1984 P Cr (PLP)

According to prosecution, on 9th August, 1976, at about 1-30 p. m. appellant Akbar Khan, a P. I. A. Loader, was on duty at the Civil Airport, Karachi. At about the same time, P. W. Lai Man Shah, a passenger reached Karachi Airport from Abu Dhabi by P. I. A. Flight. P. W. Lai Man Shah while going through usual customs checking kept his accompanied luggage on the customs counter. Right at that time, Lal Man Shah was contacted by the appellant, who also contacted Mr. S. A. H. Rizvi, a Preventive Officer, Customs on duty. After completion the talk with Mr. Rizvi, the appellant again had a talk with said incoming passenger Lai Man Shah and took from him some account and kept the same in his pant's pocket. This was watched by H. C. Muhammad Ibrahim of F. I. A. who was assigned the duty on that day to keep check on P. I. A. loaders. H. C. Muhammad Ibrahim conveyed these facts to S. I. P. Thanvi with whose help, he caught the appellant and took him before the then Deputy Director, F. I. A. Emigration P. W. Sardar Abdul Azim. The Deputy Director took personal search of the appellant and secured an amount of Rs. 700 from his pant's pocket and an amount of Rs. 695 from his purse. These amounts were secured under two separate mashirnamas. The Deputy Director recorded statements of Lai Man Shah, Preventive Officer and the appellant and then referred the matter with his letter to the Deputy Director (Crime), F. I. A. Karachi, under whose orders Inspector Habib Ali of F. I. A. registered the case, on the same date. After registering the case, Inspector Habib Ali took up the investi gation. On 12th August, 1976 he produced the appellant before a Magis trate, who recorded judicial confession of the appellant. After due investi gation. F. I. A. challaned the accused. Charge Exh. 2 containing prosecution allegations was read over and explained to the appellant, who pleaded not guilty. The prosecution examined P. Ws. Musarrat Hussain Exh. 3, Muhammad Ibrahim Exh. 5, Shaukat Ali Exh. 9, Sardar Abdul Aziz Exh. 11 and Habib Ali Exh.

13. Rest of the witnesses were given up under statement Exhs. 8 and

16. In his statement Exh. 17, the appellant admitted, that on 8th August. 1976 at 1-30 p.-m. he was present at Karachi Civil Airport being on duty as P. I. A. Loader. He denied prosecution allegations about having contacted Lai Man Shah and Mr. Rizvi, Preventive Officer, and about having received any amount as illegal gratification from Lai Man Shan. The appellant admitted recovery of Rs. 700 from his pant's pocket, but contended that said amount belonged to him, so also the amount of Rs. 695 secured from his purse. The appellant denied having given judicial confession Exh. 10, before the A.C.M. No. II South, Karachi. The appel lant added that he was innocent and that no respectable person was examined against him as a witness and the only witnesses examined were police people. The appellant did not wish to enter the witnesses-box as his own wit ness and did not wish to lead evidence in defence. The learned trial Court taking into consideration evidence adduced before it convicted and sentenced the appellant as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo of appeal. The learned Advocate for the appellant in support of the above appeal submitted as under:- (a) That no sanction for prosecution of the appellant was obtained before his trial commenced, in spite of charge framed against the appellant as Exh. 2 and as such on the ground alone conviction the appellant cannot be maintained, as learned trial Court assumed jurisdiction, without lawful authority in complete violation of section 5 (6). (b) That neither complainant, who is alleged to have given tainted money to appellant nor mashir in whose presence alleged money was given were examined by prosecution before the learned trial Court. Even tainted money was not produced before the learned trial Court and as such there was no evidence at all before learned trial Court to convict the appellant, as conviction of the appellant on the basis of his retracted judicial confession, which also is not confession of guilt by him, was contrary to law laid down by Hon'ble Supreme Court and High Courts in various cases, cannot be sustained. The learned Advocate appearing for the State at the out set submitted, that he was not supporting the impugned judgment in view of the above contentions raised by the learned Advocate for the appellant, with whom he is in full agreement. I have carefully gone through the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as impugned judgment. Statements of P. W. 1, P. W. 3 and P. W. 5 have no bearing on the merits of prosecution case against the appellant, as these P. Ws. are formal. In view of the prosecution case rests on the statements of P. Ws. 4 Sardar Abdul Aziz, who produced his report as Exh. 12 and P. W. 2 Muhammad Ibrahim H. C. who in his cross-admitted, that alleged money recovered from possession of the appellant was not shown to him in Court. Appellant in his statement denied prosecution case against him, except recovery of Rs. 700 but denied that the said amount was given to him by Lal Manshah passenger. He also denied having given any judicial confession. I have carefully gone through the alleged judicial confession of the appellant, which is Exh.

10. It is clear from this alleged confession and Exh. 12 report of P. W. 4, that appellant almost stated that he received the amount in question from a passenger in question, for and on behalf of the Rizvi but in spite of this said Mr. Rizvi, a Custom Officer was not at all challaned, which shows that prosecution did not accept the alleged confession of the appellant as true. In view of this no reliance ought to have been placed on such retracted confession of the appellant when prosecution was unable to produce and examine the complainant Lal Manshah and alleged mashir of recovery. Statement of P. W. 4 is based on the alleged statement made before him by P. Ws. who were not A examined before the learned trial Court and as such most of his statement is based on hearsay, except alleged recovery of Rs. 700 from the possession of appellant, but unfortunately the said amount was not produced before the learned trial Court at all. P. W. 2 Muhammad Ibrahim is police H. C. who admitted that he did not hear talks between appellant and complainant nor Rizvi. Even Rs. 700 alleged to have been recovered from appellant were not produced in Court, according to him. In my opinion prosecution has failed to establish its case against the appellant beyond reasonable doubt on the basis of such evidence only. In addition to this Exh. 2 the charge framed against he appellant clearly shows, that he was being tried as public servant for having allegedly accepted illegal gratifica tion of Rs. 700 for himself and Mr. Rizvi the Custom Officer, but in spite of this no sanction for his prosecution as required by law was obtained. In view of this I see no reason to agree with the conclusion and finding of the learned trial Court, that appellant had committed the alleged offence in his private capacity and not in his public capacity. In view of this, assumption of jurisdiction by the learned trial Court was without lawful authority in my opinion, for want of sanction, in view of charge levelled against the appellant vide Exh.

2. Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him and discharge the bail bonds executed by the appellant in above appeal. M. Y. H. Appeal allowed.