This appeal under section 410, Cr. P. C. Read with section 10 of Criminal Law Amendment Act of 1958 is directed against the judgment dated 30th January, 1979, of the learned Special Judge, Anti- corruption, Sukkur, whereby he convicted the appellant under section 161, P. P. C. Read with section 5(2) of Act II of 1947 and sentenced him to imprisonment till rising of the Court and to pay a fine of Rs. 3,000 only or in default of payment of fine to suffer R. I., for three months, more. The appellant was tried with the co-accused Ghous Bux who was convicted under section 165, P. P. C. And sentenced to imprisonment till rising of the Court and to pay a fine of Rs. 3,000 or in default of payment of fine to suffer R. I. For three months more. The co---accused Ghous Bux has not preferred any appeal against his conviction and sentence.
2. The facts of the persecution case are that one Mouladino Khan son of Hondo Khan by caste Shar resident of village Arab-Shar; Taluka Kashmore of District Jacobabad lodged his F. I. R. On 30th August, 1977 at 10-30 a. m. At police Station, A. C. E., Jacobabad, which reads as under :- "Complainant's complaint is that on 26-8-1977, 1 along with my wife Mst. Momal had reached our own house in Kashmore from our village Arab Shar for making purchases of clothes etc. For Eid. It was noon time. At that time, Jamadar Muhammad Nawaz and con--stable Saeed Khan of P. S. Kashmore came at the door of my house and told me that I had been called by A. S. 1. P. Imdad so I went with them to Police Station, Kashmore Imdad A. S. I. P. Sitting there who told me that two applications against me were received by him from Martial Law. I enquired from him as to who had made those applications against me. He told that Mst. Razi Manganhar and Ramzan Mirbahar, both residents of Kashmore had complained against me. Subedar Imdad ordered Jamadar Muhammad Nawaz to confine me in room who accordingly confined me. After about 2 hours, Jamadar Muhammad Nawaz while standing at the window told me that, 'if you agree to bargaining, they would set me free otherwise I would be produced before the Martial Law Court, Jacobabad'. I entreated a lot to him, where upon Jamadar Muhammad Nawaz told me that, 'if you pay Rs. 1,000 as gratifica--tion (Kharchi) you would be set free. I told him that, 'I am poor and do justice, but he did not agree'. In the last, I told him that, "I may be released so that I could arrange for the money, whereupon Jamadar Muhammad Nawaz told that 'Your wife is sitting at the door of the Police Station'. I asked him to summon my wife. My wife Mst. Momal came, Jamadar brought me, out of the room. I took Rs. 500 from my wife and paid to Jamadar Muhammad Nawaz and for the balance I entreated to be excused but Jamadar did not agree, and told me to give the remaining amount of Rs. 500 within four-five days, otherwise they would produce me before the Martial Law Court. So, according to the schedule, 'Jamadar Muhammad Nawaz shall receive Rs.
500 towards the remaining illegal gratification'. I complain for redress."
3. The F. I. R. Exh. 5-A was recorded by C. O., A. C. E., Jacobabad, Rajib Ali, who after registering it, took up Nisar Ahmed, Head Munshi and IIIrd Class Magistrate, Jacobabad, Ghulam Muhammad Mashir, and the complainant with him and proceeded to Kashmore. They went !o the house of the complainant there and a sum of Rs. 500 as a tainted money was given to the complainant in presence of the Magistrate as well as Ghulam Muhammad Mashir and such Mashimama Exh. 4-A was prepared in presence of them. The complainant accompanied by the Mashir went to a nearby room where the money was to be given to the appellant. After some time Mashir gave such signal and C. O., A. C. E., and the Magistrate went there. The complainant informed them that the accused Muhammad Nawaz (appellant) has accepted the money and passed on to co-accused Ghous Bux as both the accused were sitting in the same room. The tainted money was recovered from co-accused Ghous Bux and compared with the Mashirnama Exh. 4-A and found to be same which was given to the complainant. The C. O ; prepared such Mashirnama Exh. 4-B and arrested both the accused there. The C. O, also searched the person of the accused Muhammad Nawaz and recovered the applications made against the complainant and warrants Exh. 6-B/1 to 6-B/5 and a sum of Rs. 40 from his possession and prepared such Mashirnama Exh. 6-A.
He thereafter recorded further statement of the complainant and examined Ghulam Muhammad Mashir (P. W. 1). He interrogated the accused and the co-accused Ghous Bux out of them volunteered to make confession He therefore produced him before the Mukbtiarkar and F. C. M., Jacobabad on the same day where his confession was recorded.
4. The prosecution case mainly consists of the evidence of Ghulam Muhammad Mashir (P. W. 1)
Mouledino complainant (P. W. 2) Nisar Ahmed Head Munshi and IIIrd Class Magistrate (P. W. 3)
Saadullah Mukhtiarkar & F. C. M., Jacobabad (P. W. 4) and Rajib Ali C. O., A. C. E., Jacobabad (P. W.
5). The confession of the co-accused Ghous Bux made before Mr. Saadullah (P. W. 4) being not within provisions of section 364, Cr. P. C. Has however been rejected by the trial Court.
5. The accused has denied the allegations and has further stated that the complainant tried to give him Rs. 500 on the fateful day for giving the same to one Ellahi Bux (D. W. 1) but he refused to accept this amount. It was during that time when the raiding party arrived and the complainant threw the amount on the ground which was secured by the trap party from there. He has stated that the complainant was a man of bad character as he was bound down under Goonda Act as well as under section 110, Cr. P. C. And the certified copies of the orders to this effect have been produced by him as Exhs. 9-A and 9-C respectively. It has also been stated by him that Azad Khan Head Constable who is his brother, had appeared as a witness against the complainant in the proceedings under Goonda Act and the certified copy of the complaint has been produced as Exh.
9-B. Jalal Khan A. S. I., who submitted the report against the complainant under section 110, Cr. P. C.
(Exh. 9-C) is closely related to the co-accused Ghous Bux. Moreover the complainant was a history sheeter of P. S. Kashmore and such certificate from S. H. O., Kashmore has been produced as Exh. 9- D. The F. I. R. Exh. 9-E, was registered against the complainant as well as his wife under section 363, P. P. r. It has been lastly stated by him that one Sallar Shar, real cousin of the complainant, was a dacoit and murderer who was wanted by the Police in many cases. The appellant while acting as a spy against him, got him trapped and he was killed in an encounter with the Police party and the appellant was also a member of it. Such certificate Exh. 9-F and the list of Police Staff Exb. 9-G from the S. H. O., Bakhshapur are also produced and so also the F. I. R. Of the encounter as Exh. 9-H. The appellant has been falsely involved by the complainant due to above enmity with him.
6. I will first of all examine the evidence in the case. The complainant (P. W. 2) has stated that it was on 26-8-1977 when the appellant, Saeed Khan Constable and another unknown Constable went to his house and took him that he was called by the A. S. 1. Imdad of Police Station Kashmore. When he went there, the S. H. O. Informed him that there were two applica--tions against him which were sent by the Martial Law Authorities. He was therefore confined in the room for a day. Muhammad Nawaz (appellant) came to him and told him that he could be let off in case he paid a sum of Rs.
1,000 otherwise he would be sent to the Martial Law Authorities. He pleaded his poverty but subsequently agreed to make the required payment. He sent for his wife and took a sum of Rs. 500 from her and paid the same to Muhammad Nawaz (appellant) when P. C., Saeed Khan was also present there. He requested for four days time for payment of the remaining sum of Rs. 500 and got himself released. He went home and proceeded to Jacobabad from there and lodged such F. I.
R. Exh. 5-A with the C. O., A. C. E, Jacobabad. The C. O., A. C. E, Nisar Ahmed Head Munshi and 1llrd Class Magistrate, Jacobabad and Ghulam Muhammad Mashir accompanied him to Kashmore in a jeep. After reaching there, they stopped the jeep at octroi-post and went to his house where, "tainted money" amounting to Rs. 500 was given to him by the C. O., A. C. E. In presence of Mashirs.
He and Ghula.m Muhammad (Mashir) thereafter went to a room of his house and waited there.
Muhammad Nawaz (appellant) and the co-accused Ghous Bux came and the complainant gave tainted money to the appellant who counted it and put it in pocket of the co-accused Gbous Bux.
Ghulam Muhammad Mashir then went out and gave such signal to the raiding party which came in and recovered the tainted money from Ghous Bux and the applications and Rs. 40 from Muhammad Nawaz. He has denied his relationship with Sallar Shar and also about payment of Rs.
500 to Ellahi Bux Khoso (D. W. 1) who was not known to him.
7. Ghulam Muhammad (P. W. 1) is a Mashir in whose presence tainted money was given to the complainant. He has not supported the prosecution case in toto and has therefore been declared hostile though he has stated that the tainted money was given to the complainant in his presence and such Mashirnama Exh. 4-A was prepared in his-presence which was signed by him and its' contents have been admitted to be correct by him.
8. Nisar Ahmed, Head Munshi and I1Ird Class Magistrate (P. W. 3); and Rajib Ali C. O., A. C. E. (P. W. 5) have fully supported the prosecution case regarding lodging of the F. I. R. By the complainant, given him tainted money and its recovery from the co-accused Ghous Bux who was sitting in the same room with the complainant.
9. Mr. Saadullah, Mukhtiarkar and F. C. M. Has recorded the confession of the co-accused Ghous Bux but the trial Court has not placed any reliance on it as it was not recorded as per requirements of section 364, Cr. P. C.
10. Mr. M. Daud Baloch, the learned counsel for the appellant contends that the A. S. I. Imdad and P.
C. Saeed Khan who were equally responsible for the alleged offence have not been challaned only because the first part of the story in respect of confinement of the complainant and receipt of Rs.
500 from him has not been believed even by the investigating agency. Moreover Mst. Momal who gave Rs. 500 to the complainant who paid it to Muhammad Nawaz (appellant) as illegal gratification has not been examined which casts shadow of doubt on the prosecution case.
Ghulam Muhammad Mashir has also not supported the prosecution case in respect of accepting tainted-money by the appellant and passing it to the co-accused Ghous Bux. He has been therefore declared hostile and his evidence under the circum--stances cannot be believed even on the point that the tainted money was given to the complainant in his presence and such mashirnama was prepared there. It has also been contended that the complainant was a man of bad character, having strong motive to falsely implicate the appellant, on account I of his enmity with him due to encounter with his cousin Sallar Shar who was killed as a result of spy information of the appellant. Moreover Azad Khan who is brother of the appellant has also deposed against the com--plainant in the proceedings under Goonda Act. There remains only evidence of the C. O. And the Head Munshi and 11Ird Class Magistrate which rests on what has been told to them by the complainant as none of them have either seen the tainted money being passed to the appellant or even to the co-accused Ghous Bux. As far as evidence of the complainant is concerned, it cannot be accepted as there is established enmity of the complainant against the appellant and also because of bad character of the complainant. He has placed his reliance on (i) 1976 P Cr. L J 273
(if) 1978 P Cr. L J 32, 247 and 855.
11. Mr. Syed Sarfraz Ahmad the learned Asstt. A.-G. Who has appeared for the State has on the other hand contended that there was no reason for the C. O., A. C. E., and the Head Munshi and IIIrd Class Magistrate, to falsely implicate the appellant. Their evidence was not only corroborative but itself sufficient to connect the appellant with the offence. He has also contended that evidence of the complainant cannot be discarded only on account of his character as he is otherwise as competent a witness as any other person in view of section 118 of the Evidence Act. Moreover there being presumption under section 4 of the Prevention of Corruption Act, against the appellant, no evidence in rebuttal has been led by him. In order to support his contention, he has placed his reliance on (i) 1973 P Cr. L J 911. He has further contended that the tainted money has been given to the complainant in presence of Nisar Ahmed Head Munshi and IIIrd Class Magistrate, Jacobabad and Ghulam Muhammad Mahar (Mashir) which wad given by the complainant to Muhammad Nawaz (appellant) who after counting it passed on to the co-accused Ghous Bux from whom recovery of it has been made within twenty minutes after it was given to the complain--ant. He has therefore contended that it amply proved that the appellant after receiving the tainted money passed it on to the co-accused Ghous Bux only after he found the raiding party entering the room where the appellant was sitting along with the co-accused Ghous Bux. He has challenged the evidence of Illahi Bux D. W. 1 to be of no consequence as there was nothing to establish any transaction of paddy between the complainant and Illahi Bux (D. W. 1) except his oral word which did not inspire confidence about his testmony. He has also contended that the trial court has properly appreciated the evidence and there was nothing to interfere with its decision. He has lastly -contended that there was no question of false implication of the appellant at the hands of the C. O., A. C. E. And the Head Munsbi and 111rd Class, Magistrate who could have otherwise directly shown the recovery of the tainted money from him. The prosecution has placed true version of the incident on record which is sufficient to connect the appellant with the offence. He has also relied upon 1973 SCMR 592.
12. I have heard the learned counsel for the appellant as well as State. I have also carefully examined the evidence on the record. There is no doubt that the A. S. I. Imdad and P. C. Saeed Khan have not been sent up to stand trial though they are alleged to have participated in commission of offence. But it does not make any difference as far as the case of the appellant is concerned as there is direct allegation of accepting illegal gratifica--tion of Rs.500 from the complainant even before this trap is against him. This part of the prosecution story has of course not been proved but the acceptance of illegal gratification of Rs. 500 which was promised to be paid after release by the complainant has been proved through evidence of the complainant who has been supported by the C. O., A. C. E. Rajib Ali and Nisar Ahmed, Head Munshr and IIIrd Class Magistrate, Jacobabad.
Ghulam Muhammad Masbir P. W. 1 has been declared Hostile though he has supported the prosecu--tion to the extent of giving tainted money to the complainant in his presence. Even if his evidence is excluded there is still sufficient proof to bring home the guilt against the appellant. The contention that the complainant was a man of bad character who was bound down under Goonda Act as well as 110, Cr. P. C., and was also inimical to the appellant because Azad Khan who is brother of the appellant appeared as a witness against him under Goonda Act and the appellant was connected with an encounter which resulted in death of one Salar Shar who was cousin of the complainant would not be of much help to the defence because the direct enmity of the appellant has been alleged against the Head Constable Azad Khan and not against the appellant. If there was actually such an enmity between the appellant and the complainant; there is no reasonable explanation as to how the appellant accepted an invitation of the complainant to have a cup of tea at his residence in view of such a strained relationship between them. It has also been admitted by the appellant that he was at the house of the complainant at the relevant hour when the raiding party arrived there which showed that he was obviously there with no intention other than realizing a part of illegal gratification which was promised to be paid to him within three to four days. The appellant has also admit--ted that the complainant tried to give him Rs. 500 for giving the same to one Ellahi Bux, D. W. 1 but he refused and in the meantime trap party arrived and the complainant threw the amount on the ground which was secured by the party. This stand of the appellant is falsified as the amount has been secured from the person of co-accused Ghous Bux who received it from the appellant as stated by the complainant. There is absolutely no reason for the C. O., A. C. E. And the Head Munshi and IIrd Class Magistrate to foist a false case against the appellant. There is convincing evidence on the record that the appellant went to the house of the complainant to accept illegal gratification which was paid to him in form of tainted-money which he accept--ed and passed on the co-accused Ghous Bux seeing the trap-party which was secured from him. The citations referred to above by learned counsel for the appellant are not of much help to him. The case of Muhammad Ramzan has no bearing on this case as the appellant in that case accepted the receipt of money as a loan from Muhammad Amin (D. W.) in connection with the marriage of his maternal nephew and not as a bribe and was also supported by Muhammad Amin who was examined by him in defence. Moreover such a version of the incident was given without any delay which is not the case here. The Raid report Exh. 6-C does not show if the appellant gave such explanation for the amount recovered from the co-accused Ghous Bux.
The other case of Qamarul Islam is also of a different nature as the "tainted money" in that case was recovered from pocket of a coat hanging in a closed room not in an exclusive possession of the accused therefore possibility that some other person put "tainted money" in manner not excluded. The .Case of Abdul Rehman is .Undoubtedly having different facts and circumstances as the entire "trap" proceedings were written down by the Police Officer while raiding Magistrate only obtaining signatures. Moreover the, complainant had met the Police Officer of Anti-Corruption at a place other than the place of his office and the raiding Magistrate was taken to the Anti-Corruption office for recording statement of the complainant. The last case referred to by the learned counsel for the appel--lant is the case of Manzoor Hussain Shah, in which the "tainted money" was allegedly accepted outside the room of the office and the complainant had a grudge against the appellant directly which is not the position in this case. The distinguishing factor of this case from the cases referred to above is that the appellant had all the way gone to the house of the complainant where the promised part of illegal gratification in form of "tainted money" was given to him. It is not possible that the appellant would go inside the house of the complainant if there existed enmity between them. The appellant has been found with the applications made against the complainant as a result of his search by the C. O., A. C. E., Jacobabad. It also supports the case of the prosecution that recovery of applications Exbs. 6-B/1 and 6-B/2 from his possession showed that he was making enquiry against the complainant as the applications were endorsed to him for report and he was in a position to show favour to the complainant. I also find lot of force in what the learned counsel for the State has contended that the presumption under section 4 of the Prevention of Corruption Act (11 of 1947) has not been properly rebutted by the appellant and the money recovered as a result of a "trap" was received as illegal gratification by him. It is also not necessary that there should be corroboration of the word of the complainant in each and every "trap" case as this aspect of the case is well-enunciated in the case of Zafar Ali PLD 1962 SC 320, and followed in case of Sayed Qamar Ali Shah PLD 1963 Lah. 250 I feel that the only consideration in criminal cases, is, as to what weight is to be attached to the evidence of such a person which depends on the circumstances of each case. Therefore it cannot be said that merely because the complainant has assisted in detection of the crime in question, no reliance should be placed on his evidence. I am convinced from the evidence on record that the appellant came to the house of complainant to accept illegal gratification and that he did do so when he was surprised soon after by the raiding party had he passed on the money to co-accused Ghous Bux. The complainant has been fully supported by the testimony of the Magistrate, Nisar Ahmed and Rajib Ali C. O., A. C. E., Jacobabad. After reading through the evidence carefully I am left with no doubt that this is not a case where the money was foisted against the appellant. It is clearly a case of demanding and then accepting illegal gratification and the fact that it has not been recovered from the person of the appellant but from the co-accused Ghous Bux would not negative the factum of the acceptance.
13. I would therefore maintain the conviction and sentence awarded to the appellant under the circumstances of the case and his appeal therefore fails and is dismissed.