1. The appellant, an Assistant Sub-Inspector of Police, who was convicted by the learned Special Judge, Anti-Corruption, Hyderabad under section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947, on the finding that be demanded and accepted bribe of Rs.
2. 500, and sentenced to three years' R.
1. And to pay a fine of Rs. 5,000 or in default to suffer R. I. For a further period of six months; has filed this appeal under section 410, Cr. P. C. Read with section 10 of the Prevention of Corruption Act, 1947.
3. The facts leading to this appeal are that the appellant was Assistant Sub-Inspector of Police at Market Police Station, Hyderabad. On 1-4-1976 at 10 a.m. F.
1. R. Was lodged by Islamuddin with the Anti-Corruption Police Hyderabad stating that he was a dealee in second hand motor-cars and he was going to his house from Shahab Cinema when at about 12.30 a.m. He was stopped in front of Sheesh Mahal Hotel by the appellant and some Constables of Market Police Station and accused of going to the red light area. He replied that he was going to his house in Ghari Khata, but the appellant took him to the Market Police Station, where on search of his person Rs. 1,500 were taken from his pocket by the appellant who put him in the lock-up. At about 5.30 a.m. He was released on his promising to pay Rs. 500 demanded as bribe, on pain of being implicated in a false case. He promised to pay the amount the same day in a hotel at Pinjrapur.
4. After recording the F. I. R., the Circle Officer gave Rs. 500 to complain--ant Islamuddin in presence of Magistrate Mian Muhammad Hafeez and Mashir Shahid Abdullah. A trap was organised. The trap party, including com--plainant Islamuddin, went to Muhammadi Hotel where the complainant passed on the tainted money to the accused who was caught red-handed with the tainted money.
5. After investigation, the appellant. Was sent up to stand his trial before the Special Judge, Anti- Corruption Hyderabad.
6. The appellant pleaded not guilty and claimed to be tried. He denied the whole affair, denying that he had demanded and accepted Rs. 500 on 1-4-1976 and also denying that he had thrown the tainted money after seeing the trap party. The appellant further stated that complainant is a criminal by disposition and the Circle Officer and Mashirs were friendly with him. The appellant produced simple copies of F.
1. Rs. Against the complainant.
7. Mr. Usman Ghani Rashid, the learned counsel for the appellant, has raised the following contentions: -: (1) That there is inherent infirmity in the evidence inasmuch as there is no charge of wrongful confinement or extortion in the F.
1. R. Against the appellant which could be the basis of the element of demand of bribe. .
(2) That the factum of demand of illegal gratification has not been proved as it does not come from independent source.
(3) That since the raiding Magistrate neither heard the talks nor saw the passing of the tainted money, the planting of the same is not ruled out.
(4) That the tainted money was found lying on the ground and therefore could not be said to have been recovered from possession of the appellant.
8. After a careful perusal of the evidence en record, it is apparent that -there is hardly any independent evidence to prove the demand of illegal gratification. The only evidence on the point is of complainant which in cases of this nature can hardly be considered as independent and unbiased. According to the complainant, he had informed his father with regard to the demand by the appellant, but the father of the complainant is -mat a witness. The only other independent and reliable evidence could be of the raiding Magistrate and the Mashir. The evidence of Mr. Hussain Bux (Exh. 3) shows that he was not placed in a position from which he could have heard the talks between the complainant and the appellant. The evidence of Mashir Shahid Abdullah (Exh. 10) also does not help the prose--cution in this respect inasmuch as he does not state that he heard the appellant demand illegal gratification from the complainant. It is significant to note that, Mashir Shahid Abdullah, according to the prosecution version, was sitting with Anti-Corruption Inspector Mian Muhammad Hafeez at a table only 2-3 paces away from the place where the appellant and com--plainant were talking. It is not conceivable how Mian Muhammad Hafeez could have heard the appellant demand illegal gratification of Rs. 500 from the complainant when Mashir Shahid Abdullah could not hear any such thing.
9. With regard to the passing of the tainted money by the complainant to the appellant, there is no reliable evidence on record as the raiding Magistrate did not see any such passing of the money and the only Mashir also merely states that he only saw the complainant pass on something to the appellant.
10. I have examined the evidence on record with care regarding the fact whether the tainted money could at all be considered as having been recovered from possession of the accused-appellant. A perusal of the evidence on- record would show that at the time of trap there were two groups of witnesses. Firstly, there was Mashir Shahid Abdullah and In--spector Mian Muhammad Hafeez who were instructed to sit on a table in the hotel just 2-3 paces away from the place where the complainant and accused were to sit. Secondly, there was Inspector Faqir Muhammad Khan of Anti-Corruption Police, the Magistrate and other staff of Anti-Corruption Department who stood outside the hotel till the Mashir gave the assigned signal. It is the prosecution version that Shahid Abdullah and Inspector Mian Muhammad Hafeez sat at the table only 2-3 paces from the place where the complainant and the appellant were sitting. It is, therefore, reasonable to presume that Shahid Abdullah and Mian Muhammad Hafeez would give the same version about what they saw and heard. Similarly, since according to Inspector Faqir Muhammad he, the Magistrate and his staff were outside and rushed in on getting the appointed signal, it is reasonable to presume that what the Magistrate saw and heard would be similar to the version of Inspector Faqir Muhammad at least in essential details. Shahid Abdullah P. W. 3 describes the happenings inside the hotel as under;-- "I and one Inspector sat in the hotel while another Inspector, Magistrate and other staff waited outside, the hotel. The complainant stood outside. After a while complainant in company of present accused entered the hotel and sat there at the distance of 2-3 paces from us. Complainant gave something to accused and accused accepted that. The accused was holding that thing in his hand when trap party rushed inside. I had signalled the trap party, when accused had accepted that thing. As soon as the trap party reached the accused, we noticed the tainted money lying on the feet of the accused,"
11. It may here be stated that the Mashir did not state that there was demand for illegal gratification or even that he heard any talk. He also did not state that he saw appellant take tainted money from the complainant. Mian Muhammad Hafeez, however, stated as under :- "After a while complainant along with accused entered the hotel and sat on another table near there. The accused demanded money from the complainant. The complainant then passed on the tainted more to the accused. The accused counted the currency-notes and held them in his hand.
12. Mashir gave signal to the trap party on which trap party rushed in. Accused seeing the trap party threw the tainted money at his feet."
13. Mr. Hussain Bux, the raid Magistrate stated about the same incident as under;- "Both Mashir and complainant first entered at Muhammadi Hotel in Pinjrapur. After a while the accused A. S. 1. Ijaz came there and he was followed by complainant and the Mashir took position near the counter. I and some of the Police Party stood near a mandni from where the Mashir was visible while coming out when he went inside the hotel hall. The remaining Anti-Corruption party, including the Circle Officer were standing opposite the entrance of the hotel. After 10-15 minute Circle Officer's party rushed in the hotel followed by cur party. I found the accused sitting in a chair near a table and complainant was standing near him and the counter. The tainted money was on the ground when I reached there near the feet of the accused."
14. Inspector Faqir Muhammad Khan, Circle Officer gives a somewhat different version as under "Mien Hafeez and Mashir were asked to go and sit inside the hotel on the table. They sat on a table.
15. Complainant went and stood at the counter while I, Magistrate and other staff stood outside the hotel. 5-10 minutes after accused came there. The accused talked to the complainant and they both entered the hotel. 10-15 minutes after the Mashir gave us a signal. I and Magistrate rushed into the hotel. We entered the hotel. We found complainant standing at the counter while present accused was drinking coca-cola. The accused seeing us threw the money at his feet."
16. It is apparent that whereas the Anti-Corruption Inspectors have fully supported the prosecution version about the talk demanding the illegal gratification, the taking of tainted money and the throwing of it by the appellant, the Mashir and the Magistrate have not supported the prosecution with regard to all the three aforesaid particulars. Mr. Usman Ghani Rashid, the learned counsel for the appellant, has argued that there are different versions by witnesses having the same opportunity to see and hear and therefore the benefit of the doubt should have been given to the appellant and not to the prosecution as was done by the learned Special Judge. The argument is based on well established principles of appreciation of evidence and carries all the more weight as the doubt is created by the version of the Mashir and the Magistrate whose evidence is pitted against the version of the two Police Officers. It ',z also significant to note that whereas Inspector Faqir Muhammad stated that he found "complainant standing at the counter while present accused was drinking coca-cola"; Mr. Hussain Bux Magistrate stated that the appellant was sitting on a chair near a table and complainant was standing near the counter near him. In the Mashirnama No. II dated 1-4-1976 prepared at 11-45 a.m. By the same Circle Officer Inspector Faqir Muhammad Khan who had stated that the appellant was drinking coca cola the version is as under "We the undersigned were present just outside the hotel when com--plainant and accused A. S. I.
17. Entered the hotel, sat there and took tea. After about 15-2'J minutes complainant stood by and gave signal. We entered in the hotel. Identified ourselves. The accused stood up and tainted money was lying just near the feet of the accused, which was taken by the H. M. And III Class Magistrate."
18. Instead of coca-cola, tea has been mentioned and instead of signal being given by the Mashir signal by the complainant is mentioned. These discrepancies, unimportant as they may appear, show as to what credit can be given to the word of the Investigating Officer.
19. Mr. Usman.Ghani Rashid, the learned counsel for the appellant, has relied upon the decision of the Supreme Court in Criminal Appeal No. K-6/70 Muhammad Umar v. State dated 21st August, 1970 in which under similar circumstances when after the arrival of the raiding party, the marked currency-- notes which tallied with serial numbers entered in the Mashirnama were found lying on the road where the accused had been caught, and it was contended that nobody from the party which laid the trap bad seen the appellant throwing away the same, and the evidence led by the prosecution showed that nothing was found on the person of the appellant, the evidence was found not free from doubt. The learned counsel has also relied upon the decision of the Supreme Court in Criminal Appeal No. K-28/73 Hajiz Aziz Ahmad Khan v. The State dated 18th August, 1980.
20. The evidence of the first inform--ant alone with regard to the demand of illegal gratification and passing of the money in an envelope under the table was not accepted to be free from doubt since at the pre-arranged signal when the entire raiding ,party came into the room nothing was secured from the person of the appellant, but an envelope was found lying on the floor containing the tainted money under the table near the appellant's feet. In that cash it was contended that on the vital question of the money having been paid to the appellant and having been accepted by him, the solitary evidence of the first informant could not be accepted, since the witness was admittedly an, interested person and had reason to be annoyed with the appellant.
21. In the instant case the evidence of Islamuddin, the first informant, cannot be considered to be unimpeachable and reliable.
22. At the very outset the appellant had taken the p11 a that he was a person of criminal disposition.
23. The appellant had produced copies of first information reports against Islamuddin alleging commission of offences. In any case, since the giver of bribe is also considered to be guilty of the offence as much as the taker, even though it is in a so-ealle4 trap case, his evidence should be considered with utmost care and caution. The learned counsel for the appellant has pointed out many discrepancies in his evidence in the deposition and his version in the F.1. R. Whereas in the F. I.
24. R. Islamuddin stated that he was a dealer in second hand motor cars since 4-5 years; in his deposition he has stated that he was running a medical store since 1974. Again whereas he has stated that he and the accused appellant entered the hotel and sat at a table on two chairs, and further that the Mashir was sitting about two-three paces away from the table, the Mashir, namely, Shahid Abdullah does not support his version that he had heard the appellant demand the money from the complainant. It may further be pointed out that although the complainant had stated that on the night when he was locked-up at the Market Police Station he was returning after meeting Manager of Shahab Cinema. Defence witness Yar Muhammad Shah has stated that he is the Manager of Shahab Cinema since 1964, and further there was no parson by name of Usman who worked at Shahab Cinema. In any case, with regard to the crucial point about`. The recovery of tainted money be has stated that "while the Inspector was catching the accused the money which he was holding in his hand fell near the feet". If we accept this version about the appellant throwing the money while Inspector was catching him there is no explanation why, although the Magistrate was accompanying the Inspector and the Mashir was already present at the spot, they have definitely stated that they did not even see the accused throwing the tainted money. In this respect the only evidence in support of that of Inspector Faqir Muhammad is of Mian Muhammad Hafeez who too is an Inspector in the Intelligence Cell of Anti---Corruption Establishment at Hyderabad.
25. This witness, according to whom Mashir Shahid Abdullah gave signal to the trap party. Has stated as under;-- "The accused demanded money from the complainant. The complainant then passed on the money to the accused. The accused counted the currency-notes and held them in his hand.
26. Mashir gave the signal to trap party which rushed in. Accused seeing raid party threw money on the ground. Raid party arrested the accused."
27. Since the Mashir was actually watching and had given the signal, there is no explanation as to why if actually the appellant counted the currency-notes and held them in his hand the Mashir could not see the same. Again the raiding Magistrate has stated that he had seen the Mashir taking position near the counter and the remaining Anti-Corruption party, including the Circle Officer, were standing at the entrance of the hotel. The raiding Magistrate does not speak of having seen Mian Muhammad Hafeez at the time.
28. Under the circumstances stated, the money was not recovered from the person of the appellant who is entitled to benefit of doubt. I would, therefore, give the benefit of doubt and accept his appeal. The appeal is accordingly allowed and the conviction of the appellant is set aside. The appellant is on bail. The bail bond stand cancelled.