2021 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Through this appeal, the appellant has assailed the legality and propriety of judgment dated 06.03.2017 passed by learned Special Judge/Anti-Corruption (Provincial) Hyderabad in Special Case No.83/2016 (Re: The State v. Jhamandas) arisen out of Crime No.02/2016 registered under sections 161/34, P.P.C. read with section 5(2) of Prevention of Corruption Act-II, 1947 at PS ACE Mirpurkhas, whereby the learned trial court after full dressed trial convicted and sentenced the appellant as stated in Point No.3 of the impugned judgment. For the sake of convenience, it would be proper to reproduce Point No.3 of the impugned judgment which reads as under:- "Since the point No.1 has been answered in the affirmative therefore, accused Jhamandas son of Deepchand Sonaro is hereby sentenced and convicted to suffer R.I for two years for the offence under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act-II, 1947, however, benefit of section 383-B, Cr.P.C. is extended to the accused Jhamandas who is in jail since 27.04.2016. Accused has been produced in custody and he is remanded back to Central Prison Hyderabad to serve out the sentence. Benefit of doubt is extended to accused Muhammad Saddar Mughal and it is well settled principle of law that benefit of doubt goes to accused therefore, accused Muhammad Saddar Mughal who is present on bail, is acquitted under section 245(1), Cr.P.C. His bail bond cancelled and surety discharged".

2. Facts of the case as stated in the FIR are that on 27.04.2016 at 1000 hours complainant Mian Amjad Saeed lodged FIR bearing Crime No.02 of 2016 at ACE Office Mirpurkhas in which he stated that he has Petrol Pump at Kot Ghulam Muhammad under the name and title of Al-Saeed Petrol Pump and he is owner of that Petrol Pump and has contracted with the Town Committee Kot Ghulam Muhammad for supply of petrol. The accused Jhamandas, Assistant Commissioner/ Administrator of Town Committee Kot Ghulam Muhammad is the corrupt officer and has been demanding and receiving bribe from him for passing the bill so also continuation of contract of said petrol pump. It is further stated in the FIR that sometimes accused Saddar Mughal who is peon, has also been receiving the bribe since 2014 and at different times, he has received Rs.5,00,000/- bribe from him since 2014. It is also stated in the FIR that complainant went to accused Jhamadas for passing of bills of petrol amounting to Rs.3,80,050/- who refused to pass the same and in presence of Naveed, accused demanded Rs.2,00,000/- as bribe money and told that on payment of such bribe, he will pass the bill and shall also keep continue his contract to whom complainant asked that at present money is not available with him on which accused Jhamandas made concession of Rs.10,000/- and demanded Rs.1,90,000/- and in case of non-payment, he will not pass the bill and shall also stop taking of oil. Thereafter, complainant requested in FIR that today at any time accused Jhamandas will accept bribe.

3. After registration of FIR, Circle Officer of ACE Mirpurkhas obtained services of learned Civil Judge / Judicial Magistrate Digri and mashir Naveed Yousuf and prepared mashirnama No.1 and 38-Government Currency Notes of Rs.5,000/- denomination of each handed over to complainant and mashirnama No.1 was signed by learned Magistrate and others. Trap was arranged, complainant and mashir were directed to pay amount to the accused Jhamadas and they were directed to give appropriate signal as soon as accused accept the bribe. After sometime, mashir Naveed Yousuf signaled to trap party who went inside the office of accused Jhamandas where accused was sitting and he disclosed his name as Jhamandas, Assistant Commissioner/ Administrator of Town Committee Kot Ghulam Muhammad and accused took bribe amount in drawer of the table and currency notes amounting to Rs.1,90,000/- found the same therefore, mashirnama No. II was proved.

4. After usual investigation, the police submitted the final report before the concerned Judicial Magistrate, who took cognizance of the offence and thereafter the case was entrusted to the learned trial Court, where the charge against the accused was framed, who pleaded not guilty and claimed trial.

5. At trial, the prosecution to prove its case has examined following witnesses: i. PW-1/Complainant Mian Amjad Saeed Arain examined at Ex.5. He produced attested copies of five bills/vouchers total amounting to Rs.3,80,050/- in 28-leaves as Ex.5/A, FIR at Ex.5/B, mashirnama No.1 in 02-leaves at Ex.5/C, mashirnama No.II in 02 leaves at Ex.5/D. ii. PW-2/Mashir Naveed Yousuf at Ex.6. iii. PW-3 Partab Rai at Ex.7. iv. PW-4/Magistrate Aamir Latif Bhatti, Civil Judge and Judicial Magistrate, Digri at Ex.10. He produced letter of Circle Officer at Ex.10/A, trap report in 02 leaves at Ex.10/B. v. PW-5 Ghulam Murtaza, Circle Officer at Ex.11. He produced letter of Deputy Commissioner for submission of report at Ex.11/A. vi. PW-6 Circle Officer Malik Allahditta at Ex.12.

6. It is noted that the prosecution has given-up the mashir Imtiaz Husain at Ex.13, thereafter, learned ADPP closed prosecution side at Ex.14. Later on statement of accused was recorded under section 342, Cr.P.C. at Ex.15, in which he denied the prosecution allegation and claimed his innocence. However, he did not examine himself on oath nor led any evidence in his defence.

7. Learned counsel for the appellant contended that the case is managed one and appellant is innocent and has been falsely implicated in this case; that there is over-writing in the registration of time in FIR so also accused has been involved in this case falsely due to previous enmity and complainant in collusion with officials of Town Committee Kot Ghulam Muhammad involved him; that the bills which were presented before accused Jhamandas were amounting to Rs.3,80,050/- and bribe amount has been shown Rs.1,90,000/- therefore, there is inconsistency in between the amount; that although in FIR there is only mentioned of petrol but all bills pertaining to the diesel and such bills have also no accuracy in calculation; that there are certain contradictions between the evidence of witnesses on material particular point of the case; that complainant has not produced any document from which it transpires that he is owner of Al-Saeed Petrol Pump and set-up the false story/drama; that trap party neither heard the conversation between the complainant and applicant at the time of passing on tainted money to the appellant nor they personally witnessed the transaction as such their evidence required strong corroboration which is lacking in the present case, thus on this score alone the impugned judgment is liable to be set-aside. He lastly prayed for acquittal of the appellant from the charge.

8. Conversely, learned A.P.G. Sindh while supporting the impugned judgment submits that prosecution has fully established its case beyond any reasonable doubt by producing consistent/convincing and reliable evidence and the impugned conviction and sentenced awarded to the appellant is the result of the proper appreciation of evidence brought on record, which needs no interference by this Court. She lastly prayed for dismissal of this appeal.

9. I have heard the learned counsel for appellant, learned A.P.G. for the State and perused documents and evidence so brought on record.

10. Appraisal of record shows that at the time of alleged incident the appellant was serving as Assistant Commissioner Kot Ghulam Muhammad Bhurgri however, no departmental enquiry has been initiated against him so far. It is noted that date of alleged incident has not been mentioned in the FIR however, the same was lodged on 27.04.2016 regarding which a query was made to learned A.P.G as to why the date of incident is not mentioned in the FIR, she had no satisfactory answer with her. It has also been noted that if co-accused Muhammad Saddar Mughal, who as per FIR used to take bribe from complainant on behalf of appellant since 2014, then why complainant remained kept-mum/ silent and did not make any complaint/report before the higher authority. Record shows that mashir Zulfiqar Shah who has prepared the mashirnama-I of recovery of notes has not been examined by the prosecution. It comes on record that PW-II Naveed Yousuf, who is neighbourer and friend of the complainant and he is entrusted partisan witness therefore, his statement is without any independent corroboration, which is lacking in this case.

11. Record further shows that on the basis of same set of evidence, co-accused Muhammad Saddar Mughal (Naib-Qasid) who as per FIR used to take bribe from complainant since 2014 has been acquitted by the trial Court while the present appellant was convicted. In my opinion, prosecution witnesses if disbelieved for co-accused person, could not be relied upon with regard to appellant/accused unless they were corroborated by evidence which came from un-impeachable independent evidence which is lacking in this case.

12. It is also noted that when public servant (accused) caught by members of a raiding party while taking a bribe / illegal gratification, there must be hearing of words uttered by appellant and complainant so as to eliminate chances of involvement of innocent persons but in the instant case there is no such hearing. According to the counsel for appellant that there were many persons available at the place of occurrence but even otherwise nobody has been associated as witness of the trap proceedings. There is also nothing placed on record as to whether the appellant is a habitual or chronic in his illegal activities or involved before instant case.

13. It is also noted that the tainted money was never passed on to the appellant by the complainant within the sight of raiding party nor the learned Magistrate heard the conversation between the complainant and the appellant before alleged bribe money was handed over to the appellant. The alleged tainted money was found lying in the drawer of the table in the office of appellant not recovered from his exclusive possession for which the defence plea is that the complainant has put the said amount in drawer of the table in his absence. Moreover, it is not clear as to what had transpired between the parties before the alleged transaction. In this regard reliance can be made in the case of Bashir Ahmed v. The State [2001 SCMR 634] whereby it has been held as under: "

4. It is well settled by now that "in such like transactions not only the payment of bribe money to the accused by the complainant is to be seen but also the conversation between the above parties has to be heard by the members of the raiding party. This would be necessary to eliminate the chance of involvement of innocent people".

14. In view of the above discussion, the trial Court seems to have been failed to evaluate in its true perspective and has also failed to dilate upon the contradictions appearing in the evidence of witnesses which has made the prosecution story as unreliable and on believable, therefore, I do not feel satisfied with the prosecution evidence and hold that the prosecution has failed to prove the charge against the accused beyond shadow of reasonable doubt.

15. In the light of what has been discussed above and case law I am of the considered view that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt, therefore, instant appeal is allowed, impugned judgment dated 06.03.2017 is set-aside and the appellant is acquitted of the charge. The appellant is present on bail, his bail bond stands cancelled and surety discharged. JK/J-19/Sindh Appeal allowed.