1. Appellant Joseph son of lndrias was charged under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947, and tried before the learned Special Judge, Anti-Corruption (Provincial) Karachi, who has convicted and sentenced him to suffer R.I. For six months and to pay fine of Rs.2,000 or in default of payment of fine to undergo further R.I. For one month vide judgment, dated 8th January, 1991.
2. The brief facts of the prosecution case are that complainant Karam Illahi lodged report with Inspector Ghulam Nabi of Anti-Corruption that he lives in Martin Quarters where Mr. Ansari also lives in Quarter No.F/94. One day before, Mr. Ansari was fixing the door in his quarter when Sub- Inspector. Joseph of Police Station Jamshed Quarters alongwith his party came there. He also went there and saw that Ansari and others were being made to sit in the police vehicle. On his enquiry, S.I. Joseph told him that Ansari was fixing the door in a Government quarter. At his request to leave him, accused demanded' Rs.500 from him. Ansari brought Rs.100 from inside his house, and in his presence and in the presence of one Shujjat Ali gave that amount to the S.I.P. He became surety for the payment of Rs.400 to Joseph on next day on Jail Road. Ansari requested him to give this amount to Joseph and also told him that he was sick and, therefore, he should get Jhoseph trapped by the Anti---Corruption Department. A trap was organised by Anti-Corruption Police on 31-12-1986. The trap party consisting of Inspector Ghulam Nabi and A.C.M. Muhammad Azeem passed from near the Jamshed Quarters Police Station, they dropped complainant with the directions to go to accused while they will wait at Farhat Gah Restaurant which is about one K.M.
3. From there. The trap party was available outside that restaurant, when after about 10 minutes, complainant reached there and told them that accused was sitting in Gulshan--e-Iran Restaurant.
4. One man namely Mirza Mutahir Ali, was called for acting as Mashir, and in his presence and in presence of the Magistrate, Inspector handed over Rs.400 to complainant and such Mashirnama was prepared. Complainant then went inside the hotel and sat with the accused, while Magistrate and Inspector also sat in the same hotel at some distance from complainant and accused. On receiving pre-arranged signal, Magistrate and, Inspector went to accused and recovered the tainted amount of Rs.400 which he was holding in his hand, such Mashirnama was prepared. The Magistrate prepared his raid report and the accused and property were then taken to the police station, where further statement of the complainant was recorded. After necessary investigation the accused was sent up before the Court.
5. A formal charge was framed against the accused/appellant to which he pleaded not guilty.
6. At the trial prosecution examined complainant Karam Illahi P.W.1, he has produced the F.I.R. As Exh.7.
7. Shujjat Ali Khan P.W.2, Mr. Muhammad Azeem Baloch the then Additional City Magistrate, Karachi, he has produced memo regarding handing over Rs.400 to the complainant as Exh.12, Mashirnama regarding recovery of Rs.400 from the accused as Exh.13, raid report as Exh.14, Ghulam Jeelani Inspector Anti-Corruption Department P.W.4 (since Inspector Ghulam Nabi who had recorded the F.I.R. And carried on investigation had died therefore, he was examined). According to him F.I.Rs.
8. Exhs.7, 11 and Mashirnamas Exhs.12 and 13 were in the handwriting of Inspector Ghulam Nabi (since deceased). Sanction to prosecute has been produced as Exh.18. Process-server Eric Ghori who was given summons for P.W. Fakhar Salam but could not be served, he has produced summons as Exh.20; statement of Mr. Kamaluddin Advocate as Exh.21, and his report as Exh.22. It may be stated here that P.W. Nawazish Kareem Ansari was given up by the P.D.S.P. On 1-3-1988 vide statement Exh.5, while Inspector Ghulam Nabi had expired which is clear from the evidence of Inspector Jeelani P.W.4 and therefore, they could not be examined as prosecution witnesses.
9. After the close of the prosecution case, the statement of the accused was recorded under section 342, Cr.P.C. In which he has denied the allegations. He has further stated that he had not accepted the tainted money nor anything was recovered from him. Karam Illahi used to come to his police station and had told him that people coming from Srilanka bring whisky and sell the same on cheaper rate. He told him to supply whisky to him also on cheaper rate and paid him Rs.200 for the same. Karam Illahi avoided to supply him whisky and kept him on false hopes, therefore, he was annoyed with Karam Ellahi. On the day of arrest, Karam Illahi told him that he was returning his amount which he refused and insisted for the supply of whisky. Police had arrested him: The accused has also examined himself on oath as envisaged by section 340(2), Cr.P.C. And has also examined one Nawazish Kareem Ansari in his defence.
10. After taking into consideration the evidence produced by the prosecution and the accused, the learned Special Judge was pleased to convict the appellant as described above, and-the present appeal is directed against the above judgment of conviction.
11. I have heard Mr. Muhammad Saleh learned counsel appearing for the appellant, Mr. Zaheer Qureshi learned counsel appearing for the State, and have gone through the R&P of the case.
12. It was contended by Mr. Muhammad Saleh learned counsel appearing for the appellant, that the case against the appellant was false and was the result of strained relations between complainant and the appellant. Re has further contended that prosecution had failed to examine Nawazish Kareem Ansari the main witness of the case, Mashir of payment and recovery of currency with oblique motive, and therefore, the presumption was against the prosecution. It was further contended that Nawazish Kareem Ansari has been examined by the accused in his defence and his evidence shows that the prosecution case wa$ false. That the stand taken by the accused is supported by Mr. Muhammad Azeem, A.C.M., and therefore, the learned Special Judge had erred in convicting the appellant.
13. Mr. Zaheer Oureshi, learned counsel appearing for the State has contended that looking to the facts and circumstances of this case, the prosecution case was doubtful and therefore, he did not support the conviction.
14. I have considered the contentions and have gone through the R&,P of the case. According to the prosecution the appellant had demanded illegal gratification from Nawazish Kareem Ansari but he was not examined by the prosecution, on the contrary he has been examined by the accused/appellant in his defence. This witness has deposed in Court that he knows the accused since the day of incident. On 29-12-1986 he was getting the door fixed in his house when Joseph came. To him in uniform and told him that he was doing it illegally. He told Joseph that he will not fix the door; in the meanwhile 2/3 persons gathered there and Karam Illahi was one of them. Karam Illahi told the accused that he (Ansari) was his man and then the accused went away. Accused neither demanded any amount from him nor, accepted the same from him. Nobody paid any amount to accused in his presence. He was examined by the police. In cross-examination he has deposed that he had not filed any complaint against the accused. The quarter belonged to the Government so also the land in front of the quarter. He was in Government service and has retired now. He had made some addition in front of his quarter, where he was fixing the door but had not obtained any permission for the same. He had acquittance with Karam Illahi. He has denied that he paid Rs.100 to the accused on that day.
15. It is also a matter of record that Mashir of recovery namely Mutahir Ali has not been examined, and even Inspector, Ghulam Nabi who ha A recorded the F.I.R. Had died and therefore, he could not be examined Therefore, we are left with the evidence of complainant Karam Illahi, P.W. Shujjat Ali Khan and A.C.M. Mr, Muhammad Azeem Baloch. As far a complainant Karam Illahi is concerned, he had no personal interest in the matter and his character appears to be of doubtful nature inasmuch as in spite of the fact that he had no connection with Nawazish Kareem Ansari, he took personal interest in the Matter, lodged F.I.R., and was instrumental in alleged payment of illegal gratification.
16. In cross-examination he has admitted that he was an accused in a case under section 325/323, P.P.C. He has further admitted that he was an accused in a 13-D Arms Ordinance case and was convicted and sentenced to pay fine of Rs.500. He has also admitted that one Sultan Ahmed had riled a theft case regarding cash and revolver against him at Police Station Jamshed Quarters but it was filed after the present case. There is an important contradiction in his evidence and in the evidence of Shujjat Ali C Khan P.W.2, which further makes his evidence doubtful inasmuch as according to complainant P.W. Nawazish Kareem Ansari paid Rs.100 to the Sub---Inspector after taking it from Shujjat Ali Khan, whereas according to Shujjat Ali Mr. Ansari had gone to his house and brought Rs.100 and paid the same to the Sub-Inspector. In cross-examination P.W. Shujjat Ali has specifically stated that he had not given Rs.100 to Ansari for making payment to the accused.
17. Mr. Muhammad Azeem Baloch the then Additional City Magistrate P.W.3 has stated in cross- examination that he neither saw passing of the tainted money by complainant to the accused, nor he heard any conversation between them.
18. In view of the above circumstances, I am of the considered view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Therefore, while extending benefit of doubt to the appellant, E the above appeal is allowed, conviction and sentence of the appellant are set aside and he is acquitted of the charge. He is on bail and his bail bond stands discharged.
19. I had decided the above appeal on 14-11-1991 by a short order and these are the reasons for the same.