2026 PLP 374 (MLD)

Syed Fiaz-ul-Hassan Shah, J.

The captioned Appeal is directed against the Judgment dated 16.02.2021 (impugned Judgment), passed by the learned Special Judge Anti-Corruption [Provincial] Karachi (Trial Court), in Special Case No.07 of 2019, re-The State v. Muhammad Karam and another, emanating from FIR No 05 of 2019, registered at Police Station ACE East Karachi for offence under Sections 161, 420, 468, 471, 34, P.P.C read with Section 5(2) of Prevention of Corruption Act-II, 1947, whereby, Appellant Muhammad Akram son of Muhammad Hanif has been convicted for offence under Section 161, P.P.C and sentenced him to suffer RI for two [02] years, for offence under Section 420, P.P.C and sentenced him to suffer R.I. for two [02] years and to pay fine of Rs.50,000/- and in case of default thereof to undergo S.I. for six [06] months more, for offence under Section 5(2) Prevention of Corruption Act, 1947 and sentenced him to suffer RI for two [02] years, extending him benefit of Section 382-B, Cr.P.C

2. Briefly, the facts of the case are that the above named Appellant in collusion with other accused provided fake allotment letter for construction of a cabin to the complainant, after receiving illegal gratification of Rs. 4,50,000/-, who constructed the Cabin on said plot situated at Old-Sabzi Mandi New Town, but same was demolished, as a substitute the Appellant has provided another allotment letter dated 28-11-2007 to the complainant by receiving Rs.3-Lac more for another Cabin at Natha Khan, in the meanwhile complainant took its possession by stating that after sale his expenses along with interest shall be paid to him but no fruit.

3. After completing the formalities, formal charge was framed against Appellant at Ex.2, to which he pleaded not guilty and claimed to be tried at Ex.2/B. 4 At the trial, the prosecution examined PW-01-Abdul Malik at Ex:03, who produced Allotment Order at Ex:03/A, Allotment Order of Natha Khan Canteen at Ex:03/B, Challan amounting to Rs. 9,000/- at Ex:3/C an application before the Senior Director Estate, KMC Karachi at Ex.03/D, an application before the Mayor Karachi at Ex:03/E receiving copy of application to PS Jamshed Quarters at Ex:3/F and copy of FIR bearing No. 367/2017 at Ex:03/G. PW-2 Hafiz Abdul Hamed (HC-Sindh Police) at Ex:

04. PW-03 Aijaz Afsar (Private Job) was examined at Ex:05, who produced memo. of arrest and recovery of the accused Muhammad Farooq at Ex:05/A PW-04 Syed Zaheer Hussain (ASIP-Jamsheed Quarters) at Ex.06, who produced memo. for site inspection at Ex:06/A, stamped copies of departure entry No.24 and arrival entry No. 28 at Ex:05

13. PW-05 M. Sahid Hussain (Contractor) at Ex:07 PW-06 M Khushnood Javed, (IP-ACE) as well as Investigation Officer of the case examined at Ex:09, who produced letter of DD ACE dated 22-01-2018 at Ex 09/A. photocopy of order dated 16-12-2017 passed by Judicial Magistrate No. XVII, Karachi East at Ex:09/R, approval/ recommendation of the competent authority for registration of case at Ex 09/C (Photocopy), copy of approval of competent authority for registration of FIR at Ex:09/D, FIR No.05/2019 of ACE at Ex:09/E, letter of verification, received from Senior Director Estate, KMC at Ex:9 / F approval of the Director ACE to file final challan at Ex:09/G and envelope in which he received the verification from the Director Estate KMC at Ex:09/H. Thereafter, the prosecution closed its side vide statement at Ex.09. After closure of the prosecution side, the statement of the Appellant was recorded under Section 342 Cr.P.C wherein, he denying the allegations, professed his innocence and his false implication in this case and prayed for justice. However, neither he himself on oath under Section 340(2), Cr.P C, nor did he examine any person in his defence witnesses.

5. At the conclusion of trial and after hearing the parties' Counsel, the learned Trial Court convicted the Appellant as discussed in paragraph-1 [supra]

6. Learned counsel for the Appellant submits that primarily the complainant have made responsible to co-accused Muhammad Farooque for demanding and collection of bribe amounting to Rs. 4,50,000/- [Rupees Four Hundred and Fifty Thousand Only] and in lieu of such bribe amount, he has handed over the allotment order, which was found fake subsequently, he has issued another fake order, when co-accused Muhammad Farooque has taken the complainant to present Appellant-Muhammad Akram and thereafter the same Muhammad Farooque has handed over another allotment order and on verification, the same was also found fake. Learned Counsel for the Appellant also submits that Appellant has falsely been implicated in this case and co-accused Muhammad Farooque has committed material illegalities while no role or criminal liability is proved against present appellant, and there was no claim of the complainant that Appellant-Muhammad Akram has demanded bribe and it is not the case of the prosecution that the Appellant has handed over the fake allotment order.

7. On the other hand, learned Additional Prosecutor General, Sindh has supported the impugned Judgment.

8. I have heard learned Counsel for the parties and perused the material available on record with their able assistance.

9. From a perusal of record, I have noted that PW-1 in his evidence has directly involved the deceased co-accused Muhammad Farooque for payment of bribe of Rs.4,50,000/- [Rupees Four Hundred and Fifty Thousand Only] as well as Rs.50,000/- [Rupees Fifty Thousand Only] and receiving the fake allotment orders from the said co-accused Muhammad Farooque, who has now passed away. The relevant part of the evidence is reproduced, as under "Hence I again contacted with accused-Muhammad Farooq and asked him to retum my money. But he refused to return my money, as he was unable to do so. On the contrary he offered me to buy another canteen near Natha Khan bridge, which was valued at Rs. 11,00,000/- He demanded to pay the additional amount, to which I did not agree. However, we finally agreed that I would not pay the sum of Rs. 3,00,000/- to him where after the canteen would be formally transferred in my name and after its sale, my amount would be return to me. On 28.12.2007, I paid a sum of Rs.3,00,000/- to accused-Akram in presence of Saqib, Sajid and Aijaz. After about 02-days, accused-Akram had given me the allotment order of Natha Khan Canteen. I produce the same as Ex: 03/8 and say that it is same and correct (original seen and returned).

10. I have noted that the complainant has not produced a single evidence against the present Appellant with regard the receiving of bribe demand or collection nor any dealing or connection with regard preparation/ handing over of the fake allotments orders. Evidence of prosecution witnesses No. 2 (brother of the complainant) is also confirmed that his brother has informed that it was the deceased co-accused Muhammad Farooque, who has given some alternate allotment order. The evidence of PW-3 is that "the applicant Abdul Malik informed me that he entered into a transaction with accused Muhammad Farooq and Muhammad Akram in respect of Canteen situated at Natha Khan Bridge. The applicant Abdul Malik told me that he had paid a sum of Rs.4,00,000/- to accused Muhammad Farooq in the Year 2007 at his residence. The accused Muhammad Farooq further demanded a sum of Rs.3,00,000/- on payment of the said amount by Abdul Malik, accused Muhammad Farooq had given him allotment Order of the Canteen. Abdul Malik paid the said amount of Rs.3,00,000/- to accused Muhammad Akram in my presence at Quetta Hotel situated at Guru Mandir" is relevant but it contradicted the evidence of PW-1. He deposed that co-accused Muhammad Farooq has received Rs. 3,00,000/-[Rupees Three Hundred Thousand Only] while Complainant-Abdul Malik has paid further Rs.3,00,000/- [Rupees Three Hundred Thousand Only] to the present Appellant-Muhammad Akram. Such evidence is not only in deviation with the quantum of bribe of amount of Rs.4,50,000/- [Rupees Four Hundred and Fifty Thousand Only] also contrary to the evidence of PW-1/Complainant/ Victim and has been shaken during cross-examination in the following manner: "I see my 161, Cr.P.C statement. It is correct to suggest that I have not disclosed in this statement any specific date and month of the year 2007, in which the sum of Rs. 3,00,000/- were given to accused Muhammad Akram in my presence. It is correct to suggest that applicant Abdul Malik was not handed over any allotment order by accused Muhammad Farooq and Muhammad Akram, in my presence." In view of above, it has been established that whatever bribe money as claimed by the Prosecution has been paid directly to the deceased co-accused Muhammad Farooque as has been confirmed by Complainant and his brother PW-2 during his evidence on oath.

11. Moving on, I have noted that initially Complainant PW-Abdul Malik has filed complaint Exh.3/D against deceased Muhammad Farooque and present Appellant Muhammad Akram before Senior Director Estate, KMC, Karachi and directly levelled allegations against Appellant Muhammad Akram while mentioning that he has entered into sale agreement with co-accused Muhammad Farooque [deceased accused] against a sale consideration of Rs. 4,50,000/- [Rupees Four Hundred and Fifty Thousand Only] in the year 2007 and thereafter Muhammad Akram (present Appellant) advised to bear further cost of Rs. 4,00,000/- [Rupees Four Hundred Thousand Only]. The second complaint moved by Complainant-PW-1 Abdul Malik is at Ex:3/F addressed to SHO Police Station Jamshed Quarters. This is also at variance with previous contention, first version has been recorded that agreement was taken place with Muhammad Farooque and Muhammad Akram against Rs.4,50,000/- [Rupees Four Hundred and Fifty Thousand Only] and second version states that after failure in the first agreement Appellant Muhammad Akram demanded Rs.11,00,000/- [Rupees Eleven Hundred and Fifty Thousand Only](sic) for allotment order. The third version of the prosecution comes in the FIR that Appellant had demanded Rs 4,00,000/- [Rupees Four Hundred Thousand Only] against another Canteen, out of which the complainant has paid Rs.3,00,000/- [Rupees Three Hundred Thousand Only] However, any of the version have not been confirmed by the Complainant when he adduced his evidence standing in the Witness Box and on the contrary he has not deposed anything against the Appellant. It is further noted that both accused Abdul Malik and Muhammad Farooque have died and entire case of demand of bribe and handed over of take allotment order is encircling around the deceased accused Muhammad Farooque and the prosecution has failed to prove its case in accordance with law. The Trial Court has committed misreading and non-reading of recorded evidence coupled with the fact that no adverse inference can be drawn against the Appellant, in view of lacking of any connection with the commission of crime and absence of direct or indirect evidence against the Appellant. The burden remains on prosecution as held in "Abdul Majeed v. The State", (2011 SCMR 941), the Supreme Court ruled:

7. The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one.

12. The relevance of evidence or a probative value of evidence has had undoubtedly the reference to such probative value of evidence, it "rational" effect does not invite consideration of its veracity, accuracy. authenticity, exactitude or the weight and capable to rationally affect the assessment or admissibility or probability of the existence of a fact. What happened when all evidence consisting of assertions offered for their truth which were not given before the trial Court? In theory, the legal philosophers, scholar, jurist and in practice, decisions of Courts and precedents developed a rule of law with the name had given as "hearsay" In "Azeem Khan v Mujahid Khan" (2016 SCMR 274) it has held that "

32. It is also a well embedded principle of law and justice that no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible one. Similarly, mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to Judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion. In that event the justice would be casualty.

13. The hearsay rule even more patently involves concealed assumptions, it does not convincingly demonstrate truth of facts and the evidence is so inherently incredible, inconceivable, fanciful, un-compelling or preposterous that it could not be accepted by the Court. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance and even mere existence of corroborative evidence would not alone be sufficient to hold accountable the Appellant or Accused. The reason behind this analogy is the secondary status of such corroborative evidence which primarily is meant to supplement and support the direct evidence. For reference reliance can safely be placed on the case "Yasin alias Ghulam Murtuza v. State", (2008 SCMR 336), it has been held by Supreme Court that: "Conviction cannot be based on any other type of evidence, howsoever convincing it may be unless direct or substantive evidence is available. Even guilt of accused cannot be based merely on high probabilities that may be inferred from evidence in a particular case.

14. In "Ghulam Qadir and 2 others v. The State", (2008 SCMR 1221), the Supreme Court of Pakistan has held: "Best evidence has been withheld without any justifiable reason. Needless to add that if an injured witness himself does not appear to charge an accused for his injury and the Court is not satisfied with his disability or incompetence or reasons for not appearing then the conviction for his injury cannot be recorded on the basis of other evidence under Qisas, as held by this Court in Asghar Ali alias Sabah v. The State 1992 SCMR 2088."

15. Unlike the rule as to relevance, the hearsay rule has a superficial rationality that is appealing. In general, it sounds quite sensible to refuse to consider testimonial evidence which is not given before the Court and have not undergone subject to examination, and cross-examination, in the trial. A witness who changes their stance cannot be deemed reliable, and his testimony should not be trusted. While a resiling witness may be disregarded, a complainant who retracts their statement can completely dismantle the prosecution's case. Since criminal proceedings are initiated based on the complainant's allegations, his resilience-except in specific types of offenses-I can eliminate the foundation of prosecution case. There is no basis to produce further evidence when the complainant does not support the continuation of the prosecution as whatever he urged is the basis of prosecution case and more importantly when such witness is star witness of the event of commission of offence. There is no justification for presenting further evidence when the complainant withdraws support for the prosecution, as their statement forms the foundation of the case. More importantly, if the complainant is the star witness to the commission of the offense, their retraction can dismantle the prosecution entirely. Reliance can be placed on the case reported as "Maulvi Hazoor Baksh v. The State", (PLD 1985 SC 233).

16. Consequently, impugned Judgment dated 16.02.2021, passed by the learned Special Judge Anti-Corruption [Provincial], Karachi, is set-aside and the Appellant is acquitted of the charge and is directed to be released forthwith, if his custody is not required in any other case. JK/M-113/Sindh ???