BASHIR AHMAD MALIK Versus THE STATE

ORDER

1. The appellant was charged under section 5(2) of Act II of 1947 and tried before the learned Special Judge A.C.E. Karachi, who convicted and sentenced him to suffer R.I. for three years and to pay fine of Rs.10,000 and in case of default to suffer further R.I. for one year, vide judgment dated 6-5-1982. The present appeal is directed against the above judgment.

2. The brief facts of the prosecution case are that on 18-4-1979 Inspector Ghulam Mustafa of A . C . E. Karachi, lodged a report at 11-00 a.m. under section 5(2) of Act II of 1947, inter alia alleging therein that:-

3. "In persuance of inquiry conducted under orders of superior officers against Mr. Bashir Ahmad Tapedar, District East, Karachi, for living beyond means of income and for acquiring property, the following movable and immovable properties were found to 'nave been acquired by Mr. Bashir Ahmad during the tenure of his service. He is drawing Rs.600 per month, as salary, and that he cannot account for the properties from his known sources of income:-

(1) He purchased a Datsun Car 120 Y bearing No.090-205 valued about Rs.One lac, in the name of one Rana Farooq Khan son of Said Ahmad Khan resident of A/289/2 Gulshan-e-Iqbal, Karachi, and is maintaining the same himself.

(2) He purchased a double storeyed building on a plot bearing No.A-289/2, Gulshan-e-Iqbal, in the name of his wife Jamila Begum. In papers he showed his wife as Jamila Begum daughter of late Abdullah Khan. This building was purchased in 1975 and its value is about two lacs.

(3) A questionnaire was issued to him for showing his properties, but in reply to the questionnaire he denied to have acquired any movable or immovable properties in his name or in the name of his dependants, and appears to have concealed the above properties.

4. From the above, it appears that Mr. Bashir Ahmad Tapedar is living beyond means of income, acquired properties in the name of his dependents disproportionate to his known sources of income as public servant, and committed the offence punishable under section 5(2) of Act. II of 1947. On receipt of the orders from the Chairman Enquiries and Anti-Corruption Wing, Karachi, vide his No.P.E. and A.C/103/15/78 dated 16-4-1979 a case was registered and copies of F.I.R. as required under section 57, Cr.P.C. were sent to concerned quarters.

5. A formal charge was framed against the appellant to which he pleaded not guilty.

6. At the trial the prosecution examined P.W.1 Nasim Sarhandi, P.W.2, Ibrar Ahmad, P.W.3 Syed Nasir Ali, P.W.4 Ghulam Dastgir, P.W.5 Sher Ali, P.W.6 Amir Ali P.W.7 Hidayatullah P.W.8 Abid Raza and P.W.9. Ghulam Mustafa.

7. After close of the prosecution case, the statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations (?) and produced documents in order to show that the allegations the evidence of the above witnesses convicted the appellant and sentenced him as described above. The present appeal is directed against the above judgment:

8. It will be worthwhile to mention here that during the pendency' of the above appeal the appellant died, but in spite of that the learned counsel appearing for the appellant requested the Court that the matter should be heard and decided on merits. In this connection he relied upon 1971 S C M R 35. My learned brother was pleased to order that the appeal has not abated, and it should be heard on merits.

9. I have heard the learned counsel for the appellant, and Abdul Waheed Siddiqui, Advocate appearing for the State.

10. The first and the main contention of the learned counsel for the appellant was that the learned trial Judge after recording statement of the appellant had not appended certificate as envisaged by section 364; Cr.P.C. and, therefore, the conviction of the appellant was illegal. In support of his contention he has relied upon a reported case of Salamat Ali alias Salamat Masih and another v. The State 1987 P Cr. L J 384, in which it was held by the Federal Shariat Court that:-

11. "Another illegality which was found in this case is that the statement of .the appellant recorded under section 342, Cr.P.C. did not bear certificate as contemplated by section 364, Cr.P. C. and therefore, the matter was remanded back to the trial Court."

12. In view of this legal position the provision being mandatory and its non-compliance was definitely fatal and, therefore, the judgment of the trial Judge is liable to be set aside on this score alone.

13. In view of the above legal position, Mr. Abdul Waheed Siddiqui appearing for the State had no answer, to the contention raised by the learned counsel for the appellant.

14. In view of the above circumstances, the appeal is allowed and conviction and sentence of the appellant is set aside. Since appellant was on bail, the bail bond stands discharged. Since this is a case of 1979, and the appellant is dead, it will be an exercise in futility if the case is remanded back to the trial Court. Hence retrial is declined.

15. This appeal was decided on 5-5-1987 by a short order, these are the reasons for the same.

16. S.A./B-65/K Appeal accepted.