2000 PLP 883 (MLD)

5. On 31‑5‑1995, the tainted money was passed to the Superintendent and on signal by. the complainant, the raid party entered the Examination Hall, recovered the tainted money alongwith other amount. The appellant was arrested and a case was registered which after necessary legal proceedings and after trial consequented upon the conviction and sentence as aforesaid.

6. With the assistance of the learned counsel for the appellant and the learned State counsel. I have gone through the evidence and record time and again. I am confronted with certain discrepancies which could not be reconciled and which rendered the matter highly doubtful. The discrepancies are to be attended to one by one. .

7. The first and the foremost weakness in the case that has struck my mind is, that the appellant, in the circumstances of the present case, was not at all in a position to blackmail the complainant, and to corner him to pay the bribe. The known procedure of handling with the answer sheets is, that after the closing hours all the answer sheets are to be sealed and despatched to the Board concerned. If there is any case of unfair means detected during the course, it also has to be sealed alongwith the copying material and the detailed report of the Superintendent and accordingly dispatched immediately alongwith other material to the Board concerned. Whatever was to be done by the Superintendent concerning the complainant, it was bound to be completed by the evening of 27‑5-1995 and hence the Superintendent was not at all and could not at all be in a position to do anything after 27th. It was practically impossible to retain the case upto 31‑5‑1995, the date when the remaining amount of Rs.500 was settled td be paid or demanded.

8. The question that the candidate was a young simpleton and hence not being aware of the procedure was blackmailed even for the 31st, is not at all plausible. The candidate was not a simpleton either because he straightaway resorted to the Anti‑Corruption Establishment and as per F.I.R. volunteered to become a trap agent. Such course of conduct is not known even to educated people at times. This also indicates that he had a sufficient piece of advice from some quarters and, thus, such quarters should have known that beyond the end of the day of 27th the Superintendent was not in a position to keep anything under his control and to balckmail the student. The possibility of some preconcieved plot cannot be ruled out.

9. The phenomenon of tainted money is also not free of doubt. The tainted money, according to procedure, required to be marked by the raiding Magistrate. Such mark should be personal to the Magistrate and should be specifically mentioned in the recovery memo. There is no description of any such specific mark of identification in the recovery memo. Exh.P.W.2/. This serious weakness in the case of the prosecution is tried to be covered by the Magistrate during his Court statement saying that he had initialled the five currency notes. No such reference of initials is given in the recovery memo and ' no notes so initialled were even produced before this Court. In raid proceedings, the tainted mark nest be put on the currency notes by the Magistrate and such mark must be mentioned in the recovery memo. Any failure to do so renders the matter highly doubtful and any improvement to that effect can conveniently be dubbed as afterthought. .

10. The only description of the currency notes which is given in the recovery memo. is that of the serial numbers of such notes which were subsequently and allegedly recovered from the accused. The description of serial number of the notes is neither safe nor foolproof. It is a matter of common comprehension that the serial numbers of certain currency notes already in possession of the accused can most possibly be known to anybody and can be conveyed to the raiding party who can easily enter such serial number in the recovery memo. Thus, the resort only to the reference of serial number of currency notes is not at all safe and is subject to numerous concoctions. The only safe procedure is of putting some specific mark which should be specifically described in the recovery memo. itself so that no improvements are possible to be made subsequently. Such mark is never mentioned in the present case in the recovery memo.

11. Apart from the above doubts, there are numerous discrepancies regarding the handing over of the, tainted money as well as the recovery thereof. From the F.I.R., it appears that all the demands were made by the Superintendent inside the Examination Hall and there he took out himself a sum of Rs.500 from the candidate's pocket. It does not appeal to reason, logic and common sense that a Superintendent within the view and within the hearing of hundreds of candidates sitting close‑by would start transacting with a candidate and would dare to take out money from the pocket of the candidate. Realising this weakness, the complainant made a drastic improvement in his Court statement saying that for doing all these things the Superintendent took the candidate out of the Examination Hall. Such improvement adversely affects the circumstances alleged.

12. The case of the accused is that on 27‑5‑1995 when he recovered the cheating material from the candidate, he warned the candidate. Such warning is admitted by Rab Nawab complainant. Had the matter ended up with the warning, there was no occasion to demand the bribe. Regarding the first encounter, the complainant is vacillating. From the F.I.R., it appears that no copying material, was recovered from the student and, rather, the Superintendent blamed that the student was copying and hence he would make out a case of unfair means while, on the other hand, there is an affidavit, dated 30‑5‑1995 of the complainant on file wherein he has admitted that test papers were recovered from the complainant. This recovery is throughout suppressed by the complainant. If the recovery of test papers ended upon simple warning which is admitted by the student, the story of asking for bribe does not seem to be plausible and the high possibility cannot be ruled out that some plot was hatched by some people of the Staff who were ousted by the Superintendent from tine to time on the ground that they helped the students in cheating. The complainant has admitted that three persons were ousted by the Superintendent in such background.

13. The payment of bribe subsequently recovered through raid, is also doubtful. There is not site‑plan as to where the tainted money was passed to the accused. According to raid party the Magistrate and the Circle Officer had entered the Examination Hall to affect the recovery. The complainant was very much there inside the Hall solving the paper of that day but still he does not know where that raid was conducted. He does not know the time of his having made the payment to the accused. The tainted money consisting of five notes after alleged marking, according to complainant, was handed over to him by the Magistrate on 31‑5‑1995 before the start of the paper, whereas the recovery memo. clearly shows that such tainted money was handed over to the student on 30‑5‑1995, a day prior to the raid. The three main witnesses in this behalf have fairly contradicted each other and the recovery memo. contradicts them all. This reveals that all the memos. were either prepared before hand or subsequently.

14. Even the matter of lodging report is also controversial. Muhammad Ashraf Khan Circle Officer (P.W.2) says that Rab Nawaz complainant had lodged the report on 27‑5‑1995, whereas, the report Exh.P.A. clearly indicates that it was lodged on 30‑5‑1995 i.e. three days after the first occurrence. What happened prior to 30‑5‑1995 during three days seems to be quite obvious and strong possibility cannot be ruled out that during these three days certain deliberations and concoctions took place. The applications by the Investigating Officer for the appointment of a Magistarate bears an unavoidable flaw because the date thereon is changed from 20th to 30th by overwriting. The overwriting is glaringly visible. It seems that the Investigating Officer first wanted to write any date starting with digit "2" but subsequently he changed it into "3 or 30", realising something known better to him.

15. The prosecution evidence is doubtful qua the recovery as such. At one time it is said that the amount was recovered by the raid Magistrate himself from the front pocket of the accused but at another time it is said that the accused himself took out all the contents of his pocket spreading them on table. The possibility cannot be ruled out that all such memos. were prepared subsequently because the witnesses are discrepant about the handing over the tainted money to the complainant and also about the eventual recovery.

16. From what has been discussed above, the case of the prosecution is not free from numerous doubts. The appeal is accepted, the impugned conviction recorded and sentence passed by the learned Special Judge Anti -Corruption (Provincial) Peshawar vide his judgment, dated 23‑1‑1999 is set aside and the appellant Syed Ibrahim Shah Bukhari, being given the benefit of doubt, is hereby acquitted of the charge under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. The appellant and the sureties are absolved of the liability under the bail bond furnished under the order, dated 1‑2‑1999 of this Court. H.B.T./493/P Appeal accepted.