' This appeal is filed against the impugned judgment dated 14-3-1981 of learned Special Judge Anti-Corruption, Karachi, whereby appellant has been convicted under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced to R.I. For six months and a fine of Rs,1,000, in default of the payment whereof further sentenced to R.I. For one month.
2. Briefly stated the relevant facts giving rise to this appeal are that appellant at the relevant time was LIDS/Head Clerk in the Office of K.D.A. At Orangi Town, Karachi. Complainant Ghulam Rasool, who is owner of Ration Shop, wanted to have the plot, on which Ration Shop was constructed, to be regularised by the K.D.A. In that context complainant had sent some telegrams to K.D.A. For early disposal of his application for regularisation of the plot. It is alleged that appellant came to the shop of the complainant, offered assistance and demanded bribe of Rs,3,500. Ultimately bargain was struck at Rs,1,500, out of which Rs,1,000 was paid at the spot and the balance was to be paid later. This talk and the bargain took place in presence of the witnesses namely Doctor Ibrahim, Kalay Khan and Shamshad, who were present at the ration shop. Subsequently on another occasion it is alleged that appellant again came to the shop of the complainant and demanded the balance of Rs,500, out of which Rs,100 was paid to him and complainant promised to pay remaining Rs,400 on the following day. On the next day appellant was due to come to collect Rs,400, complainant went and lodged report with Inspector Anti-Corruption Establishment, Karachi.
The F.I.R. Is registered on 30-1-1976 at 10-35 a.m. P.W.7 Ather Ali Naqvi registered F.I.R. And investigated the case. He typed the statement of the complainant verbatim and called the Additional City Magistrate to supervise the trap who came and in whose presence numbers of currency note of Rs,400 were noted and handed over to the complainant vide Mashirnama of handing over which was attested by Mashirs Muhammad Haneef and Chand Khan. On the same day a raid was arranged at the shop of complainant and about 2.00 p.m. Raid party including the Magistrate, Investigating Officer and two Mashirs reached the shop of the complainant, where the Magistrate and the I.O. Sat in the adjoining room and saw the incident from a hole in the wall. Two Mashirs sat with the complainant in the shop. It is alleged that appellant came to the shop, sat down on the chair which was lying near the hole in the wall and demanded money and the complainant paid Rs,400, which the appellant put in the pocket of his shirt and in the meantime, the Magistrate and the I.O. Also rushed in the shop and disclosed their identity and demanded production of tainted money upon, which the appellant took out Rs,400 from his pocket and handed them over to the Magistrate, who tallied the numbers with Mashirnama of handing over and then recovered the same vide a separate Mashirnama which was attested by the same Mashirs. Appellant was taken in custody and 10. Collected some documents from the Office of K.D.A. And after completing the investigation presented the challan in the Court.
3. Before the trial Court prosecution examined seven witnesses in support of its case. P.W. 1 is Ghulam Rasool complainant who produced F.I.R. Exh. 3, handing over memo. Exh. P.4 and review petition Exh. 5 which purports to be addressed to the Director-General I .D.A., Karachi by Syed Jalal Ali. P.W.2 is Mohomed Haneef Mashir, who has produced recovery memo. Exh. 7 and personal search memo. Exh. 8 P.W.3 is Muhammad Jaffer from K.D.A. Who was at the relevant time Administrative Officer, Orangi Town, Karachi. He deposed that during the investigation of the case he took out four telegrams from the rack of the appellant and handed them over to the I.O. He produced these documents as Exhs. 11 to 14. P.W.4 is Mr. Mohomed Sarwar Khan, who has deposed that at the relevant time he was ACM. Court No, 17 at Karachi and on 30-1-1976 he came to the office of the Investigating Officer, where complainant and F.I.R. Were produced before him. He verified the facts from the complainant and then in his presence I.O. Gave four hundred rupees notes to the complainant in his presence. Two Mashirs were present who attested the Mashirnama of handing over of tainted money. He was present, at the time of raid in the Ration shop of the complainant. Tainted money was handed over to the appellant in his presence and afterwards the same was recovered from the appellant, who was taken into custody. This witness further produced trap supervision report Exh.
17. P.W.5 is Shah Muhammad, Head Constable and process-server. He deposed that he could not serve process on Kalay Khan and Ali Hadi Naqvi. He produced such reports Exhs. 20 and 21. P.W.6 is Azhar Qayoom, who has deposed that at the relevant time he was working as L.D.C. In the Office of Administrative Officer Orangi Town. After appellant was arrested, he took out the file from almirah of appellant on the direction of the Administrative Officer. He produced the papers before the Administrative Officer. P.W.7 is Athar All Naqvi, Inspector who investigated the case as stated above.
He has furt er produced recovery memo. Exh. 23, letter dated 3-2-1976 Exh. 24, which is addressed to him by the Administrative Officer, Orangi Town, K.D.A. Karachi. In this letter it is stated that telegrams addressed by Ghulam Rasool had been found. I.O. Has further produced sanction order Exh. 25, application under section 540, Cr.P.C. By P.D.S.P. And order thereupon of the Court as Exh.
26. In this application it was prayed that 1.0. Be called again for further examination on the point that eleven survey slips, a file and inward register were not produced as they were not relevant.
Prayer in the application was granted by the trial Court.
1.0. Has further produced eleven survey slips Exhs. 21/1 to 28/11, one file containing four leaves as Exh.
29, before the trial Court. Appellant in his 342, Cr.P.C. Statement admitted that at the relevant time he was Senior Clerk-cum Head Clerk in the Office of Administrative Officer Orangi Town, K.D.A., Karachi and further denied the allegations levelled by the prosecution. It was further stated by him that on 30-1-1976 at about 2-30 p.m. He was called at the shop by the complainant while he was outside he was arrested by one Investigating Officer. He has denied that tainted money of Rs,400 was recovered by the Inspector from his possession, which was his own money and was not tainted. He further stated that complainant was a cheat and used to make fictitious sales of Government plots and produced certified copies as Exhs. 31 and 32 against the complainant. It was further stated that complainant is a stock witness of Orangi Town Police Station and also produced certified copies of three challans Exhs. 33, 34 and 35 in which complainant is shown as a prosecution witness. Appellant also produced photo copy of complaint lodged by one Shahid Perwazi to Administrative Officer, Orangi Town, K.D.A., which is Exh.
36. Appellant further stated that he has been falsely implicated by the complainant.
4. Appellant has examined one witness in his defence. D.W.1 Anwar Hussain has deposed that at the relevant time he was Senior Clerk in K.D.A. Re-Settlement Department. He brought in the trial Court file regarding complaints against Ghulam Rasool. He has further stated that the file contained applications to show that Ghuiam Rasool son of Subhan in collusion with K.D.A. Staff used to issue false and forged allotment orders. He produced documents in support thereof-as Exhs. 40, 41, 42 and 43.
5. I have heard Mr. Shoukat Zubaidi, Advocate for the appellant and Mr. Abdul Wall Makhdoom for A.G. For State. Mr. Zubaidi has submitted that there are inherent infirmities in the evidence of prosecution in the shape of material contradictions and improbabilities which make the evidence of prosecution highly unsatisfactory and unreliable. Further the prosecution has failed in its duty to prove the case against the appellant beyond doubt and that the benefit of doubt must go to the appellant.
6. Close analysis of evidence shows that according to the case of prosecution raid was made on 30-1-1976 at about 2-00 p.m. On the same day at about 10-35 a.m. F.I.R. Was lodged by the complainant. In F.I.R. It is mentioned by the complainant that on 10-1-1976 appellant came to his Ration shop and after showing the telegram demanded Rs,2,500 as illegal gratification for favouring the complainant with immediate regularisation of the plot in his name. Bargain was struck at R6.1,500 and the complainant paid Rs,1,000 at the spot and the remaining amount of Rs,500 was to be paid subsequently. At that time in the Ration shop witnesses Doctor Ibrahim, Kalay Khan and Shamshad were present. So the bargain was struck in presence of these witnesses.
Witnesses Doctor Ibrahim, Kalay Khan and Shamshad were not examined by the prosecution. P.W.
5 Shah Muhammad, Head Constable and process-server has deposed that he was given process for service on witnesses Kalay Khan and Ali Hadi Naqvi for service. He tried his level best but could not trace out Kalay Khan. So far the other witness is concerned, it was reported that he had gone to Lahore without leaving his proper address and was not likely to come back. Summons regarding Kalay Khan with report of process-server thereupon is Exh. 20, which is to the effect that the address of witness Kalay Khan is 4-D/94, Orangi Town, Karachi with the report that witness Kalay Khan is wanderer and was not traceable. It is obvious that earnest effort was not made by the process-server and no enquiries were made in Haryana Colony neither any further attempt was made to come to the house of wife of Kalay Khan again to serve him. Exh. 15 on the record of the trial Court is statement of P.D.S.P. Whereby P.W. Shamshad Ahmad had been given up for no reason stated therein. Prosecution has not offered any explanation for not examining these three witnesses namely Dr. Ibrahim, Shamshad Ahmad and Kalay Khan, in whose presence bargain was struck by appellant and complainant. These witnesses are specifically mentioned in F.I.R. And their 161, Cr.P.C. Statements were als3 recorded as is apparent from the record. So the presumption is permissible that if these witnesses had been examined by the prosecution, they would not have supported the prosecution case.
7. Secondly it is stated in F.1.R. By the complainant that on the day when bargain was struck Rs,1,000 was accepted by the appellant and one day before the filing of F.I.R. And raid, he accepted Rs,100 and for the remainder it was agreed that the appellant would come on the next day. The relevant portion from the F.I.R. Is reproduced as under:- "I have therefore come to report that Mr. Azam Head Clerk, K.D.A. Officer, Orangi Town, Karachi had demanded and accepted illegal gratification of Rs,1,100 in instalments as mentioned above and now he is demanding Rs,400 more as I have mentioned already which he has agreed to accept today."
8. F.I.R. Was lodged on 30-1-1976 at 10-30 a.m. And it is manifest that appellant was supposed to come to collect the last instalment of Rs,400 on that day i,e, 30-1-1976. In evidence also complainant had deposed that on 29-1-1976 appellant came to his Ration shop where he was paid Rs,100 and it was agreed that he would come again on the following day to take the remaining Rs,400. On the following day i,e, 30-1-1976 complainant came to Anti-Corruption Office where his complaint was registered and raid was arranged for the same day. Learned counsel for the appellant has submitted that in F.I.R. The time and place of arrival of appellant to collect Rs,400 is not mentioned hence it was not possible for the Inspector and the Magistrate to anticipate that the appellant would come at 2-00 or 2-30 p.m. And at what place to enable them to arrange the raid at that particular time and place. This is very much so and the time and place are not mentioned in the F.I.R. Only this fact is mentioned that the appellant had agreed to accept Rs,400 today. The learned counsel for the appellant has drawn my Attention to original F.I.R. In the record which is Exh.
3. The contents of this F.I.R. Are typed on the printed form of report. Date and time of report is typed as 30-1-1976 but time of report is not typed but is written in the handwriting as 10-35 hours. Just below the date in type. Date and time of occurrence and date and time of departure from police station are not typed but are given in handwriting. Date and time of occurrence is written in handwriting as 10-1-1976 and date and time of departure from police station is also written in handwriting as 30-1-1976 but time is not mentioned in both. Learned counsel for the appellant argued that when the whole F.I.R. Was typed then the date and time mentioned above were not typed purposely for the reason that it was not known as to what time the appellant would be coming for collection, hence these columns were left out half blank to be filled in subsequently, hence the element df manipulation could not possibly be ruled out. Complainant in his deposition before the trial Court stated that his complaint was typed out and he would not say whether the Inspector wrote any words or figures in his hand. Complainant has denied a suggestion that time of report was filled in by the Inspector at a later time after obtaining his signature. On this point P.W.7 Athar Ali Naqvi, Inspector who has investigated the case has deposed before the trial Court that on 30-1-1976, he had typed out the statement of complainant in F.I.R. Verbatim. In cross- examination I.O. Has stated that it was not a fact that at first he had written the report of complainant in hand and subsequently he has further admitted that time of lodging the report was not typed but it was written in hand. No further explanation is given by the I.O. For not typing the time and dates mentioned above. It is further admitted by the I.O. In cross-examination before the trial Court that F.I.R. Does not show the place and time when and where the appellant was to come to accept the illegal gratification. He has further admitted that in order to chalk out the plan of raid the time and place of arrival of accused is necessary. He has further admitted that time and place of arrival of accused is not mentioned in the challan.
9. On this point P.W.4 Mr. Muhammad Sarwar Khan has deposed that at the relevant time he was A.C.M. At Karachi. In his cross-examination before the trial Court he has admitted that time of arrival of accused person to receive the bribe must be known to him and to the police officer and so also the place. After going through F T R. Exh. 3 he stated that time and place where the accused was to come to receive the bribe money was not mentioned in it. He did not explain further as to how the raid was arranged in the absence of knowledge of time and place of arrival of accused. He admitted before the trial Court that in column No,2 of F.I.R. Exh. 3 the date and time was written in handwriting and not by type. He admitted that he did not enquire from the Inspector as to why this particular column was written in hand. To a suggestive question in cross the Magistrate stated that he could not say if the time of report mentioned in F.I.R. Was written subsequently to coincide with the trap proceedings.
10. Learned counsel for the appellant has pointed out that I.O. P.W.7 Athar Ali Naqvi has stated in his examination-in-chief before the trial Court that at the time of filing F.I.R. Complainant had stated before him that the remaining amount of Rs,400 was payable to the appellant on 31-1-1976. On the other hand the case of the prosecution is that this amount was to be received by the complainant on 30-1-1976 when the report was lodged and the raid was arranged. This appears to be inadvertent mistake made by the I.O. In his examination-in-chief. No clarification was sought from him in cross-examination. F.I.R. Exh. 3 clearly shows and the complainant also deposed that Rs, 400 were payable on the same day when the report was lodged. This point in particular stands clarified and needs no further consideration.
11. Next point urged on behalf of the appellant was that there were interpolations in Exh. 7, which is recovery memo. This memo. Shows that tainted money of four one hundred-rupee notes, numbers of which are mentioned therein, were recovered from the front pocket of the shirt of the appellant on 30-1-1976. In this context, P.W. No,7 Athar Ali Naqvi, 1.0., admitted in his examination-in-chief before the trial Court that there were some additions in the number of currency notes in Mashirnama Exh. 7, which were not done by him. He admitted those additions. He has admitted that in the description of the number of notes at serial No, 1 in Exh. 7 before "Z", "A" has been added and before "9" "1" has been added. At serial No,2 before "C" "1" has been added and before "2", "1" has been added. At serial No,3 before '8', "1" has been added and at serial No,4 before "A", "A" has been added and in between "Q" and "0", "1" has been added and in between '0' and '9', "4" has been added. I.O. Has further submitted carbon copy of Mashirnama of recovery as Exh.
23. This carbon copy Exh. 23 on the record instead of supporting the stand taken by I.O. Has added confusion by showing that it was not precisely carbon copy of Exh. 7 for the reasons firstly that under the signature of the Inspector the date in carbon copy is 30-1-1976 while date in original Exh.7 is 30-4-1976. Secondly in Exh.7 there are signatures of Mashirs Mohomed Haneef and Chand Khan which are not present in the carbon copy. This fact further shows that when carbon copy was prepared the Mashirs had not signed and the Mashirs had signed subsequently. This throws doubt on the authenticity of recovery memo. Of tainted money which is supposed to be most important document in the case of the prosecution. I.O. In utter confusion stated in his cross-examination before the trial Court that carbon copy Exh. 23 bore his signature in carbon but he did not remember if at the time of obtaining signatures of Mashirs there was a carbon in between the original and the copy or not ? In this context, P.W.4 Mr. Mohomed Sarwar Khan, Magistrate, deposed before the trial Court that he did not put his initial on the tainted money neither did not Mashirs. He gave the numbers of currency notes which were different from the numbers mentioned in Mashirnama Exh.
7. He stated voluntarily that there were additions in the Mashirnama, which were done by somebody afterwards and requested that the Mashirnama be sent to the handwriting expert. He further stated before the trial Court that he could not say if the Anti-Corruption Inspector had made those additions. Nobody is prepared to take the responsibility for these additions. Apart from these additions I am more impressed by the fact that carbon copy Exh. 23 does not tally with original Exh. 7 to the extent that there is difference in the date below the signature of Inspector and not only that but carbon copy does not have signatures of Mashirs. Inspector had himself produced the carbon copy to show perhaps that additions were made subsequently but he could not explain why the carbon copy did not carry signatures of Mashirs as was done in the original. In the circumstances it can be said that original recovery memo. Was not prepared at the time it is alleged nor it was attested at that time.
12. Inconsistency between original ecovery memo. Exh. 7 and carbon copy Exh. 23 can further be viewed in the light of the fact that both Mashirs namely Mohomed Haneef and Chand Khan who belonged to Orangi Town were conveniently available in the Office of Inspector in the Secretariat Blocks in Saddar at the time when complainant came to file F.I.R. And both these witnesses further signed Mashirnama of handing over Exh. 4, whereby the Inspector handed over tainted money to the complainant. Complainant denied suggestion before the trial Court that Mashirs Mohomed Haneef and Chand Khan accompanied him to the Anti-Corruption office but he admitted that he knew that Mohomed Haneef and Chand Khan were residents of Orangi Town. He further stated that police sent for Chand Khan and Muhammad Haneef from the Bus-stop opposite the Anti- Corruption Office. In this context, P.W.4 Mohomed Sarwar Khan, Magistrate has admitted that both Mashirs were present in the office of the Inspector and had signed Exh. 4 in his presence and the same Mashirs were members of the trap party and had signed recovery memo. Exh.
7. 1.0...Has stated before the trial Court that he did not remember if Mashirs Chand Khan and Mohomed Haneef had also come alongwith the complainant when he had come to lodge the report. When the Magistrate came the complainant and the two Mashirs were already sitting in the office. I.O. Has admitted that complainant and the two Mashirs were residents of Orangi Town. I.O.
Has further admitted that after the trap complainant and two Mashirs came together later on to his office. These two Mashirs were capable of obliging to any extent.
13. P.W.2 Mohomed Haneef deposed before the trial Court that the raid party reached Ration shop at 2-00 or 2-30 p.m. Accused was already sitting in the Ration shop. Magistrate and Inspector entered into adjoining room from the back. Accused demanded Rs, 400 from Ghulam Rasool.
Ghulam Rasool gave him Rs, 400 which he accepted and put into his inner pocket of shirt. Within five minutes Magistrate and Inspector rushed and the accused took out Rs, 400 from his inner pocket and gave to them. As against this complainant stated before the trial Court that he alongwith raid party returned to his shop at 12-30 noon. He, Mashirs Mohomed Haneef and Chand Khan sat in the ration shop while Magistrate and Inspector alongwith trap party sat in the adjoining room. At 2-00 p.m. Accused came in the shop. He gave him Rs, 400 which accused put in the inner pocket of his shirt. In cross complainant stated before the trial Court that accused was wearing something below his shirt. He put the amount in the inner pocket of his shirt or a 'bundy'. He had no coat, no tie nor 'sundhary' over his shirt. He was only wearing a plain shirt and nothing over it. In this context P.W.4 Mr. Muhammad Sarwar Khan has stated that he and Inspector were sitting in the room adjoining the Ration shop and there was a hole in the connecting wall. At about 2-00 p.m.
Accused came to the shop of the complainant and sat on the chair. Accused demanded Rs, 400 from complainant and assured him that his work would be done without loss of time. Complainant gave him tainted money. Accused accepted the money and kept it in the front pocket of his shirt. In the supervision report Exh. 17, which is a document prepared by the Magistrate, it is stated therein specifically that accused put the tainted money in his shirt's front chest pocket under his pull-over.
I.O. Has also stated that accused was wearing pull-over and he had put the tainted money in the pocket of his shirt under the pull-over. In the circumstances this point is controversial whether accused was wearing pull-over or not and whether the tainted money was recovered from the pocket of his shirt or from some other pocket in something which he was wearing under the shirt.
14. Whole evidence of prosecution replete with inherent discrepancies and inconsistencies is to be read in juxtaposition with statement of appellant under section 342, Cr.P.C. Wherein claim is made by him of enmity with the complainant and the e3cuments he has produced and through his defence witness to show as claimed by him that complainant was a cheat making fictitious sales of Government land in Orangi Town hence in that context several complaints were filed against him and the appellant used to help wronged persons. It is also claimed by the appellant that complainant is a stock witness of Orangi Town Police Station. He has produced certified copies of F.I.R. Exh. 31 which shows that report was filed by one Hafeezuddin for offence under section 506, P.P.C. It is stated in that report that documents of lease in respect of plot were obtained from Ghulam Rasool and when they were checked with the record it was found that no such plot existed.
When Ghulam Rasool was confronted with these documents he threatened Hafeezuddin. In F.I.R.
Exh. 32 it is mentioned that Ghulam Rasool son of Subhan owner of Ration shop cheated the complainant to the tune of Rs, 8,000 by way of snatching a duplicate copy of allotment order issued in favour of one Muhammad Haneef. Exh. 33 shows at serial No, 4 Ghulam Rasool as a prosecution witness in Charge-Sheet No, 93/74, F.I.R. No, 93/74 of Police Station Orangi Town. Exh. 34 is copy of Charge-Sheet No, 443/75, F.I.R. No, 500/75 of Police Station Orangi Town showing Ghulam Rasool as a prosecution witness at serial No,3. Exh. 35 is Charge-Sheet No, 281/74 and F.I.R. No, 321/74 of Police Station Orangi Town, showing Ghulam Rasool as prosecution witness at serial No,2.
15. D.W.1 Anwar Hussain brought the record from the K.D.A. Office and showed to the trial Court that complaint was filed by Hafeezuddin and Rasheed Khan against Ghulam Rasool. It was alleged therein that Ghulam Rasool had forged allotment order. He brought another file showing complaint against Ghulam Rasool regarding ficitious sale of site of petrol pump in Sector 1-C Orangi Town to Rasheed Khan as Exh.
41. He produced copy of F.I.R. Exh. 42 to show that report was lodged by Rasheed Khan against Ghulam Rasool for offences under section 420/468/471, P.P.C.
16. The evidence produced by the appellant in the trial Court explains the background of the complainant and his undesirable activities in collusion with K.D.A. Staff in allotment of plots. Even otherwise it is bounden duty of the prosecution to prove its case against accused beyond doubt.
The prosecution has failed in its duty to produce satisfactory and reliable evidence to warrant conviction. Prosecution evidence indisputably suffers from several inherent infirmities which have been detailed and commented upon above and need not be reproduced again. It will suffice to say that prosecution evidence is unsatisfactory and unreliable and is open to severe criticism.
' For the facts and reasons mentioned above, I hold that prosecution has failed to prove the case against appellant beyond doubt and benefit of that doubt must go to the appellant. I, therefore, set aside the impugned judgment and allow the appeal, in the result appellant stands acquitted.