1998 P Cr (PLP)

5. Subsequent investigations were held during which it was further transpired that the blank Answer books were being provided by accused‑Farman Ali, a stationary clerk of the University. He had received 422 extra unused blank Books from centre at Tangi. He did not transport it to the stock as was required by the University Rules and instructions but instead he shared the obnoxious business of his co‑accused and used to provide blank Books. Earlier Dr. Haroon too was approached by a student, namely, Shah Zaman regarding the same business in the same year and the same paper in this very room No.4 of the Doctors' Hostel at Hayat Shaheed Teaching Hospital, Peshawar. The Controller provided an amount of Rs.8,000 to the above student‑complainant. He brought two solved papers under Roll Nos.515 and 644 to the Controller from Nadeem accused of this case. This was so deposed by Dr. Haroon in the Court when appeared as P. W .7.

6. After the investigation, the Investigating Officer got verified the signature of Farman Ali with his acknowledgment Exh.P.W.5/11 of the blank papers. He received a positive report from Superintendent Tangi Centre. He also got examined through the same expert the handwriting of the candidate Fozia Naureen and received positive report. Accordingly Dr. Aftab Khattak and Farman Ali were arrested in the case. On completion of investigation and obtaining the sanctions of the prosecution, the case was put in Court for trial.

7. The prosecution in order to prove its case examined 15 witnesses in all and statements of the accused‑appellants were also recorded under section 342, Cr.P.C. wherein they denied all the allegations and claimed trial. The accused appellants were tried and accordingly they were convicted and sentenced, as stated earlier.

8. I have heard the learned counsel for the accused‑appellants as well as learned counsel for the State at length and have also perused the record with their valuable assistance.

9. In this case the role of all the three accused appellants are distinguished from each other, for, Farman, appellant, provided blank answer sheets to the other accused. Dr. Aftab Khattak, appellant, brought the solved answer sheet of Roll No.728, and Nadeem, appellant, received the tainted amount from the Trap Party. All the three appellants were arrested from different places.

10. So far as the role attributed to Dr. Aftab Khattak, appellant, is concerned, it may be stated that he is the son of Professor Dr. Muhammad Ali Khattak to whom the papers of Physics of B.Sc. Examination. 1991 were sent for checking. The record indicates that the information (11 replacing the answer‑sheets with another answer‑sheets from outside was given by one Shah Zaman, student of B.Sc., to Haroon Khan, Controller of Examinations, University of Peshawar. He in his report Exh.P.W.‑7/1, has stated as under:‑‑‑ From the above statement, there is no mention about any other person except Nadeem. Even when the answer‑sheets were produced before him, there is no specification about the fact as to how Nadeem managed to replace the answer- sheets by the connivance of whom. As the answer‑sheets of the said paper were sent to Dr. Muhammad Ali Khattak for checking, therefore, they apprehended his involvement in the case. Later on, it was revealed that Dr. Aftab Khattak, appellant, who is son of Dr. Muhammad Ali Khattak, brings the required paper from the house and the bargain takes place through Nadeem, appellant, in a room in the Doctor's Hostel of Hayat Shaheed Teaching Hospital. Accordingly, Farkhanda, Lady Constable, P.W.‑2 and Fayyaz, P.W., were deputed as Trap Agents. They went to Room No.4 of the Hospital and the relevant portion from tile examination‑in‑chief of this witness is also worth reliance, which runs as under:‑‑‑ "I was asked to pose myself as sister of Fayyaz P.W. and we both had to go to Hayat Teaching Hospital, Peshawar. On our going to Room No.4 of the hospital, a boy opened the door of the room. Whereupon I and Fayyaz P.W. entered the room. One boy was present in the room as far as I remember. The boy present in the room handed over the answer paper of Physics to tile. I am educated upto Matric. The A.C.E. authority had given to tile a book and I was asked to write something in the answer sheet to tic light tai that book. In the meanwhile the A.C.E. Party came inside tile room. 1 was busy in writing but I think the ACE part) might have recovered the money from that boy present in the room. when I was allowed to leave the room." This statement clearly suggests that at the time of the raid, only one person was present there in the room and no doubt, the record of the case clearly suggests that the said person was Nadeem Similarly, P.W.‑14 Mir Asghar Shah, Assistant Director Crime A.C.E is also silent about the use of motorcycle by the Trap Agents in the occurrence This witness had denied to have identified Dr. Aftab while leaving the premises prior to the entry of raid party into the Room No.4 Room No.4 of New Doctors Hostel, Peshawar has also not been proved to be in exclusive use of Dr Aftab. Rather the record indicates that it was used as Guest room by all the doctors residing in the Hostel. The prosecution has. therefore, miserably failed to establish through any cogent evidence the presence of Dr. Aftab in the room or even in the vicinity of the Hostel at the time of raid on 30‑9‑1991. It also gets support from the fact that no belonging of Dr. Aftab had been recovered from the room. This witness in his cross‑examination has also stated that before the raid the trap a‑gents P.W. Fayyaz and lady constable Farkhanda were received by accused Nadeem on the gate of Hostel and then taken along to Room No.4. To a further question of the defence, this witness denied the suggestion that the blank sheets were lying under the mate. He stated that in fact these were recovered from the hand of accused Nadeem. P.W.‑‑4 Mufti Iqbal Ahmad. Extra‑Assistant Commissioner in his statement has also stated that same facts as under:‑‑‑ "On my knock the door was opened and I with the trap party entered the room. Inside the room we found trap agent Fayyaz, lady constable Farkhanda and. one other young man. On the pointation of the trap agent the said young than was interrogated who disclosed himself to be Nadeem son of Fazal Karim resident of Shaheen town. From his personal search the C.O. recovered the trap amount from the left pocket of the shirt." Here too, the presence of Dr. Aftab Khattak in Room No.4 is missing. Therefore, the story of decamping of the Dr. Aftab Khattak from the scene of a motor‑bike is an after thought and only on such a presumption, he cannot be held liable for commission of the offence charged with. The case of Farman also stands on the same footings, because he was also not present in the room at the time of raid and his role was only for the supply of blank answer‑sheets but at the same: time the prosecution has totally failed to establish any link between Farman, appellant, and the other accused. The ingredients of section 409, P.P.C. would, therefore, not attract in his case as the prosecution has also failed to establish any motive on his part. So far as the case against Nadeem, accused, is concerned, no doubt the things go against him and the evidence available on record fully connect him with the commission of the offence. It was he, who made bargain with Muhammad Fayyaz (P.W.‑1) it was also he, who received the tainted amount from the Trap Agents, it was lie who was present in Room No.4 at the time of raid, and it was also he, from whose possession the blank and solved answer sheet‑papers were recovered by the raiding party. Hence, the prosecution has fully established its case against Nadeem, appellant, beyond any shadow of reasonable doubt and he has been rightly convicted and sentenced by the learned trial Judge. The learned counsel for this appellant laid great stress on the point that the raiding party was unable to hear any conversation between Nadeem and the Trap Agents inside the room. But in view of the abovementioned facts, the argument has got no force and reliance can be placed on a judgment reported as Naseer Ahmed v. The State PLD 1960 Lah. 290 wherein it has been held:‑‑‑ "Evidence corroboration of Members of raiding party not overhearing conversation between accused and complainant‑‑‑Evidence of complainant uncorroborated‑‑‑Circumstances of accused' concern with mutation proceedings started by complainant, lodging of report with police regarding demand of bribe for same purpose, recovery of tainted money from accused, coupled with true evidence of prosecution witnesses without an allegation of enmity or hostility‑‑‑Held: sufficient corroboration‑Conviction and sentence maintained in circumstances of case." The upshot of the above discussion is that the prosecution has failed to fully connect Dr. Aftab Khattak and Farman Ali, appellants, with the commission of the offence and the benefit of doubt, therefore, must go in their favour. Their appeals are, therefore, accepted, the conviction and sentences of the above two appellants are set aside and they are acquitted of the charges. They are present in the Court on bail and are hereby discharged from the obligation of their bail bonds and are allowed to go. The conviction and sentences recorded by the learned trial Judge against Nadeem, appellant, are upheld and his appeal is hereby dismissed. He is also present in Court on bail, taken into custody and sent to judicial lock‑up for undergoing the remaining term of his sentence. N.H.Q./2231/P Order accordingly.