1988 PLP 347 (MLD)

This Criminal Appeal is directed against the judgment dated 10‑1‑1988 of Special Judge, Anti‑Corruption (Provincial), Karachi, whereby he convicted both the appellants. The appellant Rafiullah has been convicted under Section 161, P.P.C. read with Section 5(2) of the Prevention of Corruption Act, 1974, and sentenced to R.I. for four months with fine of Rs. 2,000 in default to suffer R.I. for one month more. Co‑accused, Shamsuddin has been convicted under Section 201, P.P.C., read with Section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to R.I. for two months and pay fine of Rs. 1,000 in default to undergo R.I. for one month more. Briefly, the prosecution case is that complainant Chaudhry Hamid Ali is Headmaster of Government Secondary School, Jail Road, Karachi. On 11‑2 1984, he received a notice from the Excise and Taxation Division No. 1, through Constable Shamsher and he was bound down to complete the Form P.T..‑7‑A, and submit before 16‑2‑1984, alongwith approved plans of the property for the purpose of assessment. He went to the office of the Excise and Taxation, Division No. 1, situated near Cheel Wali Kothi, where he met with Inspector Idrees Hamayoon and requested for time who asked him to supply information at his own convenience. After 4/5 days, appellant Rafiullah, Sub‑Inspector, Excise and Taxation and Constable Shamsher, came to his house and inspected the premises. They directed him to submit necessary forms. Accordingly, on 25‑2‑1984, he went to the office and gave Form duly filled in to Rafiullah who told him that heavy tax will be imposed on him, therefore, he should file another Form according to their directions. At that time, Inspector ldrees Humayoon and Constable Shamsher were sitting and another Form was got filled wherein the area of the plot was mentioned as 400 yards instead of 451 yards. He was told that according to the original Form, he was liable to pay Rs. 2,700 as tax but after amended Form, he will be liable for Rs. 810 only per year and tax will. be imposed from 1‑7‑1984, instead of 1‑1‑984,and he will get total benefit of Rs. 5,

000. He was asked to pay Rs. 2,500 as bribe money to which he did not agree and finally they were prepared to accept Rs. 1,000 after great difficulty. He promised to bring money after making necessary arrangements on 26‑2‑1984. On 25‑2‑1984, Complainant Chaudhary Hamid Ali went and lodged report with the Inspector A.C.E., Karachi: The trap was arranged on 2‑2‑1984. The Magistrate, two Mashirs, complainant, and Anti‑Corruption Staff alongwith Inspector went to the Excise & Taxation Officer. The tainted money was handed over to the appellant Rafiullah who passed on the same to co‑accused Shamsuddin and it was again passed on to the third person who ran away alongwith the tainted money. The appellants were sent up and finally convicted. Charge under Sections 161, 201/34, read with Section 5(2) of the Prevention of Corruption Act, 1947, was framed against both the appellants to which they pleaded not guilty. The case proceeded and prosecution examined P.W. Hamid Ali (Complainant) (Exh. 6); PW‑2 Fatehuddin Anti‑Corruption Inspector (Exh. 18); PW‑3, Maula Bux Magistrate (Exh. 25); Muhammad Jalal Court Witness No. 1 (Exh. 14); and Maqsooduddin Court witness No. 2 (Exh. 28). They both are process servers who could not serve the summons on the prosecution witness. Appellants in their statements under Section 342 Cr. P. C. (Ex. 32) and (Ex. 33) have denied the allegations and also examined themselves on oath too. I have heard Mr. Muhammad Ali Shaikh for the appellants. It is contended by the learned Counsel that tainted money has not been recovered from the appellants. The independent Mashirs have not been examined. The conversation between the appellants and the complainant was not heard. He has referred to the cases reported in P L D 1982 Kar. 255; 1982 P Cr. L J 55 & 729; 1975 P Cr. L J 1286; 1973 P Cr. L J 1036 and P L D 1960 (S C)

337. I have also heard Mr. A.I. Qarni appearing for the State who is the opinion that benefit of doubt may be given to the appellants. In this case only three witnesses have been examined by the prosecution. They are complainant Hamid Ali, Fatehuddin Anti‑Corruption Inspector, and Maula Bux who was Additional City Magistrate. Both the accused have not examined any witness in their defence. Complainant Hamid Ali has supported the case as given in the F.I.R. and stated that he lodged the complaint on 25‑2 1984, which he has produced as Ex.

20. He has stated that on his complaint, a trap was arranged by the Anti Corruption Inspector on 26‑2‑1984. The Mashirnama of tainted money was prepared in presence of Mashirs Shakil and Ayyub and he produced the Mashirnama as Ex. 11, and stated that Mashirnama was signed by the Magistrate and the Mashirs. Thereafter, he alongwith the Magistrate, Mashirs and Police Party went to the Excise and Taxation Office. The office of the appellant Rafiullah is situated on the first floor of the building. He alongwith Shakil and Ayyub went there while the Magistrate and the Inspector, Anti‑Corruption, took the position at the ground floor of the building while other Anti‑Corruption Staff was standing outside the building. He met Rafiullah where Shamsuddin was also present. He enquired if he had brought the money to which he replied in affirmative. He further told him that everything is ready and he will give copy of the assessment order within no time. He continued to sit near the table of Rafiullah who took the Registrar and went to the Excise and Taxation Officer. After a short‑while, he came back and gave him the copy of the order duly signed by the E.T.C. He has produced the assessment order as Exh.

12. Thereafter, he gave Rs. 1,000 to Rafiullah who kept the amount under one Registrer which was lying on the Table. When the amount was given to Rafiullah, one of the Mashirs was standing at the gate of the room and another Mashir was standing at the gallery. Mashir Shakil had seen the entire transactions while standing at the gate of the room. He gave signal to Ayyub. At that time, appellant Shamsuddin was sitting on another Table adjacent to accused Rafiullah who suspected some foul play. Shumsuddin came towards Rafiullah. Thereafter;‑Uafznilah took out the money from the Register and handed it over to Shamsuddin went running from the room and handed over the money to another person who was sitting in the adjoining room. He has stated that he saw that person running going down through the back stairs. In the meanwhile Magistrate as well as the Inspector came and he narrated the facts to them. Magistrate took the search of Excise and Taxation Staff and two appellants but tainted money was not secured. In his cross‑examination, he has stated that he raised cries that Shamsuddin had handed over the money to another person and Shakil ran after that person who had taken away the tainted money but could not catch him. Fatehuddin in his evidence has stated that on 25‑2‑1984, he was Inspector, Anti‑Corruption, Karachi, when Hamid Ali lodged a report (Exh. 10) which he recorded and directed him to come on the next day. On 26‑2‑1984, complainant, came. He sent for two Mashirs namely, Shakil and Ayyub through his staff. Magistrate also arrived there and complaint was produced alongwith F.I.R. which he verified. He then gave Rs. 1,000 to the Complainant as tainted money in presence of the Magistrate and the Mashus and such Mashirnama (Ex. 11) was prepared. Thereafter, they proceeded to the Excise and Taxation Officer, `I'. Division P.E.C.H.S., Karachi. He directed the complainant to contact the accused. Two Mashirs accompanied the complainant when he, magistrate and the Police Party took position on the road outside the Excise and Taxation Office. After about half‑an‑hour, Shakil gave signal that money has been passed on to the accused. He alongwith the Magistrate and Anti‑Corruption Staff went inside the office and surrounded appellant Rafiullah and disclosed the identity. The complainant, and Mashirs Shakil and Ayyub told him that Inspector. Rafiullah took the money from the complainant and kept it in the Registrer. Thereafter, he passed on the money to Shamsuddin who passed on the money to the third person, who ran away. They tried to search that person but could not find him. Thereafter the complainant produced P.T.‑13 (13 (Ex. 12) which he secured and Mashirnama (Exh. 19) was prepared which he produced. The accused and the complainant were brought to the Anti‑Corruption Office where the Magistrate prepared Raid Report. He recorded further statement of complainant and examined Shakil and Ayyub. He arrested the appellant and prepared Mashirnama which he produced as Ex.

20. He had taken the personal search of the complainant and prepared such Mashirnama which he produced as Ex.

21. On 28‑2‑1984, Murtaza Kazmi, E.T.O., produced the relevant file of the complainant and he took out some documents and produced as Exhs. 7, 8 and 9, and prepared such Mashirnama (Ex. 22). On 1‑3‑1984, he recorded the statement of Murtaza Kazmi. He has produced the sanction of prosecution of the appellants as Exhs. 23 and

24. In his cross‑examination, he has stated that complainant Hamid Ali had not shouted when accused Shamsuddin had passed on the money to third person. If the complainant had shouted, they could have easily arrested that person to whom the money had been passed on. P.W. 3, Maula Bux has stated that on 26‑2‑1984, he was Additional City Magistrate, Court No. VIII (West) Karachi. On that day, S.P., Anti‑Corruption, requested him to telephone to supervise the trap proceedings. He went there. The Inspector produced the complainant alongwith F.I.R. He read out the contents of the F.I.R. to the complainant who admitted the same to be correct. Thereafter, Inspector Anti‑Corruption, handed over Rs. 1,000 to the complainant in presence of Mashirs, Shakil and Ayyub who signed the Mashirnama (Ex. 11) which he also signed. Then he went to the office of the Excise and Taxation and sent the complainant and Mashir to the first floor where accused were sitting. After about 20 minutes, Mashir, Shakil came down and gave them signal. They rushed to the first floor where complainant and Mashir Ayyub informed that money was accepted by the accused Rafiullah, who placed it in the Registrar but immediately Rafiullah took out the money froth the Registrar and handed over to his Clerk Shamsuddin who handed over to another person, who ran away from other door. He has stated that Rafiullah was interrogated by the Inspector but he denied having taken the money from the complainant, but admitted to have given the PT‑13 Form to the complainant regarding Plot No.151, situated in Gulshan‑e Iqbal, Karachi, which the Inspector secured from the complainant and prepared such Mashirnama (Ex.19). The Inspector took personal search of the complainant. Thereafter, he have been arrested both the accused but nothing was secured. He has stated that he prepared the Raid report and handed over to the Inspector and produced it as Ex.26. In his cross‑examination, he has stated that complainant or the Mashir has not raised alarm that some person is taking away the tainted money. It was possible that if the alarm had been raised, the person might have been arrested. He has stated that they had not taken the search of the complainant. The case of prosecution is that complainant alongwith Mashirs Shakil and Ayyub went to appellant, Rafiullah. Complainant has stated that Mashir had seen him passing money to Rafiullah and that one money was passed on Shamsuddin who handed to third person. At that time, both the Mashirs were stated to be at the entrance of the gate or the gallery. The prosecution has not examined both the independent Mashirs but two process‑servers were examined who stated that both the Mashirs were not available. There are the two important persons who could have seen the entire transaction between the complainant and the accused. I am not satisfied with the statements of Process Servers that Mashirs were not available. The Magistrate in clear terms has stated that had the complainant raised cries, there was possibility of the arrest of the person who took away the money. The word of the complainant that he handed over the tainted money to Rafiullah who passed on to Shamsuddin and then to a third person does not get support from any other evidence. The evidence of the Magistrate and the Investigating Officer is that when they came nothing was secured from the appellants. The Magistrate has stated that Shakil came down i and informed about. the money having been passed on to Rafiullah. The next point which creates doubts in my mind is that complainant Hamid Ali has himself filed two Forms Exhs. 8 and 9, stating therein different area of his house. Apparently, he is not an honest man who has given misfacts for getting financial benefits. Exhs. 8 and 9, both the Forms rave been signed by the complainant Hamid Ali, therefore, on the solitary words of Hamid Ali, no reliance can be placed. The tainted money had not been recovered from both the accused and Magistrate in his Examination‑in‑Chief has stated that Inspector had taken the personal search of complainant and such Mashirnama was prepared as Ex.21. In his cross‑examination, he has contradicted this position and stated in the last para of the sentence in cross‑examination as under:‑ "We had not taken the search of the complainant:" The entire case against the appellants is not free from doubt, therefore, for the reasons stated above, I allow the appeal and acquit the appellants. They are on bail. Their bail bonds stand cancelled. M.Y.H/R‑56/K Appeal allowed.