was on leave on that day hence the complainant returned the tainted money to P.W. Fakir Muhammad Inspector.
3. That on the following day i.e. 28th February, 1979, trap proceedings were again adopted. The complainant and other members of the raiding party went to the City Courts. The Magistrate was reported to be in the Chamber. The complainant directly went inside the Chamber, when he told the appellant that he had brought the money. The appellant thereupon told him to give him the money. The appellant after taking the money counted the notes and then handed over them to P.S.1. Muhammad Azam (P.W. 1), saying that it should be given to his reader. P.S.I. took the money from the appellant and the complainant was asked to go outside. At this the signal was given by the complainant and the raiding party rushed to the court‑room of the appellant The doors of the court‑room were closed. The accused was not there. A personal search of P.S.I. was made, but nothing incriminating was found from his possession. The tainted money was, however, recovered from the right side drawer of the table at the pointation of Muhammad Azam P.S.I.
4. After completion of the necessary investigation the accused were sent up to face the trial. The charge was framed against them to which they pleaded not guilty.
5. The prosecution, in order to bring home the charge, examined Muhammad Aslam Awan (P.W. 1), complainaw Khaliq Dino, Clerk (P.W. 2), Allah Dino Shah A.C.M. (P.W. 3), Shair Afghan, Constable (P.W. 4), this witness was declared hostile, Qamaruddin Agha, Director Enquiries (P.W. 5), Muhammad Azam Awan, P.S.I. (P.W. 6), Noor Muhammad Mashir (P.W. 7) and Fakir Muhammad, Anti‑Corruption Inspector (P.W. 8).
6. In the statements recorded under section 342, Cr.P.C., both the accused denied all the incriminating circumstances. Abdul Hafeez Qazi, the appellant stated that complainant was servant of Muzaffar Hussain, Additional Finance Secretary, Government of Pakistan and hence it was not possible for him to demand bribe from him. He also stated that he was not present in the chamber when the trap party came there. He further stated that P.W. Ali Dino, Magistrate was hostile to him. Mr. Muzaffar Hussain, Additional Finance Secretary, who was displeased with him had set up Muhammad Aslam, complainant against him. He stated that P.W. Muhammad Azam was P.S.I. of P.W. Allah Dino Shah and he was set up against him. The appellant, besides his ownself examined 22 witnesses in his defence.
The learned trial Court did not consider the appellant's explanation as satisfactory and held him guilty of having received gratification from Muhammad Aslam Awan, complainant and consequently he convicted and sentenced him as stated above. The co‑accused Akhtar Ali Khan was, however, acquitted.
7. Mr. Usman Ghani Rashid, learned counsel for the appellant, firstly, drew my attention to the facts that the Case No. 625/78, wherein the complainant was an accused, was fixed for hearing on 20th February, 1979 when it was adjourned to 27th February, 1979 as per diary sheet entry, duly signed by the appellant. There is then no entry recorded on the order sheet either of 27th February, 1979 or of 28th February, 1979. It is admittedly the case of the prosecution that on 27th February, 1979, the appellant was not present on duty and that the date of hearing of the case on 28th February was not given by him. This case was not included in the cause list of 28th February, 1979. Later on there is an entry at Sr. No. 13 of the cause list of that date in the hand of Khaliq Dino, Clerk relating to this case. He also urged that since the tainted money was not recovered from the appellant hence the trap completely failed. And as the case depended on the trap, the prosecution has thus failed to establish a case against the appellant. The learned counsel then made the following submissions:‑‑
A. That in a trap case if tainted money is not recovered from the person of the accused then the conviction cannot be sustained. In support of his contention, the learned counsel for the appellant sought to place reliance on the following decisions:‑‑
(i) An unreported judgment of the Supreme Court dated 21‑8‑1970 in a Criminal Appeal No. K‑6/1970, Muhammad Umer v The State in which at is held. "The money was not recovered from the person of the appellant he is entitled to benefit of doubt".
(ii) Saghir Hussain Shah v. The State 1977 P Cr. L J 78. In this case it was found that the Magistrate did not hear the talk which took place between the complainant and the appellant at the time of passing illegal gratification and that the bribe money had not been recovered from the person of the appellant. It was recovered from the drawer of the appellant which was not locked. The Court held: I do not feel satisfied with the prosecution evidence and cannot hold that the prosecution succeeded in bringing home the guilt to the appellant. Since the Magistrate was at a distance of 200 yards from where it was not possible for him to clearly see that the currency notes had been passed on to the appellant and for the reasons that the tainted currency note had not been recovered from the person of the appellant and the currency notes could be plaited on the appellant by placing the same in the drawer of his table, which was not locked. I accept this appeal, set aside the judgment and acquit the appellant'.
(iii) Abdul Shakoor and another v. The State 1977 P Cr. L J 741 this authority, in my opinion, is distinguishable on its own facts and does not support the case of the appellant.
(iv) Aijaz Husain v. The Sate P L D 1982 Kar. 255. In this case the raiding Magistrate did not see the tainted money passing by the complainant to the appellant and the only Mashir also merely stated that he only saw the complainant passing on something to the appellant. Besides, nothing was secured from the person of the appellant but an envelope was found lying on the floor containing the tainted money under the table near the appellant's seat. The High Court held; Under the circumstances stated, the money was not recovered from the person of the appellant who is entitled to benefit of doubt. I would, therefore, give the bent of doubt and accept his appeal'.
(v) Muhammad Hanif v. The State 1983 P Cr. L J 1673. In this case neither the tainted currency notes had been passed on by the complainant to the appellant within the view of the Magistrate and the Inspector, nor the said two witnesses heard the conversation, which took place between the informant an& the 9p'ppellant when the tainted currency notes were passed on. There additionally the complainant was also found to be not a person of clean record. The Court therefore held that the prosecution failed to bring home the guilt of the appellant beyond doubt.
(vi) Qamarul Islam v. The State 1978 P Cr. L J 32. It was also a trap case and the transaction of passing of the tainted money from the informant to the appellant was not witnessed by Raiding Magistrate and police officer accompanying him. The tainted money was recovered from the pocket of a coat hanging in a nearest room which was not in the exclusive possession of the appellant. Lahore High Court held: "In these circumstances the appellant cannot be attributed that the tainted money was recovered from his possession or at his pointing out. The solitary statement of Habib Ullah, complainant, who is a witness partisan cannot be accepted to form a basis for the conviction of the appellant. The Magistrate and the Sub‑Inspector having not seen the transaction, their evidence is of no material value. No authority is needed for the conclusion which I have reached, but 1 may refer to Muhammad Sadiq V. The State 1975 P Cr. L J 1286 and Muhammad Ramzan v. The State 1976 P Cr. L J 273".
(vii) Abdul Rehman v. The State 1978 P Cr. L J 247. This case is not relevant in so far as the facts are concerned. However, the following observation appearing at page 251 of the report seems to be relevant and it is reproduced hereunder:
"A person who lays a trap for others and plays double role can hardly say that he is a straightforward honest man entitled to be believed in all what he says. Without corroboration such man cannot be implicitly believed to convict another. Corroborative evidence has to be from a normal and natural circumstances inspiring confidence."
B. The learned counsel for the appellant then dealt with the evidence of the four witnesses who have deposed against the appellant, namely, P.W. 1 Muhammad Aslam, complainant, P.W. 7 Noor Muhammad, Mashir P.W. 6 Muhammad Azam Awan, P.S.I., and also a Mashir, and lastly, P.W. 3 Allah Dino. A.C.M. The learned counsel submitted that so far as the complainant Muhammad Aslam is concerned he is an accomplice and his evidence cannot be accepted unless it is corroborated by independent evidence. With regard to P.W. 7 Noor Muhammad, Mashir, the learned counsel submitted that he could not have seen the money passing or hearing the talk between the complainant and the appellant. He also drew my attention to the fact that in his deposition despite the appellant's presence in Court he has stated, "Accused Qazi Hafiz is not present in Court." Dealing with the evidence of P.W. 6 Muhammad Azam, P.S.‑I.; the learned counsel submitted that he is also an accomplice as he took the money from the appellant and passed it on to Akhtar Khan, Clerk. He was also taken into custody for sometime. Moreover, his evidence cannot be taken into consideration as his statement under section 164, Cr.P.C. was not supplied to the appellant and hence his evidence cannot be used against the appellant. With regard to the evidence of Ali Dino Shah, A.C.M., Mr. Usman Ghani Rashid submitted that he is hard of hearing and hence he could not possibly hear the talks held between the appellant and the complainant. He also submitted that he did not raise any objection to the bribe being paid by the complainant to the appellant if he had in fact heard the talk held between the complainant and the appellant. He submitted that he was sharing the chamber with the appellant and that had made him unhappy with the appellant. The counsel submitted that there are material contradictions of the prosecution witnesses.
8. Mr: Murtaza Hussain, the learned counsel appearing for the State made the following submissions; ,
(i) That the main witnesses are not accomplices.
The evidence of the P.W. Allah Dino Shah, A.C.M. furnishes full corroboration to the statement of other prosecution witnesses.
(ii) The evidence of P.W. Allah Dino Shah, A.C.M. by itself sufficiently proves the factum of passing of the tainted money from the complainant to the appellant. It is a weighty evidence and cannot be brushed aside simply for the reason that he was allegedly not happy with the appellant on account of their sharing the chamber accommodation. The said difference, if any, could not prompt him to give false evidence.
(iii) That the recovery of actual money from the possession of the accused was not necessary.
In support of his contention he placed reliance on a decision of Lahore High Court in the case of Ali Mazhar Shah v. State reported in 1986 P Cr. L J 2780. In this case the 3 prosecution witnesses had seen the accused/appellant taking the tainted currency notes from the pocket of his pant and throwing the same on the ground floor wherefrom the same were picked up by the Magistrate.
The Court held:‑‑
"The conduct of the appellant of throwing out the tainted currency notes also shows that the tainted currency notes were received by the appellant as illegal gratification otherwise he would not have thrown the same on' the ground on seeing raiding party."
The case, I am afraid, does not in any manner lend support to the contention of the learned counsel for the State.
(iv) That the circumstances of the case are such that notwithstanding the recovery of money not having been made from the person of the appellant yet it is proved through the evidence of P.W. Allah Dino Shah, P.W. Muhammad Aslam and P.W. Muhammad Azam, P.S.I. that the appellant had received the tainted currency notes from the complainant as and by way of illegal gratification. The manner in which it reached the drawer of the Reader of the appellant also stands proved through the evidence of the above named witnesses. Moreover, the learned counsel also emphasised;
(v) That the conduct of the appellant in immediately going away from his chamber also supports the prosecution version.
(vi) That the plea of the appellant to the effect that the higher ups were hostile to him is unbelievable. It is more imaginary than real.
(vii) That the benefit of only reasonable doubt and not of any and every doubt is to be given to an accused whereas the evidence in the instant case sufficiently proves the case of the appellant having received illegal gratification beyond all reasonable doubt.
9. The learned counsel referred to the several decisions of which I would like to make mention of the following:‑‑
(a) Zafar Ali v. The State P L D 1962 SC 320. On page 328 of the report Kaikaus, J. who delivered the judgment of the Court has observed as follows: "An accomplice is a person who in fact participates in the commission of an offence, and not one who is simply party to a scheme for the detection of a crime.. . ."It is not necessary to labour the matter further because an accomplice is obviously a person who takes part in the commission of an offence. It is true that the Courts do not look with favour on the statements of an informer or agent provocateur but they cannot be placed in the class of accomplices and the rule requiring corroboration does not apply to them. What weight is to be attached to the evidence of a particular witness of this category must depend on the circumstances of each case, and no hard and fast rule can be laid down. The Court may having regard to the antecedents or character of a person concerned, refuse to act on his uncorroborated testimony but that relates to appreciation of evidence and is not governed by any rule like the one which applies to an accomplice." ‑
(b) Mokha v. Zulifiqar and others P L D 1978 SC 10‑‑Appreciation of evidence‑‑Discrepancies in statements of witnesses result of a slip due to passage of time and not of a kind as to create reasonable doubt in version put across by them‑‑Cannot affect credibility of witnesses‑‑Fate of case, held, does not hang on mere omission and discrepancies if not of a substantial nature creating a reasonable doubt in prosecution case."
(c) Qasim and others v. The State P L D 1967 Kar. 233. "The fact that Ghulam Murtaza is a Police Inspector will not come in the way of his evidence being believed. A police officer is as good a witness an any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged".
(d) Tawaib Khan and another v. The State P L D 1970 SC 13(17).
"The maxim `falsus in uno falsus in omnibus' has all along been discarded by the Courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal application. In the last analysis as stated in some of the eminent judicial decisions, `the grain has to be sifted from the chaff' n each case, in the light of its own particular circumstances.
(e) The State v. Manzoor Ahmad P L D 1966 SC 644. On page 680/681 it is held as under:‑‑
"It is also equally well‑settled that the circumstances sought to be relied upon must have been established beyond all doubt. But this only means a reasonable doubt, i.e. a doubt such as would assail a reasonable mind and not any and every kind of doubt and much less a doubt conjured up by pre‑conceived notions. But once the circumstances have been found to be so established they may well‑furnish a better basis for decision than any other kind of evidence."
..Straining of the evidence either in .favour of the prosecution or in favour of the accused is a practice that I would deprecate but I would undoubtedly in accordance with the established principles of criminal justice in our Courts, be prepared to resolve ail genuine and reasonable doubts, if any, arising in favour of the accused person. It is always dangerous to indulge in the straining of evidence for once the process of straining begins there is no knowing where it will end."
(f) Rashid Ahmed v. The State 1970 S C M R 770.‑‑
"Accomplice‑‑Corroboration‑‑Informer complainant giving information to Anti‑Corruption Authorities soon after demand of bribe and getting accused caught red‑handed with tainted money‑‑Not an accomplice‑No corroborative evidence. necessary to believe such a witness,"
10. I have carefully gone through the record of the case and have also given due consideration to the submissions made by the learned counsel for the parties. I have reached the conclusion that the case as set up by the prosecution against the appellant does not bring home guilt to him. Before proceeding further to deal, with the facts of the case I would like to point out at the very outset, that in the instant case the requirements of section 5‑A of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act) have not been complied with. Section 5‑A of the Act specifically provides that "notwithstanding anything contained in the Code of Criminal Procedure, 1898, no officer below the rank of A Inspector of Police shall investigate any offence punishable under any of the sections of Pakistan Penal Code mentioned in section 3 or any offence punishable un4pr section 5 without an order of Magistrate of First Class or make any arrest, therefor without a warrant:" It is an admitted fact that no order from a Magistrate of First Class was obtained in the instant case nor were the trap proceedings supervised by a Magistrate. The trap proceedings were actually supervised by Mr. Qamaruddin Agha, who was, at the relevant time, Director Enquiries, Anti- Corruption Wing, Karachi. No explanation is forthcoming from the prosecution as to why was it not possible for the prosecution to comply with the requirements of the above‑noted section of the above Act. It is further pertinent to note that the trap arranged on 27‑2‑1979 remained unfulfilled because of the absence of the appellant on that day. It was repeated on the following day viz. 28th February, 1979 yet no effort was made to obtain an order of Magistrate of First Class to organize a raid and proceed to lay the trap. The contention of the learned counsel for the State that the presence of P.W. Allahdino, A.C.M. in the Chamber of the appellant at the time when the tainted money was given to the appellant cured the lacuna thus occasioned on account of a Magistrate not supervising the trap ‑proceedings, does not appear to be convincing inasmuch as the whole of the proceedings were to be initiated under the orders of the magistrate which has, as stated above, not been done in the instant case.
11. On the point of passing the tainted money to the appellant there is evidence of P.W. Muhammad Aslam Awan, complainant, P.W. Allahdino Shah, A.C.M., P.W. Muhammad Azam Awan P.S.1 and P.W. Noor Muhammad, Mashir. A reading of the evidence of these prosecution witnesses is so contradictory on material aspect, that it is in my opinion, unsafe to rely upon their versions. P.W. Muhammd Aslam Awan, the informant deposed that he gave the tainted money to the appellant who after taking it from him counted the notes and then handed over the money to P.S.I. saying that it was his trust money which should be given to his Reader; whereas P.W. Allahdino Shah, A.C.M. has stated that the man (the…
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