JUDGMENT Hafiz Shahid Nadeem Kahloon, J: Through this Criminal Appeal No.269-2015, the appellant has challenged the legality of judgment dated 07.05.2015 passed by the learned Special Judge, Anti-Corruption Punjab, Dera Ghazi Khan, wherein the appellant was convicted in case FIR No.16-2008, dated 23.07.2008, registered under Section 161 PPC & 5(Act-II) of the Prevention of Corruption Act 1947, at P.S. ACE, Multan Region, Multan and sentenced as under:- Under Section 161PPC i) Rigorous imprisonment for 3-years along with fine of Rs.1,00,000/- or in default thereof to further undergo one-month S.I.
Under Section 5(Act No.II of 1947 PCA. ii) Rigorous imprisonment for 7-years along with fine of Rs.3,00,000/- or in default thereof to further undergo one-month S.I. By giving the benefit of Section 382-B, Cr.P.C. Both the sentences shall run concurrently.
2. The brief allegation against the appellant is that he was Investigating Officer of case FIR No.31- 2007 registered under Sections 302/34 PPC at P.S. Shah Wali, District Rajanpur, in which Kamal Mustafa and Dilshad were accused and Muhammad Akram, the appellant demanded and received illegal gratification of Rs.3,50,000/- from the complainant for declaring the aforesaid accused as innocent, but subsequently, the complainant came to know that the appellant conducted the investigation dishonestly for which the complainant filed an application to DPO Rajanpur, who after initiating departmental inquiry found the appellant responsible. Thereafter, the complainant moved an application to Addl: Director Anti-Corruption Establishment and resultantly got registered this case.
3. However, during the investigation, case was recommended to be dropped and cancellation report was submitted to the learned trial Court, but having disagreed with the report, the appellant was summoned to face trial. Report under Section 173 Cr.P.C. Was submitted against the appellant before the trial Court.
4. The prosecution in order to prove its case against the appellant examined as many as two witnesses namely Liaquat Ali, the complainant as (PW-1) and Hafiz Ishtiaq Ahmad as (PW-2), whereas Azhar Raza Gillani was examined as CW-1 and Akhtar Raza Zaidi as CW-2 before the learned trial court.
5. The appellant in his statement recorded under Section 342, Cr.P.C, denied the allegation levelled against him by the prosecution and professed his innocence. However, to a question as to why this case is against him and why the PWs had deposed against him, he replied as under:- "I was Investigating Officer of case FIR No.31-2007 registered under Sections 302/34 PPC at P.S. Shah-wali. Khalid and Mahboob relatives of complainant were nominated accused of said case and I arrested them and also recovered weapon from them. Further complainant had been pressurizing to exonerate Kamal Ahmad and Dilshad Ahmad in the said murder case but I held them guilty and they were also declared guilty by my predecessor Muhammad Ayyub Lodhi SHO.
This all annoyed the complainant and he filed false application against me and during investigation by different Investigating Officers, I was declared innocent and case was recommended to be dropped. Complainant was inimical towards me due to above grievance and deposed falsely while witnesses are his close relatives and they also at the behest of complainant, deposed falsely."
The appellant did not opt to make statement under Section 340(2) Cr.P.C. And he tendered in his defence evidence, attested copy of FIR No.55-2007, P.S. Shahwali (Ex.DA), order dated 25.04.2008 (Ex.DB1), inquiry report dated 19.04.2008 (Exh.DC), final report dated 18.03.2010 (Ex.DD), copy of order dated 05.06.2013 passed by the trial Court (Ex.DE), copy of Zimni dated 29.06.2007 in case FIR No.31- 2007 under Sections 302/34 PPC P.S. Shahwali (Mark DA), copy of FIR No.31-2007 P. S. Shahwali (Mark DB).
6. On the completion of the trial, the learned trial court found the case against the appellant to have been proved beyond any reasonable shadow of doubt, therefore, convicted and sentenced him as cited supra. Hence the instant appeal before this Court.
7. Learned counsel for the appellant has contended that the sentence awarded to appellant is unwarranted by law and against the fact of the case & harsh one. The prosecution has miserably failed to establish the guilt of appellant beyond any shadow of doubt and to produce the independent corroboration of tainted piece of evidence as evidence on record does not warrant the conviction of appellant.
There are certain infirmities in the judgment which are sufficient grounds for the purpose of acquittal of the accused-appellant, therefore, the appellant is liable to be acquittal.
8. On the other hand, the learned Deputy Prosecutor General assisted by learned counsel for the complainant has controverted the contentions raised by the learned counsel for the appellant and maintained that the appellant is nominated accused in the FIR with specific role attributed to him.
The prosecution has proved its case against the appellant beyond any shadow of doubt by producing trust worthy evidence. According to the investigation, the prosecution fully connected the appellant with the crime committed by him and prayed for dismissal of this appeal.
9. Arguments heard and record perused.
10. The allegation against the appellant is that he had received illegal gratification of Rs.3,50,000/- from the complainant partly for "declaring innocent Kamal Mustafa and Dilshad Ahmad (accused), cousins of the complainant in case FIR No.31-2007 under Sections 302/34 PPC". The stance taken by the complainant regarding the circumstances which constrained him to give illegal gratification was that there were some lapses on the part of the complainant that no mention of time, dates and places of part payment of illegal gratification/bribe which was allegedly handed over to the appellant by the complainant. Moreover, no witness has been produced by the prosecution who has seen the complainant while giving money to the appellant nor has any PW been produced during the trial in this regard except his real brother namely Hafiz Ishtiaq (PW-2). The appellant neither received any such amount from the complainant nor same has been recovered from him during the investigation. Thus, I am of the confident view that the complainant has failed to produce any independent witness in support of his version/purpose before the learned trial court against the appellant.
11. Perusal of record shows that prior to registration of this case, preliminary inquiry was conducted by Syed Akhtar Raza Zaidi, Deputy Director (Investigation), (ACE), Multan, who found the appellant guilty and registration of case was recommended by him. Subsequently, the matter was re- investigated without any application made on behalf of appellant, wherein he was declared innocent and the droppage of the proceedings was recommended by Naeem-urRehman, Deputy Director (Investigation), ACE, D.G. Khan on 18.03.2010.
12. Liaquat Ali, complainant (PW-1) & Hafiz Ishtiaq Ahmad, (PW-2) are both real brothers inter-se, inimical towards the appellant and interested witnesses as their cousins Kamal Mustafa and Dilshad Ahmad are accused of case FIR No.31-2007. Liaquat Ali (PW-1) stated that he went to the appellant Muhammad Akram, S.I, who was I.O. Of said case, for declaring them innocent and allegedly handed over the aforesaid bribe in this regard, who neither declared them innocent nor returned the said amount of illegal gratification and then instant case was lodged against the appellant, but during the investigation, instant case was found false against the appellant. One tainted piece of evidence cannot corroborate another tainted piece of evidence, otherwise the very necessity of corroboration would be frustrated as per law laid down by the Superior Courts of Pakistan in cases reported as "Mursal Kazmi @ Qamar Shah and another. Vs. The State" (2009 SCM R 1410), "Saeed Ahmed. Vs. The State and others" (2015 Y.L.R. Lahore 140) and "Khalid Javed and another. Vs. The State." (2003 SCM R 1419). The prosecution dishonestly gave-up Muhammad Asif and Mazhar Hussain, allegedly the eye-witnesses without any plausible explanation. Mazhar Hussain Shah was the star witness of the case as according to the complainant, he borrowed Rs.1,00,000/- from Mazhar Hussain Shah in order to give the bribe to the appellant, but said Mazhar Hussain was never produced before the trial Court in order to prove the prosecution case. It means that said Mazhar Hussain does not want to make deposition in favour of the prosecution. Even I.O.
Of the case has not been produced before the trial Court. The complainant had even belied his own statement recorded in his examination-in-chief and had suppressed the truth by telling lie having no sanctity of oath. The depositions of (PW-1 & PW-2) are full of dishonest improvement, contradictions on material point and (PW-2) had created serious doubt about their veracity and credibility. Reliance can be placed in this regard as reported by the August Supreme Court of Pakistan in case of "Muhammad Rafique and others. Vs. The State and others" (2010 SCM R 385).
One Akhtar Raza Zaidi appeared as CW-2 whose secondary evidence regarding the report Ex.PB made by Akhtar Javed was recorded, but Akhtar Javed has not been produced, whether he has died or in abroad. Azhar Raza Gillani, Circle Officer, ACE appeared as CW-1, who had only lodged the FIR and not investigated the matter. Perusal of Ex.PA/1 also does not reveal the time and manners of giving bribe to the appellant.
13. It is settled law that if evidence in shape of question does not put to the accused under Section 342 Cr.P.C, same cannot be read in evidence and even cannot be considered qua the guilt of the accused-appellant. I have also gone through the statement of the appellant recorded under Section 342 Cr.P.C, wherein no time, date and place has been mentioned qua giving the bribe to the appellant. In this regard reliance can be referred in case reported as "Muhammad Shah. Vs. The State" (2010 S.C.M.R. 1009).
14. The above said glaring lapses on the part of the prosecution are sufficient to make the story carved in the FIR against the appellant doubtful and the benefit of such doubt is always extended in favour of the accused. For giving the benefit of doubt, it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right as per law laid down by the August Supreme Court of Pakistan in the following cases:- "Muhammad Akram. Vs. The State." (2009 SCM R 230)
"Ayub Masih. Vs. The State." (PLD 2009 S.C. 1048)
"Muhammad Khan. Vs. The State" (1999 SCM R 1220), "Bashir Begum.Vs. Safdar Ali & another" (2005 S.C.M.R. 1038).
"Ghulam Qadir and 2-others. Vs. The State" (2008 S.C.M.R. 1221)
15. Admittedly, no tainted currency notes have not been recovered from the appellant in spite of the fact that he remained on physical remand for a considerable period. The examination-in-chief of (PW-1) shows that he has not mentioned the dates of each payment of alleged bribe and has also not mentioned the place on eve of payment of alleged bribe, but on the other hand, (PW-2) in his examination-inchief has given dates of alleged payment of bribe which clearly shows that not only the examinations-in-chief of (PW-1 & PW-2) are contradictory to each other but also shows a malafide attempt on the part of both real brothers (PWs-1 & 2) to involve the appellant in the false case. In such an eventuality the fact of giving money to the appellant as bribe and the conversation between the appellant and the complainant had to be seen/overheard by the witnesses, who should be produced before the learned trial Court but these important aspects are missing in this case. Even otherwise law is quite settled on the point that a single circumstance creating reasonable doubt in a prudent mind is sufficient to discard the whole evidence adduced by the prosecution witnesses. So taking into consideration this golden principle of criminal jurisprudence and by extending benefit of doubt to the appellant, it is hereby observed that the prosecution remained unable to connect the appellant with the commission of alleged offence.
The prosecution is bound to prove its case having stood on its own legs beyond any shadow of doubt and if any doubt emerges from evidence, the accused is entitled for the benefit of the same as per law laid down by the August Supreme Court of Pakistan in case reported as "Pir Mazhar-ul- Haq and others. Vs. The State through Chief Ehtasab Commissioner" (PLD 2005 S.C. 63), wherein it has been held that the onus of proving everything essential to the establishment of the offence is on the prosecution and it does not cast any burden on an accused person to prove that no crime was committed by him, by proving facts specially within his knowledge, nor does it warrant the conclusion that if anything is unexplained, which the Court thinks the accused could explain, he ought therefore to be found guilty. The learned trial Court ignored the principles of law declared in the above referred case law.
16. The up-shot of my above said discussed is that this Court has come to an irresistible conclusion that the prosecution has failed to prove the case against the appellant beyond any reasonable shadow of doubt. Consequently, the instant appeal is hereby accepted and the impugned judgment dated 07.05.2015 is set-aside. The appellant is acquitted of the charge, who is in jail and jail authority is directed to release him forthwith, if not required in any other case.