' This appeal is filed against judgment of Special Judge Central Anti-Corrupt ion and. Immigration N . -W . F. P. Peshawar Camp Abbottabad. Through the impugned judgment, dated 27-4-2001 appellant has been convicted under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 and has been sentenced to six months' R.I. With a fine of Rs,50,000 and in default of payment of fine to suffer two months' R.I.
' Appellant during the pendency of the trial was on bail. He was, therefore, arrested and remitted to jail to undergo the sentence.
2. With the appeal he has filed an application for suspension of the impugned judgment and on 29-5-2001 he was allowed bail by this Court which position remained till date.
3. Nisar Ali Shah complainant running hardware business in Mansehra reported the matter to the F.I.A. Staff at Abbottabad on 19-12-1995. In the report he stated that income Tax Staff had visited his shop and informed him that he has been assessed to Rs,44,000 by the Income Tax Authorities. That he went to the Income Tax Office on 7-12-1995 where an officer demanded Rs,50,000 as bribe. On his second visit on 18-12-1995 the same officer reduced the amount of bribe to Rs,10,000 and since Nisar Ali Shah was not agreeing to pay bribe money, therefore, the report.
4. Aziz Khan, Inspector F.I.A. (P.W.3) without recording the aforesaid report as complainant made to him got permission from the Deputy Commissioner, Mansehra for holding. a trap. His application for supervision of trap was marked to Abdul Hamid Khan (P.W.4) the then Forest Magistrate at Mansehra. Rs,7,500 in the shape of four currency notes of Rs,1,000 denomination each and seven currency notes of Rs,500 denomination each were given to Nisar Ali Shah complainant to pass on the same on demand to the officer asking bribe.
5. The raiding party comprising Abdul Hamid Khan (P.W.4), Aziz Khan Inspector (P.W.3) and Nisar Ali Shah complainant (P.W.1) along with Shoaib, S.-I. And Nazar Hussain constable all proceeded to the Income Tax Office. Complainant was asked to go to the office of the Officer asking bribe and after the money is passed shall signal the raiding party. On receipt of signal that the money has been passed, P.W.3 and P.W.4 both searched the person of officer concerned and have recovered Rs,7,000 from the pocket of the officer who disclosed his name to be Muhammad Salim the appellant, Assistant Commissioner, Income-tax.
' One note of Rs,500 denomination was produced by complainant to the raiding party stating that the same has been returned by the accused.
6. Statement of complainant was recorded by the Magistrate and also that of Muhammad Salim appellant and that recovered currency notes were taken into possession through memo.
Whereafter raid report was prepared. It was only thereafter, that case F.I.R. No,11 of 1995 Police Station F.I.A. Abbottabad was registered.
7. I have heard learned counsel for the appellant and the learned Deputy Advocate-General appearing for the State.
8. In trap cases particularly held against Senior Civil Servant, the law requires and so is the demand of propriety that conviction shall recorded but on the basis of unimpeachable evidence.
9. In trap cases mere recovery notes by itself shall not be taken as proof of demand/payment of bribe unless all precautionary measures are taken by the raiding party to exclude the possibility of any defence version and to exclude all possibilities of false implication.
' The object of above is not to give benefit to the civil servants but is to protect them and the institutions so that confidence of the general public in the Government Institutions is not shaken.
10. There are not only procedural defects in this case going to the very roots of charge but certain events are unexplainable.
(a) The F.I.R. Was recorded after entire investigation was complete including preparation of the raid report. Currency notes which were passed on to Nisar Ali Shah complainant, their serial numbers were noted but without putting any initial or any other mark thereon, therefore, such notes cannot be strictly termed to be tainted currency notes.
(b) Memo. Exh.P.W.3/1 was prepared before the raid when the currency notes were handed over to the complainant. Memo. Exh.P.W.3/2 shows the recovery of such notes. Ironically, the serial numbers of the notes in Exh.P.W.3/1 and Exh.P.W.3/2 is the same which will put into doubt the two memos. As if they were simultaneously prepared.
(c) It is not known that the currency notes passed on to the complainant and then recovered from the appellant were whose money.
' Abdul Hamid (P.W.4) has not specified as to who has given the amount except that he gave the notes to the complainant.
(d) According to Nisar Ali Shah complainant he arranged Rs,3,500 and Rs,4,000 were given to him by the F.I.A. And so is the statement of Aziz Khan (P.W.3). In what capacity P.W.3 would give Rs,4,000 is not known. It is not known if it was his private property Or was taken out of certain funds of the Department.
(e) As required under the law, immediately after the raid statement of complainant was to be recorded and also of the accused-appellant which has been recorded by the Magistrate but strangely enough both these statements which are Exh.P.W.4/3 and Exh.P.W.4/4 are typed.
Statement of Nisar Ali Shah recorded before raid by the Magistrate which is Exh.P.W.4/2 is again typed. The latter statement could have been typed but in the office of raiding Magistrate. A record show that Exh.P.W.4/2, Exh.4/3 and Exh.P.W.4/4 are all typed with the same typewriter including the raid report which has been B prepared at 5 p.m.
(f) It has come in evidence that Aziz Khan (P.W.3) Inspector F.I.A. Was suspended in this case because of noncompliance or' rules i,e, arresting a Grade-17 Officer without prior sanction. This also reflects on fabrication of the case against the appellant.
(g) It is in the statement of Aziz Khan (P.W.3) and also in the F.I.R. That Nazar Hussain constable went in the premises of the office. He and the Magistrate remained' outside the office and complainant was to give signal to Nazar Hussain whereafter he will inform the raiding party, such Nazar Hussain has not been produced at the trial.
(h) In trap cases it has been ruled in number of judgments that the raiding party shall place itself in such a position wherefrom,they can peisonally see the passing on of the bribe money and if C possible the conversation between the bribe-giver and the taker which is not available in this case.
(i) Nisar Ali Shah (P.W.1) who is complainant of this case admitted that when he first visited the office of F.I.A. His statement was recorded which is not on record. In fact such statement should have been the F.I.R.
(j) Immediately after arrest accused-appellant took the plea that money recovered from him was given to him by the complainant but for onward delivery to Muhammad Haroon a clerk in his office.
Such defence does not appear to be unreasonable and has gone unrebutted.
(k) Conduct of P.W.1 Nisar Ali Shah is also questionable who had earlier visited the office on 7-12- 1995 then on 18-12-1995 and has agreed and offered Rs,3,000 as bribe but since it was allegedly not acceptable to the accused-appellant, on the following day he goes to the office of F.I.A.
(I) Another phenomena which has gone unexplained is that if the final demand was Rs,10,000 why accused would accept Rs,7,000 and why shall be returned one note of Rs,500 to the complainant.
(m) Last but not the least, after the money was passed on, and was taken as bribe there is no reason as to why the accused-appellant would also come along with complainant out of his office.
(n) Complainant is not even consistent as to the amount for which he was assessed because in his F.I.R. He gives the assessm ent as Rs,44,000 whereas in his Court statement Rs,42,000. The complainant is not sure as to who has come to his shop in the first instance but someone from the office of Income Tax.
11. For the reasons stated above, I am convinced that prosecution has miserably failed to prove the charge against the appellant. Therefore, this appeal is allowed. Conviction and sentence recorded by the trial Judge on 27-4-2001 are set aside and appellant is acquitted of the charge.
' The appellant who is on bonds furnished under the order of this Court, such bonds are discharged of their liability.