Muhammad Nadeem Shaikh (Appellant) VS The State (Respondent)

-lz1 6^ k",4<LY Aryr-ro..-.-^t zo- t1 -tJ

rN THE HrGH COURT OF SrNDH'

CIRCUIT COURT HYDERABAI)

Before:

VtrJustice Mohammad Karim Khan Agha

Cr. Appeat No.S-141 of 2015'

Muhammad Nadeem Shaikh Versus

The State

Ahmed Bhatti, Appellant : M uhammad Through Mr Nazeer Nadeem Shaikh, who iS Advocate resent on bail Respondent : The State Through Mr. S hahid Ahmed Shaikh,

A.P.G,

Date of hearing 19.o4.2017.

Date ofjudgment 20.o4.2017

JUDG MENT

MOHAMMAD KARIM KHAN AGHA, J.- Appellant Muhammad Nadeem Shaikh was tried by learned Special Judge' Anti-Corruption (Provincial) Hyderabad at'Camp Badin, in Special Case No'113 of 2OlO, arising out of crime No.Ozl2OOg, registered at Police Station ACE Badin, under section 161 PPC read with section 5(2) of Prevention of Corruption Act'II, 1947. Accused / appellant was found guilty by judgment dated 2g.Og.2}l5 (the impugned judgment) and was convicted and sentenced (iJ under section 161 PPC to suffer R.I. foro2 years and (2) under section 5(2) of Prevention of Corruption Act-ll' 1947 to suffer R.I. for 03 years and to pay fine of Rs'10O'O00/-' In default of the payment of fine, the accused / appellant shall undergo I further S.I. for O1 year. Both the sentences were ordered to run concurrently.

2.Briefly the facts of the prosecution case are that on 25'O6'2009 at 10-OO am complainant Abdul Malak son of Khair Muhammad Mullan registered F.I.R. alleging therein that on 07 'O5'2OO9 he was retired from the post of BPS-17 from Government High school Khorwah aflter attaining tJne age of 6O years by the order of Secretary' Education Vr)

I

office procedure' his penslon Department, Sindh at Karachi' As per Accounts Officer' Badin papers were received in the office of'District Government of sindh a_fter sanctioning from secretary Education, met with accused through EDO Education where complainant Muhammad Nadeem, crerk in respect of his pension papers who from him on the pretext to demanded illegal gratification of Rs'8'OOO l- get sanction from the 'office of A'G Sindh which was paid by on 17 '06'2009' Accused complainant to accused Muhammad Nadeem Nadeem got'sanctiot fL- the office of A'G Sindh and Muhammad ffom complainant then demanded illegal gratification of Rs'50'OO0/- accused agreed to for giving him complete pension' On his requests' in case of non- ....pt Rs.4O, OO0/- on 25'tt6'20o9 on the pretext that payment, his work will not be done' under the

3.Thereafter, on 25.06.2009 a trap was arranged illegal gratification of supervision of Magistrate and accused accepted of mashirs in the office Rs.40, O00/- from the co5nplainant in presence accused was of District Accounts Office, Badin' Thereafter' said amount was recovered from right side apprehended and the and recovery was pocket of his shirt' Such' mashirnama of arrest prepared.

the investigation

4.The circle officer, AcE Badin after completing Og.l2.2OlO against the submitted challan in the trial Court on accused.

was framed against

5.After completing necessary formalities charge accusedat}x.o2towhichheplednotguiltyandclaimedfortrial' examined as many

6.In order to substantiate its case the prosecution side of prosecution was as five prosecution witnesses and thereafter statement Ex' 10' closed by the ADPP for the State vide his Nadeem under Section 342

7.That statement of accused Muhammad denied the prosecution case I Cr.P.C was recorded at Ex'11 wherein he himself on oath nor led claiming his innocent"''H" neither examined any evidence in his defence'

for the g. The learned trial court after hearing the rearned counsel evidence convicted and parties and on the assessment of the entire above by the impugned sentenced the appellant/accused as stated judgment

a3J

9.The facts of this case as well as evidence produced before the trial court find an elaborate mention in the judgment passed by the trial court therefore the not be'reproduced here so as to avoid ""-""-"y duplication and unnecessiry repetition-

10.During the pendency of the instant appeal the appellant moved this court vide M.A. No.7g64l2}15 praying therein to suspend the operation of the impugned judgment and to release him on bail during dated pendency of his appeal. Such application was allowed vide order judgment 20.10.2015 by this court and the operation of the impugned was suspended and appellant was'ordered to be released on bail during the pendency of his appeal upon furnishing solvent suret5r in the sum of Rs'10O,00O/- and P.R' Bond in the like amount'

1.Learned counsel for the appellant contended that as the appellant was admittedly a public servant 5'197 Cr'PC had been

violated in that no government sanction had been given prior to the not been ACE initiating its action; that the tainted currency notes had initialed by the magistrate and as such they could not be differentiated major from other similar currency notes in circulation; that there were contradictions in the evidence of the prosecution; that a part from tJre

complainant there was no other eye witness who saw the appellant taking the tainted money; that no'other person heard the conversation when the between the complainant and the appellant at the time appellant took the money so there was no evidence that it was bribe

money; that the benefit of the doubt' should be given to the appellant and thus for all the above reasons the appellant was entitled to be acquitted.

12.ln support of his contentions, learned counsel for the appellant

placed reliance upon 5.197 Cr'PC and the cases of Zahoor and

another v. satd-ul-Ibrar and another (2003 scMR 59), Muhammad Aelam v. The State, etc.(2013 Cr'l-J 71, Abdul Majeed v' The State (2Ot2YLR2792), Rashid Ahmed v' fhe State (2001 SCMR 41) and

I

Hablbur Rehman v. The State (1994 PCr' I'J 111)'

13.On the other hand' learned A'P'G' fully supported the impugned

judgment. Whilst he conceded that there may have been some only a minor contradictions in the prosecution evidence these were of natureandwerenotfataltotheprosecutioncase.Thatotherwisethe prosecutionhadproveditscasetlroughreliableandtrustworthy j

-l32

evidence beyond a reasonable doubt and as such the impugned judgment should be upheld and the appeal dismissed' perused the 1.4. I have considered the arguments of learned counsel, record and the case law cited by them at the bar' by the

15.At the outset I would like to deal with the submission on which he appellant that the inquiry was in violation of S'i73 Cr'PC appears also to have relied on the case law of Zahoor and another (Supra)' (Supra), Muhammad Aslam (Supra) {nd Habtbur Rehman 16.Itissettledlawthataspeciallawwillprevailovert}tegenerallaw Rules when in conflict.s.11 of the sindh Ertquiry and Anti corruption provides as under:

'S. 11. Registration of cases'-(l) criminal t^""t: shall be Prevention of Corruption registered by the Establishment under Code' Act, 1947 and under such sections of the Pakistan Penal as have been set forth in the schedule to the Act' (2) No criminal case shall be registered against accused public servant without prior approval of the 'Competent Authority':

Provlded that such prior approval shall not be neceasary foi registratlon of ""tt against- public servant -..oint likely t" t" red-handed as a result of rald/trap' arranged by psfiblishment under the supenrision of a Magistrate lr"Jir-"."*e of his, non-availabiltty the Gazetted Officer of the Eetablishment'

(s)

17.Since this is a special law it will override the cr.PC and s'11(2) of this case makes it clear that based on the facts and circumstances this no prior sanction under S. 173 Cr'PC was required and as such contention of the appellant is without, substance' by the judicial 1g. Although the currenc5r notes havi not been initialed magistrate based on the facts and circumstances of this case I do not (and the find this omission to bp fatal to the prosecution case appellant has produced no[case law to this effect)'This is because the tainted currency notes carried unique serial numbers which were Halepoto of noted down and given to ihe complainant by PW 4 Jawaid the concerned the ACE in the presence of PW 5 S'M'shakeel who was judicial magistrate as is"evidenced from the record vide Mashirnama Y,r/

l

-13 j

No.1 and the same currency notes bearing the same serial numbers PW 4 Jawaid Halepoto were recovered, by the aforesaid magistrate and arrest and recovery from the possession of the appellant as per the no doubt' in my view' thal memo (Mashirnama II). Thus, there can be were recovered from the the tainted currency notes were those which initialed by the magistrate appellant despite the fact that they were not to be of any substance' and as such I do not consider this contention in the evidence of the

19.It is true that there are some contradictions PW's however having revlewed the same I do not consider any of tlese of the case and to be material based on the facts and circumstances appear to be the other evidence available onl record' These be accounted for by the contradictions of a minor nature which can to 4 years after the fact that the evidence was recorded around 3 reference may .be made to occurrence of the incident. In this respect the case of Zakit Khan & others v' The State (1995 SCMR 1793)

20.The stronger part of the appellants case in my view rests on the from the complainant fact that there was no other eye witness apart handed over to the who actually saw the tainted money being the complainant and appellant and heard the conversation between the tainted money' In this the appellant during the handing over of respect the appellant has placed reliance on the cases of Rashid Ahmed (Supra) and Abdul MaJeed (Supra) i

21.The case of Rashld Ahmed (Supra) although a supreme court case of this case' This is distinguishable from the facts and circumstances the accused was able to is because in Rashid Alimed's case (Supra) evidence that they had heard produce two defense witnesses who gave and the accused at the time the conversation between the compld'inant the tainted money was handeci over to the accused which was to when to the accused in the effect that the money was handed over In this case the aPPellant connection with funds for a Kabadi' match independent evidence as to -r( has not been able to produce any such over to him' why the tainted currency notes were handed else apart from the complainant 22. ln my view whether any one tainted money may acquire witnessed the handing over of the relevance depending on the facts and circumstances of the particular was found on the appellant by

PW

case. In this case the tainted money judicial 4 Jawaid Halepoto and PW 5 S'M Shakeel the concerned given to him by the complainant magistrate within minutes of it being

Y

1s1

received the tainted so there is no doubt in my'mind that the appellant money which could only have come from the complainant as it had

matching serial numbers.'

complainant and the

23.With regard to what was said between the over to the appellant appellant before the tainted money was handed he retained this the appellant has given no explanation as to why and P'W-4 Jawaid money before it was recovered by the magistrate as per his defense then Halepoto. If it was forcib[i' put in his pocket why did he not why was no ruckus created during this occurrence? throw the' tainted money on the floor or back at the complainant?

cross examination he According to his 5.342 statement and his line of was unable to assist the has been falsely implicated in this case as he the complainant' If complainant in his pensioh matters which annoyed any money at all and this was so why would the complainarit give him why did the appellant keep the money? Why would a disinterested judicial officer like the concerned judicial magistrate in this case Or the ACE (S.M.Shakeel) want to falsely implicate the appellant? had no enmity' ill circle officer Jawaid Halepoto who, Iike S.M.Shakeel, There is no will or animus towarCs the appellant as per the record' above' In addition if reason or explanation whatsoever for any of the the complainant the appellant was a lowly clerk who could not assist why were some o[ the complainants pension papers recovered from his and the possession (EX 8lD)? The above remains unexplained sense that the situation does not appeal either to reason or common appellant was doing anything other than taking a bribe from the This in my view complainant in return for getting his work done' Seemstobetheonlyreasonableinferencewhichcanbedrawnbased 'this case and the evidence on on the facts and circurristances of record to be all credible'

24.Furthermore' I find ,the prosecution witnesses during cross reliable and trustworthy none of w\om were damaged case of the prosecution ) examination and all tend to corroborate the have been exhibited in either orally or through the documents which evidence create a chain of evidence. In my view the iW's through their consistent and reliable evidence which fits in fully with the reported the demand prosecution case from the time the complainant officer up to the time of of a bribe by the appellant to the ACE circle the trial.

w)

13s

25.In the case of Mallk,Ilmer Hayat v state (1998 SCMR 586) where no person except the complainant had witnessed the handing over of the tainted money and no other' person heard the conversation between the complainant and the'appellant at the time when the tainted money was handed over the supreme Court held this'to be of little consequence in view of the other evidence lead by tJre prosecution in the following terms as under at P.588 Para 6 "Mr. Ehsanullah Khan Lilla, learned counsel for the petitioner has argued thet contradictory statementa were glven by the pro"."i.tlon witnesses and that passing of the brlbe moqey Lad not been wltnessed by the ralding Pefty nelther conversatlon between the complalnant and the petltloner had been heard by tt. But none of the argumonts aPPeer to be of any substance. Evldedtially, the complalnant or the other prlsecution wltnessee did not have any motlve to lmpllcite the petltloner falsely ln the casb' The rald was coiducted ty siouait Basit (p.w.3t who was a Magistrate and in whose Preaence the tainted money was taken out by the petttionei -Further, from his pocket lld. !lt"*n on the ground' even copy, of Jlmabandi which had been prepared by the petiiion.t *^s, subsequently, seized by the Circle lnspector and'produced in' evidence. 'The statement mede by the petitioner before the Magistrate that the money had been ihrust lnto hle walst-coai picket by the complalnant was' therefore, not bellevable in such circumstances. Although the petliloner had alleged enmlty wflh complainant Muhainmad Afzal but such allegation was dlscarded both by the learned Trlal, Court as'lwell as the loarned Appellate Courtlnvlewoftheclearprosecutlonovldenceandln fact abeence of proof to sustaln such allegatlon' The mere that converiatlon' between complainant and the petltloner wasnotheardby.thewltnessesorthatthetaintedmoney dld not paee ln ihulr p"u*unce, therefore, would be of llttle .oo".qrirr.e in view of ttie other evldence led by' the prosecutlon ln the case." (bold)

26.Such line of reasoning was also followed in tJ'e case of Muhammed Abdullah V The State (2OOl P.Cr.LJ 1898)'

27.Thus, based on Mallk Umer Hayat's caae (Supra) and the other L evldence lead by the prosecution which I have already found to be credlble, reliable and 'trustworthy I do not consider it o[ nructr relevance, let alone 1261r to the prosecutions case' based on the facts andcircumstd.ncesofthiscasethatnooneelseheardtheconversation between the complainant and the appellant prior to the complainant handing over the tainted money to the aWellanL'

O,

13L

28.I have also gone through the impugned judgment which I consider to be well reasoned andthas attended to all the aspects of the case raised by the appellant in his appeal.

29.Undoubtedly in a criminal prosecution the appellant should be entitled to the benefit of the doubt and I am guided in this respect by the case of Faheem Ahmed f,'arooqui V State (2008 SCMR 1572) where it was held as under at P. 1576 at Para D

"lt needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one inlirmity is not required, a slngle inflrmity creating reaeonable doubt in thi mind of a reasonable and prudent mlnd regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt."(bold added)

30.In this case I am of the view that when the evidence is read in totality there would be no doubt in a reasonable and prudent person's mind that the appellant was guilty of the offense for which he has been convicted not withstanding the few minor contradictions in the evidence of the PW's which even otherwise are not fatal to the L prosecutions case.

31.Thus, for the above reasons I find that the prosecution has provcd its case beyond a reasonable doubt against the appellant, up hold the impugned judgment and hereby dismiss this appeal. The appellant on bail is ordered to be takeR immediately into judicial custody where he shall serve out the remainder of his sentence as set out in the impugned judgment.

Hyderabad Dated: 2O-O4-2O17

JUD

L

a