The appellant above-named, being aggrieved by judgment dated 30th October, 1975 of the learned Special Judge, Anti-Corruption (Central), Karachi by which appellant has been convicted under section 161, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act and sentenced to suffer R.I. For three months and the fine of Rs. ' 2,000 or in default to suffer further R.I. For three months, has preferred the above appeal, on the following facts and grounds:
2. According to the prosecution, complainant Karim Bux required passports for himself and for some of his relatives namely Abdul Karim, Mst. Imam Zadi, Mst. Pannah Khatoon, Piral Nawab, Mst.
Roshan Khatoon, Jummo, Mst. Kheraan. He submitted such applications against receipts on 27th February, 1973 and on 7th March, 1973 and on 12th March, 1973 in the Regional Passport Office; Hyderabad, where appellant Mazhar Iqbal was Delivery Clerk for Passports till 21st July, 1973. On a later date the appellant was approached for the passports of above-mentioned relatives of the complainant. The appellant took from the complainant the receipts obtained about applications for passports and promised to deliver the passports. Subsequently on 5th July, 1973, the appellant showed relevant passports to the complainant and advised him to collect the same on the following morning, after the same were duly signed by the concerned officer. On the following date complainant was informed in the Passport Office, that the appellant had been transferred to Sukkur. Complainant met the appellant at Sukkur where the appellant promised to deliver the passports after one week at Hyderabad, where the same were said to be lying. In the meantime the appellant was transferred to Karachi. At Karachi the appellant on being contacted told the complainant, that he could have the passports on payment of Rs. 50 for each of the eight passports, which were lying with P. W. Aziz a relative of the appellant. The appellant gave to the complainant a chit for Aziz and asked him to collect the passports from Aziz after paying him the amount demanded at the rate of Rs. 50 per passport. Complainant got prepared photo copy of the chit which was handed over to Aziz, who demanded Rs. 50 for each of the eight passports.
Complainant refused to pay this amount and hence Aziz did not give him the passports.
Complainant went to P.W. Nawab Hussain a P.P.P. Leader of Kacha Qila Hyderabad and gave him above facts. Nawab Hussain took the complai--nant to Passport Officer who disclosed, that the passports in question were not available in the office. Complainant tried to contact the S.P. Anti--- Corruption, Hyderabad, who was not available and then he submitted his application to a Provincial Minister, who endorsed the application to the D. C. Hyderabad, who endorsed it to the passport office. Thereafter P. W. Nawab Hussain recorded statement of the complainant and forwarded it with his letter to the Pakistan Special Police establishment at Karachi. Inspector Shafiullah of P. S. P. E. Registered the case and took up investigation.
3. The Inspector directed the complainant to contact the appellant and fix with him the time and the place for payment of money demanded by the appellant for the delivery of passports. The complainant contacted the appellant and promised to pay him the requisite amount on 2-3-1974 at 1 p.m. In the canteen situated near Passport Office Karachi. In the presence of Mashirs Aslam and Tahir Aziz the Inspector gave four currency notes of Rs. 100 each to the complainant to be given to the appellant at the appointed time and place. Thereafter the complainant accompanied by Mashirs and police party went to said canteen. The complainant made the Mashirs and the police people sit inside the canteen and went out and brought the appellant in the canteen. In presence of Mashirs and police people the complainant gave tainted currency notes to the appellant, who put the amount in his pant pocket. On being given signal by the complai--nant the police caught the appellant and took his personal search and secured the trap money of Rs. 400 from his person.
Number of the currency notes secured from the appellant tallied with the number of the notes given by the Inspector to the complainant. After preparing Mashirnama of trap, the police brought the appellant to office of P. S. P. E. Police secured the eight passports in question from P. W. Aziz Hyder, who was given such letter of the appellant. After due investigation police challaned the appellant.
4. After submission of challan, trial Court, under a letter dated 8th September, 1974, moved the Government of Pakistan for grant of sanction to prosecute the appellant. Government of Pakistan issued the sanction order Exh. 33 on 14-11-1974.
5. Substance of the accusation was read over and explained to the appellant, who was called upon to show cause as to why be should not be convicted for the offences punishable under section 161, P. P. C. And section 5 (2) of the Prevention of Corruption Act. The appellant did not plead guilty.
6. The prosecution examined complainant Karim Bux Exh. 27 and P. Ws. Jam Nawab Hussain Exh. 3; Malik Muhammad Aslam Exh. 16, Aziz Hyder Exh. 19, Tahir Aziz Exh. 21, Muhammad Ismail Exh. 22 and Shafiullah Exh.
31. P. W. Abdul Rahman was given up and prosecution was closed, vide Exh. 34.
7. In his statement Exh. 35, the appellant denied the prosecution allegations but admitted, that the eight passports in question were kept by him with P. W. Aziz Hyder. He also admitted, that he gave to the complainant a chit for P. W. Aziz Hyder wherein he directed Aziz Hyder to receive a sum of Rs.
50 from the complainant and hand over to him the passport of Mst. Bhiraee and to retain Rs. 10 from said amount and remit Rs. 40 to .Him by money order. The appellant produced his statement in writing Exh. 36 wherein be stated that complainant Karim Bux, who had been bringing applications for passport with recommenda--tions of high personalities, took from him Rs. 500 for getting his brother employed. Appellant added, that his brother could not be employed by the complainant whom he caught after 2-- months in the Passport Office, Hyderabad. That the complainant returned to him Rs. 100 and promised to return Rs. 400 later on. The appellant further stated, that on getting transfer orders he was leaving Hyderabad for Sukkur, when at the bus stop of Latifabad he met the complainant, who declined to pay back Rs. 400 when said amount was demanded from him and made nose. That out of the passersby who collected, some persons including D. Ws. Zainul Iba, and Ahmed Razi took the parties inside a hotel and brought about a settlement by which the complainant kept 8 passports lying with him as security with the appellant, for due payment of Rs. 400. The appellant admitted having kept said 8 passports with P.
W. Aziz Hyder his relative at Hyderabad. Appellant added, that he resumed charge at Sukkur and then he was transferred to Karachi where the complainant met him and obtained from him a chit for Aziz Hyder for handing over passport of Mst. Bhirai to the complainant against payment of one instalment of Rs.
50. The appellant further stated, that one week later the complainant came to him at his office, told him that entire money had been arranged and asked him to arrange delivery of the 8 passports. After saying the complainant took the appellant to the canteen of the Passport Office Karachi, as stated. Appellant added that in the canteen the complainant was giving him the money, when two police officers came and caught him although he had not received the money.
In this way the appellant alleged that he was falsely implicated Appellant denied that he was receiving any illegal gratification. All the passports in question, were said to have been delivered to the various applicants by the Passport Office, Hyderabad, in absence of the appellant.
8. The appellant did not examine himself in defence, but examined D. Ws. Ahmed Razi Exh. 37 and Zainul Iba Exh. 38.
9. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above-named as here--inbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
10. The learned Advocate for the appellant in support of the above appeal submitted as under
(a) That the appreciation of evidence by the learned trial Court is erroneous, since the stand taken by the appellant is not only plausible but reasonable and as such the benefit of doubt ought to have been given to the appellant. In support of this contention the learned Advocate for the appellant relied upon cases reported. In PLD 1962 SC 489 and PLD 1971 Kar. 78.
(b) That the alleged trap was not supervised at all by the learned Magistrate and one Mashir out of two, who witnessed the alleged passing of money has not supported the prosecution case and was declared hostile. In addition to this P. W. 3 Aziz Hyder did not support the prosecution case, but on the contrary supported the defence version, was not declared hostile, by the prosecution. The learned Advocate further submitted that the appellant examined two defence witnesses and both of them .Have supported the defence version. However, their evidence was rejected by the learned trial Court with--out cogent reasons. In support of these contentions the learned Advocate for the appellant relied upon cases reported in PLD 1962 SC 489 and PLD 1971 Kar. 78.
(c) The learned Advocate appearing for the State on the other hand sub--mitted, that he fully supports the impugned judgment, as this is based after due appraisal of the prosecution evidence and is based on cogent reasons specially as the recovery of the tainted amount is not disputed even by the appellant. In support of his contentions the learned Advocate for the State relied upon case reported in PLD 1973 SC 418.
11. 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 impugned judgment and the cases cited by the learned Advocates before me.
12. Possession of 8 passports in question and receipt of Rs. 400 from P. W. Karim Bux in canteen are not disputed by the appellant. However appellants stand in this connection was, that he had to recover Rs. 41.0 from P. W. Karim Bux and as security for the said amount, the passports in question were kept by P. W. Karim Bux, with him. In view of these facts on record the only question, which requires consideration is whether defence plea of the appellant as true or plausible. For this purpose it is important to note the date of receipt of passport from Passport Office and the date of complaint lodged by P. W. Karim Bux. According to prosecution case all these passports were collected by the appellant from Passport Office Hyderabad prior to 21-7-1973 when appellant was transferred from Hyderabad to Sukkur. P. W. Karim Bux however first complained about these passports to P. W. 1 Jam Nawab Hussain on 1-3-1974. However prior to this, except for approaching appellant, he did nothing to report against the appellant, although passports in question were recommended by influential persons. This delay on the part of P. W. Karim Bux prima facie creates doubt, about his story. In addition to this appellant examined 2 D. Ws., who have fully supported his version, besides P. W. 3 Aziz Hyder. Even P. W. Karim Bux in his cross-examination admitted, that appellant did talk to him about job for his brother. Keeping in view all these facts on record, the defence version of the incident prima facie seems to be plausible and as such at least creates doubt regarding prose--cution version and consequently cases reported in PLD 1962 SC 489 and PLD 1971 Kar. 78 fully support the contentions of the learned Advocate for the appellant mentioned in para. 8(a) herein above. The case cited by the learned Advocate appearing for the State relates to second contention of the learned counsel of appellant and has no bearing on first contention mentioned in para. 8 (a).
13. Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him e benefit of doubt and discharge the bail bonds executed by the appellant.