DOST MUHAMMAD S/O BAZ KHAN (Appellant) VS THE STATE (Respondent)

A CE f^tFf "-,*t-^h Gd*- Is Y

('l;l('l'll;lCril'lr OlrI'l Il: Ill(ill ('()tJ[{'l'Olr StNI)t I, l(AI{ACI'll Crl Appcnl NO- 800 of 2022 { Dost lUltthnmmad

Vs

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{ _'t urU ro.rrliu U_Jt'*ii",'r t.'1t, .. .1'. /J.

Mr, Justlca Muhammad l(arim l(han Agha

lhtt trl-ltcuring: 0l-10-1il2d [)crirlrtl on : l0- l0-202.1

Judgurent approved lor Itcporting ]'e$

CEIT'I'IFICA.T.Il.

Ctllified thal tlte judgruent */Order is lrrsed upon orcnunciates a principle of lnrr *ltltcid':s n qttestiott ofl latv rvlriclr is o[ fir'st inrpression/distirrguislresl. Orer-ntles/ It'.'eI'Ses/er1llnins n preyintts decision.

s Strike orrt u,lrichever is not applicablc.

NOTE: - (i)'l-his slip is onll'to be ttsed rvlten sorlle action is to be tnkcrr.

(ii)if tlre slip is used. the Render tnust nttaclr it tc lhe top olthe first pnge of the itrclgtltcttt.

(iii)Reader nrusl nsk the Judge rvriting tlte.ludgnterrt rvfuerltr tlrr Judgrrrent is approvcd fbr reporting'

(iv)Tl'lose rlircctions rvlticlt are not to be ttsed should b,'- dclctcd.

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PRESEFl TED o ...?*.;.t Z

otputr flrgrlg7sp 0

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IN THE HON'BLE HI;GH COURT OF 5INDH A TEBA

KARACHI

Crl. Appeal No.

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Dost fiiuharnmsd , "

5/o. BEE+hm, l-l ^1r 3{/h'-'*'*'*(

A4uslim, Adult, Nursing Stoff(Police Hospital) "l - (Joil custody )Korochi,---**-- ---Appellont {uFr*,*I"+* W-i

VER5U5

Tha Stote Respondent

Uls 161,/34 PPC R/w Section 5 (2) of Prevention at Corruption Act-ff of 1947, F.I.R No. 78/2019 of A.C.E Eost' Korochi.

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R ON 410 CR P

Being oggrieved snd dissotisfied from the -Iudgment doted ??.L?.?A?,? passed by the learned Special JuHge Anti-Corruption (Provincicl) Korochi in Speciol Case No. 77le019 (The Stote Vs.

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Dost A/tuhsrnmod), whereby the Appellant hos been convictecl ond sentenc ed to suf f er R.I f or three (0&) yeors ond to poy f ine of Rs. 60,000/- or in defoult to undergo 5.f for three months more

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IN THE I{IGII COURT OF SII{DI-I AT IT/\RACI.II

1'l'('tt(-tl t I lllr. .hrrlk.c fi?olrrrnlrrrtrrl ltnrlru lilrorr rlgftrr

CNI,. AIIIIIBAI, NO.BOO OF 2O?T

A1t1'.-11,ttt,. I)trsl I\lrrlr,rrrrrtr,rtl $url rrI I l.rt1l [rIrrlr,rrrrrrrrtrl llrrrrrrlilr fvtr, Klr,rrr I.unrltl Klt,tl Irtk, Atlvtrr'rl lr,.

'['lrt' $lrttt' tltrutrl',lt |vlr. lvlrlrtl,rL All lit's1ttr1 1, 1t'' t', 1' littrrh, Asslstitttt I'rost"f trtor ( it,rrt,r,r I

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trtnlrrt,ru,rrrrrl lirrrilrr lilrrrr Aglrrr, /. Appl'11,1,11. [)ost lvlttltittttrtr,rr{ lt,ts Iilcrl this nplull ,Uititlst ttis r'rrtlt'ictitrtt rvltcrr:lr)' hl' \\'.1s frutvir'tt r.l ,trttl 'lrttlg* Anti-Ctrrrtu)tiotl (Provirrtial), K*rachi virL' sr.lrt*nrl.rl trv tht slrtt'inl

Jurlliurl'ut tlntcrt 3:. t3.102f ns untL'r:-

A,.'t:ttsr'rl D,-rst Itluhnttrttratl Strn Of i-lnqi i\,tuharrrurnr.t is r'('tt1\'ictt'r.t tt/s :{5(:) Cr.l}.C, ilutl scntu'nceri as lrt'r follon'iug [rro','isitrtt$ lllr'ntiollL'*l i tr lrul ort ch.t r t.

t Srt'titrn ltr I r\crusetl Dost ivlutranrnrnrl is sL'tltrltlct\[ t() PTC suffer R.l. tor ttvo ve.lrs atrtl to p*tr' fitrt' o[ Rs'50,0t'l0/-' hi casr-r o[ tlt'fnult itt ]t'tvt1t'-'trt trf fitrc auror.ltlt, ltt-'shnll ftrltltcr $ttr\'* S.l for trvtr tuorrths ntol'e.

3.$cttion 5(2) r\ccttstd Dost N,lttltitttuuirrl is setltL' tlCr'tl to Irrr.'r'r'1ti1rt1 tli strftbr R,l. fp1' lrttl' \'r\tlr rltlrl ttr F,11' fiur-' trI CtrrnrFtitrrr Act, Rs.t0,0t'lt't/-. In c*tst' (lf tlt'firttlt itl p.ll'lllt'trt of t$.17 fittc nutotrtlt, hL'slrnll frtilltct' $cl'\'e S.l ftrr o11r ntttrttlt nlorr.\.

'l'111r 51r11[urrcr'.s $hilll r:rrrt c(]nfut'l'r'nth'. Tht' trcur'fit of Sr"'ctttrn 3$2'li

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Cr.[].C is givr'tt ttr [lrr,'itcr'ttsl'r1.

L l.h* lrrir:f f.rcts iui nam.rtctl in tlrt' IilR .trlr that, ttris cirs,'- \\'ils '1993, it'\ il rugistr:r'r.'rl u/s l ttl) R/rv It(2) ntrri (3) of ACE RttL's t.(rllFr'(lltr'trr.-c ttI rtnr[rlitittt fil,,'rl [r\' *\ltniis ltatrtrlni s/tr Chtrlattr Ralrlrirtli, rrg.rinst orl,,anizerl corruprt practirr's nur.l hriLr* takirrg lry Ht'ad Constnlrle

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Dost Muhnmrnnrl, rvtrrking at Policc Hospital Knrachi, on behalf of Tayyab Umrnni, postetl fls Mi-,dicnl Superintcntlent, Policc I-lnspital, t^ KaracSi. T6ey l,.,r\rc fuunrl involvcrl into rent setking to the proportit:n of nrgnnier.r.l l.xtrrrtiorr front nerv recruits from Police Department utrder vnrtr:us rccnritnlorrt prtlicir.'s & rulcs. Frtlm n nttmbcr of new aspirants, rvlrp rv6qlrl hrr ritr|r-,rtr\rtr lr', llrillce Dcpartnttnt thcy had taken brihu antl itl li*s 6f issuirrll fulcrlirnl liltt'tt'ss, rctlttit'utl ftrr inirrlng tha Politc dcpartmcnt' Ultinrntr-.1y, nti prr rlttnlls tt wns complalrret{ thnt complainant waS corrsirlcrr:rl for nppointrrretrt ns Constnblc in Knrnchi Range (KPO) against Shahccql Qqr:tn, i-lc ilppronchcd tlrc Meclical Superintenrlent, Police Ho.spitnl, Karilchi fnr issuance o[ nrcclical certificate recluirerl for iolr. i-l1trvcvcr, lre faced dillydnllying. Where, ltc met with Dost Muhammacl, u,ho tL,nranrlet{ Its,50,000/- rts bribe for issuing Medical Certificatc, I-le retluesterl hiur that he cannot pay such above amount, but he shoutetl at him by saying if, I.,e did not pay the absve amount, the Medical Officer Mr. T'ayyab Umrani, would not issue his Medical Certificate. He personally met Tayyab Umrani Medical Superintendent Police Hospital Karachi for reclressal of his grievances but he did not retiress his grierrances. Fiually, Dost Muhammad agleed to get him certificate in lieu of Rs.20,000/- as bribe. Though, he could not pay hinr bribe, yet he hatl no other option but to pay lrirn, illegalty clemanded extortion. He rt'ould not pa), the bribe, accused lvould raise objections. In the similar fashion. htr has been seeking bribe from otl"rer recruits, as lvell. It's an organizctl racket engageel in eorrupt practice.

3.After usual investigation the matter was challaned clnt{ the appellant was sent up to face h'ial. He pleaderl not guiltl'anrl claimetl his trial.

4.[n orrler to prove its cflse the prosecr,ttion exauritretl fonr (0{) witpesscs, who exhibitcd rlunlerotrs rlocutuents nntt other ttenrs. The.u staternerrt of accusct{ unrlur Sectiorr 3d2 Cr.P.C rt'*s rccorrlerl rvlterr-rlr]' hc' delieri the nllcgatiorrs [e vcletl against hinr antl claimetl his false impticatinn, I-la diti rrot exatntnc hirnsclf of oirth nrrd calletl one Dt\I in support of lris dafence cnsc,

E. After lrcaring tlre parties nucl appreciatirrg the evidence on recortl the trial court convicted and sentenced the appellarrt as st*ted earlier in il-ris judgment. Flencc appellant has filed this appeal against his couviction.

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fTIAKJPS ?

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6.Tlc facts of tle case as well as evidence produced before the trial + court find *n elnborate mention in the impugned judgment, therefore, the silr.ne is rrnt rcprotluccd hcre so as to nvoid duplication and unnecessary repe tition.

T. Lr-,flfllr:tl coultscl for tlre nppcllant has contended that the appellant is irrrracurrI nnd lras trccn falscly irnplicatetl in this case by the corrrplainant; that the FIR wns lotigcd aftera dclay of 2l days; that no one Ircartl tlre corrvcrsation bctwcen the appellant and the complainant in the appellant's roont wlren tlre bril:e was allegeclly paid; that the mashirnarma of arrest anr-l recovery was not prepared on the spot and that for any or all of the above reasons the appellant should be acquitted of the charge by extencling him the benefit of the doubt. In support of his contentions he placed reliance on the cases of Ahdul Rasool v The State (1996 P Cr. L J 1350), Abdul Karim Krnbhar v The State (2021 YLR Note 10), Bashir Alrmacl v The State (2011 SCMR 6i4).

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8.Learned Assistant Prosecutor General Sindh, after going through the entire eviclence of the pr:osecution witnesses as well as other recclrd of the case supported the impugned juclgment. In particular, he contended that the appellant was arrested on the spot and caught red handed rvith the bribe money; that the eye witness who gave evidence was trust worthy and confidence inspiring and his evidence should be believed ancl as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of their contentions he placetl reliance on the cases of Shah |ehan v The State (PLD 200+ SC 35) anrt Rashid Ahmad v The State (1,974 SCMR 249).

9.I have heard the arguments of the leamecl counsel for the appellant and learned APC and have gone through the entire evirJence which has bcen read out by the learned counscl for the appellant and the impugner.l judgmcnt with thcir able assistance and hnve consideretl the relevant Iaw inclucling tlre case Iaw cited at the bar.

I 10. After my renssessment of the eviderrce on tecorrl, I firrd that the' prosecution has provcci bcyond fl reflsonablc rloubt the clrargc against the appellant for which lre was convicterl for the following reasons;

(a)Admittedly the FIR was lotlgerl after a delay of 21 dai'5. I however have founcl that this clelay lras been explainecl. This is because when the complainant went to collect his rnedical certificate a bribe of RS50,C00 was demanded from him by U1s Ml\loFs 3

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appellant. Sincc this amount was not paid by the appellant as *- il ha could not afford such payment over a period 9f time ncgotiations took place lrctween thc complainant and the nplellnrrt whiclt lcatl to thc bribe amount being reduced to RS20,000 ltowt,vcr the complainant coulcl still not afford this nrrrl hl'rtcc on tlre aclvice of a friend he wcnt to the ACE and Iorlgctl his l;IP,.. Tltus, I c{o not fincl the delay in lodging the Fltt basr:ri orr the particular fncts and circumstances of this case to be fntal to thc prosecution case as thc delay in lodging the I;lR hns lrccn adcquately explained. In this respect rcliance is placcd otr tlte case of Muhammad Nadeern alias Deerni v. The State (2011 SCMR 872).

(t ) The appellant is named in the FIR with the specific role of denrandirlg a bribe on behalf of Dr.Tayyab Usmani MS at Policc hospital garc{eu in return for giving the applicant a r:redical certificate as requiled by the applicant to join thc police force.

(c)After lodgrnent of the FIR according to the evidence of IO PW 4 Rato Khan of the ACE and the evidence of PW 3 Shafaquat I-Iussain who was a magistrate a plan was put in place to hap / the appellant whilst he received the bribe from the complainant.

(ti)According to the evidence oI the complainant. PW 1 Almas Rabani who is an eye witness tr: the bribery on 20.10.2019 he was supposed to receive rnedical certificate (MC) for the purpose of joiuing the police however the appellant told him there was an issue regarding his medical certificate and demanded RS 50,000 for him to issue his MC. He tolcl the appellar-rt that lte rvas a poor man and the son of a shaheeri and could not pay the amount demanded. The issue r,r'as that his domicle was of Punjab Province. After a week he was unable to arrange the bribe of RS50,000 whereupon the appellant gave him a few days more and told him to at least arrange RS20,000 other wise he would not get his MC. On 02.11,,19 he told the appellant that he could not arrange the bribe of 20,000 and he was in effect told to affange the anrount or else his MC would not be issued. After rliscussing the matter with his cousin he approached the ACE on 05.11.19 where he submitted his conrplaint. His S.154 CR.PC statetnent was also recorded. The next rlay an FIR was lodged orr his complaint lry PW 4 Rato Khan rvho then brought P\A/ 3 Shafqat ltussain who was a judicial nragistrate, The judicial magistratc rcviewed his FIR ancl askerl him to call tlvo witnesscs. He callccl PW Atwanulah and Amarrirllah. 'l'he officials of ACE prepared mashirnraua of hancling o\rer taintctl I amount of RS 20,000 (4 X 5,000) to him rvhicl'r he took irrto his possession. J'herenftcr he, hls witnesses, judicial magisfrate and trap team went along to police hospital garden Karachi. Tl"re trap party took up positions whilst he entered the rootn of the appellant and tolcl hirn that he had arranged the RS20,000 with great difficulty and harrdecl over the bribe to lrim in return for his MC. He then left the room and signaled the trap party who entered the room. PW 3 Ratko Khan carried or"rt the search and recovered from the appellant the tainted notes which matched the numbers on the notes in the earlier

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mashirnarna. lAtrhen conlronted by PW 3 Shaquat Hussain as to how the appellant had the tainted notes he had no explanation.

This eyc witnesses evidcnce was not materially improvec{ on frorn iris 5.154 Cr,PC staternent. He is not related to the appcllant or any other witness and had no ill will or enmity towards the appellant rvhich woulc{ give him a reason to iurplicntc hirn'iir a falsc cilse. I-lc knew the appellant and haur.tc."t the bribc to hirn so the iclentity of the appellant is not in cloubt, The eye witness gavc his evidence in a strnightforwarcl ,or,nnnt and was not dented during a lengthy cross cxamination. As sucir I find the evidence of this eye wituess to be trust wortlty, reliable and confidence inspiring nud believe the same. In this regard reliance is placed on the Suprenre Court case of $hnh lehan (Supra)

It is well settled by now that I cfln convict the accused on the evicience of a sole eye wihness provided that I find his evidence to Lre trust worthy reliable and confidence inspiring' In this respect reliance is placed on the case of Muhammad Ehsan v. The State (2006 scMR 1S54. As also found in the cases of Farooq t(han v. The state (2008 SCMR nn, Niaz-ud- / Din and another v. The State and another (2011 SCMR 725) Muhammad Ismail vs. The State (2017 SCMR 713) and Qasim Shazad V State (2023 SCMR 117), That what is of significance is the quality of the evidence and not its quantity and in this case I find the evidence of this eye witnesses to be of good quality, trust worthy, reliable and confidence irupiring and as such I believe the same and rely on it.

(*) The evidence of this eye witness is corroborated/supported in all material respects by PW Z Atwanullah, PW 3 Shafat Hussain the judicial rnagistrate ancl Pl{ 4 Rato I(han save in respect of their presence in the room when the tainted money was handed over by the eye witness /complainant to the appellant and their not hearing the conversation between the eye witness/complainant and the appellant which in any event has been rendered irrelevant by the Supreme Court in Shah ]ehan's case (Supra) keeping in view the particular facts and circumstances in this case. Indeed, the evidence of PW 2 Atwanullah supports the complainaut's FIR that organized corruption was taking place at police hospital garden in which the appellant was very much involved and that the complainant was not the only victirn

Having believecl the eviclence of the eye r+'itness wl"rich is discr.rssed above I turn to corrsider the corroborative/supportive evidence whilst keeping in view that ih vras held in the case of Muhanrmad ) Waris v. The State (2008 SCMR 784) as under; "Corrabot'nlian fs orrly n nile of cmtiotr nrrd is rrot t nile of luu nnd i! llrc eye ttrilness nccount is fowd to be relinble nrrd frusf wortlry llwre is hnrdly nny need to look for nny coruoborntiott"

(f)The tainted notes recovered frorn tl"re appellant matched the currency numbers of the notes given to the complainant as per mashirnama before the trap ancl these recovered uotes

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frorn the appellant bore lhe same currency numbers after tfieir recovery from the appellant as per mashirnama preparecl after the arrest of thc appellant' The rnashirnama t of iccovery wils made at the [S -as during the search a commotion ill\d scufflc broke out between the entrapment teanr anrl tltc othcr policc officers present at the hospital and Irelce thc nppellant hnd to be quickly moued to the I{5.

(s)'I"hnt llrcrc wdts llo ill will or cnmity between the police and the np1:cllnttl antl flB stlcll the prrlice hacl no rea'son to falsely inrplicntu thc appcllnnt in this cast for example by foisting tfic tnirrtcrl muncy on him, Under thesc circumstances if is scttlcri lry uow that thc evidencc of police witnesses is as goorl fls any otlter witness, In this respect reliance is placed on thc case of Mustaq Ahmed V The State (2020 SCMR 474).Tfuus, I belicve thc evitlcnce of thc IO who was not rlcntcr{ during a lengthy cross examination ancl whose cvir,lence ties in witlr the prosecution case'

(h)'l'hat the tainted notes as mcntioned above were recovererl frorn the appellant.

(i)The motive for demand of the bribe was that the complainant's domicile was from the Punjab so the appellant / could holcl up the complainants MC on this ground.

(i)That all the PW's are consistent in their evidence and even if there a-re some contradictions in their evidence I consider these contradictions as minor in nahlre and not material anrl certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant' In this respect reliance is placed on the cases of Zakir Khan V State (1995 SCMR 1793) Khadim Hussain v. The State (PLn 2ffi0 Supreme Court 669) and Maskeen Ullah and another versus The State and another (2023 SCMR 156S).The evidence of the PW's provides a believable corroborated unbroken chain of events from the complainant trying to obtain his MC to the appellant demanding a bribe for the release of the MC to the bribe money being given to the appellant ancl recoveretl from the appellant during a trap iaid by the ACE along rvith a judicial magistrate

(k)Thc fact that no one vrras prepared to act as an indept'ndent mashir ltas nlmost become a jurlicially recognizet{ fact as thcsc dnys no nrember of the public (unlcss thel' are relaterl to tlrc dcccascrl or thc conrplainant) lvishes to nssociatc tltenrselvcs wlticlt such likc cascs atrrl rttu the risk of L:r"ing callcrl tn givc cvictencc.

(ri 'l'lre firct thnt thr: MS Dr,TaI),ulr Unrrani tvlto \vns stlppr:setl ) to havc alun beun lnvolverl in this corruFtiorl rvfls let off is of helir to tha appcllant becausu tlo r(*covlrry rvils marle fron"l lrim anrl tltcre was tlo othcr cvitleuce against hiur wherens the cnse of tltu nppullant is oir n cornplutcly rlifferent footing for thc reflsons rnentioncrl abovc.

(,*) Undoubtcdly it is for the prosecution to Frove its case against the rrccusetl beyond n reasonatlte r{oubt but we have also considerecl the dcfence case to see if it at all can castl

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tloutrt (ln {lr tlcnt lltt prosccuti(}ll Cfln(t. Thc dcfcncc C.lsu illi l sfl out try thc appellant ls lhat he wns falsely implicatctl in llris rnst'. I fowcvcr the appellanl tlltl not glvc trvidencc un oatlr nntl lltc wltncsn ltt'rallcd lo stlpForl his ease wfl$ morc o[ n rlrnrfiftfr wllttcss, '[htts, in thtr fnca nf rulintllt', trust wprllry nntl rrrnfltlt,nf$ ln.*plrlng t'y* wltnt'qt t'vltlencc antl ptfu*r strplxrrtlvr/rgrrtrlxtratlvt' t'vltlcnrt' tlisrttssetl nb*vc I rlistrt,lfu,vt,'lltl, tlt,f,tll('(i l'ils(r rvhlfh ltnq not at All tfu'ntcltl thc l!t'osr't'tt I ltttt *tre,

11, 'l'trrus, lr,rsr,rl rrn llrt, ntr*vc tliscur.cion, Ifintl thal lhc prott:ctttion has lll'trvr.rl ils cnst, ngnirrst tlrc nppallnnl tlcyrrnrt a rcas(rnahle dnuht frrr lhu

o[[t,trcr,.q for rvhich lrr. lrns br:ctt convictett anrl maintain his convirtinn in atttl sctttt'rtcu in rc.+pec[ of tlre offL'ncr unr{ur 5,5 (2) PCA l9'17. Although tlrr' nppcllarrts cCItrviction utrdcr S.161 I'PC is malntainrd hnwevtrr I fintl his sr:uturrcu urtrk'r S.161 PPC to bc too harsh kecping in view thc fact thnt quch the furibc only finrougtccl to RS20,000 wlrich is rclativcly rninor antl as Iris scntr,.rtcc undcr 5.161 PPC is rec{ucccl from HI for 2 years to Rl for ttnt' ycnr with fine of RS 50,000 nrrd in default of payment he shall under go SI for Z nrontlrs n.lorc, For both offences he shall bc givcn thc benefit of 5 3S2 (B) Cr.PC arr<l his sentences shallrun concurrently'

12.Tle appeal is clismissed except as motiified in terms of sentencu in

respect of the appellant's conviction under S.161 PPC.

13.The bail earlier grantecl to the appellant stands recalled and ht'shatl serve out the be arrestecj and tetuned to Central Prison Karachi to remaincrer of his sentence, A copy of this iutlgnrent shatl bc sr'rrt to Dircctor ACE East Karachi for compiiance'

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