1994 P Cr (PLP)

Abdul Sattar Chohan for AA.-G. for the State. Date of hearing: 9th September, 1993. The appellant Habibur Rehman son of Altafur Rehman was tried by the learned Special Judge, Anti-Corruption, Sukkur who by his judgment, dated 24-9-1988 convicted the appellant for the offence under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act II of 1947 and sentenced him to suffer R.I., for 1 year and fine of Rs.1,000 or in default of payment of fine to undergo R.I. for 3 months more. The appellant has challenged his said conviction and sentence under the present appeal. At the relevant time, the appellant was posted as Sub-Engineer Public Health Engineering Department, Pano Akil as such he was a public servant. The allegations against the appellant are that on 1-2-1987 he demanded Rs.2,5W as illegal gratification from complainant Saindino Kalwar contractor for preparing the revised estimates for the work which was already allowed to him. The said amount was reduced to Rs.2,000 which was to be paid on 3-2-1987 at Pano Akil. On the said date, the complainant reported the matter to the Circle Officer, Anti-Corruption Establishment, Sukkur. The Circle Officer registered the report and arranged a trap under the supervision of Mr. Habibullah Solangi Mukhtiarkar and F.C.M. Khairpur. On 10-2-1987 the tainted money was accepted by the appellant from the complainant in the presence of Mashir Abdul Sami, which was subsequently secured by the trap party. Accordingly the appellant was arrested, and after the completion of investigation the appellant was challaned. At the trial, the prosecution examined complainant Saindino Kalwar, P.W. Abdul Sami, P.W. Niaz Ahmad Qureshi, P.W. Habibullah, Magistrate and P.W. Noor Muhammad Solangi Circle Officer. In his statement under section 342, Cr.P.C. the appellant denied the prosecution allegations and claimed to have been Wiely implicated by the witnesses. However, the appellant examined defence witnesses Muhammad Ashraf Shaikh and Abdul Hakeem. I have heard Mr. Samiullah Oureshi learned counsel for the appellant and Mr. Abdul Sattar Chohan learned counsel for the State. I have also gone through the entire evidence on record and so also the impugned judgment. As the learned counsel has raised a two-fold technical point, therefore, it will not be necessary to refer to the evidence on record. Mr. Sarniullah has raised the following points:-- (1) That the sanction order was not exhibited in evidence therefore this Court will not be in a position to ascertain whether it was accorded in accordance with law or in a mechanical manner? That neither the challan nor the sanction order bears the initial or signature of the learned Judge, therefore, it cannot be said that at the time of taking cognizance the sanction order was or was not available before the Trial Court. (2) That the tainted money was never produced in Court and it was never shown to any of the witnesses at the time of their deposition, therefore, the presumption will be that the tainted money was never recovered from the appellant. I have perused the original record and it is correct that neither the challan nor the sanction order bears the signature of the learned trial Judge. In the present case Mr. Noor Muhammad Solangi was the Circle Officer and his deposition is Exh.7. In his examination-in-chief he has mentioned that he received the sanction order for the prosecution of the appellant, but for reasons best known to the prosecution, the said sanction order was not produced through him and exhibited on the record so as to form part of evidence. It was the legal duty of the prosecution to produce and exhibit the sanction order and in case it fails to do so, the appellate Court is bound to infer that the cognizance of the offence and the offender was taken by the Trial Court without a prior valid sanction order of the competent authority. It may be mentioned that an appeal can be decided only on the basis of the material available on record and not on any document which is not part of the record. It, therefore, follows, if the sanction order is available in the file of the lower Court, it cannot be looked into, as the same has not been exhibited in evidence to form part of the record. In the present case I have checked the file of the lower Court and I have noticed that the copy of the sanction order is available, but neither the challan nor the sanction order bears the initial of the learned Trial Judge. Another aspect which also needs to be mentioned is that by not exhibiting the sanction order in evidence, the appellate Court will not be in a position to judge for itself whether the sanction has been granted in accordance with law or in a mechanical manner. At the same time the Court will not be able to ascertain whether the entire material was considered by the competent authority or not. By the non-production of the sanction order, the accused will also be prejudiced in his defence, as the accused will be deprived from making any reference to it or even to challenge it. In the circumstances, it cannot be said that the trial Court acquired the jurisdiction legally. The second point raised by the learned counsel is also equally important. The prosecution case is that tainted money amounting to Rs.2,000 was recovered from the possession of the appellant. It is expected from the prosecution to produce that "tainted money" in Court and get it marked as an "article". In the present case the tainted money was never produced in Court nor was it shown to the complainant, the Mashir or the Magistrate. Even the Circle Officer did not bother to produce the "tainted amount" in Court during his deposition. Since the said amount was neither produced in Court nor shown to the witnesses, the natural presumption will be that the said amount was not in existence and consequently it will be presumed that the same was never recovered from the appellant, otherwise there was nothing to prevent the prosecution from producing the same in Court. The learned counsel appearing for the State also agrees that the tainted amount and so also the sanction order should have been produced in Court and should have formed part of the record as evidence. He also agrees that it is not a fit case for remand as it will amount to filling up the lacuna created by the prosecution. In the above circumstances, for the situation which has been created, it is the prosecution who will suffer and not the accused. As already mentioned, it is doubtful if the sanction order was available when the trial Court took cognizance. Likewise non-production of the tainted amount in the Court leads to the inference that the same was never secured from the appellant. In the light of my above discussion, I allow this appeal and set aside the conviction of the appellant. The appellant is on bail, his bail bond is I discharged. N.H.Q./H-366/K Appeal allowed.