1. The appellant Dr. Ashfaque Hussain, has filed this appeal against the Judgment dated 30th November, 1978, Special Judge Anti-Corruption (Provincial) Karachi, whereby the appellant was convicted under section 161 and section 5(2) of Act of 1947 and sentenced him to suffer R. I. To 3 years and to pay fine of Rs, 1,000 or in default to suffer R. I. To six months more.
2. Prosecution case in brief is that one Aftab gave knife injuries to Munwar Hussain (hereinafter referred to.As complainant) who went and lodged report at P. S. (Police Station) Ferozabad, Karachi on 30th July, 1976 and Police after registering the case referred him to Jinnah Hospital for treatment and certificate, from where he was sent to Police Surgeon for opinion about nature of any injury.
3. The complainant along with letter reached Emergency Ward C. M. W. Civil Hospital at 11.30 p.m.
4. Where he met.Appellant who demanded Rs, 500 from complainant in presence of Ghulam Abbas for issuing certificate. The complainant told Doctor that he had no money on which it was decided that on next day he should bring the amount in the evening in the Hospital or come to his house and he gave a chit pertaining to his residential address. On next day complainant lodged report.
5. The raiding party went in Hospital but appellant was not available. Again on 1st August, 1976 Anti- Corruption Inspector alongwith complainant, Magistrate and Mashirs went to the Civil Hospital where appellant accepted Rs, 500 from complainant and on search the tainted money was recovered from him.
6. Prosecution examined five witnesses in support of the case. Whereas appellant/accused prodcued one defence witness.
7. P. W. No, 1 Ghulam Abbas stated that he took Munawar complainant to Casualty Ward of Civil Hospital where appellant met them and told them to wait and that one Chaprasi came and told them that there was practice to pay the Doctor. He has further stated that Doctor/appellant demanded Rs, 500 which they promised to pay on the next day. They went to the Anti-Corruption Police where Munawar lodged report. After that they came to Civil Hospital but appellant was not available. On third day he (Ghulam Abbas) and complainant along with Anti-Corruption Inspector went to Civil Hospital and handed over Rs, 500 to appellant which he kept in nefa of shalwar, thereafter accused came out from room and amount was recovered from the nefa of shalwar of appellant. He in his cross-examination admitted that he was arrested in car-lifting case along with complainant where Chaprasi of Appellant gave evidence against them. He has stated that neither the Magistrate nor Inspector of Police could see what was happening inside the room when amount was paid to Doctor/Appellant.
8. P. W. Munawar Hussain complainant-stated that Ghulam Abbas took him to Civil Hospital where appellant demanded Rs, 500 for issuing certificate and Chaprasi also told me to give Rs, 500 to Doctor. On next day they contracted S. P. Who directed Md. Amin Inspector to register the case. He lodged F. I. R. And went to Civil Hospital along with An ti-Corrugtion Inspector, Magistrate but appellant was not available, so on the next day i,e, 1st August 1976 again they went Civil Hospital where appellant met them. He has stated that appellant took him across the room towards small apartment with screens where he handed over tainted money to him which he kept in the fold of his shalwar and after delivering both came out where he gave signal where Inspector recovered Rs, 500 from the fold of shalwar in presence of mashir and Magistrate the mashirnama was prepared and he signed it. He in cross-examination admitted that case of car-lifting was registered against them. He has stated that mashirnama was prepared in the wagon which was parked near ,the Hospital. He has denied the suggestion that amount was kept in 'nafa' by appellant.
9. P. W. 3 Najaf Ali Exh. 12 stated that on 30th July, 1976 he registered F. I. R. Of complainant under section 324/34, P. P. C. Against Aftab and referred him to Jinnah Hospital for treatment.
10. P. W. 4 Muhammad Ramzan Chachar, Assistant Commissioner stated that on 31st July, 1976 he after observing necessary formalities proceeded to Civil Hospital with Anti-Corruption Inspector, complainant and mashir but appellant was not available so on next day i,e, 1st August, 1976 again they went Civil Hospital where appellant was present. He instructed complainant and mashir to go to the accused and hand over tainted money and give signal. He stated that Inspector took out money from the folds of the trouser of the accused and he attested mashirnama which was prepared by the In pector. He has stated that they did not hear the conversation between complainant and accused as they were in a room. He prepared raid report in the office of Anti- Corruption Inspector which he produced Exh. 15.
11. F. W. 5 Muhammad Amin is Anti-Corruption Inspector who recorded F. I. R. And arranged trap. He has stated that he went to Civil Hospital alongwith Magistrate, complainant and mashirs on 1st August, 1976. He secured tainted money from the folds of the trouser of the ppellant. He had not heard any conversation between complainant and accused. He had not secured medical certificate of complainant from Hospital.
12. The appellant denied the allegation against him. He stated in his statement Exh. 18 that he had been involved at the instance of Athar Naqvi of Anti-Corruption Department and witnesses were of questionable character as they were involved in criminal cases.
13. Mr. Azizullah K. Shaikh the learned counsel for the appellant argues that neither the demand of the bribe nor acceptance of money as bribe was established and on point of recovery there are material contradictions. He has cited 1972 PC. Li 836; 1973 P Cr. Li 833; 1978 P Cr. L J 855 and 1982 P Cr. L J 557.
14. Mr. Ghulam Ali Agha Advocate appearing for the State has not supported the conviction and argued that case has not been proved.
1. According to Mash irnama Exh. 7, the money was recovered from the nefa of shalwar{{URDU TEXT}} but complainant, Muhammad Ramzan Magistrate, and Muhammad Amin Inspector have stated money was recovered from the folds of shalwar of appellant whereas mashir Ghulam Abbas stated that recovery was made from nefa of accused.
2. Mr. Muhammad Ramzan and Muhammad Amin has stated that they could not hear the conversation between the appellant and complainant and they could not see the money being handed over. P. W. Ghulam Abbas stated amount was handed over in his presence but complainant says that he was alone when he gave money to appellant. It has been admitted that Chaprasi of appellant was witness against complainant and mashir Ghulam Abbas in carlifting case. Medical Certificate and papers have not been secured by the Investigation Officer. The circumstance that appellant though alleged to have demanded money but was not present on the day fixed in the hospital or at his residence also creates doubt. In a case Muhammad Jamil v.
15. Summary Military Court it was been held that when tainted money is not passed on to the accused in the presence of a Magistrate and Magistrate does not hear the conversation between the parties before the raid the possibility that the complainant may have talked on some other point and on this point case of Allah Ditta v. The State give guidlines for deciding trap cases.
16. In view of the above discussion I hold that the prosecution has failed to establish its case against the appellant. Consequently I accept the appeal and set aside the conviction and sentence and acquit the appellant. He is on bail. His bail bond stands cancelled. 1982 P Cr. L J 557 1982 P Cr. L J 729