Appellant above named, being aggrieved by judgment dated 5-5-1980 of the learned Special Judge, Anti-Corruption, Provincial, at Karachi, whereby be has been convicted under section 161., P.
P. C. Read with section 5(2)-II Act, 1947 and sentenced to suffer R. I. For 7 months and fine of Rs. 500 or in default to suffer further R. I. For one month, has preferred the above appeal, on the following facts and grounds :-
2. The case of the prosecution is, that on 31-7-1976 complainant Maroof bad parked his taxi near Korangi Hotel, situated in Saddar Karachi, when a traffic constable came to him and told him, that he was called by Traffic Sub-Inspector, who was standing near the milk shop at a distance of 30/40 paces. The complainant took the documents of his taxi and accompanied the constable and he produced the documents before appellant Muhammad Zaman, inspected his documents and finding no fault in the documents which were complete in all respects, withheld his licence on the ground, that be had parked the taxi on the road, which was in contravention of the Road Permit issued to him. The appellant told the complainant, that he would challan him in the Court of law, therefore, he had retained his licence with him. The complainant requested him, that he was a poor man and as such he should be excused. The appellant told him, that the licence could only be returned to him on payment of illegal gratification of Rs. 30 to him. The complainant told him, that be had no money-at the moment and promised to pay him in the evening: The complainant went and related the incident to his brother Ishaq, who advised him to lodge the report with the Anti.
Corruption Police. The complainant accordingly lodged the report with Anti-Corruption Police. He was then taken by the Inspector to the Magistrate, who verified the contents of F. I. R., by examining the com--plainant. The Inspector then gave three notes of Rs. 10 to the complainant in presence of the Magistrate and Mashirs Afsar Ali and Zaheer and prepared such mashirnama. He was then takeb to Saddar at Dawood Pota Road, where the complainant and Mashir Afsar went to the appointed place, where the appellant was to receive the money, whereas the Magistrate and the police party stood on the opposite side near the Church. The complainant was instructed by the police to place his hand on his head, after the tainted money was passed on by him to the appellant. The appellant arrived at the appointed place at 5.35 p. m., when the complainant demanded his licence from him, but the complainant was told by the appellant, that the licence could only be returned to him after the payment of Rs.
30. The complainant then passed on the tainted money of Rs. 30 to the appellant, when the appellant returned the licence to him. The appellant put the tainted money in the right pocket of his pant, when the complainant gave the pre-arranged signal, as a result of which the Magistrate and the Police Party reached the Wardat and the appellant was caught hold of by the Anti-Corruption Inspector. The Inspector took out the tainted money from the pocket of the appellant. The number of the currency notes secured from the possession of the appellant tallied with the one mentioned in the Mashirnama. Police prepared such Mashirnama, read out to Mashirs and the Magistrate and obtained their signatures. The appellant was then taken to the Anti-Corrup--tion Officer. The Magistrate sent the raid report to the Anti-Corruption Police. The Police after other usual investigation and obtaining the prosecu-- tion sanction of the appellant, sent up the appellant before the trial Court.
3. When the charge was framed against the appellant, he pleaded not guilty and claimed to be tried.
4. The case of the appellant is of false implication, as according to him, he had already challaned the appellant for three four times, due to which the appellant bore ill will, grudge and malice with him.
5. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
6. The learned Advocate for the appellant in support of the above appeal submitted as under :-
(a) That the prosecution story is improbable and false.
(b) That the complainant had an admitted enmity with the appellant on account of the fact, that the appellant had challaned the complainant for traffic offences.
(c) That there are material contradictions in the statements of prosecution witnesses inter se.
(d) That the tainted notes were neither marked or initialled by the Magistrate.
7. In view of the above submissions the learned Advocate for the appellant submitted, that prosecution has failed to prove its case beyond reasonable doubt against the appellant. The learned Advocate for the appellant relied upon case reported in 1981 P Cr. L J 1086.
8. The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment in question, in view of the above grounds narrated by the learned Advocate for the appellant and on account of the fact that the sanction for prosecution suffers from legal locuna, as even the date of the sanction was not mentioned, thereon.
9. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as the case, cited by the learned Advocate for the appellant.
10. Prosecution case rests upon the statements of P. Ws. Muhammad Ramzan (Magistrate), S. Nazar Ali (Mashie), Maroof (Complainant) and Masood Abdul Khan (I. O.). I have gone through their statements. I -find material contradictions in the statements of these P. Ws. About the dress, which appellant was wearing at the time of his arrest. It is admitted position, that Magistrate was standing on opposite foot-path on a road, which 6 normally a very busy road. Mashir of recovery of alleged tainted money from possession of appellant does not belong to the locality, which is full of restaurants. It is admitted position, that tainted money was not initiated by the learned Magistrate, before the same was handed over to complainant P. W. Maroof. It is also admitted position, that appellant, previous to this trap had challaned complainant for traffic offences couple of times and hence enmity alleged by the appellant gets prima facie support from the admission of the complainant on this account, in his cross-examination otherwise --statements of P. Ws. Do not inspire confidence, on account of material contradictions inter se between them on various facts.
Presence of P. Ws. A Nazar Ali (Mashir) is doubtful as he stated before the learned trial Court, that appellant was in uniform, whereas P. W. Muhammad Ramzan (Magistrate) has categorically stated, that appellant was not in uniform, when hg was apprehended. In view of this, statement of appellant that P. W. Maroof (complainant) has falsely implicated him in this case due to enmity cannot be ignored.
11. Keeping in view the above observations, I am of the opinion that prosecution has failed to establish its case beyond reasonable doubt against the appellant.
12. Therefore, I allow the above appeal and set aside conviction and sentences awarded to the appellant and acquit him by giving him benefit' of doubt and discharge the bail bonds executed by the appellant.