ALI SHER Versus State

SYED ZULFIQAR ALI BOKHARI, J .---This criminal appeal has been filed against the judgment, dated 26-1-1999 passed by learned Special Judge, Anti-Corruption, Multan Camp at Sahiwal through which he convicted the appellant under section 420, P.P.C. and section 5(2)47 of P.C.A. and sentenced him to undergo R.I. for two years with fine of Rs.5000 and in default of payment of fine he was ordered to further undergo S.I. for three months. ????

2. Brief facts of the case are that Ali Sher son of Mamura filed an application before Deputy Commissioner, Sahiwal against Ali Sher son of Sardar Muhammad, appellant through which he levelled allegation against the appellant that he being Naib Qasid has received Rs.24,200 fraudulently from him with the promise that he will get appointment for his son. That application was marked to Assistant Director, Local Government for inquiry who after conducting inquiry recommended the same to Circle Officer, Anti-Corruption Establishment, Sahiwal for legal action. A case F.I.R. No.9, dated 19-2-1998 under section 161, P.R.C. read with section 5(2)47 of PCA was registered with Police Station ACE, Sahiwal and chalan was submitted in the trial Court on 19-2-1998. Charge was framed by the trial Court on 10-7-1998. The prosecution had produced as many as six witnesses. Wall Muhammad, Inspector appeared as P.W. 1., who stated that he arrested the appellant and sent him to the jail on judicial remand. P.W.2. Bashir Ahmad, Assistant Director, Local Government deposed that application was marked to him by Deputy Commissioner against the appellant for enquiry. He received affidavit of Ali Sher son of `Mamura, appellant. Exh. P.B., affidavit of Ali Sher, accused/appellant Exh.PC and conceding statement of Ali Sher, accused was reduced to writing by him as Exh.PD. Zafar Iqbal, Inspector/CO appeared as P.W.3 and made a detailed statement. Ramzan son of the complainant appeared as P.W.4, Ghulam Mustafa, grandson of the complainant appeared as P.W.5 and Ali Sher, complainant appeared as P.W.6. After concluding of prosecution evidence statement of the accused, Ali Sher was recorded under section 342, Cr.P.C. then the appellant was convicted and sentenced as stated above. Hence this appeal.

3. Learned counsel for the appellant contends that neither in the application Exh.PA nor in the inquiry report prepared by P.W.2. date, time or place of occurrence has been mentioned. Both the applications do not disclose names of eye-witnesses. He submits that P.W.2. Bashir Ahmad, Assistant Director, Local Government categorically stated that the complainant has no documentary or oral evidence regarding commission of offence. Initially the allegation was levelled by the complainant that the appellant has extorted Rs.24,200 for service of his son but later on some dishonest improvements were made during the trial and abovesaid amount was bifurcated i.e. Rs.13,800 for service of Ramzan son of the complainant and Rs.10,400 for service of Ghulam Mustafa grandson of complainant. Another improvement was made by the P.W. that accused Ali Sher delivered a bogus appointment letter which was later on got back by him but neither the bogus appointment letter nor any witness thereof was produced. Learned counsel for the appellant contends that there are major discrepancies in the statements of the P.Ws. and stand taken by the appellant that he has been victimized due to rivalry between two politicians is established. Learned counsel for the appellant submits that initially case was registered under section 161, Cr.P.C. read with section 5(2) 47 of PCA but later on charge was framed under section 420, P.P.C. and section 5(2)47 of P.C.A. He submits that appellant is facing agony of inquiries, investigation and trial since, 1995. He is a poor man and Class-IV civil servant and has been involved in this case due to political rivalry.

4. Learned DPG has opposed the arguments of learned counsel for the appellant and submits that guilt of the appellant was proved during inquiry as well as in the trial. The prosecution has successfully established its case beyond any shadow of reasonable doubt. He submits that the trial Court has already taken lenient view and awarded him sentence of two years. He prayed for dismissal of appeal.

5. I have heard learned counsel for the parties and perused the record.

6. The case against the appellant was initially registered under section 161, P.P.C. but the trial Court while taking cognizance of case, summoned the appellant under section 420, P.P.C. and section 5(2) 47- of PCA and the charge was framed under the said sections. No eye witness was mentioned in the application filed by the complainant before the Deputy Commissioner, Sahiwal. The Inquiry Officer P.W.2 also find that complainant has no documentary or oral evidence regarding the commission of offence. Ali Sher, complainant while appearing as P.W.6 repeated the allegation that the appellant has received Rs.24,200 from him for appointment of his son in service. In cross-examination he made dishonest improvements that at the time of giving the amount to the appellant, his son Ramzan and Ghulam Mustafa were present. Ghulam Mustafa, P.W.5 states that he had given Rs.10,400 for his appointment to his grandfather Ali Sher, complainant who gave the same to the accused in his presence. He gave the above said amount in the Baithakh of complainant. Ramzan, P.W.4. also made improvement in his statement and tried to connect the appellant with commission of offence. In the three statements of all P.Ws., dated, time and place of receiving of amount by the appellant is not mentioned. It is admitted that during inquiry by Assistant Director, Local Government, name of any witness was not mentioned by the complainant but latter on the statement of P.Ws. 4 and 5 was managed and case was developed against the appellant dishonestly. The appellant is Naib Qasid class-IV employee of Local Government. He had suffered a lot since, 1995.

7. For what has been discussed above, this appeal is accepted the conviction and sentence awarded by the learned Special Judge Anti-corruption Multan Camp at Sahiwal vide judgment, dated 26-1-1999 is set aside and the appellant is acquitted from the charges by giving him benefit of doubt.

H.B.T./A-332/L ?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.