1. This appeal is directed against the judgment dated 15-6-1974 passed by the Special Judge, Anti- Corruption, Sukkur, whereby appellant named above has been convicted for offence under section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to a fine of Rs. 5C0 in default of the payment whereof he would undergo S. I. For a period of one month. After hearing the learned counsel appearing for both the parties this appeal was disposed of and was accepted m the result whereof order of conviction and sentence was set aside and appellant was acquitted. The reasons follow now.
2. Briefly stated prosecution story is that complainant's father purchased S. No. 208 in Deh Shadi Shaheed, Taluka Rohri and khata was mutated in his name. Subsequently this Survey No. Mutated in the name of some other person and in that connection, complainant made an application to the Deputy Commissioner which was forwarded for necessary action to the appellant who was at that time Mukhtiarkar. Appellant demanded bribe of Rs. 300 which was allegedly paid to him and thereafter he demanded Rs. 50 for issuing notice to Maula Dad in whose favour the said survey number had been mutated. It is further stated that on one or two occasions notices were not served and were repeated after payment of Rs. 50 was made to the appellant for that purpose. On the last occasion, that is, 29-5-1972 the appellant demanded Rs. 50 for making the report and the complainant agreed to pay this amount on 30-5-1972. Complainant reported the matter to Anti- Corruption Police and a trap was set. Rs. 50 were paid to the complainant after numbers of the notes were noted. The complainant accompanied by mashir Muhammad Anwar went to the house of the appellant, who demanded Rs. 50 and the complainant handed over the tainted money to him and signalled the trapping party. It is alleged that on the arrival of the trapping party the appellant threw the money on the ground which was picked up by the S. D. M. Mr. Shaukat Ali. The numbers of the notes tallied with the mashirnama. After completing the usual investigation the appellant was challaned.
3. Before the trial Court the appellant admitted having received this amount of Rs. 60 from the complainant and explained that the amount was paid by him to the complainant for purchase of Sindbi wheat and on the day when raid was conducted, the complainant had come to return the said amount of Rs. 50 as the wheat was not available. He has further stated that on the appearance of raiding party due to fear he threw away the money in a state of panic. He has further alleged that he had departmental difference with Mr. Shaukat Ali, S. D. M. And the Investigating Officer is a friend of the S. D. M. The appellant did not examine any witness in his defence.
4. Prosecution has examined 7 witnesses in the case. P. W. 1 is Mahram complainant. P. W. 2 is Mushtaq Ali from whom it is alleged that Rs. 200 were borrowed by the complainant for passing on to the appellant as bribe. P. W. 3 is Daddan, brother of complainant before whom, it is alleged, Rs.
5. 50 were paid to the tapedar on a previous occasion. P. W. 4 is Mr. Shaukat Ali, S. D. M. Who had supervised the trap. P. W. 5 is Khemchand, D. S. P., A. C. E., Sukkur who had conducted the raid. P. W.
6. 6 is Ghulam Sarwar, tapedar who has deposed that complainant brought to him application endorsed by the Deputy Commissioner to Mukhtiarkar, who had endorsed it to him for inquiry on the spot. He made inquiry and submitted his report on the application. P. W. 7 is Muhammad Anwar, who is the mashir and has attested the mashirnama of recovery of tainted money Exh. B. From the scrutiny of the evidence, it obviously appears that Mahram complainant has not supported the prosecution case and has testified before the trial Court in line with the assertion of the appellant, as stated above. He has further deposed that it was tapedar and not the appellant who had been persistently demanding bribe from him. He has further stated that he made a complaint against the tapedar before the appellant who promised to do his work if he brought him Sindhi wheat and for that purpose he paid him Rs.
50. On the day of the raid he had returned Rs. 50 to the appellant Mukhtiarkar as Sindbi wheat was not available. Complainant was declared hostile and cross- examined. P. W. 2 Mushtaq Ali from whom Rs. 200 were borrowed by the complainant for payment as bribe to the appellant also did not support the prosecution case and was declared hostile. The evidence of P. W. 3 Dadan does not implicate the appellant for the reason that according to his deposition Rs. 50 were paid by the complainant to tapedar for "$abtb" in his presence. He has further stated that he did not know who his "Sahib" was. Evidence of Mr. Shaukat Ali, S. D. M. And Khemchand, D. S. P. Relates to the passing of tainted money to the appellant and recovery there of vide mushirnarna Exh.6-B. Evidence of Ghulam Sarwar, tapedar also does not implicate the appellant as it is confined only to the question of inquiry, he was called upon by the appellant, to make in this matter. P. W. 7 Muhammad Anwar mashir has supported the prosecution case.
7. It is argued before me on behalf of the appellant that receipt of tainted money of Rs. 50 by the appellant is not disputed by the defence but the question which falls for consideration is whether this money can be termed as tainted because it was not an illegal gratification but was handed over to the complainant by the appellant for the purpose of purchasing wheat and because the wheat was not available that money was returned by the complainant to the appellant. The complainant himself, who is supposed to be the star witness of prosecution has fully supported the appellant on this point of defence and in consequence, refused to support the prosecution case, as such, he was declared hostile. The evidence of the complainant is the back bone of the prosecution case and his allegation that money was being demanded from him as bribe is the basis and foundation upon which subsequently the prosecution is to be built and proved. If this foundation is removed, the whole prosecution case falls down like a house of cards. It is true that section 4 of the Prevention of Corruption Act, 1947 provide for presumption in favour of prosecution when the tainted money has bee passed into the hands of the accused and the burden would be upon him to prove that it was not accepted by him as illegal gratification but this would require consideration of two important points. Firstly that whether the money in question was tainted as alleged by the prosecution and secondly what is the standard of proof required from the accused when per statutory requirements presumption operates against him. On the first point, it h been argued before me that in the instant case when the complainant is not supporting the prosecution allegation that the marked notes were meant to be delivered as illegal gratification and both the complainant and the appellant in the instant case unanimously slate that money was given and returned for some other purpose, which has nothing to do with the allegation of bribe, the money which was passed to the appellant during the raid was not tainted at all. On the second print, it has been argued before me that in the instant case when presumption operates against the appellant under section 4 of the said Act, the burden of proof which falls upon the appellant is not greater but lesser than the general standard of burden of proof on the prosecution which makes it imperative upon the prosecution to prove guilt of accused beyond any reasonable doubt. In this context it is further contended before me that in such a case when law raises a presumption against the accused and calls upon him to prove the contrary, it is well settled that contrary can be said to be proved if the accused succeeded in establishing that the act attributed to him is capable of interpretation other than that suggested by the prosecution. The proof of the contrary need not necessarily be by evidence orally or documentary but it may be furnished by the statement of the accused or by the circumstances of the case. It therefore, follows that the presumption against the accused is not to be drawn until the explanation of the accused is considered and found unsatisfactory. Till then the normal principle will apply namely that accused is entitled to benefit of doubt, when reasonable explanation is offered, which if accepted, raises doubt that the prosecution has not discharged the burden though the accused may not have proved the explanation. In this context, my attention has been drawn to the case of Sultan Ali v. State (PLD 1971 Kar. 78) and Barkat Ali v. State (PLD 1973 Kar, 659), which are very relevant authorities for the purpose of this case. In the instant case, therefore, the non-support of prosecution case by the complainant with further assertion which is consistent with the allegation of defence adopted by the appellant, re-acts upon the whole prosecution evidence and creates a serious doubt to the effect that B prosecution has failed in its duty to prove the guilt of the appellant beyond doubt. Mr. Manzoor Hussain, the learned Advocate for the State has frank conceded that in view of the legal position enunciated in the rulings quoted above and the contentions raised by the learned Advocate for the appellant, he does not support the impugned judgment. For the facts and reasons mentioned above, it is held that prosecution has failed to prove the case against the appellant, and the appeal is accepted.
8. In the result, the order of conviction and sentence is set aside.