1. ' Appellant namely Yousuf Khan who is working as Assistant Traffi Manager, Karachi Transport Corporation, was convicted by the Special Judg Anti-Corruption (Provincial) Karachi for an offence punishable under sectio 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 an sentenced to an imprisonment till the rising of the Court and also pay a fine o Rs,10,000 or in default of the payment of the fine to suffer R.I. For three months in Special Case No, 16 of 1982. He has preferred appeal against his convictio and sentence awarded to him.
2. ' Prosecution case briefly stated is that complainant Inayat Rehman of 21-1-1982 appeared before P.W Fateh Din (Exh.P.27), Inspector, Anti-Corruption Establishment Karachi, and lodged his report to the effect that he and his brother have Motor Training School in the name of Frontier Motor Training School where they train the candidates for driving and also take those candidates to the Licensing Authority for getting them passed in the test which is generally conducted at Aziz Bhatti Park. He alleged that appellant Muhammad Yousuf takes Rs,50 for each candidate for passing him in the test while M.V.I. Niaz Ahmed Khan takes Rs,100 for each candidate through clerk Sain Sarwar for the same purpose. He also stated in the F.I.R. That he would take 5 trainees on 23-1-1982 to Aziz Bhatti Park and would pay the said amount to the above persons. P.W. Fateh Din after recording the F.I.R.
3. Directed the complainant to appear before him at the Society Office on 23-1-1982. Consequently the complainant on 23-1-1982 went to the P.E.C.H. Society Office where Inspector Fateh Din, Magistrate Mr. K.B. Taigore and Major Qassim of the D.M.L.A. Office were present. The Magistrate verified the contents of the F.I.R. From the complainant whereafter Inspector Fateh Din handed over Rs,750 to him as tainted money in presence of the Magistrate, the Major and Mashir Ghulam Muhammad and prepared such Mashirnama (Exh.7). Thereafter all of them went to Aziz Bhatti Park, where the trainees had already been dropped. At that time M.V.I. Manzar, who was present, took the road sense test of the candidates and made necessary entries in their forms and gave the same to the complainant who then took the candidates before M.V.I. Mr. Niaz who took the reverse driving test of the candidates, made certain entries in their forms and gave back the same to the complainant. At that time appellant Muhammad Yousuf Khan had arrived there and the complainant made all the five candidates, the Major, the Magistrate and Mashir Ghulam Muhammad sit in his van and one of those five trainees sat on the front seat to drive the vehicle while appellant Muhammad Yousuf sat in between the complainant and the trainee who was driving the van. It is alleged that the appellant took the test and obtained forms from the complainant and filed them. He then demanded bribe from the complainant who gave him Rs,250 in such a way that amount was visible to all those persons who were sitting in the back portion of the vehicle. The appellant kept the notes in his pocket and after some time he kept them in his shoe, whereafter the vehicle was stopped near the place where the Investigating Officer Fateh Din was waiting. Mr. Fateh Din disclosed his identity and that of the Magistrate and the Major to the appellant and demanded money from him. The appellant did not take out the money whereafter the Magistrate took out Rs,250 from his left shoe. The numbers of the otes were compared with the numbers shown in the Mashirnama Exh.7 and they were found to be the same. Such Mashirnama was prepared which is at Exh.14. The complainant returned Rs,500 to Inspector Fateh Din as clerk Sain Sarwar had not come. The complainant also produced five forms bearing the signatures of appellant to the Investigating Officer. The appellant was arrested and taken to he Anti-Corruption Office where Mr. Fateh Din completed the investigation. Ile sanction was obtained from the Provincial Committee for the trial of the appellant in the Court of the Special Judge (Provincial), Karachi.
4. ' The appellant was challaned in the Court of the Special Judge Provincial), Karachi by the Investigating Officer for trial for offence under ection 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 947.Tried. The appellant made denial of the allegations that he had demanded any bribe money from the complainant or accepted the same. He categorically denied that the bribe money of Rs,250 was secured from his possession. He further stated that he had signed the documents viz. Forms but he denied to have taken any money from complainant Inayat Rehman. For the witnesses the appellant disclosed that complainant Inayat Rehman deposed against him on account of enmity as he had made reports against him. The appellant claimed that he had sent his report to the DI-G. Traffic, the Secretary R.T.A., the S.P. Licensing Branch, the A.1.- G. Motor Transport, and other officers to the effect that he was being pressurised that he should not be strict in the test. The appellant also produced his written statement alongwith the annexures vide Exh.31, in support of his averment.
5. ' At the trial the prosecution examined complainant Inayat Rehman at Exh.P.W.1 who produced the F.I.R. At Exh.6 and the Mashirnama of the receipt of tainted money from the I.O. As Exh.7, Mashir Ghulam Muhammad at Exh.13 (P.W.2) and Investigating Officer Fateh Din at Exh.27 (P.W.3) while the remaining witnesses were given up. The appellant examined himself on oath in disproof of the allegations made against him in the evidence. He also examined Mr. Rashid Alam, former Secretary R.T.A., Karachi in his defence at Exh.36. The appellant also produced certain documents under his application at Exh.39.
6. ' The learned Special Judge, Anti-Corruption, Provincial, Karachi held the appellant guilty by his judgment, dated 6-11-1988 and convicted and sentenced him as shown above.
7. ' The learned counsel for the appellant has argued that the appellant was made victim of false implication by the complainant on account of previous enmity. He has also contended that the evidence adduced by the prosecution has not brought the charge home to the appellant. He has further urged that the Magistrate and the Major who were material witnesses have not been examined and they have been given up by the prosecution. He also contended that in spite of the material contradictions and infirmities in the evidence of the prosecution witnesses the learned Special Judge has placed reliance on the evidence of the witnesses who admittedly had grudge against the appellant. He also argued that without examining the Magistrate, his raid report was accepted as corroborating evidence for the other interested evidence of the complainant and P.W.
8. Ghulam Muhammad. He also argued that none of the trainee drivers was examined to prove that any money was paid for their passing in the test, and the trainee who was driving the vehicle at the time of alleged passing of money to the appellant A has also not been examined. He also urged that the Mashir was said to be sitting in the back portion of the vehicle which had partition in between the front seat and the back seats, and it was not possible for Mashir Ghulam Muhammad to see the transaction. Furthermore the learned counsel contended that at the time of this incident the appellant was working with the Karachi Transport Authority which was then under the control of the Central Government. The Provincial Government had no authority over the appellant so that they could grant sanction for his prosecution. He was merely working as ex officio member of the Licensing Authority. The learned Advocate referred to certain discrepancies about dates and also to the interpretation of numbers of the currency notes in the Mashirnama (Exh.7).
9. ' Mr. Hayat Qureshi, the learned counsel appearing for the State has not supported the conviction nor he has controverted the submission made by the learned counsel for the appellant. He has conceded that on the point of demand there is only word of the complainant. Whereas on the point of passing on of the money the prosecution has brought on record the evidence of I.O. Who was neither present at the time of occurrence nor has seen the transaction. The other two witnesses of recovery namely Mr. Taigore Barate, Additional City Magistrate West-V and Major Qassim have been given up and none from the trainees have been examined. He has thus not supported the conviction nor controverted the contentions raised by appellants' Advocate. He has also concealed that on demand there is only the word of complainant and on acceptance and recovery of money of bribe the two witnesses the Magistrate and Major have not been examined.
10. ' In so far P.W. Fateh Din is concerned he was not present when the alleged transaction took place.
11. He did not hear the conversation nor he saw the passing of the currency notes as he was not available in the vehicle where this incident is said to have taken place. On the passing of tainted money there is evidence of the complainant and P.W. Ghulam Muhammad. Complainant Inayat Rehman has stated that they made one of the trainees sit on the driver's seat while he and appellant Yousuf sat by the side of said trainee in the front seat. He deposed that when they came near Aziz Bhatti Park, Yousuf took the forms from me, made necessary entries in those forms and demanded money from him when he gave him Rs,250 in such a way that the notes could be visible to the Magistrate and others who were sitting on the back seat. It is his case that he gave the money to Yousuf who kept it in his pocket. He further said that they stopped the vehicle near the raiding party who surrounded the vehicle. According to him the Magistrate, the Major and the Mashirs got down from the vehicle and they disclosed their identity to accused Yousuf who before coming out of the vehicle took out the money from his pocket and concealed it in his shoes. The complainant claimed that the Major took out money from the shoe of the appellant and the Inspector compared the numbers with those mentioned in the Mashirnama. In this respect Mashir Ghulam Muhammad has stated that he had seen the complainant giving the notes to the accused. According to him after covering some distance they saw that Yousuf concealed the money in his shoe, and the Magistrate who had seen the accused concealing the money in his shoe took the search of the left side of shoe of the accused and secured the tainted money from that shoe. In his cross-examination this witness stated on oath that he did not see the accused concealing the money in his shoe. His case is that after the accused got down from the vehicle the search was taken but the tainted money was not secured. He further claimed that the Magistrate had searched the shoe of the accused and had taken out the money from the left side shoe of the accused. Mashir Ghulam Muhammad at one place claims to have seen the accused concealing the money in his shoe but at the other place he states that he did not see the accused concealing the money in the shoe. The complainant deposed that the major had taken out the money from the shoe of the appellant. In this respect the evidence of the 1.0. Is that the Magistrate had taken out Rs,250 from the left side sock of the accused. According to him both the Magistrate and the Major had compared the numbers of the notes secured from the sock of the accused with the numbers mentioned in the Mashirnama of handing over the tainted money to the complainant. On the comparison of numbers of the currency notes the complainant and Mashir Ghulam Muhammad have claimed that Investigating Officer Fatch Din had compared the numbers of those notes with 198 [he numbers of the notes shown in the Mashirnama. These contradictory ftements of the three witnesses go to the very roots of the prosecution case and their evidence doubtful.
12. ' It has been admitted by the complainant in his cross-examination that there was a glass ,measuring 2-1/2 feet into 5 feet separating the driver's seat from the back see ts. Mr. Fateh Din, the Investigating Officer, has claimed that there was partition (sheet) between the driver's seat and the persons sitting on the back seats, bet his case is that there was a hole in the partition wall.
13. Therefore, through this hole it was not possible for all the persons sitting on the back seats to see what was going on on the front scat. There is no mention in the raid report of the Mashirnama to this effect that there was hole in the partition sheet. No conversation could be heard from the front seat by the persons sitting on the back seats. From the documents produced by the appellant it appears that the complainant had grouse against the appellant and his evidence under the circumstances of the present case can be considered as testimony from thei interested source.
14. Even the learned Special Judge in his judgment has remarked that despite the enmity of the complainant with the accused his evidence is believable because it has been corroborated by other evidence'. In this case the evidence of Mashir Ghulam Muhammad is not free from suspicion.
15. He was complainant in two other anti-corruption cases. He was also Mashir in the case filed against Ashiq Hussain Taj vide charge sheet No, 56/83. He appears to be pet Mashir of the Anti- Corruption Police. Moreover, the three witnesses examined in this case have contradicted each other in material particulars of the I) prosecution case. Therefore, their evidence which suffers from material contradictions and infirmities cannot safely be formed basis of the conviction of the appellant. In this case the interested witnesses have come forward to give evidence against the appellant which lack corroboration. The said report which has been used against the appellant has not been proved through its maker viz. Magistrate Mr. Taigorc. He has been given up and has not been cross-examined on the said raid report. As such there are circumstances which create doubt about the complicity of the appellant in the crime. The solitary evidence of interested witness namely the complainant about the demand of bribe lacks corroboration. Circumstantial evidence clearly shows that there existed enmity of the complainant with the appellant. The appellant has denied to have demanded any bribe from the complainant. It is the case of the complainant himself that before this he had never paid any bribe to the appellant. Therefore, there was no occasion for the complainant to pay bribe to the appellant. The evidence of acceptance of bribe by the appellant was of P.Ws. Inayat Rehman and Ghulam Muhammad. The circumstances under which Ghulam Muhammad claims to have witnessed the passing of money to the accused clearly indicate that it was not possible for him to see such transaction while he was sitting on the back seat alongwith six or seven other persons including the Major, the Magistrate and other four trainees through a hole in the partition wall of the vehicle.
16. ' On the recovery of the tainted money there are contradictory statements of the three witnesses and such evidence cannot be believed to be true for basing the conviction of the appellant for offence under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. To disbelieve a witness it is not necessary that there should be numerous infirmities. If there is one infirmity which impeaches the credit of witness that may make his statement doubtful 1985 P Cr. L J
771. The evidence of interested witnesses which is lacking corroboration from independent source cannot be considered sufficient for the conviction of the appellant. (1985 SCMR 1943).
17. The Investigating Officer Fatal Din in his cross-examin has admitted that in 1982 Karachi Transport Corporation was under the control of the Federal Government. According to him the accused was employee of the Karachi Transport Corporation and he was also a member of the committee which used to take the tests of the trainee drivers. In such- situation the Sind Government was not the competent authority to remove the appellant from service. As such any committee appointed by the Sind Government was not competent to accord sanction for the prosecution of the appellant and the proceedings initialled on the basis of such invalid sanction suffers from lack of jurisdiction. Reliance is placed on the case of Abdullah Khan v. State reported in PLD 1969 Lah.
18. 103.
19. ' In this case Mr. Fateh Din I.O. Has stated in his cross-examination that it is correct that there has been overwriting in the numbers of the notes in the Mashirnama of handing over of the tainted money to the complainant but the I.O. Has claimed that these corrections have been initiated by him. According to him it is not correct that the corrections in the numbers of the notes have been made with different pens and in different inks. All the same it can very we it be said that the above discrepancies with regard to the overwritings and corrections in the numbers of the notes cast doubt on the genuineness of the Mashirnama of the handing over of the tainted money to the complainant. Likewise there have been discrepancies in the dates shown in the F.I.R. In column I of the F.I.R. The date and the time of the report are shown as 21-1-1982 at 20-05 hours, and in column 6 of the F.I.R. The date of the despatch of the F.I.R. Has been shown as 20-1-1982, whereas the date on which the raid was alleged to have been conducted is 23-1-1982. These discrepancies in dates are not reconciled and as such it throws doubt on the prosecution case, against the appellant.
20. ' Under these circumstances the case of the prosecution against the appellant suffers from material inconsistencies and discrepancies and the same is not free from doubt. The evidence of the complainant, Mashir Ghulam Muhammad and I.O. Fateh Din is not trustworthy and there is no corroboration for such evidence, which entitles appellant to its benefit.
21. ' Accordingly the appeal is accepted and the conviction and sentence of the appellant are set aside and he is acquitted of the charge.
22. ' Above are the reasons for my short order passed on 19-2-1989.