SARFRAZ KHAN Versus STATE
This appeal is directed against the order, dated 30‑10‑1980, by which Mr. Waqar Ahmed, Special Judge Anti‑Corruption (Provincial), Multan Camp at Sahiwal, convicting the appellant, who was Patwari of Excise and Taxation Department, under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act 1947, sentenced him to undergo rigorous imprisonment for one year, for having demanded Rs. 300 as illegal gratification and received on 20‑10‑1976 its first instalment of Rs.50 from Mr. Arshad Ali, Advocate P.W. in Karez Hotel, Sahiwal, in the presence of Mr. Muhammad Tariq, Magistrate and Mr. Muhammad Ashiq Sukhera, Inspector, Anti‑Corruption, Sahiwal, for excluding an orchard situated in the land of his father with a view to avoid property tax:
2. It is argued on behalf of the appellant that during the trial Mr. Arshad Ali, Advocate (P.W.1), who was a star witness of the prosecution, did not support its case. in the cross‑examination as he could not even identify him. According to learned counsel, the learned Special Judge had recorded a joint conviction of the appellant under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act 1947 and has awarded the sentence of one year's rigorous imprisonment to him for both the offences and on this ground alone the impugned judgment is not sustainable at law.
3. The learned State Counsel concedes that there is a technical defect in the impugned judgment inasmuch as a joint conviction and sentence of the appellant under two different penal provisions of law could not be recorded by the trial Court. He, however, requests that the case may be remanded for retrial.
4. On the contrary, the learned counsel for the appellant is of the view that no useful purpose will be served in remanding the case for retrial of the appellant, particularly when Mr. Arshad Ali, Advocate (P.W.1), who is the main witness in this case, is not inclined to support the prosecution story and has already impaired it beyond repair.
5. The record shows that Mr. Arshad Ali, Advocate appearing as (P.W.1), by and large, supported the prosecution version in the examination‑in‑chief but in the cross‑examination he tried to help the appellant by saying that the recovery memo. was prepared by the Magistrate in his retiring room and he even did not identify the appellant. In other words, he tried to hunt with the hounds and run with the hares and apparently even committed perjury which is a curse plaguing the administration of justice. In fact, when he was giving undue concession to the defence in the cross‑examination the proper course for the prosecutor was to have cross‑examined him with the permission of the Court but for the reasons best known to him he did not do so. If the prosecutor omitted to do so, it was the duty of the trial Court to have sought clarification from him as which of the two statements, one made in the examination‑in‑chief and the other in the cross examination, was correct but it too kept silent. In any case, Muhammad Tariq, Magistrate, who supervised the raid, and Mr. Muhammad Ashiq Sukhera, Inspector, Anti‑Corruption, Sahiwal, who arranged the raid and was accompanying the Magistrate when the tainted money was passed on by the complainant to the appellant and was recovered from his possession by the Magistrate, both supported the prosecution version and in these circumstances instead of acquitting the appellant I would prefer his retrial.
6. In view of the above, the appeal is accepted, the conviction and sentence of the appellant are set aside due to the technical reason of joint conviction recorded and the sentence awarded by the trial Court, the case is remanded fort retrial of the appellant in accordance with law.
7. The appellant is absent and, according to his counsel, he is on election duty. The learned counsel should inform him to appear before the learned Special Judge, Anti‑Corruption (Provincial), Multan, within a week and furnish fresh bail bonds in the sum of Rs.10,000 (Rupees ten thousand only) with one surety in the like amount to his satisfaction, failing which the learned Special Judge shall cause his arrest for retrial and after releasing him on bail, decide this case within two months from the date of his appearance or arrest.
S.A./M‑987/L Case remanded.