1989 PLP 3297 (MLD)

Briefly, the prosecution case is that on 31-10-1983 complainant Imamuddin lodged F.I.R. with the Circle Officer, Anti-Corruption Establishment, Larkana that Survey Nos.414/1 and 2 in Deh Yaru Lakhial taluka Dokro were granted to him which were cancelled and transferred in favour of Mst. Akhtarun Nisa and such cancellation was objected to and contested before the Board of Revenue, Sind and having failed to obtain the remedy from the Board of Revenue, he filed a Constitutional Petition before the High Court of Sind (Circuit Bench Sukkur) and the order of Board of Revenue was set aside. The complainant having come to know that the record of rights in his name had been cancelled, he approached Barrage Mukhtiarkar, Larkana and for that purpose he visited the office of Barrage Mukhtiarkar, Larkana where he met the present appellant who described himself as tapedar and demanded illegal gratification of Rs.300 to help him out of which the complainant made a part payment of Rs.100 to the appellant in presence of Sikandar Ali and for the remaining amount it was agreed to be paid on the next day to the appellant. He promised to get the letter from the Barrage Mukhtiarkar, Larkana to the Taluka Mukhtiarkar, Dokri for the proper mutation, in the record of rights. Persuant to above F.I.R. the Circle Officer, Sikandar Ali Soomro obtained the services of Resident Magistrate, Kambar namely, Khuda Bux Larik and alongwith himself he took private mashir Abdur Rasool. After arranging the trap for payment of illegal gratification demanded by the appellant Muhammad Siddique from the complainant, .they proceeded to the place of occurrence. It is alleged that on seeing the trap party the amount of illegal gratification accepted by the appellant and paid by the complainant was thrown on the ground which was subsequently secured by the Magistrate and appellant was arrested and after completion of usual investigation the appellant was challaned in the Court of Special Judge Anti-Corruption, Sukkur who convicted the appellant under the impugned judgment as aforesaid. A formal charge against the appellant under section 161, P.P.C. read with section 5(2) of Act II of 1947 was framed on 1-11-84 which was read over and explained to the appellant to which he pleaded not guilty. The prosecution in support of its case examined complainant Imamuddin Exh.3 who produced the F.I.R. placed on record as Exh.3-A, Sikandar Ali Exh.4 and Bashir Abdur Rasool as Exh.5 who has produced mashirnama of handing over tainted money amounting to Rs.200 Exh.5-A and mashirnama of arrest and recovery of papers as Exhs.5-B and 5-C respectively, P.W. Abdul Wahab Shah Exh.6 who was a clerk in the office of Barrage Mukhtiarkar, Larkana, has produced letters from the official record as Exhs.6-A and 6-B, P.W. Khuda Baksh, the Trap Magistrate who has produced the trap report as Exh.7-A and finally P.W. Sikandar Ali Soomro, Circle Officer was examined at Exh.8 who has produced the letter addressed by Barrage Mukhtiarkar, Larkana to the Mukhtiarkar Dokri as Exh.8-A. Under Exh.2 Zulfiqar Ali was given up by the prosecution. The learned trial Judge examined the accused under section 342, Cr.P.C. and his statement is available on the record as Exh.9. In his statement the appellant admitted that he was working as a Supervising Tapedar at the relevant time in the office of Barrage Mukhtiarkar, Larkana and as such he was a public servant. He further stated in his statement that the complainant had lodged this case against him due to misunderstanding at the instance of a clerk of Barrage Office as he thought that appellant had dealt with his case and on the relevant date while he was going to his house after leaving the office near Bagh-e-Zulfiqar when a constable grappled with him due to which he fell down and from his possession nothing was secured. He named one Allah Warayo Thebo, proprietor of a hotel who had witnessed the occurrence. He further stated that complainant Imamuddin has sworn an affidavit before the Mukhtiarkar and F.C.M. Mehar admitting his fault which affidavit has been produced by him as Exh.9-A. In his defence appellant examined the hotel keeper, Allah Warayo and Mukhtiarkar and F.C.M., Kambar by name Muhammad Ismail but he declined to be examined on oath under section 340(2), Cr.P.C. On assessment of evidence the learned Special Judge Anti-Corruption feeling satisfied with the, evidence oa record convicted the appellant under the impugned judgment. Mr. Muhammad Ali Shaikh, the learned counsel has appeared on behalf of the appellant and Mr. Rashid Akhtar Qureshi on behalf of the A.-G. for the State. The learned counsel for the appellant vehemently urged that the evidence of complainant cannot be believed as he has admitted in his affidavit Exh.9-A that the appellant is innocent and in his evidence he admitted that said affidavit bore his signature and photo copy of his photograph but he denied the swearing of affidavit. Consequently defence has examined Muhammad Ismail, Mukhtiarkar and F.C.M., Kambar before whom the said affidavit was sworn and he in his deposition Exh.10 has stated that on 1-1-1984 he was working as Mukhtiarkar and FCM, Mehar and on that day Imamuddin son of Nabi Bakhsh appeared before him and sworn an affidavit. He stated that Imamuddin produced his passport size photographs which was attested by him and appended to the affidavit, after due indentifcation. The affidavit was read over to the complainant who accepted the same as correct. The witness also admitted that the affidavit which has been produced as Exh.9-A bears his signature. It is, therefore, contended very vehemently by the learned counsel for the appellant that it is nobody's case that the tainted money was secured from the possession of the appellant. In fact it is the case of the prosecution that one constable, Zulfiqar Ali had caught hold of the appellant and grappled with him and during that scuffle appellant had thrown the tainted money on the ground but this witness Zulfiqar Ali has been given up by the prosecution without assigning any reason despite that he was an important witness. The learned counsel for the appellant also argued that on the point of demand there is only word of the complainant which is without corroboration and even no evidence has been brought on the record to establish that it was the duty of the appellant to deal with the case of the complainant. On the payment of tainted money there is evidence of mashir Abdur Rasool who has not supported the prosecution and has been declared hostile. It is also pointed out by the learned counsel for the appellant that in the evidence complainant Imamuddin has stated on oath that a constable had grappled with the appellant and he had seen the tainted money lying on the ground after grappling of the constable with the appellant. He further stated that he had seen the appellant throwing away the amount which was lying at a distance of 2/3 paces and the appellant and the constable were at a distance of 4 paces from there. According to the complainant no letter was secured from the possession of the appellant. In the fight of the submissions made by the learned counsel for the appellant, I have carefully examined the relevant papers and I find that the contentions raised by the learned counsel are not without substance. On examination of the evidence of P.W. Sikandar Ali it transpires that complainant Imamuddin who is the cousin of the witness had never informed him about the cancellation of grant of land and it is an admitted fact that the only independent witness available at the time of payment of tainted money is Abdur Rasool Exh.5 who has stated in his deposition that he was asked by the Circle Officer to act as a mashir in a trap case. He denied having seen the complainant Imamuddin producing any photo copies of the documents before the Circle Officer. It is his case that he kept standing outside the hotel when complainant Imamuddin had gone inside when he saw one person coming out of the hotel and complainant Imamuddin was following him, so also the trap party. it was at that time when Imamuddin complainant showed him the amount in his hand stating that it was to be paid to a public servant. This witness is an educated man and according to him when he was shown the mashirnama Exh.5-B he stated on oath that the contents of the mashirnama were not read over to him. He stated that the mashirnama read over to him in the Court was wrongly recorded and he categorically denied the fact that Imamuddin had passed on the money in his presence to the appellant or that he had produced the documents mentioned in the mashirnama Exh.5-C. It has come in the evidence of this mashir Abdur Rasool that he is distant cousin of the complainant. He further stated that he was unaware of the place where the trap party and the Anti-Corruption Police had concealed themselves. He further contended that nothing incriminating was secured from the search of the appellant and 8 to 10 persons had collected but none of them had been examined by the prosecution. P.W. Abdul Wahab Shah was a clerk in the office of Barrage Mukhtiarkhar, Larkana. He is a formal witness who had received the letter, dated 12-11-1983 from Barrage Mukhtiarkar, Larkana to be delivered to the Circle Officer A.C.E., Larkana and he has stated in his deposition that the appellant as Supervising Tapedar was not concerned with the correspondence regarding the cancellation of grant in the name of Imamuddin etc. Yet another witness is Khuda Bux Larik, Mukhtiarkar and F.C.M. who was working as Resident Magistrate at the relevant time and supervised the trap. He had admitted to have accompanied the S.I.P. Jan Muhammad of A.C.E. Larkana and introduced to complainant Imamuddin and Mashir Abdur Rasool. He further stated that Circle Officer prepared mashirnama Exh.5-A in respect of Rs.200, the amount paid to the complainant for passing on the same to the appellant as illegal gratification. He had supervised the trap and according to him on receiving the signal he rushed to the hotel where they were informed by mashir Abdur Rasool that the appellant/accused after accepting Rs.200 was going towards Bagh-e-Zulfiqar, hence they followed him and a constable caught hold of the accused in the garden and they secured the amount of Rs.200 from the ground which was thrown by the appellant. From his evidence it is clear that the tainted amount was not paid in his presence nor he had seen the transaction of payment of tainted money by the ,complainant to the appellant. He clearly stated that he was at a distance of 50 yards from the hotel which was visible from the place where he was available and was within his-sight but he did not see the appellant Muhammad Siddique entering the hotel nor he saw the appellant accepting the tainted amount. His evidence is inconsistent with the evidence of the other witnesses when he said that the signal raised by mashir Abdur Rasool was noticed by a constable who had informed them accordingly. He did not name the constable but it appears from his statement that he was the same constable who had caught hold of the appellant. According to this witness the appellant was completely overpowered. He gave the admission in his crass-examination that in the company of S.I.P. Jan Muhammad he had supervised the trap and recorded the confessions in number of cases investigated by S.I.P. Jan Muhammad. He had prepared the raid report wherein his case was that he had seen the mashir and informed him of the place where they had taken the position the mashir has contradicted him, in fact he had disowned the prosecution case on the point of acceptance of illegal gratification. Finally P.W. Sikandar Ali Soomro who is the Circle Officer and the Investigating Officer of the case and also the author of the F.I.R. has been examined. He prepared mashirnama and produced the same with regard to the passing of the money to the complainant for payment to the appellant as illegal gratification. His version is totally different as according to him when P.C. Zulfiqar Ali caught hold of the appellant on seeing the trap party the appellant, threw the currency notes. He admitted to have recorded statement of P.C. Zulfiqar who has not been examined by the prosecution for the reasons best known to them. According to this witness mashir Abdur Rasool was produced before the District Magistrate, Larkana for recording of his statement under section 164, Cr.P.C. but such statement has not been produced. He also stood belied in respect of the photo copies of the letter produced by the complainant. According to this witness he could not see the place where the complainant and mashir were waiting for the arrival of appellant and according to him the mashir had informed the trap party at the peace of their taking position. He does not talk of any signal. He gave an admission that they were in such a position that if a person goes from the hotel towards Bagh-e-Zulfiqar they could not see him. He also admitted that the complainant was not in the company of appellant while going towards the garden. The case of this witness is that money was thrown after he was grappled by P.C. Zulfiqar Ali which is nobody's case otherwise. I do not feel satisfied with the evidence of complainant, his cousin Sikandar Ali and the only mashir Abdur Rasool has not supported the prosecution case and from the evidence of the record in view of the infirmities pointed out particularly in absence of examination of constable Zulfiqar Ali, the evidence cannot be accepted nor it is reliable. From the judgment also I find that the learned Trial Judge has not assessed the evidence, according to the periods of appreciation of evidence and for the evidence not accepted by the learned trial Judge no cogent reasons are given by him. As regards the affidavit purported to have been sworn by the complainant Imamuddin on 1-1-1984 before the Mukhtiarkar and F.C.M., Kambar, the reason given that the same has been managed subsequently with intention to screen the offender is not convincing as there is no material on the record to substantiate muchless to arrive at such conclusion. Prosecution has not brought anything on the record to show that the appellant was in a position to show favour or disfavour to the appellant. The I transaction of passing of money by the complainant to the appellant has not been substantiated and the presumptions drawn by the learned trial Judge are against the universally acknowledged principles of bringing home the charge to the appellant, hence I am of a considered view that the benefit of doubt available to the appellant has been wrongly denied to him and I am persuaded to extend such benefit of doubt to the appellant and in view of the glaring inconsistencies and the infirmities pointed out by the learned counsel for the appellant the impugned judgment cannot be sustained. Although it has not been urged, but on perusal of the record, I find that there is no sanction order produced by the prosecution for putting the appellant on trial. In view of the above discussion and after considering the legal and factual aspect of the case, I have come to the conclusion that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Consequently, the impugned judgment (in Spl. Case No.73/84), dated 9-10-1986 passed by the Special Judge, Anti-Corruption, Sukkur is set aside and the appeal is allowed. The appellant is acquitted and he is discharged from the bail bond executed by him. Learned A.A: G. has also not supported the impugned judgment. N.H.Q./M-772/K Appeal accepted.