' Through this single judgment in Criminal Appeal No,130 of 1997, I propose to dispose of Criminal Appeal No,134 of 1997 and Criminal Appeal No,160 of 1997 filed by Nadeem, Farman Ali and Dr. Aftab, accused-appellants respectively, against the same judgment, dated 8-5-1997 of the learned Special Judge, Anti-corruption, N.-W.F.P., Peshawar whereby he after having found the accused- appellants guilty of the offence under section 420/161/165, P.P.C., read with section 5(2) Prevention of Corruption Act, convicted and sentenced accused Nadeem to three years R.I. On both the counts with a fine of Rs,5,000 or in default six months S.I., accused Farman Ali to two years R.I. And a fine of Rs,5,000 or in default six months S.I. And accused Dr. Aftab to one year R.I. With a fine of Rs,5,000 or in default six months S.I. All the sentences on all counts were ordered to run concurrently.
2. Facts of the case according to the F.I.R., are that Dr. Prdfessor Muhammad Ali Khattak, the Dean of the Physics Department University of Peshawar was sent for checking of B.Sc. Part-I (Physics paper) for theiyear 1991. Siraj Muhammad, lodger of the F.I.R., received secret information that the said Muhammad Ali Khattak through his son Dr. Aftab Khattak and an ex-student, accused Nadeem, are earning money i,e,, illegal gratifications through replacements of domestically solved papers (on blank Answer Books) with the actual one from the candidates. Blank Answer Books are so filled in and these are exchanged in the lot with the actual solved papers through such payments. The case was accordingly registered and investigation initiated.
3. The S. H .0. , desired for raid and in this connection the services of Mufti Iqbal Ahmad, E.A.C. (Rtd.) were obtained. On 30-9-1991 further steps for raid were taken and accordingly a raiding party was arranged. The raiding party went to the office of Dr. Muhammad Haroon, Controller Wand disclosed their programme to him. The Controller provided them with the list of papers (24 in all) to the Magistrate. The list transpired that it includes Roll No,728 which they picked up at random for their raid.
4. The paper bearing Roll No,728 was in the name of candidate Fozia Noreen (P.W.6). Therefore, the Magistrate was provided the services of a lady F.C. Namely, Farkhanda (P.W.2), with a trap agent Fayyaz (P.W.1) to settle bargain with accused Nadeem and Dr. Aftab Khattak. This bargain was struck for Rs,4,000 whereafter both the trap agents were provided with a blank Answer Book. This answer book was roughly filed by F.C. Farkhanda. Fayyaz P.W. Was functioning as her proxy. The place where these two accused were to receive the amount and exchange the papers was Room No,4 of the New Doctors' Hostel at Hayat Shaheed Teaching Hospital, Peshawar. This room was meant for guests of Dr. Aftab Khattak (as latter confirmed in report Exh.P.W.- 5/14 of Dr. Imran on behalf of Professor Ziaul Islam). The raiding party went there and the two trap agents were also then deputed there. Fayyaz was given an amount of Rs,4,000 in four notes of Rs,1,000 each bearing No,E-896274 (Exh.P.1), F-2093351 (Exh.P.2), F-0346616 (Exh.P.3) and D-7953783 (Exh.P.4) as shown in the recovery memo. Exh.P.W.-4/1. Their statement before raid was recorded by the Magistrate.
Thereafter, they entered room No,4 of the New Doctors' Hostel and other stood outside. The paper and the notes were exchanged. On receiving the required signals the Magistrate and other members of the raiding party also entered the room. The amount (tainted 'notes) were recovered by the S.H.O., in the supervision of M.I.C. From the possession of accused Nadeem. Dr. Aftab Khattak somehow taking the keys from P.W. Fayyaz and escaped on his Motorcycle. The fake answer papers as well as the real one was recovered on the spot vide memos Exh.P.W.4/5. All the P.Ws.
Named above, were examined after the raid. Accused Nadeem was also examined vide his statement Exh.P.W.4/6. The party then, came to the residence of Dr. Muhammad Ali Khattak. He produced before them the list as well as the actual Answer Books available there. The paper of Roll No,728 was missing. He was also examined. As such the raid proceedings were accomplished and the said report Exh.P.W.4/11 was scribed and all the record so made handed over to S.H.O. Siraj Muhammad for further investigation.
5. Subsequent investigations were held during which it was further transpired that the blank Answer books were being provided by accused-Farman Ali, a stationary clerk of the University. He had received 422 extra unused blank Books from centre at Tangi. He did not transport it to the stock as was required by the University Rules and instructions but instead he shared the obnoxious business of his co-accused and used to provide blank Books. Earlier Dr. Haroon too was approached by a student, namely, Shah Zaman regarding the same business in the same year and the same paper in this very room No,4 of the Doctors' Hostel at Hayat Shaheed Teaching Hospital, Peshawar. The Controller provided an amount or Rs,8,000 to the above student-complainant. He brought two solved papers under Roll Nos.515 and 644 to the Controller from Nadeem accused of this case. This was so deposed by Dr. Haroon in the Court when appeared as P.W.7.
6. After the investigation, the Investigating Officer got verified the signature of Farman Ali with his acknowledgment Exh.P.W.5/11 of the blank papers. He received a positive report from Superintendent Tangi Centre. He also got examined through the same expert the handwriting of the candidate Fozia Naureen and received positive report. Accordingly Dr. Aftab Khattak and Farman Ali were arrested in the case. On completion of investigation and obtaining the sanctions of the prosecution, the case was put in Court for trial.
7. The prosecution in order to prove its case examined 15 witnesses in all and statements of the accused-appellants were also recorded under section 342, Cr.P.C. Wherein they denied all the allegations and claimed trial. The accused-appellants were tried and accordingly they were convicted and sentenced, as stated earlier.
8. I have heard the learned counsel for the accused-appellants as well as learned counsel for the State at length and have also perused the record with their valuable assistance.
9. In this case the role of all the three accused-appellants are distinguished from each other, for, Farman, appellant, provided blank answer sheets to the other accused. Dr. Aftab Khattak, appellant, brought the solved answer sheet of Roll No,728, and Nadeem, appellant, received the tainted amount from the Trap Party. All the three appellants were arrested from different places.
10. So far as the role attributed to Dr. Aftab Khattak, appellant, is concerned, it may be stated that he is the son of Professor Dr. Muhammad Ali Khattak to whom the papers of Physics of B.Sc.
Examination, 1991 were sent for checking. The record indicates that the information of replacing the answer-sheets with another answer-sheets from outside was given by one Shah Zaman, student of B.Sc., to Haroon Khan, Controller of Examinations, University of Peshawar. He in his report Exh.P.W.-7/1, has stated as under:--- {{URDU TEXT}} ' From the above statement, there is no mention about any other person except Nadeem. Even when the answer-sheets were produced before him, there is no specification about the fact as to how Nadeem managed to replace the answer-sheets by the connivance of whom. As the answer- sheets of the said paper were sent to Dr. Muhammad Ali Khattak for checking, therefore, they apprehended his involvement in the case. Later on, it was revealed that Dr. Aftab Khattak, appellant, who is son of Dr. Muhammad Ali Khattak, brings the required paper from the house and the bargain takes place through Nadeem, appellant, in a room in the Doctor's Hostel of Hayat Shaheed Teaching Hospital..Accordingly, Farkhanda, Lady Constable, P.W.-2 and Fayyaz, P.W., were deputed as Trap Agents. They went to Room No,4 of the Hospital and the relevant portion from the examination-in-chief of this witness is also worth reliance, which runs as under:--- "I was asked to pose myself as sister of Fayyaz P.W. And we both had to go to Hayat Teaching Hospital, Peshawar. On our going to Room No,4 of the hospital, a boy opened the door of the room.
Whereupon I ' and Fayyaz P.W. Entered the room. One boy was present in the room as far as I remember. The boy present in the room handed over the answer paper of Physics to me. I am educated upto Matric.
The A.C.E. Authority had given to me a book and I was asked to write something in the answer sheet in the light of that book. In the meanwhile the A.C.E. Party came inside the room. I was busy in writing but I think the ACE party might have recovered the money from that boy present in the room, when I was allowed to leave the room."
' This statement clearly suggests that at the time of the raid, only one person was present there in the room and no doubt, the record of the case clearly suggests that the said person was Nadeem.
Similarly, P.W.-14 Mir Asghar Shah, Assistant Director Crime A.C.E. Is also silent about the use of motorcycle by the Trap Agents in the occurrence. This witness had denied to have identified Dr. Ft ftab while leaving the premises prior to the entry of raid party into the Room No,4. Room No,4 of New Doctors Hostel, Peshawar has also not been proved to be in exclusive use of Dr. Aftab. Rather the record indicates that it was used as Guest room by all the doctors residing in the Hostel. The prosecution has, therefore, miserably failed to establish through any cogent evidence the presence of Dr. Aftab in the room or even in the vicinity of the Hostel at the time of raid on 30-9-1991. It also gets support from the fact that no belonging of Dr. Aftab had been recovered from the room. This witness in his cross-examination has also stated that before the raid the trap agents P.W. Fayyaz and lady constable Farkhanda were received by accused Nadeem on the gate of Hostel and then taken along to Room No,4. To a further question of the defence, this witness denied the suggestion that the blank sheets were lying under the mate. He stated that in fact these were recovered from the hand of accused Nadeem. P.W.-4 Mufti Iqbal Ahmad, Extra-Assistant Commissioner in his statement has also stated that same facts as under:--- "On my knock the door was opened and I with the trap party entered the room. Inside the room we found trap agent Fayyaz, lady constable Farkhanda and one other young man. On the pointation of the trap agent the said young man was interrogated who disclosed himself to be Nadeem son of Fazal Karim resident of Shaheen town. From his personal search the C.O. Recovered the trap amount from the left pocket of the shirt."
' Here too, the presence of Dr. Aftab Khattak in Room No,4 is missing. Therefore, the story of decamping of the Dr. Aftab Khattak from the scene of a motor-bike is an afterthought and only on such a presumption, he cannot be held liable for commission of the offence charged with.
' The case of Farman also stands on the same footings, because he was also not present in the room at the time of raid and his role was only for the supply of blank answer-sheets but at the same time the prosecution has totally failed to establish any link between Farman, appellant, and the other accused. The ingredients of section 409, P.P.C. Would, therefore, not attract in his case as the prosecution has also failed to establish any motive on his part.
So far as the case against Nadeem, accused, is concerned, no doubt the things go against him and the evidence available on record fully connect him with the commission of the offence. It was he, who made bargain with Muhammad Fayyaz (P.W.-1) it was also he, who received the tainted amount from the Trap Agents, it was he who was present in Room No,4 at the time of raid, and it was also he,.From whose possession the blank and solved answer sheet-papers were recovered by the raiding party. Hence, the prosecution has A fully established its case against Nadeem, appellant, beyond any shadow of reasonable doubt and he has been rightly convicted and sentenced by the learned trial Judge. The learned counsel for this appellant laid great stress on the point that the raiding party was unable to hear any conversation between Nadeem and the Trap Agents inside the room. But in view of the abovementioned facts, the argument has got no force and reliance can be placed on a judgment reported as Naseer Ahmed v. The State PLD 1960 Lah.
290 wherein it has been held:--- "Evidence corroboration of Members of raiding party not overhearing conversation between accused and complainant---Evidence of complainant uncorroborated---Circumstances of accused' concern with mutation proceedings started by complainant, lodging of report with police regarding demand of bribe for same purpose, recovery of tainted money from accused, coupled with true evidence of prosecution witnesses without an allegation of enmity or hostility---Held: sufficient corroboration-Conviction and sentence maintained in circumstances of case."
The upshot of the above discussion is that the prosecution has failed to fully connect Dr. Aftab Khattak and Farman Ali, appellants, with the commission of the offence and the benefit of doubt, therefore, must go in their favour. Their appeals are, therefore, accepted, the conviction and sentences of the above two appellants are set aside and they are acquitted of the charges. They are present in the Court on bail and are hereby discharged from the obligation of their bail bonds and are allowed to go. The conviction and sentences recorded by the learned trial Judge against Nadeem, appellant, are upheld and his appeal is hereby dismissed. He is also present in Court on bail, taken into custody and sent to judicial lock-up for undergoing the remaining term of his sentence.