JUDGMENT ABDUL MAJID KHANZADA, J.- This criminal appeal arises from the judgment of the learned Judge, Anti-Corruption (Provincial), Karachi, whereby he on 22.7.1992, has convicted the appellant under Section 161 P.P.C, read with Section 5(2) Prevention of Corruption Act, 1947, and sentenced him to imprisonment for three months for each offence mentioned above and has also given him benefit of Section 382-B Cr.P.C. Both the sentences are directed to run concurrently.
2. Briefly stated the facts of the case are that the appellant, who was K.M.C. Jamadar of Sweepers (a Public Servant), used to demand initially Rs.50/ = per month from the sweepers of his beat, including the complainant Mushtaq and P.W. Waris as a motive or reward for not making them absent from duty. With the increase of salaries of sweepers the appellant started charging illegal gratification at the enhanced rate of Rs.70/ = per month and ultimately his illegal demand to Rs.100/ = per month. According to him, this demand was made by him at the instance of one K.M.C.
Inspector known Bhayya.
3. On 6.6.1985, the appellant contacted the complainant and P.W. Waris at Korangi 2, Karachi and demanded Rs.100/ = from complainant and Rs.200/= from P.W. Waris as illegal gratification as P.W.
Waris had not paid Rs.100/= during the previous month also. The complainant lodged the F.I.R, with the Anti-Corruption Police. The services of a Magistrate were borrowed and in presence of the Magistrate and mashir tainted money was handed over to the complainant to be paid to the appellant. The trap party proceeded to the place where appellant was to be paid illegal gratification. The complainant, Waris and mashir sat at Thalia where the appellant was to come while the Inspector, Magistrate and the staff of the Anti-Corruption sat at a cold drink shop about 60 paces from the place of incident. After receiving the signal from the mashir, the raiding party proceeded to the place where appellant received money and apprehended the appellant and asked about the money so received by him, which the appellant handed over to the Anti- Corruption police in presence of the Magistrate. The recovered money was tallied with the earlier mashirnama and found to be the same. The appellant was arrested and brought to the Anti- Corruption Office. After usual investigation and after obtaining sanction, the appellant was challaned.
4. To prove its case, the prosecution examined P.W.1 Mushtaq, complainant who produced F.I.R.
(Ex.6), P.W.2 Waris (Ex.7), P.W.3 Rehmat (Ex.8) he being the mashir also in whose presence Rs.300/ = were handed over to Mushtaq by Inspector Anti-Corruption Jawed Aslam, produced the mashirnamas (Exs.9 to 12). He also deposed that the complainant Mushtaq had shown the place to the Anti-Corruption Police where the roll call was taken. He has fully supported the prosecution case. Prosecution also examined P.W.4 Pir Bux, who was a Magistrate, and he produced the raid report (Rx.14) and finally Jawed Aslam, Inspector Anti-Corruption, was examined. He produced the sanction letter (Ex.16). He gave the details from the time of registering F.I.R, till submitted challan.
5. In his statement under Section 342 Cr.P.C, the appellant admitted the acceptance of money but, according to him, it was for mithai as a son was born to the brother of the complainant Mushtaq.
He also admitted that at the day of incident complainant Mushtaq along with P.W. Waris came to him and told him the Mushtaq had become father and gave him Rs.300/ = for bringing sweet for self and for distributing the same among the sweepers. He further stated that he threw the amount on the ground bit it was picked up by them and they forcibly put this amount in his pocket and by that time Anti-Corruption police along with the Magistrate came and arrested him.
6. I have heard the arguments advanced by Mr Azad Bin Haider, learned counsel for the appellant, and Mr. Laeeq Ahmed Jafri, learned counsel appearing for the State and have also perused the record.
7. The main contention raised by Mr Azad Bin Haider, learned counsel for the appellant, is that the Magistrate and the Inspector were 60 paces away and they have neither heard the conversation between the appellant and the complainant not have they seen the passing of money. According to him, it could not be said if the amount, allegedly received by the appellant, was the illegal gratification. In support of his contention learned counsel placed reliance on Ghulam Farid vs. The State (1985 P.Cr.LJ. 1442), wherein it was observed that in a trap case the Magistrate and Police Inspector neither saw passing of tainted money nor heard any conversation between the complainant and accused nor seeing accused putting such money in his pocket. As such the accused was given benefit of doubt and acquitted in circumstances. Reliance is also placed on Akbar Ali vs. The State (1985 P.Cr.L.J. 1261), wherein in a trap case Magistrate and Inspector had not heard the conversation between accused and complainant at the time of passing tainted currency notes. Accused was given benefit of doubt and acquitted. Reliance is also placed on Saeed Ahmed vs. The State (1985 P.Cr.L.J. 2985), wherein in a trap case raiding Magistrate and Police Sub-Inspector had not seen the accused receiving the tainted currency notes from the complainant. Accused was acquitted in circumstances. Lastly, the learned counsel referred to the case of Safdar Hussain vs. The State (1991 P.Cr.LJ. 1385), in which Magistrate and Inspector had not seen the accused receiving tainted money nor heard any talk to indicate that the money was accepted by him as illegal gratification. The accused was acquitted in circumstances.
8. Learned counsel further contented that it has come in evidence that this money/bribe was not only for the appellant but was also for K.M.C. Inspector Bhayya. According to him, this Bhayya was not joined as an accused. On the other hand, he was examined by the I.C. But his statement was not supplied to the appellant nor he was cited as a witness or as co-accused. In support of this contention, learned counsel placed reliance on Nasrullah vs. The State (1980 P.Cr.L.J. 5), in which it was held that it is the duty of the prosecution to produce all the available evidence. Further reliance was placed on Mohammad Shafqat vs. The State (1970 S.C.M.R. 713), wherein it is held that prosecution not bound to produce every witness, however, if withheld without any satisfactory explanation, Court is entitled to presume that he would not have supported the prosecution case.
Learned counsel for the appellant has also argued that the appellant is to retire within a few months and at present he is weak and ailing.
9. After going through all the evidence and the rulings, cited by the learned counsel, I am of the view that the learned trial Court considering all the humanitarian aspects was very lenient in awarding conviction of three months on the both the charges. The appellant is facing trial since 1985 and must have suffered morally, physically and financially.
10 Mr. Laeeq Ahmed Jafri, learned counsel for the State, argued that though the prosecution has proved its case yet looking to the age and the suffering of the appellant, who is to retire within couple of months, on humanitarian ground appeal may be allowed.
11. Considering the case law that the learned traping Magistrate and the Inspector had neither seen the occurrence nor heard the conversation between the complainant and accused and that the K.M.C. Inspector Bhyya, who was allegedly demanding money, is not joined as accused, the case against appellant is not free from doubt. While giving benefit of doubt to the appellant I accept the appeal, set aside the conviction and the sentence awarded to him and acquit him.
12. The appellant is on bail and is discharged from his bail bonds.