ABDUL RASOOL MEMON, J.---This appeal is preferred against the judgment of Special Judge Anti- corruption (Provincial) Karachi dated 30.04.2012 whereby appellant was convicted under sections 161, 467, 468. P.P.C. read with Section 5(2) of PCA, 1947 and awarded sentence to suffer R.I. for three
(3) years with fine of Rs.100,000/- (rupees one lac) and in default to further undergo three (3) months.
2. In brief prosecution case is that complainant's wife Mst. Shamail Waseem had appeared in IXth Class examination of Secondary Education Board, Karachi in 2006, but due to less marks, she reappeared in 2007 even in this term failed in 2/3 papers; that he went to Secondary Board of Education for getting enrolment card and supplementary exam form, where he met with office superintendent Muhammad Qayoom (Appellant) who told him not to take trouble of appearing in supplementary exam and demanded Rs.10,000/- for enrolment card and for increasing marks in marksheet and getting her passed in Xth class exam. Rs.15000/ against each paper. Besides this Rs.20,000/- were demanded by him for increasing number of marks. in two papers of IXth class, thus total settlement was made in 75,000/-, he received Rs.25,000/- and at the time of giving enrolment card received Rs.45,000/-. In addition to that he demanded Rs.10,000/- more for giving mark sheet but since the complainant was not willing to give bribe this time, he reported the matter to Deputy Director ACE Karachi where formal FIR was registered and thereafter matter was entrusted to S.I. Ashraf Ali and Assistant Director Ali Khan Bhayo was deputed to conduct raid, in whose presence I.O. noted serial number of five currency notes of rupees one thousand and one note of rupees five hundred denomination and handed over to complainant under a mashirnama Ex.8/3 attested by mashirs M. Rehan and M. Arif to pass on the same on demand to the official asking bribe. The raiding party proceeded to the place fixed for handing over and taking over bribe viz., at Quetta Noorani Hotel situated near Gulshan-e-Iqbal Disco Bakery. The raid was conducted and the said tainted money was recovered from the left hand of appellant/accused and mark sheet of complainant's wife was recovered from his front pocket vide recovery memo. Exh.9. After completing legal formalities and investigation, appellant was sent up for trial.
3. At the trial, prosecution examined P.W.-1 P.C. Muhammad Azam mashir at Ex.7, who produced memo of arrest and mark sheet at Exs.7/1 and 7/2 respectively, so also tainted money at Art. A/1 to A/6, P.W.2 Ali Khan Bhayo A.D. ACE, who produced letter for supervising trap, FIR, Mashirnama of handing over trap money mashirnama of recovery of tainted money and trap report respectively and P.W. 3 S.I. Mohammad Ashraf I.O. at Ex.9, who produced application/complaint made by complainant to DDACE, Letter for permission of investigation and relevant educational record of complainant wife at Exs.9/1 to 12, thereafter closed its side. In his statement recorded under section 342, Cr.P.C. while denying the allegations accused/appellant took the following plea.
"I am innocent. It is a. matter of professional jealously. My 2 senior officials namely Saleem Khan and Shafiullah by changing my ACR got my promotion cancelled. I brought such fact to the knowledge of Chairman who called an inquiry. I produce inquiry report and my appeal to the Chairman. I have been promoted after inquiry and the above said officials got annoyed and involved me in this case malafidely with ulterior motives. After my arrest they distributed and posted a letter with the signature of I.O. to different place to disgrace me. Since my arrest I have been sent on leave by force. I also produce a letter given to me by complainant while leaving country."
4. He however did not examine himself on oath in disproof of the change nor produced any evidence in defence.
5. Learned counsel for appellant argued that the alleged raid was conducted without associating Magistrate to process, while only ACE Staff witnessed the occasion therefore, the proceedings held were of less significance and could not be relied upon. He further argued that neither complainant nor any other private person was examined in the case and in fact there was no independent and trustworthy evidence to connect the appellant/accused with the alleged offence, even then he was convicted by the trial Court therefore the impugned judgment is liable to be set-aside.
6. On the other hand learned DAG appearing on behalf of state while supporting the impugned judgment submitted that the appellant was caught red hand with tainted money and a false mark sheet for which bribe was obtained by him was recovered from his pocket on the spot, thus is not entitled to any benefit of doubt.
7. I have given my patience hearing to the arguments advanced by the parties counsel and have gone through the material available on record. It is the case of prosecution that the appellant/accused had made a total demand for gratification to the complainant Muhammad Waseem Bhatti and in response thereof received an amount of Rs.70,000/- but further demanded for an amount of Rs.10,000/- to do a favour and get passed his wife in exams of 9th and 10th class.
His apprehension while receiving the money for the purpose was also alleged therefore, the initial burden was on the prosecution to establish that appellant being a public servant made a demand accepted gratification and apprehended having in custody the tainted currency notes. In trap cases mere recovery notes by itself is no proof of demand and payment of bribe unless all precautionary measures are taken by the raiding party to exclude the possibilities of false implication as law requires and so is the demand of propriety that conviction shall be recorded on the basis of the unimpeachable evidence. I have carefully examined the entire evidence with the assistance of parties counsel and have also gone through the impugned judgment. A careful scrutiny of the record would reveal that there are not only procedural defects in this case going to the very root of the case but certain events are unexplainable. The deputation of an assistant director, ACE for supervising the alleged trap may be legal but circumstances are to be shown for bypassing the Magistrate. There is nothing in the evidence of prosecution if any attempt was made for obtaining service of Magistrate to supervise the trap, even in the letter produced at Ex.8/1, no reason is mentioned as to why Assistant Director was being deputed to supervise the alleged trap instead of Magistrate, though the alleged trap was made in the day time and prosecution could have arranged the services of Magistrate to supervise the alleged trap but no efforts were taken in this connection it makes the deportation of Assistant Director with ulterior motives and malafide intentions.
8. Apart from above, it is an admitted position that neither complainant nor private Mashir Muhammad Rehan have been examined in the case. The entire prosecution case is based on the evidence of the official employees of ACE, after perusing their evidence I have observed that the tainted money was never passed on to the appellant by complainant within the seen of raiding party nor Assistant Director (P.W.2) heard the conversation between complainant and appellant before money Was handed over to appellant. Patently, the tainted currency notes are shown to have been recovered from the possession of appellant by the raiding Assistant Director but it is not clear as to what had transpired between the parties before the alleged transaction. In case of Bashir Ahmed v. The State (2001 SCM R 634) it has been held as under:-- "4.............It is well-settled by now that "in such like transactions not only the payment of bribe money to the accused by the complainant is to be seen but also the conversation between the above parties has to be heard by the members of the raiding party. This would be necessary to eliminate the chances of involvement of innocent people."
9. In addition to above, I have also noticed major contradictions in c the evidence of prosecution witnesses. According to mashirnamas Ex.8/3 and 7/1. The alleged tainted money was handed over to complainant and after raid recovered from appellant in presence of P.W. P.C. Mohammad Azam and P.W. Muhammad Rahan (not examined) but P W. Muhammad Azam throughout his statement has not said a single word about presence of said Muhammad Rehan with him at any occasion.
P.W. Ali Khan Bhayo Assistant Director deposed that complainant and mashirs were sent to accused and he and P.W. Ashraf Ali I.O. near hotel to wait for signal and on complainant signal they went there and arrested the accused with tainted money while Mashir P.W. M. Azam has deposed differently stating that when he reached close to accused, the raiding officer had already recovered the alleged tainted money and documents from the accused. This statement shows that alleged recovery was not made in his presence. This P.W. has already denied to have seen the transaction and tainted money. P.W. Ashraf Ali I.O. has deposed that as per record of Secondary Board Karachi mark sheet of complainant's wife allegedly recovered from the possession of accused was forged one but it is matter of record that signatory of the alleged Marksheet Syed Jawed Iftikhar or even any officer of the Board has not been examined in the case to verify its genuineness.
10. In view of the above discussion the trial Court seems to have failed to evaluate the evidence in its true perspective and has also failed to dilate upon the contradictions appearing in the evidence of witnesses, which has made the prosecution story as unreliable and unbelievable, therefore, I do not feel satisfied with the prosecution evidence and hold that the prosecution has failed to prove the charges against the accused beyond shadow of reasonable doubt.
11. Above are the reasons in support of short order dated 22.03.2017 passed in open Court whereby the appeal was allowed and the impugned judgment was set-aside and the appellant was acquitted from the charge.