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Criminal Appeal No. 218 of 1979, decided on 13th February, 9

‑‑ S. 5 (2) and Criminal Procedure Code (V of 1898), S. 103--‑Recovery‑Recovery of tainted money from possession of appellant Witnessed by one Mashir only‑Such witness not resident of locality and a friend of complainant‑Provisions of S. 103, Cr. P. C.‑held, violated--‑Investigating Officer not giving explanation of such violation--‑Recovery of tainted money from possession of appellant not proved beyond reasonable doubt‑Statements of prosecution witnesses confidence inspiring‑Appellant given benefit of doubt and acquitted in circumstances of case.‑[Recovery‑Benefit of doubt].

1978 P Cr. L J 247 and 1978 P Cr. L J. 257.ref.

Rafiq Khanzada for Appellant

G. R. Warsi for the State.

Date of hearing : 6th February, 1983.

Appellant abovenamed, being aggrieved by judgment dated 30th August, 1979 of the learned Special Judge, Anti‑Corruption (Central), Karachi, in case No. 118/78, by which appellant has been convicted under section 161, CI..P. C. read with section 5 (2) of Act II of 1947 and sentenced to suffer R. I. For six months, has preferred the above appeal, on the following facts;; and ;grounds :‑

2. Appellant Mir Muhammad stands charged that on or about 3^rd day of August, 1977, he being Lower Division Clerk in the office of Revenue Officer, WAPDA (Electricity), Larkana a public servant, had accepted illegal gratification of Rs. 600 from complainant A. Rahim for showing favour of reducing .the amount of electricity bill of Ghulam Muhammad's electric operated tube‑well for July, 1977 from Rs. 1,784/40 to Rs. 184 and was caught red‑handed in the trap by Anti‑Corruption Inspector Abdul Rashid, in presence of Mashir and Third Class Magistrate Qamar Din. The police after usual investigation, sent up the appellant to stand his trial for the offence punishable under section 161, Cr. P. C. read with section 5 (2) of Act II of 1947. The charge was read over and explained to the appellant, who pleaded not guilty.

3. The learned trial court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently appellant has filed the above, appeal the grounds mentioned in the memo. of appeal.

4. The learned Advocate for the appellant; in. support of the above appeal submitted as under :‑

(a) That Mashir of the alleged recovery of tainted money from possession of the appellant was not resident of locality, although independent Mashirs of locality could have easily been available.

(b) That there was only one Mashir of recovery of tainted money, instead of two and as such no reliance can be placed on such recovery. In support of this contention, the learned Advocate for the appellant relied upon cases reported in 1978 P. Cr. L J 247/257 and submitted that the mandatory provisions of section 103, Cr. P C. were violated by the I. O.

In view of above submissions the learned Advocate for the appellant urged; that prosecution has failed to establish its case beyond reasonable doubt against the appellant.

6. The learned Advocate for the State on the other hand submitted, that he was fully supporting the impugned judgment, as beside one Mashir, the trap was supervised by Mukhtiarkar & III Class Magistrate.

7. I have carefully considered the above submissions and have gone through R & P of the learned trial Court as well as through the impugned judgment and cases cited by the learned Advocate for the appellant.

8. It is admitted position that Exh. 13, recovery of tainted money from possession of the appellant was witnessed by one Mashir P. W. 3 Abdul Karim, and there was no second Mashir at all for said recovery, which is evident from original Mashirnama, on record. In addition to this, the said Mashir was no resident of the locality and was friend of complainant P. W. 2 Abdul Rahim and consequently provisions of section 103, Cr. P. C. were violated by the I. O., for which he has given no explanation. Keeping these facts in view and the statements of two D. Ws. produced by appellant, whose statements are straightforward and convincing, I am of the opinion, that prosecution has A failed to establish recovery of tainted money from the possession of the appellant, beyond reasonable doubt. Even statement of P. W. 2 Abdul Rahim (complainant) and P. W. Abdul Rashid (I. O.) do not inspire confidence at all.

9. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him, by the impugned judgment and acquit him by giving benefit of doubt and discharge the bail bonds executed by the appellant, in above appeal.

Appal allowed.

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