ASGHAR ALI Versus THE STATE
This appeal has been filed by Asghar Ali son of Ghulam Muhammad caste Jat, resident of Chak No.39/JB, District Faisalabad, against judgment, dated 13‑9‑1986, by Special Judge, Anti‑Corruption, Sargodha, convicting him under section 161, P.P.C. and sentencing him to undergo two months' simple imprisonment and a fine of Rs.200 or in default of payment of fine to further undergo one month's simple imprisonment.
2. According to the prosecution the appellant was posted as traffic constable in Faisalabad in June, 1983. On 2‑6‑1983 he demanded Rs.20 from Amjad Hussain, complainant (P.W.2), a driver of Truck No.4919/PRE while the latter was taking his truck loaded with crushed stone to Faisalabad. The complainant promised him to pay the bribe on return journey. After unloading his truck at the destination complainant informed Rana Amanullah Khan, Circle Officer, Anti‑Corruption Establishment, Faisalabad (P.W.4), about demand of bribe by appellant (telling his name as Arshad Constable) who recorded F.I.R. (Exh.PA.) at Police Station Anti‑Corruption Establishment, Faisalabad. The Circle Officer then got deputed Mahr Akbar Ali, Magistrate 1st. Class. (P.W.3), to supervise the raid vide Assistant Commissioner's order (Exh.P.D./1) and produced Amjad Hussain, complainant (P.W.2), before him who recorded his statement (Exh.P.B.). The complainant gave seven currency notes (P.1 to P.7) valuing Rs.60 to the Magistrate who after noting down their numbers returned them to the complainant for handing over Rs.20 out of it to the appellant and remaining amount was meant for another raid. The raid party went towards petrol pump of Faisalabad‑Sargodha Road. Amjad Hussain, complainant (P.W.2) was driving Truck No.4919/PRE while the Circle Officer and the Raiding Magistrate followed him in Car No.9994/FDJ. When the complainant reached near petrol pump on Sargodha Road, a constable (appellant) signalled the complainant's truck to stop and boarded it. The complainant then stopped the truck after covering 15/20 Karams and the appellant got down from it. The complainant, at this, made the appointed signal whereupon Mehr Akbar Ali, the Raiding Magistrate, and Rana Amanullah Khan, Circle Officer, came out of the car and having disclosed their identity to the appellant searched his person and recovered currency notes (P.1 and P.2) of the denomination of Rs.10 each from the right hand pocket of his pants. Numbers of these notes tallied with the numbers already noted at Serial Nos.1 and 5 of raid report with the Magistrate. On inquiry by the Magistrate the appellant gave his name as Arshad. The Magistrate recorded supplementary statement of the complainant as Exh.P.C. On being asked to explain his position the appellant (vide note Exh.P.F.) refused to make any statement saying that he was confused. The tainted currency notes (P.1 and P.2) recovered from appellant's pocket were seized under memo. Exh.P.G. The appellant attempted to run away, therefore, the Raiding Magistrate handed him over to the Circle Officer alongwith his belt (bearing No.2281) and his cap. The Circle Officer accordingly seized these articles under memo. Exh.P.K. and entrusted custody of the appellant further to Police Station Nishatabad from where he (appellant) allegedly had escaped. A case regarding escape was registered wherein the appellant was challaned separately.
3. The instant case was investigated by Rana Aman Ullah Khan, Circle Officer, Anti‑Corruption Establishment (P.W.4) who put the challan in Court. The trial was held by Special Judge, Anti‑Corruption, Sargodha, before whom the appellant denied the charge.
4. The prosecution examined 4 witnesses to prove the charge against the appellant. Raja Muhammad Inayat Ullah (P.W.1) prepared the challan in this case. Amjad Hussain (P.W.2) is the complainant. He stated that 1‑1/2 years back he lodged F.I.R. (Exh.PA.) with Anti‑Corruption Establishment and made statement Exh.P.B. before the Raiding Magistrate. The Raiding Magistrate gave him 6/7 currency notes (P.1 to P.7) valuing Rs.60. He joined the raid party. When he reached bus‑stand Faisalabad, a Constable stopped his truck and demanded Rs.20 as bribe, which he paid to him. He, however, denied that the appellant/constable was the person who demanded or accepted bribe from him. At this the Public Prosecutor cross‑examined him. He denied that he was won over by the appellant. Mahr Akbar Ali Raiding Magistrate (P.W.3) supporting the prosecution story stated that it was the appellant who stopped complainant's truck and boarded it and that after he got down from the truck his person was searched by him and that he recovered from right side pocket of appellant's pants the tainted currency notes of Rs.20 which were seized under memo. Exh.P.G. He then drew up raid report (Exh.PA.) and arrested the appellant. He admitted that on the relevant day two raids were conducted by him and Amjad Hussain P.W. was the complainant in both of them. He recorded statements (Exhs.P.B. and P.C.) of Amjad Hussain and obtained his signatures thereon. The appellant told him hi$ name as Arshad, but it was subsequently transpired that his correct name was Asghar Ali. He did not, however, overhear the talk between the complainant and the appellant nor he had seen the passing over of the tainted money by the complainant to the appellant. The statement of Rana Amanullah, P.W. is in the same strain. According to him, the appellant had tried to run away, therefore, his official cap and Belt No.2281 were seized by him under instructions of the Raiding Magistrate vide memo. Exh.P.K. He arrested the appellant and handed him over to Police Station Nishatabad.
5. The appellant when examined under section 342, Cr.P.C., denied the allegation and raised plea of substitution in reply to Question No.8 which reads as under:‑‑
"I was standing on traffic duty. I learnt from a Rickshaw driver that some distance away fight is on amongst traffic staff and some people. I went there. I made enquiries. On my arrival 4/5 persons swooped upon me and started beating me and they also said that I am also a collaborator of the traffic people. Then such assailants removed my belt and official cap. Then they released me but retained the belt and cap which was a part of my official uniform. The next day I learnt about the registration of this case. Then I got interim pre‑arrest bail from the Court. I was medically examined for my injuries suffered by me at the hands of aforesaid assailants. Later I learnt that the persons who assaulted me were the companions of the Raid Magistrate. I had learnt later on that the Magistrate had been manhandled by the traffic police and that the traffic staff was also .given a beating and that cross-?cases were registered with the police."
The appellant himself appeared in his own defence as D.W.1 and stated that he was innocent and that he was tortured, therefore, he got himself medically examined. He produced medico‑legal certificate (Exh.D.A). He denied that he told his name as Muhammad Arshad or that he had escaped from the custody. He produced Dr. Imtiaz Ahmad Gill of D.H.Q. Hospital, Faisalabad as D.W.2 who stated that on 3‑6‑1983 at 5 p.m., he medically examined Asghar Ali accused who was produced by H.C. Khalid Mahmood and the injuries found on his person were noted in the certificate Exh.D.A.
6. Learned trial Court on consideration of the material on record discarded the defence version and accepting the prosecution case convicted and sentenced the appellant as indicated above. Hence this appeal.
7. Learned counsel appearing on behalf of the appellant argued that the prosecution case has not been proved beyond reasonable doubt. He vehemently argued that story of the prosecution that the appellant had escaped from the custody after the raid, stood disproved by the fact that the case which was registered regarding his escape has ended in acquittal. He has produced a copy of the judgment, dated 16‑1‑1985 delivered by Magistrate 1st Class, Faisalabad, in the said case. Learned counsel further argued that the constable who had demanded and accepted the bribe was one Arshad whereas appellant's name is Asghar Ali. This fact gets immense support from the statement of Amjad Hussain, complainant, the star witness in this case who though resiled, categorically stated that the appellant was not the person who demanded and accepted the bribe from him. Learned counsel appearing on behalf of the State, however, defended the impugned judgment.
8. ???????? I have carefully considered the facts and circumstances of the case in the light of the arguments addressed by learned counsel for the parties.
9. It is worth noting that the appellant has admitted that on the day of occurrence he was posted as traffic constable in Faisalabad. He also admitted that at the relevant tine he was on duty in the area where the occurrence took place. According to the plea of the appellant he was on traffic duty when he learnt that a fight was going on between the traffic staff and certain people and when he went there he was also beaten up and his Belt No.2281 and his official cap were snatched by the assailants (raiding party) and subsequently he was falsely involved in this case. No witness whatsoever has been produced by the appellant in support of his defence plea. If he had been beaten up by the members of the raiding party, or his belt and cap were snatched by them during that fight then the appellant must have complained to his immediate officers about it but it had not been done. The main question for determination is, whether it was the appellant who was rounded ‑up by Raiding Magistrate (P.W.3) and the Circle Officer (P.W.4) on the day of raid and recovered the tainted currency notes (P.1 and P.2) from the pocket of his pants or not? The complainant named the person who demanded bribe from him as Arshad in his F.I.R, Exh.P.A. as well as in his statement Exh.P.B. made before the Raiding Magistrate. The Raiding Magistrate and the Circle Officer categorically stated that they apprehended and recovered the bribe money from the pocket of the appellant and that the appellant had told them, his name as Arshad. There is no reason for disbelieving these two P.Ws. who are independent and reliable. Again, the fact that appellant's belt bearing No.2281 and his official cap were seized at the relevant time. This fact finds mention in the raid report. The appellant admits that Belt No.2281 is his. The appellant's explanation that his belt and cap were snatched by the raiding party falls through as he did not make any complaint whatsoever about it to any police Authority or other administrative Authority. These articles rather proved the identity of the appellant, as the person who accepted the bribe and from whose possession the tainted currency notes were recovered, beyond all sorts of doubts. Consequently, the conviction of the appellant under section 161, P.P.C. by the trial Court is upheld as being correct and justified.
10. Copy of the judgment, dated 16‑1‑1985, regarding appellant's acquittal in escape case, is hardly of any avail to him. Needless to say that neither the Raiding Magistrate (P.W.3) nor the Circle Officer (P.W.4) were examined in that case by the prosecution, rather the trial Magistrate had closed the case of his own in the middle of the trial on the ground of delay. Hence that judgment does not cast any doubt whatsoever on the genuineness of this case.
11. This brings me to the question of sentence. The appellant, I am told, has already lost service. He has already served about half of the sentence of imprisonment awarded to him. It is 10 years old case, therefore, I think that sentence already served by the appellant is sufficient to meet ends of justice. Consequently, sentence is reduced to the period of imprisonment already undergone. The sentence of fine is remitted. The appellant is on bail. He is discharged of his bail bonds. Appeal stands dismissed in the terms mentioned above.
N.H.Q./A‑376/L ???????????????????????????????????????????????????????????????????????????????? Sentence reduced.