JAWED ALI MEMON vs THE STATE

1. ' Through this criminal appeal, appellant Jawed Memon has called in question the judgment, dated 10-2-1999, passed by the learned Special Judge, Anti-Corruption, Larkana in Case No,56 of 1996 (State v. Javed Ali) for offence under section 161, P.P.C. Read with section 5(2), Act H of 1947. By this judgment, the appellant was convicted and sentenced to suffer R.I. For one month and fine of Rs,5,000 and in default of payment of fine he was liable to undergo R.I. For one month more in lieu of fine.

2. ' The appellant who was Tapedar is alleged to have accepted a sum of Rs,2,000 as bribe from complainant Abdul Haq for mutation of the entry in respect of Agricultural land admeasuring 14-26 acres in Deh Fatohal Taluka Kamber which was purchased by the complainant through sale-deed.

3. After recording of F.I.R. a trap was undertaken in presence of the Magistrate and after investigation the appellant was challaned to face trial in the Court of Special Judge. The appellant after being charged pleaded not guilty and claimed to be tried.

4. ' In support of case the prosecution has examined P.W.1 Abdul Haq (complainant) at Exh.4, he has produced F.I.R. At Exh.4-A, P.W.2 Allah Bachayo at Exh.5, P.W.3 Ghulam Rasool (Mashir) at Exh.6, he has produced the statements at Exhs.6-A and 7-B P.W.4 Imtiaz Ahmed Mangi (Magistrate) at Exh.7, he has produced the statements recorded by him and the trap report at Exhs.7-A to C. P.W.5 Nazar Muhammad Pathan (Investigating Officer), at Exh.8, he has produced the permission letter at Exh.8-A and thereafter learned Prosecutor closed the side of prosecution under Exh.9.

5. ' The statement of accused has been recorded at Exh.10, wherein he denied the allegation and pleaded innocence. Accused has examined one D.W. Naseer Muhammad at Exh.11, but has not examined himself on oath in disproof of the charge as required under section 340, Cr.P.C.

6. ' Learned trial Court formulated the points for determination as under:--

(1) Whether the present accused demanded illegal gratification of Rs,3,000 from complainant on 16-6-1996 for keeping mutation entry of Serial Nos.137 and 128 of Deh Fatohal Taluka Kamber in the Revenue Record as alleged by the prosecution?

(2) Whether the accused was trapped by the trap party consisting of Magistrate, Mashir and Investigating Officer and the bribe amount of Rs,2,000 was recovered from his possession on 17-6- 1996 in the office of Mukhtiarkar Kamber, as alleged by the prosecution?

(3) What offence if any is made out against the accused?

7. ' The appellant was accordingly convicted as above.

8. ' I have heard the learned counsel for the appellant as well as learned counsel for the State and perused the material placed on record.

9. ' It has been contended by Mr. Ali Nawaz Ghanghro, learned counsel for the appellant that there is no evidence to the effect that the Magistrate had seen appellant touching the bribe money or that it was passed to him. He further contended that there is also no evidence to the effect that any of the P.Ws. Heard the conversation between complainant and the accused/appellant. He, therefore, submits that the conviction of the appellant is not sustainable in law. In support of his contentions, learned counsel for the appellant has relied on the case of Muhammad Bachal v. The State 1969 PCr.LJ 1011 and an unreported judgment of this Court in Criminal Appeal No,S-25 of 1998.

10. ' Mr. Mushtaq Ahmed Korejo, learned counsel for the State concedes to the fact that there is no evidence to the effect that bribe money was passed by the complainant to the present appellant.

11. He also submits that there is no evidence to prove that any conversation with regard to the demand of bribe money took place between complainant and the appellant. He submits that on account of the above lapses, he was unable to support the judgment of conviction.

12. It is an admitted fact that there is no evidence to prove that the conversation which allegedly took place between the complainant and the present appellant with regard to the demand of bribe money was heard by the Magistrate who was member of the raiding party. There is no evidence on record to prove the fact that Magistrate or the Police Officer saw the tainted A money being passed to the appellant. From perusal of the above evidence it appears that the Police Officer and the Magistrate had no participation in witnessing the transaction. Acceptance of money by the appellant in such circumstances cannot be inferred as illegal gratification. It has also come in evidence that there were many persons at the scene of occurrence, yet nobody from the public was associated in the trap proceedings. The case-law relied upon by the learned counsel for the appellant is fully applicable in the circumstances of the case. In the case Muhammad Ashraf v. The State 1996 SCM R 181. Honourable Supreme Court was pleased to hold as under:-- ' "It is well-settled that in such-like transactions not only the payment of bribe money to the accused by the complainant is to be seen but also the conversation between the above parties has to be heard by the members of the raiding party. This would be necessary to eliminate the chances of involvement of innocent people."

13. ' Being fortified by the above rule laid down by the Honourable Supreme Court I have reached to irresistible conclusion that the prosecution has failed to prove its case beyond reasonable doubt, and therefore, the conviction awarded to the appellant cannot be sustained. The upshot of the above discussion is that the appeal is allowed and the appellant stands acquitted. The appellant is on bail and his bail bond stands discharged. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.