AURANGZEB Versus STATE

Appellants Aurangzeb, Moti and Shamji were tried by Special Judge Anti-Corruption (Provincial) Karachi, who convicted them for the offence under section 161/34 P.P.C read with section 5 (2) of the Prevention of Corruption Act, 1947, and sentenced each of them to suffer R:I. for 12 months and to pay a fine of Rs.5,000 or in default to suffer R.I. for six months. The appellants have challenged their conviction and sentence by filing this appeal.

2. The Anti-Corruption Establishment, Karachi had received secret information that Clifton Police were collecting beat money (Bhatta) on every Friday from the hawkers who were doing business at Clifton Beach. Aziz Umer Inspector A C E, therefore, obtained permission from S.P. Anti-Corruption Establishment, Karachi, for arranging a raid. On 23-12-1983, a raid was arranged with the help of Mr. Muhammad Umer, Additional City Iy4agistrate (South) Karachi, and at about 8.45 p.m. the party noticed appellant Moti and Shamji collecting money from the hawkers, which was being handed over to appellant Aurangzeb, a police constable posted at Civil Lines P.S. All the three appellants were then arrested in presence of -Mashirs and from their possession the following amounts were recovered:

(1)

Moti

Rs.90.

(2)

Shamji

Rs.620.

(3)

Aurangzeb

Rs.216.

On return to Anti-Corruption Establishment Office, Aziz Umer Inspector lodged F.I.R. on behalf of the State. After usual investigation and obtaining requisite sanction to prosecute Aurangzeb Constable, all the three appellants were sent up to stand their trial.

3. At the trial the prosecution has examined Rab Nawaz Khan (P W-1), Abdul Aziz (P W-2), Umar Khan A.C.M. (P W-3) and Aziz Umer D.S.P. (P W-4):

4. The appellants have disputed the case of the prosecution by professing innocence. All of them examined themselves on oath. They also examined Sajid Ali (D W-4) and Fida Hussain (D W-5) in their defence.

5. On the assessment of the evidence, the learned Special Judge found all the appellants guilty for the offence under section 16134 P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, and convicted them accordingly, hence the present appeal.

6. I have heard Mr. Azad Bin Haider, learned counsel for the appellants and Mr. Imam Bux Shaikh, learned counsel for the State.

7. Appellant Aurangzeb was working as police constable in Civil Lines P.S. and had a stall at Clifton Beach. Appellants Moti and Shamji are hawkers doing business on the footpath of Clifton Beach. It is the case of the prosecution that appellants Moti and Shamji used to collect weekly BHATTA from all the hawkers who were doing business which was shared by so many persons including S.H.O. Clifton P.S. and officials of Karachi Municipal Corporaton. Both these appellants passed on this Bhatta to appellant Aurangzeb, a police constable and a representative of officials of Clifton P.S. The prosecution has sought to establish this collection of illegal payment through Rab Nawaz Khan (P W-1) and Abdul Aziz (P-W 2) who are hawkers and who were forced to contribute this illegal payment. Out of them Rab Nawaz Khan (P W-1) has acted as Mashir of recovery and arrest of appellants from the spot. Both of them were subjected to a searching cross-examination, but nothing came out .on record to shake their credence. The learned counsel for the appellants has tried to make capital out of a bona fide mistake occurred in F.1.R. (Exh. 19) and memo of recovery in which Rab Nawab (P. W.l) who is son of Muhammad Nawaz is shown as Muhammad Nawaz son of Rab Nawaz. The raid report prepared by Umer Khan (P W 3) who is a 1st Class Magistrate is very clear on this point.

8. The evidence of Umar Khan (P W 3) and Aziz Umar Inspector (P.W.4) bears coherence and the learned counsel for the appellants was not able to pick holes in their testimony. They had absolutely no reason to depose falsely against the appellants who were caught on the spot alongwith the booty.

9. The dispute between the rival union which according to the appellants is the main cause of their involvement was considered by the learned Special Judge who rejected this theory for valid reasons. The defence put forward by the appellants was again ignored by the learned judge in the following words:-

"I now turn to the evidence adduced by the accused in their defence. Accused have examined Sajad Ali and Fida Hussain in support of their case that accused Shamjee and Moti had collected amount for BEESEE and that they have been implicated falsely in this case because of rivalry of union by Rab Nawaz. Both the witnesses had been made witnesses by the prosecution but subsequently prosecution did not consider it necessary to examine them as witnesses during the course of the trial. Now the accused have examined them in their defence. Both these witnesses have admitted that they are doing business at Clifton without licence at an unauthorised place. They have also admitted that they have never been challaned by police before any Court. This clearly means that they are doing business under the prosecution of somebody and, as such, they cannot dare to give evidence against the police officials. 1, therefore, do not consider their evidence worthy of reliance."

10. Azad Bin Hyder, learned counsel for the appellants has argued with force that a prosecution witness called in defence does not cease to be a witness called for the prosecution. Reliance is placed upon Akhtar Ali v. The Crown reported in P L D 1954 Lah. 210. I have no cavil with this proposition of law, but the observations were made in a different context. At any rate evidence of each witness, whether he is examined by the prosecution or put in the witness box by the defence, is to be considered on its own merits.

11. An attempt has also been made to show that appellants Moti and Shamji, being private persons cannot be convicted in a case of this nature, Reliance is placed upon the case of Fahmiduzzafar v. The State, reported in 1986 P.Cr.L.J. 1274: which is distinguishable as in that case no public servant was prosecuted. This argument is again effectively answered by the language of the Schedule to section 5 of the Pakistan Criminal Law Amendment Act, 1958.

12. A point which was touched upon during arguments may now be dealt with. Mr. Azad Bin Hyder, learned counsel for the appellants has made grievance against the establishment at Anti-Corruption who have let off the main culprits, viz. the then S.H.O. Clifton P.S. who had a lion's share in the BHATTA which was being collected. There is good deal of force in this observation. There is clear discrimination, but again I cannot allow that to overcome the evidence in this case by which the appellants are found guilty. The appeal has got no merits and is dismissed accordingly. The trial Court shall take necessary steps to get the appellants arrested to serve out the imprisonment.

M.Y.H./O-13/K

Appeal dismissed.