' SYED MUHAMMAD FAROOQ SHAH, J.---Appellant above named, being aggrieved by judgment dated 9-4-2005 passed by learned special Judge Anti-Corruption (Provincial) Hyderabad in Case No, 45 of 2001 re-State v. Ali Anwar of PS ACE Badin, whereby he has .Been convicted under section 161 P.P.C. Read with section 5(2) of Act II of 1947 and sentenced to suffer RI for 9 months and also to pay fine of Rs,200 and in case of nonpayment of fine, to suffer one month more, with the benefit of section 382-B, Cr.P.C., preferred the captioned appeal with the prayer to set aside the said judgment of conviction on the, facts and grounds set out in the memo of appeal.
2. Appellant Anwar Ali stand charged that in the year 2001 being Peon in the office of Union Council Nazarpur Taluka Matli, District Badin, he was performing duty along with a mobile team of NADRA for the purpose of issuing NICs' at the Union Council Nazarpur, where the people of the locality got deposited their forms and mobile team announced that NIC would be supplied to all concerned through appellant. It is alleged that the appellant started taking money of Rs,100 from every person for delivery of the card and Rs,50 from every applicant for depositing the new forms by saying that the same amount would be given to the identity card officer at Badin or they may take their card themselves from the Badin office. The complainant Haji, Ali Muhammad on the day of incident had to receive ten identity cards from appellant Anwar for which he was required to pay Rs,1000 as a bribe and in all he has to pay Rs,1200. A trap was arranged on complaint of Haji Ali Muhammad and appellant/accused Anwar was caught red handed by the FIA police while accepting the bribe money of Rs,1000 i,e, two currency note of Rs,500 each and the same were secured from his possession, hence after his arrest and recovery of tainted money, the appellant was sent up to stand trial for offence punishable under section 161, P.P.C. Read with section 5(2) of Act H of 1947.
The charge was read over and explained to the appellant who pleaded not guilty.
3. The learned trial Court after examining the prosecution evidence convicted and sentenced the appellant mentioned hereinabove and consequently, the appellant has filed the captioned appeal.
4. Arguments advanced by learned counsel for the appellant and D.P.-G. Were considered and record has also been perused.
5. Learned, Advocate for the appellant has pointed out material contradictions amongst the deposition of prosecution witnesses and stated that mashir of the alleged recovery of tainted money who was closely related to the complainant has not been examined. P.W.1 Imam Bux who was District Registration Officer Mithi, stated that Liaquat Clerk was deputed .To issue 3000 NICs forms at Badin District Registration office, who has to issue receipt for NIC on delivery of the same' but the said Liaquat Ali has also not been examined and given up by the prosecution vide Exh.5 without showing any reason. Learned counsel contended that as per deposition of District Registration Officer (Exh.4), it was the duty of Clerk Liauqat Ali and not the accused/appellant who was a Peon in the office of Union Council. He has also contended that there are material contradictions in the deposition of complainant wherein he has stated that Liaquat Abbasi told him that it is his duty to provide NICs at U.C. Nazarpur and said that he should meet with Anwar and not to come in his office. Further stated that he collected the amount from villagers for payment to Anwar (accused) but he was found unable to disclose the name of villagers from whom he has taken the money i,e, Rs,100 from each person. In cross, he has admitted that he has not stated in his complaint, addressed to that there were 12 NIC forms and that he does not know if in his complaint and statement before police he had stated to the accused that he being a poor person was having no such amount for payment ,of NICs as an amount of Rs,1000 for issuance of 10 NICs'.
'Complainant has also produced application (Exh.6/A) addressed to Deputy Director. FIA, which reveals that the accused demanded Rs,100 for each NIC and Rs,50 for depositing the Form and said that in case of his refusal, he may himself collect the Form from the office. He has also produced memo of recovery of tainted amount (Exh.6-B), though the same does not bears his name and signature. Assistant Director FIA in his deposition (Exh.7) supported the prosecution version and stated that in his presence tainted money and NIC Forms and one NIC of one lady were recovered, though the complainant has stated that he gave the tainted money after receiving 10 NICs. P.W.
Imtiaz Ali further stated in cross that accused was not an employ of Central Government but in the Union Council of provincial Government, which does not fall within the jurisdiction of FIA. He has also admitted that the tainted money present in Court does not bear any mark of identification and the tainted money were common notes of. Pakistan. He has also admitted that tainted money was not sealed though according to law the alleged recovered property must be required to seal.
He has further admitted that place of occurrence and raid was a public place but he did not tried, to collect private person to act as a mashir. P.W. Ali Muhammad in his statement (Exh.8) stated that tainted money was recovered by him from the accused but in cross he has admitted that the tainted money present in court are common currency notes bearing no marks on the tainted money and the same was not sealed by him. P.W. Faiz Muhammad '(Exh.9) Circle Officer, FIA Hyderabad submitted the challan before the Court, stated in cross that incident date as per F.I.R. Is 16-5-2001 but the FIR. Was lodged on 28-6-2001 and again said that it was recorded on 18-6-2001 and statement of P. Ws. Were recorded on 30-6-2001 in his office. Further stated that he did not prepare any mashirnama and in F.I.R. He did not mention any special mark of identification at tainted money. Thereafter the State Counsel by statement (Exh.10) has given up P.W. Bur Muhammad due to his death. P.W Imam Bux (Exh.12) stated that being Sub-Inspector FIA, he put his signature on mashirnama of recovery and admitted that tainted money was not sealed in his presence and the same was handed over to complainant in his, presence. He has also admitted that no special mark of identification was put on tainted money in his presence. Now there remains only P.W. Muhammad Akbar (Exh.13), who was Sub-Inspector FIA Immigration, supported the prosecution story but stated that he cannot identify the accused sent in court to be the same person due to lapse of time In cross, he has stated that investigation officer did not try to collect any private person to act as mashir and stated that money was sealed in an envelope in his presence. Learned counsel placed reliance on the case-law reported as Mir Muhammad v. The State (1983 PCr.LJ 957), Khurshid Ahmad Zaid's case (PLD 1983 Lah. 514), Raheel Sajid v. The State (1986 PCr.LJ 1006), Amir Ahmad v. The State (1984 PCr.LJ 2388).
6. The mandatory provision of section 103, Cr.P.C. Have not been complied as no independent person of the locality acted as a mashir ,of alleged recovery and arrest of appellant. All examined witnesses are Government officials and the complainant has also given contradictory statement, therefore, no reliance can be placed on such testimony and recovery. In his statement recorded under section 342, Cr.P.C. (Exh.15), the appellant has categorically denied the charged allegations and claimed his innocence and stated that due to political enmity with Haji Ali Muhammad mho belonged to same area, .He has been implicated falsely in this case and prayed for acquittal.
7. In view of the submissions made above, the learned counsel for the appellant submitted that prosecution has miserably failed to establish its case beyond the shadow of reasonable doubt against the appellant.
8. Conversely learned D.P.-G. Contended that the learned trial Court has rightly convicted the appellant. He has relied upon impugned judgment and stated that the raid was 'conducted by FIA officials and there was no reason of false, implication of the appellant in this case.
9. Perusal of the impugned judgment and deposition of prosecution witnesses depicts that the material witness viz. Liaquat Clerk who was allegedly deputed to issue the NIC Forms, by P.W Imam.
Bux District Registration Officer has not been examined, and gave up due to some unknown reason by statement Exh.5. Non-examination of said clerk who is important and vital witness of the prosecution put dent in the prosecution case. Private mashir Dur Muhammad who was related to complainant has also not, been put in the witness box and admittedly no other private witness acted as marginal witness of mashirnama of recovery. It is also an admitted position that tainted money was neither marked nor sealed after its alleged recovery and there was no second private mashir of said, recovery, which fact reveals from the mashirnama available on the record. It is an admitted position that provisions of section 103, Cr.P.C. Are violated by the I.O. Without any sufficient reason and plausible cause, though he has admitted that private persons were available at the place of raid. Therefore, it cannot be said that recovery of alleged tainted money has been made according to law.
10. Prosecution's version itself is contradictory as mentioned hereinbefore and suffered from material discrepancies. It is settled that onus lies upon the prosecution to prove- the demand and acceptance of illegal gratification by the appellant who was working as a Peon in Union Council office and it was not his duty to. Receive and issue National Identity Card but the duty was assigned to Liaquat Ali Clerk who has not been examined and prosecution gave up his evidence which favours the appellant and presumption would be in favour of the appellant. The prosecution has failed to prove beyond reasonable doubt to involve the appellant in a case of this nature, in order to bring home the charge against the appellant/accused beyond reasonable doubt. The raiding party should have heard the conversation which took place between the bribe giver and bribe taker at the time of trap and also seen the passing over the tainted money. Insofar as authenticity to the prosecution evidence is concerned, there are material contradictions with regard to recovery and marking sign on the tainted money and to seal it, as has already been pointed out above, it did not appeal to prudent mind that an unconcerned person who was not a Federal Government employee has received the illegal gratification though it was not his function but the duty was assigned to Liaquat clerk who remained unexamined.
11. Suffice to say, that shape of statements of prosecution witnesses is not confidence inspiring and trustworthy and therefore not found fit in probabilities of the case. Admittedly, the appellant being a peon in U.C. Office was not competent to issue N.I.Cs' or Forms of NICs'. It appears that he had been involved in the commission of offence just to save the real culprit; particularly, conviction recorded merely on the statement of two FIA officials of raiding party and bribe giver, in circumstances, was not in accord with the safe administration of justice. The complainant being a provocateur passing money to appellant as a bribe was more than an accomplice in the crime and as such his testimony could not be accepted much less acted upon without corroboration from some independent source. In the last, for the sake of Islamic principles Teachings, wisdom can be drawn from prophetic. Saying The one who gave bribes as well as, the one who took bribes doomed to hell fire"..
12. A perusal of the impugned judgment reveals that the learned trial Court acted in oblivion of the principle of appreciation of evidence in criminal matters to evaluate it and discover the probabilities with regard to conviction of the appellant. From the material on the record, the version of the prosecution found without corroboration which adversely effect on the credibility of the prosecution witnesses testimony. All these facts have not been considered by the learned trial Court, resulting in the illegality and gross irregularity of judgment and decision.
13. For the foregoing reasons, I reached at the irresistible conclusion that evidence on record falls short of disclosing the charged offence against the appellant. In the circumstances the conviction and sentence awarded to the appellant is set aside and the appellant is acquitted. Appeal is allowed. Appellant is one bail, his bail bond stands cancelled and surety discharged.