UMAR SAEED Versus STATE
1. This appeal under section 410 of Cr.P.C. read with section 10 of Pakistan Criminal Law Amendment Act, 1958, is directed against judgment, dated 29-9-1991, passed by the Special Judge (Central-I), Karachi, whereby appellant who was tried for an offence under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 is convicted and sentenced to R.I. for one year under section 161, P.P.C. and R.I. for one year under section 5(2) of Act 11 of 1947, directing both sentences to run concurrently.
2. The facts of the case in brief are that in 27-7-1987 complainant Padma Malvina, a Sri Lankan National lodged a written complaint with Assistant Director, F.IA. Assets Branch, Karachi and stated that she was a Sri Lankan National holding Passport No.G-0190631, dated 15-6-1993 issued by Embassy of Sri Lanka in Karachi. She also stated that she came to Pakistan in 1983 and thrice went back to Sri Lanka and finally arrived in Pakistan in November, 1985. She was doing private nursing job till 1986 when she joined Mid-east Medical Centre, Karachi as a nurse. At the time of her arrival in Pakistan there were no visa restrictions for Sri Lankan Nationals but thereafter, Government of Pakistan issued orders for visa. Accordingly, she applied for visa and gave such application supported by her passport and photographs to appellant Umer Saeed, an employee in the Passport Office who directed her to produce a certificate of employment. It was stated that she brought the certificate of her employer dated 4-6-1987 and produced it before Mr. Aslam Shakir, Assistant Director, Passports, when she was required to bring another certificate that her services were required by the employer. She then brought a letter, dated 7-6-1987 and appeared before Aslam Shakir but this time she was asked to produce a letter from the Embassy of Sri Lanka, as she had overstayed in Pakistan. On 23-7-1987 she again came to Aslam Shakir who directed her to see appellant Umer Saeed. On 26-7-1987 appellant allegedly told complainant that Aslam Shakir would take.Rs.2,500 in her case for doing the needful. Although complainant pleaded her poverty, appellant insisted on payment of illegal gratification. In her application the complainant requested for arranging a trap, as appellant demanded bribe money for Rs.2,000.
3. The application moved by complainant was incorporated as F.I.R. by Nisar Ahmed Chaudhry, Assistant Director, F.IA., Assets Branch (CC-I), Karachi. In presence of Mashirs Faiz Muhammad and Muhammad Ishaque a trap was led and complainant passed on Rs.2,000 to appellant which was recovered from the hip pocket of his pants. The tainted money was secured under Mashirnama whereafter appellant was arrested and after necessary investigation and after obtaining sanction for his prosecution case was sent up against appellant before the Special Judge (Central-1) Karachi for his trial.
4. On 1-3-1989 charge was framed against appellant under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 to which he pleaded not guilty and claimed to be tried.
5. Prosecution examined P.W.1 Faiz Muhammad (Mashir) (Exh.1) who produced memo of search and handing over tainted money to complainant (Exh.4) and memo of arrest (Exh.5), P.W.2 Maqsood Ali Shah (Exh.7) who submitted charge-sheet in the Court, P.W.3 Nisar Ahmed Chaudhry (Exh.8) who produced the application moved by complainant (Exh.9) and F.I.R. (Exh.10), P.W.4 Ghulam Shabbir (Exh.11) who produced the summons issued against the complainant and his report and statement (Exh.12 to 14) which indicated that complainant Padma Malvina had left Pakistan and the process could not be served.
6. In his statement under section 342, Cr.P.C. appellant denied having either demanded or accepted illegal gratification of Rs.2,000 from the complainant. He also filed written-statement in which he stated that he was taken from his office by F.IA. people and was asked to give evidence against Aslam Shakir and because he refused to give such evidence, he was involved in this case. Appellant also stated that the Mashirs Faiz Muhammad and Ishaq were set up by the prosecution and no independent witness of the locality was associated during raid, search and arrest. He filed alongwith his statement, the police statements of P.Ws. Muhammad Ishaq and Faiz Muhammad and suggested that these statements were verbatim and were prepared in the office of the F.IA. Appellant examined D.W.1 Muhammad Ayoob, a Telex Operator working in the Office of Directorate-General, Emigration and Passport who stated that the accused was not arrested by the F.IA. from his office on 27-7-1987. 'The defence witness also gave the distance of Mahmoodabad from his office as 8 to 10 miles. On conclusion of trial the learned trial Court found accused guilty of the offences with which he was charged and convicted him as stated above.
7. I have heard Mr. Akhtar Iqbal Qadri, Advocate for the appellant, and Mr. Zaheer Qureshi, Advocate for the State. The latter has supported the conviction and sentence. It has been contended by appellant's learned Advocate that the complainant Padma Malvina has not been examined by the trial Court, that she is a fictitious person and no record is produced indicating that she did remain in Pakistan or had produced certain certificates issued by her employer and had worked as a nurse in any hospital. It is further contended that because complainant is not examined, neither demand nor payment of illegal gratification is proved against appellant. It is next argued that the recovery Mashir Faiz Muhammad who is examined and Ishaq who is given up, are both residents of Manzoor Colony Mahmoodabad which is at a distance of about 8 to 10 miles from the office where appellant was working, and by not joining independent witnesses of the-locality, the Investigating Officer violated the mandatory provision of section 103 of Cr.P.C. It is also argued that in his statement under section 342, Cr.P.C. a spec question regarding recovery of tainted money from his pocket was not put and such omission by the trial Court has caused prejudice to the accused. It is then argued that Assistant Director, Aslam Shakir, who was even named in the F.I.R. and who had obtained pre-arrest bail, was omitted to be joined as an accused with ulterior motive and appellant was made a scapegoat. The last contention of the learned counsel is that the defence evidence has been discarded by the learned trial Court for invalid reasons.
8. The evidence of demand or payment of illegal gratification could have come through complainant Padma Malvina, but she has not been examined for the reason that she had left Pakistan. It has come in the evidence of P.W. Faiz Muhammad and Investigating Officer Nisar Ahmed Choudry, that in their presence illegal gratification was received by appellant and on getting a signal from complainant they proceeded to the accused and recovered the tainted money from his pocket. P.W. Faiz Muhammad is resident of Manzoor Colony of Mahmoodabad which is admittedly at a distance of about 8 to 10 miles from the office where appellant was employed. Co-Mashir Ishaq who although not examined also resided in Manzoor Colony of Mahmoodabad. The Investigating Officer thus failed to join independent witnesses during raid and such lapse on his part amounts to clear violation of section 103 of Cr.P.C. The police statements of both the Mashirs which are placed on record by appellant alongwith his written statement, are verbatim the same which conclusively suggest that the two Mashirs were not explained the contents of their statements.
9. In the statement of appellant under section 342 of Cr.P.C. a composite question regarding demand and acceptance of illegal gratification has been put to him and no specific question with regard to the recovery of tainted money from the pocket of his pants in presence of Mashirs was put. The requirement of section 342 of Cr.P.C. is that for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may at any stage of any enquiry or trial without previously warning the accused put such questions to him as the Court considered necessary. The recovery of tainted money from the pocket of the accused was a strong circumstance against him which was not specifically put to the accused. In the case of The State v. Muneer Ahmed and 6 others 1993 P Cr. L J 128 a D.B. of this Court observed that the object of examination of accused under section 342, Cr.P.C. is two-fold, firstly, to apprise him about material facts or circumstances brought on record against him which may be used as such, and secondly, to know about his explanation regarding the material facts or circumstances. Because the learned trial Court omitted to apprise accused about the circumstances brought on record against him by not putting a specific question regarding receipt of tainted money, it has caused prejudice to the accused.
10. Muhammad Aslam Shakir, Assistant Director, Passport and Emigration, was named in the F.I.R. whom complainant approached and under whose instructions the complainant contacted accused Umer Saeed. Said Adam Shakir even obtained pre-arrest bail but he is not joined as an accused for reasons best known to the prosecution. The written complaint filed by the complainant clearly suggested that she had twice been to Aslam Shakir who instructed her to obtain various certificates of her employment. To me it appears that Aslam Shakir being the man in authority was purposely let off and appellant made an accused.
11. The defence evidence has been discarded by the learned trial Court just reason. In fact the defence evidence is to be put in juxtaposition, with the prosecution case and the benefit if any arising from the evidence, had to be given to the accused. The prosecution evidence was not free from doubt and it did not conclusively prove guilty of appellant. In the circumstances the conviction awarded to the appellant cannot be sustained.
12. For the aforesaid reasons I accept this appeal, set aside the conviction and sentence and acquit the appellant. By a short order, dated 28-9-1993 the appeal was allowed and above are the reasons for the same.
13. N.H.Q./U-153/K
14. Appeal accepted.