1. ' The appellant has challenged the judgment, dated 21-11-1991, of the learned Special Judge (Central-I), Karachi, whereby he was convicted and sentenced to suffer S.I. For three months and a fine of Rs,1,000 or in default whereof to undergo further S.I. For one month under section 168, P.P.C.
2. ' The brief facts of the prosecution case are that Inspector Muslimuddin of F.I.A. CC-II, Karachi, lodged F.I.R. No,25 of 1998 on 18-10-1984 against the appellant stating therein that he while serving as U.D.C. In T&T Department, had also joined a private service as Director of Imam Trading Corporation, Karachi from 26-1-1980 to 25-2-1984 without permission from his parent department.
3. While declaring assets in 142 showed nothing but in the assets of 1983, he declared movable and immovable properties worth Rs,77,000 in his possession. Accordingly the abovementioned case was registered against him under section 168, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947.
4. ' After due investigation a charge-sheet was submitted against him in the abovementioned Court.
5. ' A formal charge was framed against the appellant, to which he pleaded not guilty and claimed trial.
6. ' At trial the prosecution examined P.Ws. Merajuddin, Muhammad Ishaque, Bakhtiar Hussain, Sultan Ahmed, Abdul Hafeez Khan, Mushtaque Ahmed, Abdul Fazal, Muhammad Muslimuddin, Inspector, while Abdullah Khan, Abdul Rab, Gulzar Ahmed, Akhlaque Ahmed and Muhammad Ali were given up. As per process-server P.W. Nazir Ahmed, Shahid Izhar, Syed Sibtain Ali and Ali Khan were not traceable and could not be served. Appellant's statement under section 342, Cr.P.C. Was recorded in which he denied the case of prosecution. The appellant examined himself on oath as required under section 340(2), Cr.P.C. And examined D.W. Zafar Ahmed in defence.
7. ' The trial Court framed the following points for determination:--
(1) Whether the accused while serving as U.D.C. In the T&T Department, Karachi as such public servant, illegally joined private service as Director of Messrs Imam Trading Corporation on the monthly salary of Rs,1,200 per month during the period from 26-1-1981 to 25-2-1984?
(2) Whether accused while in service as U.D.C. In T&T Department at Karachi declared property worth Rs,7,000 in the year 1983 for the year 1982 and he could not reasonably account for it about source of income?
(3) What offence, if any, accused has committed?
8. ' On the assessm ent of evidence the appellant was found guilty and was convicted and sentenced under section 168, P.P.C., whereas he was acquitted so far the charges under section 5(2) of Prevention of Corruption -Act, 1947 are concerned.
9. ' I have heard Mr. Lqtedar Ali Hashmi, learned counsel for the appellant and Mr. Musheer Alam, Standing Counsel, on behalf of the Deputy Attorney-General at length.
10. ' It is contended by the learned counsel for the appellant that the trial Court, while convicting the appellant, failed to appreciate the legal as well as factual aspect of the case. According to him the appellant was involved due to the enmity of high ups of T&T Department as he was an active member of the union. The appellant in fact had never joined Imam Trading Corporation . On the monthly salary of Rs,1,200 from 1981 to 1984, as such the abovementioned judgment is liable to be set aside. The learned counsel further submitted that neither proof of appellant serving as Director of Imam Trading Corporation has been placed on record nor proof of the salaries obtained by him or any independent evidence has been brought on record to that effect, as such conviction and sentence are liable to be set aside. Not only this but according to P.W. Abdul Fazal from Imam Trading Corporation, the appellant had applied for joining as Director by way of an application to the Managing Director and the letters written to Embassies of Canada and U.S.A. And share certificates showing his share were produced and exhibited at trial in the evidence which are the incriminating pieces of evidence, have not been put to the appellant in his statement under section 342, Cr.P.C., therefore, the same cannot be taken into consideration against him which is the settled principle of law. In support he has referred to the cases reported in 1993 PCr.LJ 337 and 1996 PCr.LJ 1787.
11. ' On the other hand, the learned Standing Counsel frankly conceded that since incriminating evidence has not been put to the appellant in his statement under section 342, Cr.P.C. As such he does not support the impugned judgment and has no objection if the conviction and sentence are set aside.
12. ' I have given anxious thought to the contentions raised at the Bar and have gone through the impugned judgment and evidence recorded at trial.
13. ' The appellant was charged on two counts, one that he, while being in Government service, had joined a private organization as a Director on salary of Rs,1,200 per month, thus, committed an offence under section 168, P.P.C. And second that he could not reasonably account for his assets worth Rs,77,000 in 1983 as against that of 1982 which was disproportionate to his sources of income, as such has committed an offence under section 5(1)(e) of Act II of 1947. He, however, was not found guilty so far charge No,2 is concerned by the trial Court, whereas was convicted under the first charge. The evidence of Sultan Ahmed is simply a hearsay evidence to the effect that he knew that the appellant was Director of the company and he did not hear about any other Director of that company. No concrete proof of appellant being Director was produced by this witness, as such his evidence cannot be accepted. P.W. Abdul Hafeez Khan from T&T Department stated that the appellant was serving under him as U.D.C. From 1982 to 1985 and the timings of the office during summer were 7-30 a.m. To 2-30 p.m. And in the winter from 8-00 a.m. To 3-00 p.m. And the appellant used to attend his duties regularly all along, excepting holidays. According to him the appellant had never applied for long leave. P.W. Abdul Fazal, the man from Imam Trading Corporation, who produced certain documents in evidence, as stated above, had also deposed that the appellant was working in the company since morning to evening from 1981 to 1985. Since the words of this witness are not corroborated by any other witness to this effect, but on the contrary it is contradicted by P.W. Abdul Hafeez Khan from T&T Department, as such it cannot be accepted that the appellant was working in Imam Trading Corporation from morning to evening.
14. Moreover, a daily attendance register is maintained in the Government offices and the prosecution has not been able to contradict or falsity that attendance register of the appellant as maintained in the office of T&T Department. Against that documentary proof the verbal assertion that he was working as Director has no bearing.
15. ' Above all the documents viz. Application applying for joining as Director, share certificates and other documents, referred above, produced by P.W. Abdul Fazal have not been specifically put to the appellant during the recording of his statement under section 342, Cr.P.C. As such the same loses its value and this important incriminating piece of evidence being not put to the appellant cannot be taken into consideration as a valid piece of evidence against him. None of the prosecution witnesses has even otherwise produced a single proof of the emoluments, if any, received from that Corporation. Against that there is reasonable defence version that he has been involved because he was an active member of T&T Union -and as per D.W. Zafar Ahmed, P.W. All Imam engineered this case against the appellant as there was a dispute of union of T&T and that the appellant was creating problem for the officers, namely, Mukhtar and Haris. Investigating Officer Muslimuddin was related to P.W. All Imam and at his instance this case was registered against the appellant. On this point this D.W. Was not cross-examined by the counsel for the State, as such the defence version has gone unchallenged. In this case no sanction to prosecute the appellant was obtained from appropriate authorities as provided under section 197, Cr.P.C. And section 6(5) of Act II of 1958, though the same had been declared repugnant to the Injunctions of Qur'an and Sunnah by the Federal Shariat Court. Which has been challenged in the Supreme Appellate Court. In the case of Khushi Masih v. The State reported in 1996 PCr.LJ 1787, it has been held that the purpose of examination of accused is to offer an opportunity to him to explain his position recording each and every piece of evidence brought on record against him for the purpose of conviction. The same having not been done, the conviction on the basis of such evidence would be illegal.
16. For the reasons recorded in the foregoing paragraphs, I am of the considered opinion that the prosecution has failed to prove case against the appellant beyond reasonable doubt. Resultantly the appeal succeeds and the conviction and sentence recorded by the trial Court vide impugned judgment are set aside.
17. ' The above are the reasons for the short order, dated 12-8-1998.