RAFIQUE MASIH Versus STATE

This appeal by appellant Rafique Masih is directed against the judgment dated 9-12-1991 passed by the Special Judge, Anti-Corruption (Provincial), Karachi, whereby appellant, who was tried on charge under section 161, P.P.C. read with section 5(2), Prevention of Corruption Act, 1947, was convicted and sentenced to suffer R.I. for 6 months and to pay fine of Rs.3,000 or in default on payment of fine to suffer R.I. for one month more.

2. The facts as disclosed by complainant Mst. Inayat Bibi in the F.I.R. registered by her with Anti-Corruption Police, Karachi, on 26-9-1987 are, that she had requested appellant, a Head Sweeper in Civil Hospital, Karachi, to provide her a job there. The appellant allegedly demanded Rs.1,000 as illegal gratification for providing the job. Said amount was paid by complainant to appellant and she also supplied a photostat copy of her national identity card. Thereafter appellant was approached time and again but he kept complainant on hopes. On 24-9-1987, when the complainant again approached appellant in the Civil Hospital, he demanded a further sum of Rs.1,000 as illegal gratification. The complainant did not pay the amount but lodged F.I.R. No.129/87 on 26-9-1987. The Investigating Officer Raees Ahmed formed a raiding party under the supervision of D.S.P. Mujtaba and associated Mashirs Karam Illahi and Hidayat Masih. On 26-9-1987 complainant was given the tainted amount of Rs.1,000 and was sent alongwith Mashir Karam Illahi to Civil Hospital with instructions to bring appellant Rafique Masih outside. The said instructions were followed by the complainant and the Mashir, who went inside the hospital and after some time brought accused outside the hospital premises and proceeded to Jamia Cloth Market. Complainant then passed on the tainted amount to the accused within the sight of the Inspector and the D.S.P., who approached the accused and after disclosing their identity, recovered the tainted amount from the pocket of his shirt and arrested him. The said report was then prepared. After necessary investigation, appellant was challaned in the Court of Special Judge, Anti-Corruption (Provincial), where charge was framed against him on 8-11-1988 to which he pleaded not guilty and claimed to be tried.

3. Prosecution examined P.W.1 Inayat Bibi (Exh.5), who produced F.I.R. (Exh.6), P.W.2, Karam Illahi, who was associated as a Mashir and he produced Mashirnamas (Exhs.8 and 9). Prosecution also examined P.W.3 Nazir Masih (Exh.10), the husband of complainant Inayat Bibi. Investigating Officer Raees Ahmed was examined as P.W.4 (Exh.12) and he also produced a sanction order (Exh.13). The last witness examined by prosecution was D.S.P. Mujtaba Ahmed, who had supervised the trap and prepared the trap report (Exh.15).

Statement of appellant under section 342 (Exh.i6) was recorded, in which he denied all allegations against him and further stated that Mst. Inayat Bibi was a woman of a bad character and she was residing near his house and because of visit of strangers to her, appellant had objected and due to that he was falsely involved. Regarding the tainted money, appellant stated that he was taken out of hospital by complainant appellant on the pretext of purchasing clothes for her children. He also stated that while going with complainant to Jamia Cloth Market, he was arrested but tainted money was not recovered from his possession. Appellant examined D.W.1 Rasheed (Exh.18), who produced a photostat copy of application (Exh.19) addressed to D.S.P. Anti-Corruption, Karachi, which was signed by a number of persons showing innocence of appellant. The appellant also examined D.W.2 Sharif (Exh.2) and then closed his side. His statement on oath was recorded vide Exh.22 in which he gave virtually the same facts as given by him in his statement under section 342 of Cr.P.C. On conclusion of trial the learned trial Court convicted the appellant as stated above and through this appeal the appellant has called in question his conviction and sentence.

4. I have heard the learned counsel and perused the entire record. The learned Advocate appearing for the State has supported the conviction and sentence. The learned Advocate for the appellant has contended that the complainant was admittedly working in Railway Department and there was no need of approaching accused for providing her a job in Civil Hospital. The motive as suggested is weak and could not be considered as true in the circumstances of the case. It is next argued that the complainant as well as the accused resided in the same Mohallah being neighbours and if at all there was any demand of illegal gratification the amount could have been paid by complainant after the appellant returned back home but not in the hospital. Further contention of the learned Advocate is that the conversation between the complainant Inayat Bibi and appellant when they went out of Civil Hospital towards the Jamia Cloth Market was not heard by the 1.0. or by the D.S.P. supervising trap. It cannot be said, therefore, as to on what account amount of Rs.1,000 was paid to appellant. Some contradictions in the evidence of the 1.0. and D.S.P. have also been pointed out but the same are not very material for the disposal of this appeal.

5. The appellant was working as a Head Sweeper in the Civil Hospital and was not a person in authority to help complainant in getting a job for her. Complainant herself was employed in Railway Department and was in fact not in need of a job for herself. If appellant had received Rs.1,000 on an earlier occasion, he would not have hesitated to receive the tainted amount of Rs.1,000 within the hospital premises. The very fact that the appellant was pursuaded to go out of the hospital and accept tainted money from complainant near Jamia Cloth Market as alleged, would show that the amount of Rs.1,000, even if believed to have beer recovered from the pocket of accused, was not meant to be received by accused as illegal gratification but must have been made on some other account. On the point of receipt and recovery of tainted money from appellant, Mashir Karam Illahi has not supported complainant or her husband when he stated in cross-examination, "I had not seen as to who kept the money in the pocket of the accused. I had not seen Inayat Bibi keeping the money in the pocket of the accused after he had been handcuffed." This witness was the only independent witness in the cast and as stated above, does not fully corroborate evidence of the complainant, her husband Nazir Masih or the I.O. and D.S.P.

6. The version of the accused given before the trial Court was two-fold Firstly, that because complainant was of bad character and allowed strangers to visit her house which .was objected by appellant living in the neighbourhood and, therefore, complainant harboured a grudge against him. Secondly, that the complainant had taken a loan of Rs3,000 from him and had returned Rs.2,000 but a sum of Rs.1,000 was still due which complainant had not paid. This may look inconsistent, and rightly so, because such questions were not put to complainant or her husband in the cross-examination. Be that as it may, the prosecution has to prove its case against the accused beyond all reasonable doubt. Complainant and her husband Nazir Masih were admittedly inimical to appellant. The Mashir Karam Illahi did not fully support the prosecution. Conversation between complainant and accused was admittedly not heard by the I.O. and D.S.P., who were at some distance. The passing of tainted money to accused is not fully proved by the prosecution. But even if the amount was recovered from the pocket of accused, there is no evidence worth reliance that the same was on account of illegal gratification demanded by appellant for doing some favour to complainant. Defence evidence if considered in juxtaposition with prosecution evidence, would appear reasonably sound. In the case of Bashir Ahmed v. The State 1968 P Cr. L J 670 the Magistrate supervising the trap or his companion had not stated at trial about passing of money, nor heard talk between the accused and the complainant. It was held that some recovery of note from accused was not sufficient to convict him and extending benefit of doubt, the convict was acquitted. In the case of Arshad Mirza v. The State P L D 1988 Lah. 640, the transaction regarding payment of illegal gratification was neither seen nor conversation between bribe-giver and bribe-receiver was heard by the raiding party and illwill and grudge in the mind of complainant was found existing against the accused. The conviction was set aside and the appellant was acquitted.

7. The above circumstances would show that the prosecution had not proved its case beyond reasonable doubt and the conviction, in these circumstances cannot be sustained. Accordingly, the appeal is accepted, the conviction and sentence awarded to the appellant is set aside and he is acquitted. The appellant is on bail and his bail bond is discharged.

N.H.Q./R-260/K Appeal accepted.