This appeal is directed against the Judgment of the learned Special Judge, Anti-Corruption, Karachi, dated 16-7-1984, whereby he found the appellant guilty under section 161, P.P.C. Read with section 5(2) of Act II of 1947 and sentenced him to R.I. For two months and to pay a fine of Rs.500 in default of payment of fine to undergo R.I. For one month.
2. The facts in brief are that. P.W., Karamat Hussainis friend Qamar was challaned alongwith Riaz Hussain and Iqbal in an a abduction case. Riaz and Iqbal were admitted to bail. Bail application of Qamar was filed in the Court of Sessions on 8-9-1982, but the appellant who was working as a clerk in the Court of Sessions demanded Rs. 300 as bribe from the complainant for presenting his bail application before the Sessions Judge. It is the case of the prosecution that on 20-9-1982 at about 9-00 a.m. Complainant again went to the accused who again demanded money for the same purpose, The complainant promised tee make the payment and thereafter went to the Anti- Corruption office and lodged the F.I.R. Which was recorded by D.S.P. Abdul Hakeem Kharal. The raid was headed by Nazar Muhammad Pathan, A.C.M. Karachi accompanied by D.S.P. And Major Sajid Ali of D.M.L.A. Head quarters. The D.S.P. Handed over Rs.300 as tainted money to the complainant in presence of Major Sajid Ali, Nazar Muhammad Pathan, Magistrate and Mashir Manzoor and prepared such Mashirnama, The numbers of the currency notes were mentioned in the Mashirnama The raiding party came to the Court of Sessions at about 1.00 p.m. And waited in the High Class Restaurant which was situated opposite Sessions Court. The complainant was instructed to bring the appellant to the restaurant and pass on the tainted money in the restaurant in their presence. P.W. Karamat Hussain went to the Court of Sessions alongwith Manzoor, Ilyas Khan and two constables. Mashir Muhammad Manzoor was instructed by the D.S.P. To be present at the time of the transaction and listen the conversation which may take place between the complainant and the accused. After about one hour the complainant came back and informed the D.S.P. That Sessions Judge was sitting in the Chamber and the appellant would come to the restaurant after the Sessions Judge had left his office. The D.S.P. Directed the complainant to go to the Sessions Court and somehow bring the accused to the restaurant, after the Sessions Judge had left his office. After 20/25 minutes Mashir Muhammad Manzoor came to the restaurant and told the D.S.P. That complainant had passed on the tainted money amounting to Rs.300 to the accused. He was directed to produce accused and bring him to the restaurant. P.W. Karamat Hussain came to the restaurant alongwith the appellant, Mashir Muhammad Manzoor, Ilyas and two constables. After the accused had taken the seat in the restaurant, the raiding party disclosed their identity and asked the accused to hand over the tainted money. On the refusal of the appellant the D.S.P. Took his personal search and secured Rs.635 from the pocket of his Shalwar. He handed over the money to the Magistrate and the Major who compared the number of the notes with the numbers mentioned in the Mashirnama Exh. 7 and they found that three notes of Rs.100 were the same. Mashirnama was prepared in presence of Muhammad Manzoor, the Magistrate and the Major. The appellant was arrested. They all came to the Court of Sessions to the room where the accused used to sit and found file of bail application lying on the table of the accused which pertained to the same bail application, copy of, which was produced before the D.S.P. On perusal of the file it was found that the bail application was transferred by the District and Sessions Judge to the Vth Additional District and Sessions Judge and it was dismissed for non-prosecution.
After usual investigation the case was sent to the Court concerned for trial. Originally the case was challaned in the Military Court but later on it was sent to the Court of Special Judge Anti-Corruption after obtaining necessary sanction. The appellant did not plead guilty to the charge.
3. The prosecution examined Mushtaq Hussain, Nazar Muhammad, Magistrate, Karamat Hussain complainant, Mashir Muhammad Manzoor, D.S.P. Abdul Hakeem Kharal, Major Sajid and Ilyas Khan.
The appellant examined Khawaja Naved Ahmad, Muhammad Abdul Rauf, C.O.C. Of the Court and Muhammad Ishaq Faiz, Advocate. The learned Special Judge accepted the case set up by the prosecution against the appellant, disbelieved the accused and discarded the evidence of the defence.
4. In substance the evidence against the appellant was that he demanded Rs.300 from the complainant for presenting the bail application of Qamar before the Sessions Judge. The tainted money was secured by the D.S.P. In presence of the Magistrate. The evidence of the defence witnesses was discharged by the learned Special Judge on the plea that it does not inspire confidence.
The appellant in his statement under section 342, Cr.P.C. Stated that there was some dispute between in. Laws of the appellant and Abbas Ali, Liaquat Ali, Master Mohiuddin and Dr. Yaqoob over an amenity plot in Orangi Town area and brother-in-law of accused and his two other relatives have filed a suit against Abbas Ali and three others named above. Since he was related to the plaintiffs in the civil suit the defendants became his enemies and they sent applications in different names against him to the different authorities. K.M.C. Removed the unauthorised possession of above defendants. According to the accused complainant Karamat Hussain is nephew of Dr. Yaqoob defendant in .The civil suit and he used the bail application filed on behalf of Qamar as the means for' taking revenge from him. As regards the acceptance of amount of Rs.300 from complainant Karamat Hussain, it is aid by the accused that Karamat Hussain came to him and requested in to introduce some advocate. The accused introduced D.W. Khawaja Naveed Ahmad, Advocate who accepted the brief and directed the complainant to bring a Vakalatnama duly signed by Qamar and some amount for meeting the expenses for filing the bail application and leave the same with accused Jang Sher. Complainant Karamat Hussain handed over the Vakalatnama on 18-9-1982. On 20-9-1982 complainant handed over Rs.300 to the accused for payment to Mr. Khawaja Naved Ahmed, Advocate. The complainant took the accused to High Class Restaurant on some pretext where he was arrested by the police and money was secured from his possession. Subsequently complainant Karamat Hussain has admitted before D.W. Faiz Muhammad, Advocate that he had made a complaint against the accused as his uncle had sustained loss in respect of the plot. He further stated that bail application was presented before Mr. Abdul Rauf C.O.C. Who submitted it to the District and Sessions Judge, who transferred it to the learned Vth Additional Sessions Judge for disposal according to law.
5. Learned counsel for the appellant attacked the evidence of Karamat Hussain complainant, the star witness in this case on the ground that he was arrested in a theft case. He was a man of bad character but implicit reliance has been placed on his evidence. The record shows that this witness Karamat Hussain was arrested in a theft case and he had committed the theft in the house of the lady who employed him. The theft was committed during the two days service. The character of this witness was doubtful. The statement of a witness who had bad antecedents must be examined with care. Learned counsel has referred to the cases reported in 1983 P Cr. L J 1753; 1983 P Cr. L J 1453; 1972 P Cr. L J 83; wherein it has been observed that implicit reliance cannot be placed on the evidence of a witness whose character is doubtful.
6. In the instant case the money had not been passed on to the accused in the presence of the Magistrate and the raiding party. The Magistrate and the D.S.P. Who appeared as witnesses did not hear the conversation which took place between the accused and the complainant. The amount was delivered by the complainant to the accused in spite of the direction given the D.S.P. To the complainant to bring the accused to the restaurant so that money may be passed on to the accused in their presence. This was not done by the complainant and, therefore, what transpired between the complainant and the accused cannot be stated by the D.S.P. And the Magistrate. The learned counsel has also referred to the case reported in 1973 P Cr. L J 833; 1972 PCr.LJ 836; 1982 P Cr. L J 557; 1978 P Cr. L J 885 and 1975 PCr.LJ 1286.
7. The learned trial Judge disbelieved the evidence of the defence witnesses on the plea that the Vakalatnama signed by Qamar Baloch was not accepted by the complainant and it was improbable to engage the counsel through the accused when the parties were inimical with C each other. Relationship of D.W. Faiz Muhammad with the complainant is not established and as the bail applications used to be entered by the present appellant, therefore, it is proved beyond doubt that the accused used to deal with the bail applications at the initial stage.
8. To my mind these are mere presumptions and a presumption cannot be used against an accused. The money was paid to the accused on 20-9-1982 whereas bail application of accused was presented on 9-9-1982 before the C.O.C. Which was put up before the learned Sessions Judge who marked it to the learned Vth Additional Sessions Judge. The bail application was rejected on 16-9-1982. If the bail application of the accused Qamar was dismissed on 16-9-198.2 there is a reasonable doubt that the present appellant had not demanded any money from the complainant as the application had already been disposed of. If the appellant had concealed this fact from the complainant even then it was the duty of the complainant to have enquired about the fate of his application. The explanations given by the accused that Khawaja Naved, Ahmed, Advocate has been engaged by him for accused Qamar to conduct his bail application in the High Court is not unreasonable as Khawaja Naved Ahmad had appeared as a witness and he had corroborated this fact. The other witness who has stated that he is related to the complainant has appeared as a defence witness. He is also an advocate and he states that the complainant had told him that he had implicated the accused. A suit for permanent injunction was filed by Anjum and others against Abbas Ali and others in the Court of IVth Senior Civil Judge at Karachi. The accused has also filed certain applications which were filed against him but these applications were subsequently proved to be false.
9. The evidence of the prosecution and the defence when put in juxtaposition, .The appellant has been able to advance a plausible plea which is supported by the two witnesses.
Learned counsel appearing on behalf of the State has also conceded that the prosecution has failed to bring home the charge against the appellant.
10. For all the aforesaid reasons I am of the view that the case H against the appellant is not free from doubt and giving him the benefit of doubt I acquit him of the charge. The appeal is accepted and the sentence recorded against him is set aside. These are the reasons for my short order, dated 13-10-1985.