JUDGMENT CH. KHURSHID AHMAD J.- Muhammad Akram Sajjad appellant was convicted by Special Judge Anti Corruption Sargodha under section 161 P.P.C, and sentenced to imprisonment till the rising of the court and a fine of Rs. 1000/- and in default of payment of fine to undergo S.I. For three months. The appellant has challenged the conviction and sentence under this appeal.
2. The facts leading to the conviction of the appellant as narrated in the raid report are that Muhammad Athar Khan was a candidate in B.Com examination of the University of the Punjab and was taking the examination in the center established at Teachers Training College Samanabad.
The appellant allegedly demanded Rs. 150/- as illegal gratification for showing favour to him in using unfair means. Matter was reported to Mr. Riaz Hashmat Khan Circle Officer ACE who took him to the ADC(G)/ADM Faisalabad who in turn nominated Mr. Inamul Haq MIC Faisalabad to conduct the raid. The raiding party went to the house of the appellant on 18.11.1975 at 8.00 PM. His house was found locked and on enquiry the appellant was reported to be present in a nearby barber shop. He was called by Muhammad Athar Khan out of the shop and in the street introduced Mr. Inamul Haq MIC to him as his real brother. Rs. 150/- were passed on to the appellant whereafter Inamul Haq MIC PW introduced himself as the Supervisory Magistrate. The appellant threw the tainted money on the ground which was picked up and taken into possession. The FIR was ordered to be registered and the appellant was arrested.
3. At trial prosecution produced Muhammad Ahsan Moharrar Police Station ACE Faisalabad who recorded the formal FIR Ext. PA/1. Muhammad Athar Khan complainant appeared in court as PW-2 and Mr. Inamul Haq MIC as PW-3. Riaz Hashmat Khan Circle Officer ACE appeared as PW-4 whereas Mr. Muhammad Din Awan Professor Science College, Faisalabad, was given up by the prosecution.
4. The appellant was examined under section 342 Cr.P.C, wherein he denied the allegation levelled against him and took up the plea that he had been harassing to the complainant and had stopped him from using unfair means and to avenge the same he has been falsely implicated.
5. The accused was arrested on 18.11.1975 in the case and the sanction of the Chairman Anti Corruption Committee No. 3 was secured on 24.7.1984 whereas the report under section 173 Cr.P.C, was drawn on 26.9.1984, The period between 18.11.1975 to 26.9.1984 has not been accounted for by the prosecution. This delay itself shows that the ACE was not interested in sending up the appellant to stand trial for the offence allegedly committed by him.
6. The statement of PW-2 suffers from material contradictions and he admitted that before he filed the complaint the accused appellant used to suspect him of using unfair means and would watch him very closely and stood-near him most of the time and that he was annoyed with the accused appellant.
7. PW-3 Inamul Haq MIC, instead of supervising the raid, became a party and by introducing himself as brother of the complainant he lost his supervisory status and he reduced himself to the status of a decoy witness. This action of the Magistrate is not condonable and it has caused prejudice to the appellant in the conduct of his defence before the trial court.
8. The most important witness who could depose about the seat allotted to the complainant in the examination hall and as to the status of the appellant in the examination center was given up by the prosecution. The submissions made on behalf of the appellant that the prosecution rather withheld a very important piece of evidence which could further the cause of justice in the present case. The given up witness was summoned by the appellant as defence witness and he produced Ex. D/A, the list oi the supervisory staff and Ex. D/B which had shown the allocation of seat to the complainant. The seat allocated to the complainant was on the dice and very near to the Superintendent rather than the invigilator that the present appellant was at that time. He was neither the Superintendent of the. Examination center nor he was the Deputy Superintendent and as such had absolutely no authority to allot the seat. The story of there being a side room where the appellant promised that the complainant would be allowed to take seat and use unfair means stands contradicted by a very respectable witness, Profess Muhammad Din Awan, the given up PW who appeared as a defence witness. In view of the above the prosecution has failed to prove its case against the appellant beyond any reasonable doubt.
9. Apart from the factual position there is yet another point involved in the present case. The case was registered on 18.11.1975 whereas the sanction to prosecute was granted by Chairman Anti Corruption Committee No. 3 Faisalabad some times after 24.7.1984 on which date the proforma sanction was filled by some official of Anti Corruption Establishment and placed before the Chairman Anti Corruption Committee No. 3. The proforma appears to have been cyclostyled much earlier leaving blank spaces for the purpose of inserting the requisite information. There was no occasion for the official of the Anti Corruption Establishment to have signed the sanction under the signatures of the Chairman and it appears that the said official filled in the proforma sanction and signed the same in token of being a scribe thereof. It leads to the conclusion that the Chairman Anti Corruption Committee No. 3 did not apply its independent mind before signing the sanction.
10. Placing reliance on Mahmood Khan Vs. The State PLD 1977 LHR 1195), Zahoor-ud-Din Shah VS. Azad Jammu <6 Kashmir PLD 1960 AJK 62) and Muhammad Ayub Vs. The State(1955 P. Crl. LJ. 2687) it is held that sanction to prosecute the appellant suffers from an infirmity which was fatal to the case of the prosecution.
11. The appeal is accepted and the conviction and sentence is set aside. The appellant is discharged from the bail bond.