' The appellant abovenamed, being aggrieved by judgment dated 6th March, 1976 of the learned Special Judge (Central) Karachi, in case o. 74/65, whereby appellant had been convicted under section 165-A, .P.C. Read with section 161, P.P.C. And sentenced to suffer R.I. For 3 years rid a sum of Rs, 21,000 recovered from the appellant was confiscated, had referred the above appeal, on the following facts and grounds :
2. Complainant Shujaat Ali Qarni, Section Officer, Directorate-General f Ports & Shipping, was holding additional post of Secretary, Freshers eamen Recruitment Board. In latter capacity, complainant used to issue no objection certificates to the seamen seeking jobs in the shipping coinanies, without taking training in Seamen Training Centre. In April, 1975, complainant was approached by the appellant for issue of No Objection certificate (NOCs) in respect of 19 applications, which were pending before aid Board. Since a substantial number of seamen who had completed their training in Seamen Training Centre, and who were awaiting their recruitments, was available in April, 1975, hence complainant proposed on-issue of NOCs. He told this to the appellant, who visited him on the ext. Day and who told him that applications, in which he was interested, ere recommended by a Minister. On getting further refusal, the appellant ersisted in his request and offered to pay a handsome amount to the complainant, if latter agreed to issue NOCs.
Complainant persisted refusing to issue the NOCs. Subsequently, appellant visited the complainant each day and went on repeating his request for issue of NOCs. Finally on-24th April, 1975 at 11 a.m.
The appellant once again visited the mplainant in his office and offered to give him Rs, 20,000 for issue of OCs on 19 applications, in which the appellant was interested. Complainant pretended to agree and the appellant told him, that he would visiting him again in the office on the same day at 4 p.m. With sh of Rs, 20,000.
3. Upon this, complainant went to office of and lodged a coming. F.I.A. Registered the case and then arranged a trap. Inspector uhammad Amin took mashirs Muhammad Ayub and Muhammad Aslam the office of the complainant on 24th April, 1975 at 4 p.m. And waited aside the office room, at a place from where they could look inside the lice room of the .Complainant. At the appointed time, the appellant came there in the office room of the complainant, with a brief case. After taking seat, the appellant questioned complainant, if his NOCs. Were ready. On getting the reply in the affirmative, the appellant told the complainant, that he had brought "Amanat" of Rs, 20,000 and then demanded NOCs. From the complainant. Complainant asked the appellant to count money brought by him. Upon this, the appellant took out the money from the brief case, kept it over the table of the complainant and started counting. In the meantime. Inspector Muhammad Amin accompanied by mash irs entered the office room, recovered the currency notes brought by the appellant, arrested the appellant and then prepared such mashirnama. Inspector secured from the complainant 19 applications, in which the appellant was interested. He also secured relevant documents. He searched person of the appellant and secured from him one list of candidates for NOCs. a brief case, a note book etc., under a mashirnama. After due investigation, the appellant was challaned.
4. Prosecution examined complainant Shujaat Ali Qarni, Exh. 3, P.Ws. Muhammad Ayub Exh. 7 and Muhammad Amin Exh.
11. Prosecution was closed under statement Exh.
15.
5. In this statement Exh. 16 the appellant denied the prosecution allegations and alleged, that all the witnesses were persons of police. In his lengthy statement Exh. 16, the appellant admitted that on 24th April, 1975 at 8-15 a.m, P.Ws. Razzak and Muhammad Muslim came to him and requested him to accompany them to the Directorate-General of Shipping and Ports for getting them NOCs.
On certain applications, which were recommended by a Minister of Sind Government. The appellant, who gave his profession as Estate Broker, added, that he replied to Razzak and Muhammad Muslim, that he would accompany them after transacting a business in respect of a plot. That he took said persons to one Abdul Ghani and took from the latter Rs, 21,000 and kept that amount in the brief case and then at 11 a.m. He went to the Directorate-General, Shipping and Ports with said Muslim and Razzak. Appellant added that he saw a crowd of 10 or 12 persons inside office, outside the office room of the complainant waiting for NOCs. Appellant added that he entered the office room of the complainant with Muslim and Razzak and then complainant was questioned about seven applications for NOCs. In which Muslim and Razzak were interested. Appellant claimed to have called upon the complainant either to do the work or to refuse. He alleged tha a hot conversation went on between the complainant and Muhammac Muslim and that he threatened to report against the complainant and their there was exchange of hot words between him and the complainant, what telephoned somebody and then left office after giving him threats. Appellant added that he and other persons remained in same office till 2 pin. When the complainant returned with two persons and told him and other to go to office of Shipping Master in Pakistan Secretariat. Appellan further stated, that after reaching near the office of Shipping Master, the two persons, accompanying the complainant, told him that they were police people and that they would take him to the office of F.I.A. Office, which was adjacent to office of Shipping Master.
Appellant alleged that in F.I.A office, he was detained and told that he had insulted the complainant. H alleged, that police secured from his brief case money he had receive from Abdul Ghani, in connection with purchase of a plot. Appellate added that it was in F.I.A. Office that the complainant drafted his complain on the basis of recoveries made from him. Appellant concluded h statement by saying that he was implicated in above circumstances.
6. The appellant entered the witness-box and stated on oath that his statement, recorded under section 342, Cr. P.C. Be read as his evidence.
7. In his defence, the appellant examined D.W.s Muhammad Razzak Exh.
18. Faridoon Khan Exh. 19 and Abdul Ghani Exh. 20 and closed his side vide Exh.
22.
8. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently the appellant abovenamed had filed the above appeal, on the grounds mentioned in the memo. Of appeal.
9. The appellant expired during the pendency of the above appeal and consequently the learned Advocate for the appellant submitted, that the above appeal as far as the conviction and sentence awarded to the appellant has abated, but he was pressing the above appeal as far as the confiscation of the sum of Rs, 21,000 recovered from the possession of the appellant, on the following grounds :-
(a) That prosecution had failed to prove its case beyond reasonable doubt against the appellant.
(b) That the statement of the appellant under section 342, Cr. P.C. Was fully corroborated by D.Ws.
Produced by the appellant and as such there were two versions of the incident in question on record before the learned trial Court and the version set up by the appellant was plausible and as such benefit of doubt ought to have been given to the appellant.
(c) In the alternative the learned Advocate for the appellant submitted, that money recovered from the possession of the appellant could not have been confiscated under the provisions of section 511, Cr. P.C., as it was not the case property within the meaning of the said section.
10. The learned Advocate appearing for the State on the other hand submitted, that the conviction of the appellant is based on the statements of the prosecution witnesses, which remained unchallenged in their cross-examination and consequently the prosecution has proved its case beyond reasonable doubt against the appellant.
11. That on account of the conviction of the appellant the learned trial Court was fully justified in confiscating a sum of Rs, 21,000 recovered from the possession of the appellant, under the provisions of section 517, Cr. P.C.
12. I have carefully considered the above submissions made by the learned Advocates deform me and have gone through theR & P of the learned trial Court as well as through the impugned judgment.
13. Since the appellant has died during the pendency of the above appeal, the above appeal abates as far as sentences awarded to the appellant. However the learned Advocate for the appellant has challenged confiscation of Rs, 21,000 recovered from the possession of the appellant, by the learned trial Court under section 517, Cr. P.C. On the following grounds :
(a) That the money seized from the possession of the appellant, at the time of arrest of the appellant cannot be considered to be property regarding which offence was committed.
(b) That the money seized from the appellant cannot be treated as property used for the commission of an offence as envisaged by section 517, Cr. P.C.
14. I. Find great force in the above contention of the learned Advocate for the appellant, as admittedly no offence in respect of the seized money was admitted. As far as contention of the learned Advocate for the State, that the money in question was used for commission of the offence, also in my opinion has no force. The appellant, it is alleged brought this money for alleged bribe. It is an admitted position, that the money in question was not in fact transferred and delivered to complainant Sujat Ali, but the same, it is alleged was taken out from the brief case and was being counted by the appellant and was lying on the table. In view of this at the most attempt was being made to bribe the complainant, even if the prosecution story is to be believed. In any case in my opinion the meaning of the words : property or document which has been used for the commission of any offence ; in section 517, Cr. P.C. Would normally relate to articles like knife, dagger, fire-arms, actually used in the commission of an offence. In the present case the alleged offence giving trial to the complainant was not complete, when the money was seized and as such it cannot be said to have been used for the commission of an offence. This view of mine is fully supported by case reported in 1971 P Cr. L J 19-352-391.
15. In view of my above conclusions, confiscation of the money in question by the learned trial Court was not legally justified.
16. Therefore while dismissing the above appeal as far as the conviction of the appellant is concerned, as abated, I allow the above appeal as far as confiscation of sum of Rs, 21,000 recovered from the possession of the appellant and direct that the said amount be returned to the legal heirs of the appellant, on their producing succession certificate, in respect of the said amount.
17. The above appeal stands disposed of in the terms of the above judgment.