' This judgment would dispose of the two appeals filed by the appellants against the conviction recorded against them by the learned Special Judge, Anti-Corruption, whereby he convicted the appellants under section 409/34, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced each of the appellants to suffer R.I. For six months and to pay a fine of Rs,5,000 or in default of payment of fine to undergo R.I. For three months.
2. The facts in brief are that P.W. Haji Muhammad Saleem had made an application against the appellants on the allegation that they had received Rs,12,500 on the pretext of supplying the fodder for birds/cattle. The report was recorded on behalf of the Anti-Corruption Department on the report of Ghulam Mustafa Khan, Director Anti-Corruption Establishment wherein he has stated that during the course Ordinance, against the accused party, the complainant party was helping the victim (girl), as she belonged to their Beradari.
' It is also stated in the F.I.R. That after having beaten, Muhammad Ahmad, he was taken away by the accused in the trolly.
3. Learned counsel for the petitioner contended:
(a) That the petitioners have been involved falsely ;
(b) that the statement of the abductee which was recorded on 2-7-1985 is contradictory on many points with the F.I.R.;
(c) that the petitioners are innocent. They have been involved because of party faction and political rivalry, and
(d) that in case the petitioners are arrested, they will suffer an irremediable loss.
4. Learned counsel for the State/complainant have opposed the grant of bail.
5. The undisputed facts, between the parties, are:--
(i) that during investigation by the D.S.P., Khalid Javed, Parvez, Yusuf son of Siddique, Yusuf son of Haider, Rehmat Ali Nasrullah, Shafqat, Riaz, Faqir Muhammad and Mansha petitioner were declared innocent;
(ii) that Khalid Javed, Parvez, Rehmat, Yusuf son of Siddiq, Yusuf son of Haider, Muhammad Riaz, Shafqat and Nasrullah, have been granted pre-arrest bail by the Additional Sessions Judge, Gujranwala and no petition for cancellation of bail was either moved by the State or by the complainant;
(iii) that Nasrullah son of Ahmad Khan, Azam, Faqir Muhammad and Muhammad Rafiq have been granted bail after arrest by the trial Court;
(iv) that the Investigating Officer came to the conclusion that Munawar, lrshad son of Rehmat, Muhammad Munir, Muhammad Tufail, Abdur Razzaq, Muhammad Afzal another Irshad, Muhammad Nazir and Munir Ahmad son of Ammi (not named in the F.I.R.) had also participated in the occurrence;
(v) that Hafiz Muhammad Ahmad had been let off by the assailants on the same day and he had got himself medically examined from the Medical Officer, Rural Health Centre, Nausheran Virkan, at 12-45 p.m. On the same day.
(vi) that in spite of the orders passed by the Ilaqa Magistrate and the Additional Sessions Judge, for re-examination of Hafiz Muhammad Ahmad by the Medical Superintendent, he had not submitted himself for re-examination. In this regard learned counsel for the complainant submitted that the injured had not appeared before the M.S. As second examination could only be conducted by Surgeon General of Punjab;
(vii) that Hafiz Muhammad Ahmad in his statement recorded on 2-7-1985 had named only Nasrullah son of Ahmad, Saifullah, Abid alias Abbi, Azam and.Mansha petitioners as his assailants.
In addition he had named one Jagga (not named in F.I.R.). Apart from this he had stated that he would be able to identify the others and that in all 15/16 persons had attacked him;
(viii) No identification parade was held.
(ix) that Hafiz Muhammad Ahmad, instead of corroborating the F.I.R. About the allegation of Abid alias Abbi having caused injury to him with his hatchet on his leg, he stated that Abid alias Abbi had given injury on his face with the Butt of pistol, while he was being taken in the trolly. About Saifullah, he stated that----he had lifted him and placed him in the trolly, while it is stated in the F.I.R. That Saifullah had caused him an injury on his head at the spot. About the injuries on his legs, he stated that they were caused by Azam while he was being carried in the trolly. In the F.I.R. Injuries on the legs have been assigned to Abid alias Abbi and Nasrullah.
6. Learned counsel for, the State/complainant while opposing the grant of bail laid stress against Abid alias Abbi and Saifullah only. In this regard learned counsel for the complainant particularly submitted that both these petitioners have been assigned specific role of having caused injuries in the F.I.R., as well as in the statement made by Hafiz Muhammad Ahmad. It has been vehemently contended by the learned counsel that the petitioners do not deserve the concession on grant of pre-arrest bail by any standard.
7. The facts noted above apparently support the contention of the learned counsel for the petitioners that the complainant, had other considerations in view, that the actual reporting of the occurrence. I have recorded this observation on the basis, that the F.I.R. Was neither corroborated by the abductee (the star witness) nor was found to be true on more than one aspects, by the D.S.P., who had investigated the case.
' Out of the five petitioners before this Court, three have not been named by Muhammad Ahmad, in his statement. Yet the other thing which strikes most important is that Muhammad Ahmad injured was released by the accused on the day of occurrence within an hour or so. His statement was not recorded till 2-7-1985, i,e, about ten days after the occurrence, and even in that statement he did not support the F.I.R. Either in the matter of naming the assailants or in the matter of the assailants (including the petitioners) having been assigned roles, in the narration given in the F.I.R. The investigation from the very beginning was conducted by a senior Police Officer i,e, D.S.P.
' I am abstaining from recording any adverse inference on non-subjection of Muhammad Ahmad for re-examination by the Medical Superintendent, in spite of orders of the Ilaqa Magistrate and the Additional Sessions Judge, however, I would like to note that the objection raised by the learned counsel for the complainant, is, without any basis because there is no such law that second examination can only be conducted by Surgeon General Punjab. There may be some letter by the Health Department but that cannot be termed as law. The Courts are competent in directing re- examination of injured by any competent senior doctor.
8. The facts noted above and the contentions raised by the learned counsel for the petitioners tentatively makes out a case that the of inquiry it transpired that on 28-12-1978 appellant Abdul Jabbar, Storekeeper, Livestock Experiment Station (Department of Animal Husbandry) Korangi in collusion with one Haji Muhammad Salim on the authority of Dr. Zaidi Incharge Livestock Experiment Station took delivery of 500 bags. Of Wheat Soya Dry Mix (WSDM) containing weight 50 lbs. Of each bag from UNICEF stores for livestock consumption, but instead of bringing the stock in the Experiment Station Korangi at his store disloaded the trucks in Sind Feed and Allied Products and sold it to proprietor Muhammad Anwar of Sind Feed at a consideration of Rs,50 per bag. The management found the stock unfit for poultry consumption and after consuming 203 bags, returned 297 bags to Muhammad Saleem who had conducted the transaction on behalf of appellant Abdul Jabbar and brought 297 bags to Livestock Experiment Station on or about 12-1- 1979. The stuff was donated by UNICEF to. Director Animal Husbandry Sind free of cost. This report was lodged on 13-2-1979 on behalf of the State by Ghulam Mustafa Khan. On 17-1-1979 P.W. Haji Muhammad Saleem made a complaint (Exh.3) addressed to Superintendent Anti-Corruption, Karachi and on the basis of this complaint investigation started.
3. At the trial the prosecution examined 11 witnesses. P.W.1 Haji Muhammad Saleem in his deposition has stated that he used to purchase milk powder from Mr. Zaidi, who was Director Milk Plant. He had milk powder available with him and that he should purchase it. The appellant showed him the sample and the rate was settled at Rs,25 per bag containing 50 lbs. He purchased 500 bags of milk powder from the accused. On 26-12-1978 he gave Rs,5,000 to accused Zaidi in his office and on 27- 12-1978 as per direction of Mr. Zaidi gave remaining amount of Rs,7,500 to co-accused Jabbar who was working as cashier under him. He showed the sample to Muhammad Anwar owner of Sind Feed and sold him the milk at the rate of Rs,50 per bag. Accused Abdul Jabbar gave him 500 bags from the store.
' P.W.2 Abdul Shakoor was incharge of godown and he has deposed that Abdul Jabbar came with Saleem and lifted WSDM on the basis of letter of authority Exh.6.
' P.W.3 Muhammad Aslam was Veterinary Officer. He has deposed that on 28-12-1978 he was incharge of Livestock Experiment as Mr. Zaidi was on leave. Accused Abdul Jabbar brought a letter addressed to Messrs Swabi Goods Transport. Company. The letter was in connection with the acceptance of the quotations for lifting the goods from UNICEF and he had signed the letter and put the date as 28-12-1978 at the instance of accused Abdul Jabbar.
' P.W.4 Qadir Bux was the peon and he has deposed that accused Jabbar and Saleem in January, 1979 brought a truck loaded containing 298 bags. He issued the receipt Exh.13 but the date was put on the receipt as 28-12-1978 at the instance of Abdul Jabbar.
' P.W.5 Nazir Ahmad Butt has deposed that Zaidi demanded a quotation for lifting 600 bags from Gul Bai godown situated at Mauripur and to be taken to Korangi. He has stated that he had not lifted the goods but he had issued a receipt of 500 bags and the date was mentioned as 28-12- 1978. He antidated the receipt at the instance of accused Abdul Jabbar and Saleem. According to him he found two trucks loaded with the goods.
' P.W.6 Jan Muhammad supplied 500 bags to Abdul Jabber who was an employee of UNICEF.
' P.W.7 Abdul Karim is broker who arranged the deal between Saleem and Anwar.
' P.W.8 Abdul Salem is Assistant in the office of Livestock Experiment Station Korangi. He has deposed that letter Exh.11 accepting the tender of Swabi Goods was dispatched on 28-12-1978. He produced entry with regard to the letter in the .Despatch register. The above letter was addressed to Swabi Goods and the date of dispatch was shown in the register as 28-12-1978. The above letter was given to him by Abdul Jabbar who told him to show the date of despatch as 28-12-1978.
' P.W.9 Muhammad Anwar, had purchased 500 bags from Saleem through A. Karim and transported through Qalandar Bux, in two trucks.
' P.W.10 Mazhar Ahmad is a formal witness and P.W.11 Ghulam Mustafa is the Investigating Officer.
' The trial Court accepted the prosecution version and convicted and sentenced the appellants as stated above.
4. The case against appellant Zaidi is based on the statement of P.W. Saleem who has stated that he had made payment of Rs,5,000 to him. P.W.5 Nazir has only stated that the accused had asked him to give the quotation for lifting the goods. According to him the appellant was on leave on that day and it is also clear from the statement of P.W.2 Muhammad Aslam and the relevant record. The case of Muhammad Saleem in the beginning was that he had purchased the WSDM but at the trial he turned somersault and stated that the transaction was between him and appellant Zaidi for the purchase of milk powder. This stand was taken in view of the fact that WSDM could not be sold by the accused persons as it was supplied by the UNICEF free of cost and, therefore, it was not a purchasable commodity. In his cross-examination he has admitted that he met accused Zaidi for the first time on 26-12-1976 which belies his statement that he knew the accused from the year 1975. Additionally if there was a fair deal then there must have been some quotations or tender because every transaction with the Government has to be done through certain procedure but there is no documentary evidence on the record that the appellant had agreed to sell milk powder to P.W. Saleem. Thus, there is only oral statement of P.W. Saleem that he had made payment of Rs,5,000 to appellant Zaidi. If it was illegal gratification then this witness has himself committed a crime as he had offered bribe to a Government official. Though the statement of an accomplice can be considered in evidence and conviction can be recorded on the sole testimony of an accomplice but it is a rule of prudence as required under section 114(b) of the Evidence Act, that the statement of an accomplice must be corroborated by some independent evidence. It appears that P.Ws. Anwar and Saleem and the appellants formed a gang and there is also force in the observation of the learned trial Judge that if the amount of 298 bags had been returned to Muhammad Saleem then he would not have lodged the complaint but in spite of these facts the accused cannot be acquitted on presumptions. It is cardinal principle of criminal jurisprudence that there should not be missing links in the chain of facts. In the instant case the solitary statement of P.W. Saleem about the payment of illegal gratification is not supported by any evidence.
' Amount had not been secured and the accused have denied the payment of Rs,12,500. It is stated that Rs,5,000 have been paid in presence of Shahabuddin and Rs,7,500 had been paid at the instance of the appellant Abdul Jabbar in presence of Abdul Sattar and Ikram but these witnesses have not been examined by the Investigating Officer, therefore, there is nothing on the record to substantiate the prosecution allegation that illegal gratification has been accepted by the two appellants. P.W. Saleem is also a previous convict. Though the statement of such a witness cannot be ruled out of consideration if it inspires confidence but the fact that he was dealing in illegal transaction makes his statement doubtful that he had given Rs,5,000 to Zaidi and Rs,7,500 to accused Jabbar, in absence of non-examination of the witnesses in whose presence illegal gratification had allegedly been made. P.W. Saleem has stated that he had not gone through the contents of the F.I.R. In fact every word of the prosecution story is contradicted by. Itself. As such the case against appellant Zaidi has not been established beyond all reasonable doubt.
5. As regards accused Abdul Jabbar it is an admitted fact that he has taken the delivery of 500 bags but his plea is that he had entrusted the goods to Messrs Swabi Goods and Mr. Butt P.W.5 was admitted that he had passed a receipt of 500 bags and it is, dated 28-12-1978. He has antidated this receipt at the instance of Abdul Jabbar in spite of the fact that he had not transported the goods. He has admitted that when he went to the godown he found that two trucks had already been loaded. If he had not loaded the goods then why he had issued the receipt. Learned trial Judge has not taken into consideration the defence of appellant Jabbar in juxtaposition with the prosecution evidence. There is on record the report of Abdul Jabbar, dated 30-12-1979 wherein he has stated that he had taken delivery of 500 bags of WSDM from UNICEF stores on 28-12-1979. The delivery was handed over to Messrs Swabi Goods through Mr. Saleem, Commission Agent but only 298 bags were received by Qadir Bux Storekeeper on 28-12-1978 and 202 bags had not been transported so far.. Then another report was given by the appellant which states that he contacted Mr. Butt and he informed him that the goods will be supplied within few days. Then there is another note, dated 13-1-1979 which shows 'that appellant Jabbar contacted Messrs Swabi Goods Company and they were informed that if the goods were not returned immediately report will be lodged with the police. On 8-1-1979 they paid Rs,7,500 as security with a promise to return the goods within, two or three days. It is, therefore, contended on behalf of the appellants that as the report was being lodged by the accused persons, therefore, as a counterblast the report has been lodged by Saleem. Rs,7,500 are still lying with the Department. Thus, apart from the fact that Nazir Butt had issued receipt in spite of the fact that he had not received the goods, the plea of the appellant requires consideration. P.W. Qadir Bux had also issued the receipt on 28-12-1978 showing that he had received a truck load of 298 bags. P.W.3 Aslam who was officer of appellant Jabbar has also admitted that he has issued the letter on 28-12-1978 and the date was mentioned at the instance of Abdul Jabbar but none of these witnesses have given any reason as to why they have obliged Abdul Jabbar. They were not relations of Abdul Jabbar. P.W.3 was officer of Abdul Jabbar and P.W.4 was also not his subordinate. Qalandar Bux and truck driver have not been examined by the police. P.W. Muhammad Anwar had purchased the milk powder without observing the normal procedure for the purchase of such goods from the Government agency. The allegation is about the fodder and not about the milk and, therefore, the P.Ws. Have deposed against facts alleged against the appellant. In any case the defence of the appellant has not been considered by the trial Court. The appellant Abdul Jabber is, therefore, also entitled to the benefit of doubt.
6. In the result the appeal is accepted and the conviction and sentences recorded against the appellants are set aside. The appeals were disposed of by the short order, dated 14-9-1986 and the above are reasons for the same.