1995 P Cr (PLP)

Muhammad Akram Sajjad appellant was convicted by Special Judge, Anti-Corruption, Sargodha under section 161, P.P.C. and sentenced to imprisonment till the rising of the Court and a fine of Rs.1,000 and in default of payment of fine to undergo S.I. for three months. The appellant had challenged the conviction and sentence under this appeal.

2. The facts leading to the conviction of the appellant as narrated in the raid report are that Muhammad Athar Khan was a candidate in B.Com. Examination of the University of the Punjab and was taking the examination in the centre established at Teachers Training College, Samanabad. The appellant allegedly demanded Rs.150 as illegal gratification for showing favour to him in using unfair means. Matter was reported to Mr. Riaz Hashmat Khan, Circle Officer, A.C.E. who took him to the A.D.C.(G.)/A.D.M., Faisalabad who in turn nominated Mr. Inamul Haq, M.I.C., Faisalabad to conduct the raid. The raiding party went to the house of the appellant on 18-11-1975 at 8-00 p.m. His house was found locked and on enquiry the appellant was reported to be present in a nearby barber shop. He was called by Muhammad Athar Khan out of the shop and in the street introduced Mr. Inamul Haq, M.I.C. to him as his real brother. Rs.150 were passed on to the appellant whereafter Inamul Haq, M.I.C., P.W. introduced himself as the supervisory Magistrate. The appellant threw the tainted money on the ground which was picked up and taken into possession. The FIR was ordered to be registered and the appellant was arrested.

3. At trial prosecution produced Muhammad Ahsan, Moharrar Police Station A.C.E., Faisalabad who recorded the formal F.I.R. Exh.PA./I. Muhammad Athar Khan, complainant appeared in Court as P.W.2 and Mr. Inamul Haq, M.I.C. as P.W.3 Riaz Hashmat Khan, Circle Officer, A.C.E. appeared as P.W.4 whereas Mr. Muhammad Din Awan, Professor Science College, Faisalabad, was given up by the prosecution.

4. The appellant was examined under section 342, Cr.P.C. wherein he denied the allegation levelled against him and took up the plea that he had been harassing to the complainant and had stopped him from using unfair means and to avenge the same he has been falsely implicated.

5. The accused was arrested on 18-11-1975 in the case and the sanction the Chairman, Anti-Corruption Committee No.3 was secured on 24-7-1984 whereas the report under section 173, Cr.P.C. was drawn on 26-9-1984. The period between 18-11-1975 to 26-9-1984 has not been accounted for by the section. This delay itself shows that the A.C.E. was not interested in sending up the appellant to stand trial for the offence allegedly committed by him.

6. The statement of P.W.2 suffers from material contradictions and he admitted that before he filed the complaint the accused appellant used to suspect him of using unfair means and would watch him very closely and stood near him most of the time and that he was annoyed with the accused appellant.

7. P.W.3 Inamul Haq, M.I.C, instead of supervising the raid, became a party and by introducing himself as brother of the complainant he lost his supervisory status and he reduced himself to the status of a decoy witness. This action of the Magistrate is not condonable and it has caused prejudice to the appellant in the conduct of his defence before the trial Court.

8. The most important witness who could depose about the seat allotted to the complainant in the examination hall and as to the status of the appellant in the examination centre was given up by the prosecution. The submissions made on behalf of the appellant that the prosecution rather withheld a very important piece of evidence which could further the cause of justice in the present case. The given up witness was summoned by the appellant as defence witness and he produced Exh.D.A., The list of the supervisory staff and Exh.D.B. which had, shown the allocation of seat to the complainant. The seat allocated to the, complainant was on the diace and very near to the Superintendent rather than the invigilator that the present appellant was at that time. He was neither the Superintendent of the examination centre nor he was the Deputy Superintendent and as such had absolutely no authority to allot the seat. The story of there being a side room where the appellant promised that the complainant would be allowed to take seat and use unfair means stands contradicted by a very respectable witness, Professor Muhammad Din Awan the given up P.W. who appeared as a defence witness. In view of the above the prosecution has failed to prove its case against, the appellant beyond any reasonable doubt.

9. Apart from the factual position there is yet another point involved in the present case. The case was registered on 18-11-1975 whereas the sanction to prosecute was granted by Chairman, Anti-Corruption, Committee No.3, Faisalabad some times after 24-7-1984 on which date the pro forma sanction was filed by some official of Anti-Corruption Establishment and placed before the Chairman. Anti-Corruption. Committee No.3. The pro forma appears to have been cyclostyled much earlier leaving blank spaces for the purpose of inserting the requisite information. There was no occasion for the official of the Anti-Corruption Establishment to have signed the sanction under the signatures of the Chairman and it appears that the said official filled in the pro forma sanction and signed the same in token of being a scribe thereof. It leads to the conclusion that the Chairman Anti-Corruption Committee No.3 did not apply its independent mind before signing the sanction.

10. Placing reliance on Mahmood Khan v. The State P L D 1977 Lah. 1195. Zahoor-ud-Din Shah v. Azad Jammu &. Kashmir P L D 1960 AJK 62 and Muhammad Ayub v. The State 1955 P Cr. L J 2687 it is held that sanction to prosecute the appellant suffers from an infirmity which was fatal to the case of the prosecution

11. The appeal is accepted and the conviction and sentence is set aside. The appellant is discharged from the bail bond. H.Q./M-1848/L Appeal accepted.