NAIMATULLAH PHULPOTO, J.-- Appellant Akhter Mehmood was convicted for offences under sections 161, 342, 34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, vide judgment dated 07.12.2006 rendered by the learned Special Judge, Anti-Corruption (Provincial)
Karachi and sentenced to rigorous imprisonment wider section 342, P.P.C. For one year R.I. And to pay fine of Rs.1,000/-, in case of default in payment of fine it was ordered that accused shall suffer SI for one month more. Appellant was also convicted under section 161, P.P.C. And sentenced to three years R.I. And to pay fine of Rs.60,000/-. In case of default in payment of fine, it was ordered that accused shall suffer SI for six months more.
2. Appellant has challenged his conviction and sentence before this Court through the present appeal.
3. The necessary facts giving rise to the present appeal are that one Syed Hasnain, Sub-Inspector, ACE, Karachi, lodged F.I.R. No.15/2000 for offences under sections 161, 342, 34, P.P.C. Read with section 5(ii) of the Prevention of Corruption Act, 1947. It is alleged that in the night of 23rd/24th December 1998 at 01:00 a.m., appellant took the complainant and his son to CIA Centre Saddar, Karachi and demanded bribe money of Rs.70,000/- for release. It is further alleged in the F.I.R. That complainant and his son were wrongfully confined and maltreated at the CIA Centre, Karachi. It is stated that bribe money was paid to the appellant in presence of PWs. Haji Idrees and Shoukat and Qadir Bux. Appellant was arrested during the investigation. After usual investigation challan was submitted against the accused in the Court of Special Judge, ACE (Provincial) Karachi under above referred sections.
4. Charge was framed against the accused on 12.06.2002 at Ex-2, to which he pleaded not guilty and claimed to be tried.
5. At the trial, prosecution examined PW Fazal Subuhan at Ex-4, who produced photocopy of Complaint at Ex-4/1, Photostat copy of ID card at Ex-4/2 and other documents. W Faqirullah at Ex-5, PWs Haji Idrees and PW Hazrat Hussain were given up by the prosecutor vide his statement at Ex-6 and 7, respectively. Prosecution examined PW Shoukat Ali at Ex-8, PW Ahmed, PW Rana Fazaluddin and Sakhidad were given up by the prosecution vide statement at Ex-9 and 10, respectively on the ground that they have been won over. Sub-Inspector Syed Hasnain at Ex-11 and PW Imtiaz Ali Shah at Ex-12 were examined. Thereafter, prosecution side was closed vide statement at Ex-13.
6. The statement of accused was recorded under section 342, Cr.P.C. At Exhibit-14 in which accused claimed false implication in the case and denied the prosecution allegations. He raised plea in his statement that he had called the complainant and his son at police station as he had received secret information about their involvement in the murder of Mst. Hayyat Bibi. Accused Akhtar Mehmood did not lead evidence in his defence, however, he examined himself on oath in disproof of the prosecution allegations.
' Prosecution Evidence
7. Complainant Fazal Subhan has deposed that on the night of 23rd/24th December 1998 he was sleeping in his house along with his son, it was 01:00 a.m., his door was knocked. He along with his son came at door and saw police party. It is stated that police took them to the police station where appellant/S.H.O. Disclosed to complainant party that they have been brought at police station for interrogation regarding murder of Mst. Hayyat Bibi alias Sherbano. It is stated that S.H.O.
Demanded bribe from them for release. He has further deposed that he paid cash of Rs.70,000/- to the appellant in presence of PW Shoukat for their release. In cross-examination complainant hasadmitted that PWs Haji Idrees and Shoukat are his cousins. He had denied the suggestion that all the valuable articles of Mst. Hayyat Bibi have been taken by him after her murder. He had denied the suggestion that no bribe was paid to the appellant/accused for release.
8. PW Faqeerullah, who is son of the complainant has also given the same episode and stated that he was detained by the S.H.O. Along with father and S.H.O./appellant after receipt of cash of Rs.70,000/- as bribe through PW Shoukat released them. He has denied the suggestion that he was brought to the police station along with his father for the interrogation of the murder of Mst. Hayyat Bibi.
9. PW Haji Idrees has been given up by learned prosecutor on the ground that he has been won over by the accused.
10. PW Shoukat Ali, who is the star witness in this case, deposed that accused had not demanded or received bribe from him or from Haji Muhammad Idrees for the release of complainant and his son.
He was declared hostile by prosecutor and was cross-examined by P.I. He denied the suggestion that he has been won over by the accused.
11. PWs Ahmed and Rana Fazalullah have also not been examined by the prosecution on the grounds that have been won over by the applicant/accused.
12. Syed Hasnain, Sub-Inspector, ACE Karachi had deposed that on 23.02.2000 he received approval from Deputy Director, ACE,-Karachi for registration of case against, SIP Akhtar Mehmood. He registered the FIR No.76 / 1999 regarding illegal gratification against the appellant. During investigation, he recorded 161,Cr.P.C. Statements of the PWs. On the conclusion of the investigation, he submitted challan.
13. In the cross-examination, he has admitted that he has not produced the original complaint of complainant before the trial Court. He has also admitted that he has not produced copy of sanction for prosecution of accused before the Court.
14. I have carefully heard the learned counsel for the parties and have gone through the entire evidence with their assistance. In support of this appeal it has been argued by the learned advocate for the appellant that it is the case of no evidence at all and appellant has been convicted by the trial Court on the basis of evidence, which did not inspire confidence. It is argued that the complainant made complaint against the appellant because complainant and his son were interrogated by the accused in the murder case of Mst. Hayyat Bibi. He has submitted that material witness Shoukat Ali has been declared hostile, other PWs namely, Haji Idrees, Ahmed, Rana Fazaldin, Sakhi Dad have not been examined by the prosecution. He has argued that prosecution has failed to prove its case and prosecution case is doubtful. As against that learned counsel for the State has supported the impugned judgment and argued that the prosecution has succeeded in proving its case against the appellant beyond any reasonable doubt.
I5. After hearing the learned counsel for the parties and scanning the entire evidence, I have come to the conclusion that the appellant has been convicted and sentenced by the learned trial Court on insufficient evidence. Complainant has deposed that he paid bribe money to the accused on 25.12.1998 and FIR was lodgedon 23.02.2000, there was inordinate delay in lodging of FIR which has not been satisfactorily explained. PWs Haji Idrees, Ahmed, Rana Fazaldin, Sakhi Dad were material prosecution witnesses, but they have been given up by the prosecution on the ground that they have been won over by the appellant. No examination of these P'Ws by prosecution would be fatal to the prosecution case. PW Shoukat Ali, before whom it is alleged that bribe was paid to the appellant, has been declared hostile. Despite his cross-examination by P.I. Nothing favourable to the prosecution came on record. Original complaint made by the complainant on the basis of which FIR has been lodged has not been produced in the evidence before trial Court. Mere word of the complainant and his son that they have paid Rs.70,000/- to the appellant in presence of PW Shokat as bribe for release was not sufficient to record conviction in the circumstances when appellant has raised specific plea that complainant and his son were called by him at CIA Centre for interrogation in murder of Mst. Hayyat Bibi. Defence version might be true, trial Court has not discussed defence plea according to settled principles of law. PW Shoukat has not supported version of complainant that bribe money was delivered to appellant in his presence. In such circumstances, it would be unsafe to rely upon the evidence of the complainant and his son without independent corroboration, which is lacking in this case. No prosecution witness has deposed about having seen passing of any money as bribe to accused. No money had been recovered from possession of accused. No official of Anti-Corruption Establishment or local Magistrate had been associated with alleged payment .Of money as bribe, on basis ofwhich case had been lodged. Payment ofbribe in above stated circumstances by an interested complainant and resulting criminal case would be seen with some suspicion. Court has to be very careful in weighing evidence of interested witnesses. Judicial approach has to be cautious in dealing with such evidence. Trial Court has recorded conviction against accused Akhter Mehmood on mere surmise and not on any evidence. There was no confidence inspiring evidence to establish charge against above appellant. A conviction is certainly not to be based on the weakness of defence, but only on the strength of prosecution case.
16. The concept of benefit of doubt to an accused person is deep-rooted in our Country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right, as held by the Honourable Supreme Court in the case of Tariq Pervez v. The State (1995 SCM R 1345). In the present case, there are several circumstances as discussed above, which create reasonable doubt in the prosecution case.
17. After attaining all aspects of the case and going through the record I have come to the conclusion that the prosecution has failed to prove its case can against the appellant beyond any reasonable doubt. Therefore, benefit of doubt is extended to the accused. The appeal is, therefore, allowed. Conviction and sentence of the appellant recorded by the trial Court are set aside and appellant is acquitted of the charge. Appellant has been admitted to bail by this Court during pendency of the appeal, his bail bond/surety shall stand discharged.