1984 P Cr (PLP)

When the substance of allegation was read over and explain to the appellant, he pleaded not guilty and claimed to be tried. Learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed 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 trial of the appellant was in violation of the provisions of section 234, Cr. P. C., as he was tried for six offences together. In support of this learned counsel relied upon cases reported in P L D 1960 Dacca 413, P L D 1959 Dacca 817 and P L D 1957 S C (Ind.) 435. (b) That motive alleged by prosecution is absurd. (c) That trap not conclusively proved, in view of explanation of appellant under section 342, Cr. P. C. in respect of Rs. 200 received by him. (d) Mashir of trap not independent. In support of above contentions, the learned counsel for appellant also relied upon cases reported in P L D 1954 Sind 126, P L D 1963 Kar. 582, P L D 1971 Kar. 78, P L D 1975 Kar. 239, 1970 P Cr. L J 520, 1973 P Cr. L J 839/1036, P L D 1979 Kar. 294 and A I R 1952 Orissa 267 and submitted that prosecution has failed to establish its case beyond reasonable doubt. However, the learned counsel for State on the other hand submitted, that he was fully supporting the impugned judgment on merits, but sentence awarded to appellant is rather harsh, and as such the same may be reduced, keeping in view, that appellant remained in custody for one month. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial Court as well as the impugned judgment and cases cited by the learned Advocate for the appellant. I have carefully gone through the statements of complainant P. W. Rashid Mirza, P. W. Muhammad Idris and Muhammad Ali and Mr. Muhammad Sarwar Khan S. D. M. Hyderabad and I. O. as well as through 342, Cr. P. C. statement of the appellant and D. Ws. statements. Statement of P. W. Rashid Mirza, the complainant does not inspire any confidence at all, in view of various contradictions in his statement before the learned trial Court & F.I.R. and so also the statements of P. W. Muhammad Idris and Muhammad Ali, the mashirs. Motive for alleged bribe is also unconvincing according to me. It is also admitted position, that P. W. Muhammad Idris and Muhammad Ali are close friends of the complainant I. O. in spite of this fact, did not care to choose independent mashirs for the trap, for the reasons best known to him. Presence of P. W. Asghar Ali near about trap vardat is admitted by P. W. 2 Muhammad Idris, which fact corroborates the statement of appellant under section 342, Cr. P. C. that P. W. Asghar Ali was interested for any the false trap to harass the appellant, who was demanding from him refund of fees paid to him, by D. W. Abu War. In addition to this P. W. 2 Muhammad Idris cross examination admitted, that be did not hear talks between complainant and appellant at the time of passing of tainted money. P. W. 3 Muhammad Ali the other mashir stated, that tainted money was recovered by I. O. from the hand of the appellant. However, I find that P. W. 6 Mumtaz Khan I. O. in his statement before the learned trial Court stated, that he recovered tainted money from shirt pocket of the appellant, in presence of S. D. M. and others, but later on changed after seeing Exh. 6,. The facts on record show material contradictions inter se in the statements of P. Ws. It may further be noted, that P. W. Murtaza Hussain I. O. in his cross-examination admitted, that appellant on being apprehended stated that the money in question was paid to him by complainant on behalf of P. W. Asghar Ali, Advocate for refund to his client D. W. Abu War. In view of all these facts, statements of P. Ws. do not inspire confidence at alt, but on the contrary lend support to the statement o appellant under section 342, Cr. P. C. in my opinion. It would be unsafe to convict the appellant on such prosecution evidence, in the face of statement of D. W. Abu Zafar, whose statement is straightforward and convincing and fully supports the statement of appellant. At any rate statement of D. W. Abu Zafar has created reasonable doubt in the pro secution case, in my opinion. Therefore, I allow the above appeal and set aside conviction of the appellant sentence awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in above appeal. M. Y. H. Appeal allowed.