JUDGMENT SYED HASAN AZHAR RIZVI, J.---The appellant being aggrieved and dissatisfied by the impugned judgment dated 18-4-2008 passed by the learned Judge Accountability Court No.III, Sindh, Karachi, while given the benefit of doubt and acquitted to both the accused persons namely Asghar Ali and Ghulam Murtaza under section 265-H, Cr.V.C. Has filed the present Appeal.
2. The brief facts of the facts given rise to the present Appeal are that accused Asgher Ali Dahar, who is Excise Inspector, was posted on Counter No.213 M.R. Wing Civil Centre Karachi. On 19-7-2007 complainant Muhammad Asif went on Counter No.213 M.R. Wing for transfer of commercial vehicle No.JP 0855. Accused Asghar Ali Dahar demanded illegal gratification of Rs.10,000 from complainant. On 21-7-2007 complainant Muhammad Asif moved an application to D.G. NAB Karachi, on whose 'direction trap was arranged. On 24-7-2007 tainted money of Rs.13,000 was delivered to Complainant Muhammad Asif in presence of Mr. Asim Saeed Khan Lodhi, Civil Judge/Judicial Magistrate, Karachi-East. The tainted money was passed on to accused persons on Counter No.213, which included Rs.2,850 as Government fees, Magistrate recovered Rs.44,660 from the drawer of Counter No.213 as, against official fees of Rs.10,125 which was collected on Counter No.213 on 24-7-2007. The tainted money of Rs.13,000 was also among Rs.44,660, which was recovered from Counter No.213. Both the accused were arrested. After completing the investigation the reference was submitted before the Accountability Court No.III, Karachi.
3. Copies of documents under section 265-C, Cr.P.C. Were delivered to both the respondents.
Formal charge was framed against both the respondents under section 10 of NAB Ordinance, 1999 to which both the respondents pleaded not guilty.
4. Prosecution examined complainant Muhammad Asif, who produced authority letter from Muhammad Arshad, original application moved by him to D.G. NAB and memo. Of handing over tainted money. P.W. Asim Saeed Khan Lodhi was examined who produced recovery memo., two arrest cards and trap report. P.W. Amir Waheed Khan was examined. P.W. Muhammad Nawaz Bajwa was examined, who produced two seizure memos., one memo. Of personal search. Masood Ahmed, Investigating Officer was examined, who produced letter of authorization, permission to trap, computerized statement of tax collection, two memos. Of handing over personal items to both the accused. Statements of accused persons were recorded under section 342, Cr.P.C. In which they denied all the allegations levelled against them. Neither they examined any witness in their defence nor they examined themselves on oath in disproof of the charge.
5. We have heard the arguments of Mr. Muhammad Riaz, Senior Prosecutor NAB for the appellant and Syed Ameer Haider Shah, Advocate for the respondent dents.
6. Learned Senior Prosecutor, NAB argued that the judgment passed by the learned trial Court is contrary to facts and circumstances of the case. He further argued that the judgment has not been passed by the trial Court after due and proper appreciation of evidence led by the prosecution in order to prove the case against the respondents.
7. Learned Prosecutor NAB further contended that in such type of cases when tainted money is passed to the accused and is recovered, the same is substantive part of evidence. The prosecution has proved its case beyond shadow of reasonable doubt. He also contended that in order to substantiate the recovery of tainted money and arrest of the accused on the spot the prosecution has examined its star witnesses and has supervise the raid, recovered the tainted money from the drawers of the respondent amounting Rs.44,000 including tainted money consisting of 13 notes of Rs.1000 each. The trial Court did not appreciate this facts.
8. Learned Senior Prosecutor NAB submitted that there may be some minor contradiction in the evidence of prosecution witnesses but the same are immaterial as these are but natural as the witnesses are natural witnesses and not the professional witnesses. Learned counsel further submitted that the prosecution witnesses have produced seizure memo of personal search, memo.
Of recovery, memo. Of tainted money in support of their case: The report of trap conducted by Magistrate was also produced but all these documents have not been considered in favour of the prosecution by the trial Court. The minor contradictions and minor technicalities which should have been avoided by the trial Court as there exists no enmity in between complainant, prosecution witness and Judicial Magistrate who had performed their official duties.
9. Learned Prosecutor NAB argued that the appreciation of evidence by the trial Court is not based under the provision of Qanoon-e-Shahadat Order, 1984 and the benefit of the same has been given to the respondents by giving benefit of doubt by the trial Court. Learned counsel further argued that the witnesses were subjected to cross-examination by the defence counsel but he has not even suggested to the witnesses about existence of any enmity between the respondents and prosecution witnesses. That P.W. Amir Khan in his evidence in Court has also supported the prosecution case but the learned trial Judge believed without assigning any cogent reason that the evidence of that witness based upon conjunctures and surmises.
10. On the other hand learned counsel for the respondents supported the judgment of the learned trial Court and submits that the judgment of the trial Court is just, legal, proper and well reasoned.
11. The Trial Court has framed five points for determination, discussed each and every point in detail and thereafter given benefit of doubt to both the accused persons and acquitted them under section 265-H, Cr.P.C.
12. We have perused the record with the assistance of the counsels for the parties. We have observed that there is no misreading or no none-reading of evidence by the trial Court. The learned trial Court after formulating five points- for determination in its judgment discussed each and every point, reproduced the relevant portions of the evidence of the patties and gave its findings with reasons.
13. We fully agree with the conclusion of the trial Court that after perusal of the material available on record the prosecution has failed to prove beyond reasonable doubt that the tainted money was delivered to the complainant in presence of Judicial Magistrate. The trial Court has rightly observed that the glaring contradictions in the evidence of the prosecuti6n witnesses regarding the recovery and arrest of the accused persons makes the case doubtful and its benefit goes to the accused.
14. We also agree with the findings and conclusion of the trial Court that the prosecution has failed to prove beyond reasonable doubt that both the accused persons had received tainted money of Rs.13,000 from the complainant Muhammad Asif and that an amount of Rs.44,660 was recovered by Mr. Asim Saeed Khan Lodhi, Civil Judge/Judicial Magistrate, Karachi-East from the drawer of Counter No.213 which were jointly handled by both the accused persons.
15. We are also convinced after perusal of the record that the prosecution has failed to prove beyond reasonable doubt that present accused persons had committed offence under section 9(a)(i) of NAB Ordinance, 1999. The complainant is a Policeman he had no concern with the transfer of commercial vehicle in the office of the Excise and Taxation Department and his presence in the office of the Excise and Taxation Department establishing that he was acting as a tout had rightly held by the trial Court.
16. On perusal of the material available on record of the trial Court we found that the trial Court has properly appreciated the evidence and discussed the same in the judgment in detail. There are material contradictions in the evidence of the prosecution witnesses which are establishing that the prosecution case is doubtful. The Trial Court has considered the material produced before it and has discussed the evidence in detail. No prejudice has been caused to the complainant or to the prosecution on acquittal of the accused persons.
17. On the aforesaid reasons and circumstances stated above we by our short order, dated 21-9- 2010 dismissed the present acquittal, Appeal No.5 of 2008, cancel the bail bond and discharge the surety of both the respondents.