2012 PLP 2792 (YLR)

MAZHAR IQBAL SIDHU, J.

This judgment will dispose of above captioned Criminal Appeal filed by Abdul Majeed appellant who was convicted and sentenced by the learned Special Judge Anti-Corruption, Faisalabad in case F.I.R. No. 06 dated 11-4-1994 under section 161, P.P.C. read with section 5(2)47, PCA registered at Police Station ACE, Jhang vide impugned judgment dated 6-6-1998. Vide infra conviction and sentence was imposed on the appellant: ABDUL MAJEED, APPEL-LANT. One and a half year' R.I along with fine of Rs.10,000 under section 5(2) of the Prevention of Anti-Corruption Act, 1947 read with section 161, P.P.C. In default of payment of fine to further undergo six months' R.I.

2. Shorn of unnecessary details the prosecution case is that appellant allegedly demanded and accepted Rs.100 as illegal gratification from the complainant Sultan Ahmad Anjum for providing copies of the documents in civil suits pending in the court of learned Civil Judge Chiniot where he was posted as Reader. The complainant was examined as P.W.4 and on his application Exh.PG, a raid was conducted and the appellant was apprehended along with the said alleged amount.

3. After the completion of investigation and obtaining the sanction from the Government of Punjab trial was commenced and during the trial four P.Ws. were examined by the prosecution as Naeem Hayat Tiwana Magistrate 1st Class Chiniot, P.W.2 Syed Hassan Shah Circle Officer Anti-Corruption Establishment Jhang, P.W.3 Muhammad Anees Lodhi DSP Sadar Jhang and P.W.4 Sultan Ahmad the complainant.

4. After the closure of prosecution evidence appellant was examined under section 342, Cr.P.C. and he answered to question No.4 as under:-- "Currency note P-1 was recovered from me by the Magistrate on the aforesaid date, volunteered in fact Sultan Ahmad Anjum P.W. had filed case against District Council and on 12-4-1994 the case was fixed for hearing. White papers were out of stock and I solicited 2/3 white papers from somebody. Sultan Ahmad Anjum P.W. offered to give me change of rupees one hundred currency note P-1 for providing the white papers. I received currency note of rupees one hundred P-1 and returned currency notes in exchange and after some time Magistrate reached there and recovered currency note P-1. Other litigants and clerks of the Advocates were also present. I stated that P.Ws. had given me the one hundred currency note and had received notes in exchange therefor but the Magistrate stated that defence be taken up in the Court. I requested that P.W.1 be made search which did not Later on came to know that Iqbal clerk of Malik Muhammad Hayat Advocate got me trapped, complainant being neighbour and co-villager of the Munshi." He also answered in question No.7 as follows:-- "I am innocent. The copies had been supplied by the Munshi." However, he did not produce any evidence in his defence.

5. On the conclusion of trial the impugned judgment was handed down by the learned trial Court.

6. During the hearing of appeal quantum of sentence imposed upon the appellant was suspended by this Court vide order dated 23-7-1998. Thereafter, the appeal remains continued and during the same appellant was reported to have died on 20-10-2009 as natural death. Photostat copy of his death certificate along with Photostat computerized copy of national identity card of his widow Mst. Parveen Akhtar is also available.

7. During the hearing of appeal a miscellaneous application was submitted under section 561-A, Cr.P.C. for impleading the legal heirs of the appellant party to the appeal which was accepted by this court and at one stage, the appeal was accepted and the appellant was acquitted but at the time of dictating the judgment certain points met to this Court, the same required further consideration and clarifications in the light of provisions of section 431, Cr.P.C. and then the same was ordered to be relisted for arguments.

8. Learned counsel for the appellant submits that notwithstanding the fact that appellant has died on 20-10-2009 but the appeal is required to be disposed of on merits and he relied upon Mst. Itrat Zahida and others v. President, A.B.L and others (2006 SCMR 1287) and further adds that provisions of section 431, Cr.P.C. are not applicable to this case and even after the death of the appellant the amount of fine remains alive required to be paid by the legal heirs of the deceased, therefore, legal heirs of the deceased have a right that appeal may be disposed of on merits because the appellant was a Government Servant in Judicial Department and every prospect exists of acceptance of appeal on merits and in case the appeal succeeds the benefit shall devolve on the widow of the deceased, otherwise, the widow may suffer an irreparable loss and it would be difficult for her to live without resources. Learned counsel further submits that P.W.1 a raiding Magistrate did not see the transaction of handing over the alleged amount of bribe by the complainant to the appellant and nor he did overhear any conversation, the same situation lies with P.W.3 Muhammad Anees Lodhi, the Circle Officer/I.O whereas P.W.2 is of formal nature, he did nothing except he prepared a report under section 173, Cr.P.C. whereas P.W.4 complainant remains in the field who has not been corroborated by any independent evidence and during the cross-examination he has admitted categorically that the application Exh.PG submitted by him was not read out to him. He has further admitted that a note of 100 rupees was given to the appellant, out of the same he returned him Rs.60, in this way, the statement of the appellant recorded under section 342,Cr.P.C. finds support that no bribe was either demanded or obtained by the appellant. In these circumstances, the prosecution has miserably failed to prove its case against the appellant and appeal may be accepted.

9. Learned D.P.G. has opposed the submissions and submitted that the appellant was apprehended flagrante delicto and the same currency note of 100 rupee was recovered from the appellant and during the investigation he was found guilty and then during the trial no ill-will or mala fide has been brought by him on record to establish that the complainant was hostile to him and he had managed a false raid, therefore, appeal may be dismissed.

10. I have heard the arguments of the learned counsel for the parties and have also gone through the record.

11. In totality four P.Ws. have been examined as mentioned op-cit. P.W.1 the supervisory Magistrate in his cross-examination has admitted that he did not see the appellant from the place where he was present outside the court. He has also down rightly admitted that he could not hear the conversation between the appellant and the plaintiff at the time of passing on the alleged amount to the appellant by the complainant P.W.4. He has also accepted that he did not see the fact of delivery of currency note P-1 to the appellant. He admitted that at the time of arrest by him the appellant had taken a specific plea that the appellant asked the complainant to bring papers for him and that 100 rupee note was taken to give change of the same for the purpose of purchase of papers but he did not enquire this matter from the complainant and moreso the alleged file from where the copies were to be given to the complainant was with the Ahmad but not with the appellant. P.W.2 needs not to be discussed as his evidence feather weight because he did nothing except preparation of report under section 173, Cr.P.C. P.W.3 Muhammad Anees Lodhi, Circle Officer/I.O. has categorically admitted in his cross-examination that he did not remember the time when application was submitted before him to carry out a raid upon the appellant, he has also shown lack of knowledge that the appellant was visible to him at the time of raid while receiving the alleged bribe, same situation lies about the conversation he did not hear. He has also stated that he did not remember that he has seen passing of the tainted amount to the appellant and the signal was not made by him. He has also admitted that no person was made a witness from the persons present there at the time of raid but he clarified that by that time there was no person present. He has admitted that he did not prepare the site-plan of the occurrence and did not get recommended judicial action against the appellant. P.W.4 Sultan Ahmad the complainant is left to be discussed. He has explicitly admitted in the cross-examination that the contents of application submitted by him Exh.PG was not read out to him by Iqbal Munshi and distance of the raiding party and him as well as the appellant was about 15/16 Karams, at the time of occurrence 8/9 persons were present whereas I.O. P.W.3 has stated that no person was present, in this way, P.Ws.3 and 4 in this respect are contradictory. P.W.4 has also admitted that the appellant asked him that papers were out of stock which should be brought whereupon Iqbal Munshi brought the same. He gave a note of Rs.100, out of the same Rs.60 were returned by the appellant to him. P.W.4 without any hesitation has accepted that conversation between him and the appellant was not heard by the raiding party nor alleged transaction was seen by him. In this way, it has been made crystal clear that the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. In the event of demise of the appellant relying upon 2006 SCMR 1276 supra the instant appeal has been decided on merits as it has been observed in the cathedra judgment:-- "Civil Procedure Code (V of 1908)

O. XXII, Rr. 1 & 2

Constitution of Pakistan (1973), Art.185(3)

Abatement of proceed-ings

Survival of action

Determi-nation

Service/Civil rights, enforcement of

Predecessor-in-interest of petitioners was employee with respondent-bank who was dismissed from service on the allegation of misconduct

Labour Court set aside order of dismissal but Labour Appellate Tribunal allowed the appeal of bank and restored order of dismissal

Order of Labour Appellate Tribunal was assailed before the High Court in constitutional petition which was dismissed solely on the ground that the employee had died during pendency of the petition

Plea raised by petitioners was that the proceedings could not have abated on account of death of their predecessor-in-interest

Validity

Question whether after death of plaintiff or petitioner, proceedings would abate primarily depended on the nature of cause of action

Any "action" might abate on the death of a party but cause of action might survive his death

"Death" in such context did not mean a civil death--Irrespective of the nature of proceedings whether criminal or civil, it was the nature of cause of action which could determine its survival

Predecessor-in-interest of petitioners was seeking enforcement of his service/civil rights

Labour Court having considered the entire evidence led during departmental proceedings set aside order of dismissal from service and reinstated him

Labour Appellate Tribunal set aside judgment of Labour Court and the same had been challenged through constitutional petition

If constitutional petition had been allowed, the order of Labour Appellate Tribunal would have been set-aside and order of Labour Court reinstating the predecessor-in-interest would have been restored

Even after the death of the employee, legal heirs would have inherited pensionary benefits in such eventuality

Constitutional petition could not have abated in circumstances and legal heirs had a right to be impleaded as a party and to pray for a decision on merits

Supreme Court converted petition for leave to appeal into appeal and remanded the matter to High Court for deciding constitutional petition afresh."

12. For what has been discussed above, the instant appeal is accepted and appellant is acquitted of the charge imputed against him. HBT/A-131/L Appeal accepted.