2006 PLP 372 (YLR)

SHAMSUDDIN HISBANI, J.

This appeal is directed against the judgment dated 2-9-1999, passed by Special Judge, Anti-Corruption (Provincial), Hyderabad, whereby the appellant was convicted under section 420, P.P.C. read with section 5(2) of the Prevention of Corruption Act-II of 1947, and sentenced to suffer rigorous imprisonment for eight months and a fine of Rs.2,000 or in default thereof to further undergo rigorous imprisonment for three months.

2. Briefly stated, the prosecution case as gathered from the record is that on 6-1-1992, report was lodged by Allah Bux with Police Station, Anti-Corruption Establishment, Kotri, wherein it was alleged that the appellant posted Head Constable in Wireless Tele-Communication Department persuaded him to pay Rs.10,000 as illegal gratification for getting him employed in Police Wireless Tele-Communication Department. Appellant had taken him to Additional Inspector-General Office, Karachi, got his measurements recorded and accepted Rs.10,000 in presence of P.W., Muhammad Yousaf. Subsequently, appellant demanded Rs.500 more and accepted the said amount in presence of P.W., Rahim Hussain. On getting no response, complainant went to appellant at Majhand Police Station and asked him to return the money received by him. Appellant demanded Rs.500 for collecting the appointment order from Karachi. On pretext of employment, appellant had taken illegal gratification from the complainant.

3. The investigation was conducted by Nazeer Ahmed, Sub-Circle Officer, Kotri. On 8-1-1992, the trap was arranged under the supervision of P.W., Lal Bux, Sub-Divisional Education Officer, Kotri, the appellant was arrested and tainted money was recovered from his possession. On the completion of investigation, the challan sheet was presented for trial of the appellant under section 420, P.P.C. read with section 5(2) of the Prevention of Corruption Act-II of 1947.

4. Formal charge was framed against the appellant to which he pleaded not guilty. The prosecution examined Allah Bux complainant, P.Ws. A.S.-I., Muhammad Juman and Nazeer Ahmed Investigating Officer to establish the charge against the appellant. In his statement recorded under section 342, Cr.P.C., appellant denied the allegations and pleaded innocence. He declined to examine himself on oath. No defence was led by the appellant. On appraisal of the material available on record, learned trial Judge concluded that the charge against the appellant was proved. Appellant was convicted and sentenced to the punishment as mentioned in the opening para., hereof.

5. I have heard learned counsel for appellant and Mr. Mashooq Ali Sammo, Assistant Advocate General, appearing for the State. With their assistance I have examined the evidence placed on record and gone through the impugned judgment.

6. The main contention of learned counsel for appellant was that there was no reliable evidence led by the prosecution to have proved the charge against the appellant, but learned trial Court, without appreciating the same in accordance with law, recorded erroneous finding of recording conviction of the appellant. According to him, the facts as stated in F.I.R., were not supported by Allah Bux complainant and the version given by him inspired no confidence. He emphasized that the solitary version given by complainant in respect of demand and acceptance of alleged bribe at the initial stage could not have been given any legal importance by learned trial Court in absence of any corroboration. Mr. Allah Bachayo Soomro contended that P.W., Muhammad Yousaf, in whose presence the alleged illegal gratification Rs.10,000 was received by the appellant was not produced before the trial Court, the case was of no evidence and the prosecution had failed to establish that the tainted money was recovered from possession of the appellant. He pointed out material discrepancies in the statements of witnesses examined by the trial Court and submitted that the investigation in the case was conducted dishonestly.

7. On the other hand, learned Assistant A.G has supported the finding arrived at by the trial Court and contended that the evidence of complainant Allah Bux corroborated by P.W., Nazeer Ahmed, Investigating Officer was sufficient to prove the recovery of tainted money from possession of the appellant and the same was rightly believed by learned trial Court.

8. Keeping in view the arguments advanced by learned counsel for appellant and learned Assistant A -G. appearing for the State, it would be appropriate to mention here that the examination of a witness includes examination-in-chief, cross-examination and re-examination. Cross examination is a continuing part of the whole statement rather more important than the examination-in-chief. The ocular account furnished by a witness of the occurrence subject to legal scrutiny can be relied upon for recording conviction of an accused person, in case the same appears to be trustworthy and confidence inspiring. In the case in hand, the second part of examination of complainant's evidence received no attention of learned Special Judge wherein he had stated in clear terms in following words:-- "I have thrown the tainted money of Rs.500 on the ground where the accused was sitting. The tainted money included note of Rs.500. It is a fact that the A.C.E. Police had secured the tainted money on the ground. It is a fact that the tainted money which is present in this Court does not include the same note of Rs.500."

9. Obviously, the evidence given by Allah Bux complainant in no way could be considered sufficient to warrant conviction of the appellant, particularly, when it is seen that the case of the prosecution was that five currency notes of Rs.100 denomination were recovered from his possession. The Mashirs of recovery namely Daim Khan and Shakeel Ahmed were not examined by the trial ,Court as they were not produced by the prosecution for recording of their statements. P.W., Muhammad Yousaf, in whose presence appellant had received Rs.10,000 illegal gratification, was given up by P.D.S.P. Incharge of the case. The inference, which could only be drawn, would be that had they been examined, they would not have supported the prosecution case. The trap was arranged under the supervision of P.W., Lal Bux, Sub-Divisional Education Officer, Kotri, who expired before he could have been examined by the trial Court.

10. Allah Bux complainant had deposed that he had gone to Police Station, Budhapur, where the accused was posted as Operator and complained to S.H.O. against the accused. P.W., A.S.-I., Muhammad Juman stated before the trial Court that the appellant was his subordinate and no complaint was made to him by the complainant. P.W., Nazeer Ahmed Sub-Circle Officer, Kotri, had stated that the appellant produced the tainted money, which was recovered in presence of Mashirs and Mr. Naich, Sub-Divisional Education Officer. It was denied that currency note of Rs.500 only was given to complainant as tainted money. He admitted that P.W., Rahim Hussain in whose presence the appellant had accepted bribe Rs.500, was not cited as witness in the charge sheet. Learned counsel for appellant argued and so rightly that the case was of no evidence and the prosecution had failed to establish the charge.

11. To sustain a conviction under section 5(2) of the Prevention of Corruption Act, it is not sufficient for the prosecution to prove the trap incident alone, but the prosecution should prove all the vital parts of the prosecution story on which the trap incident depends. P.W., Nazeer Ahmed Investigating Officer, had stated in respect of trap incident alone. Admittedly, the prosecution had not produced any witness on the point of demand made by appellant, and acceptance of the bribe money. The requirement of the criminal law is that the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, it must go to the accused and is sufficient to discredit the prosecution story.

12. In view of the aforementioned reasons, I am of the considered view that the prosecution has failed to bring home the guilt of the appellant. The appeal is D accepted and conviction and sentence awarded to appellant by learned trial Court are set aside. Appellant Mehboob Ali Jatoi is acquitted. I have allowed the appeal, set aside impugned judgment and sentence of appellant by short order dated 22-11-2005 and above are the reasons for the same. B.T./M-3/K???????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.