MUHAMMAD JAMSHED vs STATE

Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 26.3.2007 of a learned Judge in Chambers of the Peshawar High Court, D.I. Bench whereby Criminal Appeal No. 20 of 2006 filed by him was dismissed.

2. Briefly, stated the facts giving 'rise to the filing of the instant petition are that on 29.10.2004 complainant Shah Mahmood Shah lodged FIR at Police Station Anti-COrruption Estal?lishment D.I.

Khan wherein he alleged that his brother namely Sardar shah was behind the bar in case FIR No. 228 dated 19.6.2004 under Sections 406/420 PPC. On 9.10.2004 he was allowed bail by Judicial Magistrate, D.I. Khan. The petitioner, who was Reader in that Court, demanded Rs.1500/- as illegal gratification from him to get the bail bond attested. A raiding party was constituted and on the direction of learned District & Sessions Judge, D.I. Khan, a raid was conducted by Senior Civil Judge, D.I. Khan and under his supervision the raiding party got arrested the petitioner and from his possession they recovered Rs. 1500/- which were illegally obtained by him from the complainant for getting the bail bond attested. The petitionei was arrested and tainted money of Rs.1500/- was recovered from his possession whereby a case under Section 161 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act') was registered against him.

3. The petitioner was confronted with the charges which he refuted and pleaded innocence and claimed trial.

4. In order to establish its case, the prosecution examined PW-1 Muhammad Daud Khan, PW-2 Fazal Rehman Execution Moharrar to 43ivil Judge Ist Class, PW-3 Anwar Saeed Kundi, Assistant Director Anti Corruption, PW-4 Malik Tariq, Circle Officer, Anti-Corruption, PW-5 Mr. Dost Muhammad Khan, Civil Judge/Judicial Magistrate, PW-6 Syed Aqeel Aajiz, Magistrate and PW-7 Shah Mahmood Shah complainant.

5. Petitioner in his statement recorded under Section 342 Cr.P.C. denied the charges and pleaded that he had been involved in this case falsely by the Anti-corruption staff in collusion with the complainant. He appeared himself in his defence and got recorded statement under Section 340(2) Cr.P.C. However, he produced DW-1 Haq Nawaz in his defence.

6. On conclusion of trial, the trial Court vide judgment dated 16.5.2006 found the petitioner guilty under Section 5(2) of the Act and was sentenced to undergo R.I. for two years and a fine of Rs.

10,000/- or in default to further undergo for three months S.I. The petitioner was also convicted under Section 161 P.P.0 and was sentenced to one year R.I.

7. Feeling aggrieved, the petitioner challenged the aforesaid judgment before the learned Peshawar High Court, which was dismissed as stated above.

8. We have heard Mr. Abdul Karim Khan Kundi, learned counsel for the petitioner and Mr. Muhammad Zaman l3hatti, learned counsel for the State and have gone through the record and the proceedings of the case in minute particulars.

9. Mr. Abdul Karim Khan Kundi, learned ASC for the petitioner contended that the prosecution has failed to prove beyond any doubt that the petitioner is guilty of offence, therefore, conviction and sentence awarded to him is not sustainable in law. He further contended that there is no sanction available on the record as is necessary and mandatory under the relevant law rendering the entire trial as nullity in law. According to him it is not proved on record that either the delivery of the money by the complainant to the petitioner was seen by the Raiding Party or they had heard the conversation between the petitioner and the complainant. He was of the view that the purpose of delivery of the tainted money was not proved and the mere recovery of the tainted money from the pocket of the petitioner was of no use to the prosecution. He contended that prosecution has not produced any evidence with regard to passing of trap money to the petitioner. According to him the petitioner was not present in the Court and his waistcoat was hanging with the chair in which the money was put and later on the raiding party arrested the petitioner and recovered the said amount thereby making the petitioner as scapegoat. He contended that the statement of the complainant was not recorded before the raid and F.I.R. was not chalked out. He further contended that it was also not proved from the record that who provided the tainted money for the raid in question. He argued that the witness of the recovery memo stated that he signed the recovery memo in the office, which had made the recovery doubtful.

10.On the other hand, Mr. Muhammad Zaman Bhatti, Learned counsel on behalf of the State has supported the impugned judgment for the reasons enumerated therein and further pointed out that no illegality whatsoever has been committed by the trial Court as well as the learned High Court and judgment being well-reasoned does not warrant interference. He contended that the prosecution evidence was reliable as permission of the District & Sessions Judge, D.I. Khan was obtained in advance, who deputed the Senior Civil Judge to conduct the raid. He further contended that the learned Senior Civil Judge in the presence of Circle Officer, Anti-Corruption Establishment and other Staff conducted the raid and recovered an amount of Rs.1500/- from the pocket of the petitioner, which was tainted money.

11. It is an admitted fact that at the time of raid, petitioner wasserving as Reader in the Court of Mr. Dost Muhammad Khan, Civil Judge/Judicial Magistrate, D.I. Khan and that in case FIR No.228 dated 19.6.2004 under Sections 406/420 PPC, bail was granted to an accused Sarwar Shah, brother of Shah Mahmood Shah complainant on 9.10.2004. The petitioner kept the bail bond pending on one pretext or the other till 29.10.2004. The petitioner demanded Rs.1500/- from the complainant with the promise that he would get the surety bonds attested from the Court.

According to the prosecution necessary sanction was obtained from the District & Sessions Judge, D.I. Khan for conducting the raid and a Senior Civil Judge was deputed to conduct the raid. The Senior Civil Judge in presence of Circle Officer, Anti-Corruption Establishment and other Staff conducted the raid and recovered the amount of Rs.1500/- from the pocket of the petitioner, which was tainted money. It is settled, principle of law in criminal cases that while deciding the case the circur stances of each case are to be examined independently as the facts of one case differs from the facts of the other case. The instant case is of its own nature in which irrespective of learned District and Sessions Judge, Senior Civil Judge and Civil Judge/Ist Class Magistrate were part and parcel of the raid. It was on the directions of learned District and Sessions Judge, Senior Civil Judge conducted the raid and secured tainted money along with file containing bail bond in the name of Syed. Safdar Shah son of Juma Khan and also three photo copies of NIC of sureties and identifier.

On the contrary the defence plea taken by Hag Nawaz (DW-1) that he was given Rs.1500/- by Shah Mahmood for returning to petitioner from whom he got the amount as loan, goes to show that tainted money was recovered from petitioner.

12. In our considered view, the learned trial Court, as well as the learned High Court deeply scrutinized the entire evidence and attended to all the material aspects of the case, which do not suffer from any misreading or non-reading of the evidence. No illegality or infirmity in the impugned judgment could be pointed out and the findings of the guilt recorded by the trial Court are based on evidence, which in peculiar facts and circumstances of the case do not call for reappraisal by this Court.

13. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.