1. SAJJAD ALI SHAH, J.-This acquittal appeal is filed by the State against the judgement dated 11th February, 1979 of learned Special Judge Anti---Corruption, Hyderabad whereby respondents Muhammad Saleh and Kazi Rehmatullah have been acquitted, who were charged for offence under section 161/34 P. P. C. Read with section 5 (2) of Prevention of Corruption Act 11 of 1947.
2. Briefly stated prosecution case is that Kazi Rehmatullah was at the relevant time Reader and Muhammad Saleh Court Clerk in the Court of Resident Magistrate Tando Bago at Hyderabad.
3. Complainant Piniyal, who was Chowkidar in the office of Director Settlement and Survey Land Records Hyderabad, went to the Court of the Resident Magistrate, where his brother Bhirio alias Bariyo was challaned in a theft case and was granted bail. After grant of bail by the Court, respondents demanded bribe from him of Rs. 50 for issuance of release order. Complainant did not have enough money on that day and promised to give on the following day: Release order, was not issued and the complainant approached P. W. Muhammad Shafi, Intelligence Inspector, A. C. E.
4. Hyderabad on 3rd September, 1976 and, lodged his report. Inspector after registering F. I. R. Took pemission from A. D. M, Hyderabad and then noted numbers of trap money of Rs. 50 in presence of mashir Abdui Rashid and under the supervision of Mr. Hussain Bux Head Munshi and Third Class Magistrate. Such mashirnama was prepared and thereafter, complainant and mashir were sent to the office of Resident. Magistrate. Inspector with raiding party waited outside. Complainant handed over trap money to respondent Muhammad Saleh and the mashir signalled upon which raiding party came inside and apprehended Muhammad Saleh. After the search trap money of Rs. 50 was recovered from the pocket of shirt of Muhammad Saleh. The numbers of the notes were tallied with the numbers of the trap money previously noted and such mashirnama was prepared. Statements of the witnesses were recorded and the record of the Court in respect of bail application of Paryo was checked. Reference was made for obtaining sanction and after completion of formalities challan was presented in the Court against both the respondents.
5. Before the trial Court prosecution examined P. W. 1 Mr. Hussain Bux, Head Munshi and Third Class Magistrate, who supervised preparation of mashirnama with regard to trap money and, also the recovery of trap money from respondent. He has produced mashirnamas Exhs. 3 and 4. P. W. 2 is Mr. Shamuddin who was Resident Magistrate, Tando Bago at the relevant time. He has deposed that on 28th August, 1976 bail application was moved before him for accused Paryo alias Bhirio and after hearing the counsel he passed order thereupon on 1st September, 1976 granting bail. On the same day surety was produced before him with solvency papers and was accepted.On the same day release writ was 'issued which' he signed. He produced such documents as Exhs. 8 and 9. He produced entries in the register made by the respondents on 1st September, 1976 as Exhs. 10 and 11.
6. P. W. 3 is Muhammad Siddiq, who has deposed that on 3rd September, 1976 he was posted as Clerk Nara Jail and on that day he received letters vide entries Exhs. 10 and 11 in the Peon Book which he had signed in token of receipts. P. W. 4 Muhammad Piniyal is complainant, who produced. F. I: R. Exh.
7. 14, P. W. 5 is Haji Ahmad who has deposed as eye-witness and stated that in his presence bribe was demanded. P. W. 6 is Abdul Rashid mashir who has attested mashirnama Exh. 3 by which numbers of the notes of trap money were noted. He was present at the time of raid and has attested mashirnama of recovery of tainted money Exh. 4 from respondent Muhammad Saleh. P.
8. W. Nooruddin was peon in the Court of Resident Magistrate Tando Bago at the relevant time. He took the letters to Nara Jail on 3rd September, 1976 for delivery. Finally Muhammad Shafi Inspector has been examined as P. W.
8. Prosecution closed its case after producing letters of sanction Exhs.
9. 19 and 20.
10. Both respondents in their statements under section 342, Cr. P. C. Recorded before the trial Court denied prosecution allegations. Respondent Muhammad Saleh further denied that trap money was recovered from him. He stated that on 31st August, 1976 bail, was granted to Paryo and complainant brought Uris Kasai as surety. He did not accept papers of this surety and the next day complainant brought Haji Ahmad as surety, whose papers were accepted and writ was issued, entry in the delivery book was made and handed over to the peon. Defence of respondent Kazi Rehmatullah is of denial denial simpliciter. Respondents have further examined Muhammad Uris as defence witness. He has deposed that he went with complainant to the Court of Resident Magistrate to stand as surety for accused Bhiriyo. His surety papers were not accepted by respondent Muhammad Saleh. There was little argument after which he and complainant were asked by respondent Muhammad Saleh to go out. Complainant was grumbling and then told him subsequently that he had filed an Anti Corruption case against the respondent.
11. We have heard Mr. A. A. Bareshani for A. G. For State and Mr. A. Q. Halepota for respondents. Mr. Dareshani drew our attention to the fact that impugned judgment was announced by Mr. Ahmad Khan Barakzai on 11th February, 1979 -as Special Judge Anti Corruption Hyderabad when he had retired as Sessions Judge on 6th February, 1979. It was submitted by Mr. Dareshani that Mr. Barakzai yeas a member of judiciary and was Sessions Judge and by virtue of his being Sessions Judge, he was appointed as Special Judge Anti Corruption and since he retired as Sessions Judge on 6th February, 1979, he could not' have functioned as Special Judge after that date as such judgment pronounced by him in this case as Special Judge on 11th February, 1979 is not a valid judgment. On the other hand Mr. Halepota submitted that after his retirement as Sessions Judge Mr. Barakzai was re-employed as Special Judge for one year vide notification issued on 4th February, 1979, as such his re-employment as Special Judge cannot be called in question and he was competent to deal with the case and deliver judgment: Mr. Halepota further submitted that Section 3 of Pakistan Criminal Law (Amendment) Act, 1958 contemplates appointment of Special Judges and the requirement is that no person shall be appointed as a Special Judge unless he is qualified for appointment as a Judge of the High Court or is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge or a District Magistrate or an Additional District Magistrate and he has not retired from Government service or at any time has been removed or dismissed from such service. It was argued by Mr. Halepota that there- is no bar in section 3 of Pakistan Criminal Law (Amendment) Act, 1958 for appointment of a retired Sessions Judge as Special Judge, who is eligible to be the Judge of the High Court. There is a time gap between the retirement of Sessions Judge at the age of 60 and retirement of the Judge of the High Court at the age of 62. On this premise it was further submitted by Mt. Halepota that in this case although Mr. Barakzai retired as Sessions Judge but such retirement could not operate as a bar against the Government to appoint him as a Special Judge as Mr. Barakzai was eligible for appointment as Judge of the High Court even after his retirement as Sessions Judge hence the government was competent to appoint him as Special Judge as envisaged under section 3 (2) (a) of the said Act.
12. Mr. Dareshani countered the argument by saying that under the provision quoted above two different classes of persons are contemplated for appointment as Special Judge and since Mr. Barakzai belonged to judiciary and was a Sessions Judge at the time of his retirement, his class was separate and he could not be re-employed for the reason that he had retired from Government service as Sessions Judge as contemplated under section 3 (2) (b) of the said Act.
13. This argument appears to be sound but at the same time we do not find any impediment in the way of Government if the Government chooses to appoint a retired Sessions Judge as Special Judge who is eligible to be the Judge of the High Court. Mr. Halepota further submitted that the provisions for appointment of Special Judge in Pakistan Criminal Law (Amendment) Act, 1958 are analogous with provisions of appointment of Judges of the High Court and Supreme Court as enshrined in the Constitution. Mr. Halepota further submitted that the objection as now stated by Mr. Dareshani was not taken during the trial proceedings before the Special Judge and also has not been taken in the memorandum of appeal, from which an inference can be d yawn that there was an acquiescence by the respondent and jurisdiction of the Special Judge on that ground was not called in question. For these reasons we feel inclined to agree with Mr. Halepota that re- employment of Mr. Barakzai as Special Judge after his retirement as sessions Judge cannot A be called in question as his case fell under class (a) of Section 3 (2) of the said Act and he was eligible to be a Judge of the High Court even after his retirement as Sessions Judge.
14. So far merits are concerned, Mr. Halepota submitted that there are certain limitations, which are to be taken notice of, while hearing appeal against acquittal under section 417, Cr. P. C. Reliance is placed by him on the decision of the Supreme Court in Gulnawaz v. State (1968 SCMR 1168), with relevant portion at page 1178 which is reproduced as under :- "It is no doubt true that in an appeal against acquittal the whole case is open before the High Court in the same manner as in an appeal from a conviction and in both cases the High Court must make up its own mind as to the guilt or innocence of the accused person but there is this difference that the Court of appeal must in a case in which an acquittal is sought to be set aside, remember that the presumption of innocence of the accused person has, if anything, been made stronger by the fact of the acquittal by the trial Court and this presumption is not to be lightly rebutted."
15. In this case we have gone through the record with the assistance of both the learned counsel and we do not find that any illegality has been committed. Trial Court has evaluated the evidence brought on, the record in a proper manner. Prosecution case can be divided into two parts. First part relates to the demand of bribe by the respondents. According to the prosecution such demand was made on 1st September, 1976 when bail was granted by the learned Resident Magistrate. In F. I. R. Exh. 14 it is stated by the complainant that demand for Rs. 50 as bribe was made by clerk of the Court in presence of witness Haji Ahmed. Name of the Clerk of the Court is not given in F. I. R. Complainant Muhammad Pinihal when examined before the trial Court stated that Kazi Rehmatullah Reader of the Court demanded Rs. 50 from him for issue of letter of release in presence of witness Haji Ahmed. Complainant has further stated before the trial Court that on the date when first demand was made from him by respondent Kazi Rehmatullah in presence of Haji Ahmed, he and Haji Ahmed did not pay and went away and then he (complainant) came on the next date and respondent Kazi Rehmatullah again repeated his demand. On the third day complainant again came to the Court of Resident Magistrate and found respondent Muhammad Saleh also, who asked the complainant if he had brought the money and the complainant expressed his regrets and promised t that he would beg or borrow from some one and bring the money. It is quite obvious that details given by the complainant in his deposition are quite different from the contents of F.
1. R, in which allegation is against clerk of the Court only and also it appears that only one person un-specified demanded money. Whatever evidence is given by the complainant in the Court on this point stands fully contradicted by his own witness Haji Ahmed who happens to be uncle of complainant Haji Ahmed has deposed before the trial Court that he offered himself as surety and submitted his papers Which were accepted from him on the day when bail was granted by the Court. He further stated that after that he and complainant came to the office of the Reader and there they found respondent Kazi Rehmatullah, who demanded Rs. 50 as "Kharach" for the work to be done. Complainant had no money with -him and he requested that he is a poor man and had only Rs. 10 with him which he offered and further stated that he could not pay amount of Rs.
50. This witness further deposed before the trial Court that other respondent Mohammad Saleh was sitting near respondent Rehmatullah and asked Rehmatullah to accept Rs.
16. 10, which complainant had offered to pay as `amanat' till the whole amount was paid later by the complainant. Rehmatullah did not take Rs. 10 from the complainant as bribe. Haji Ahmed further deposed before the trial Court that he and complainant came away and he did not know what happened thereafter. Haji Ahmed has also stated before the trial Court that Inspector did not examine him. It is quite obvious that both these witnesses have given contradicting versions on the point of demand of bribe as stated above.
17. The second part of the prosecution case is that trap money was arranged, numbers of notes were noted and this money was passed on to respondent Mohammad Saleh, who accepted the same and this money was recovered from his person by the raiding party. According to the complainant after registration of F. I. R. He was brought by A. C. E. Party to a place near Firdous Cinema in presence of Magistrate and mashir and was paid Rs. 50 consisting of four notes of Rs. 10 and two notes of Rs. 5 each. The A. C. E. Party and Magistrate then waited out--side and he and mashir went inside the office of respondents. The mashir went inside the office and sat in a chair and he too went is there. At that time respondent Mohammad Saleh was sitting in the Office of the Reader.
18. Mohammad Saleh asked him if he had brought money and he replied in affirmative and paid him tainted money. Mohammad Saleh took the money and the complainant started going out of the office when A. C. E. Party entered. Inspector asked the complainant as to who was the accused and complainant pointed out Mohammad Saleh who got up from his seat and was going outside. Trap party caught hold of Mohammad Saleh, who fell down on the ground. Mohammad Saleh got up and from his shirt pocket A. C. E. Party took out the tainted money. Complainant has further deposed that respondent Kazi Rehmatullah was not present at that time. On this point mashir Abdul Rashid has deposed before the Court that Police called him and in his presence, numbers of notes were noted and then he accompanied the trap party and the complainant to the Court of Resident Magistrate. In his presence in the office complainant paid tainted money to respondent Mohammad Saleh saying that it was the "amanat" money demanded by him which was brought by him. Respondent Mohammad Saleh took the money and asked the complainant as to whom the amount was to be paid. Complainant replied that this amount was to be paid to some Munshi.
19. Mohammad Saleh put the money. In his pocket. Complainant and this witness started going out.
20. This witness signalled trap party by removing his glasses and the trap party immediately came in.
21. They disclosed their identity to respondent Mohammad Saleh. Magistrate took out money from the pocket of Saleh. It is obvious that this witness Abdul Rashid mashir apart from saying that there was conversation between complainant and Mohammad Saleh at the time when money was passed on to him, which fact is not stated by the complainant, has not said anything about falling down of Mohammad Saleh when the trap party came in. This witness Abdul Rashid has further stated in, his cross-examination that he and complainant sat with Saleh for about 5-6 minutes before trap party came in. He further admitted that he was aware that in case of succeessful trap mashir or any other person concerned gets some reward in the shape of money or certificate. He further, admitted that he had acted as mashir in one case prior to this incident. He also stated in his statement before the trial Court that tainted "money was recovered in the veranda of the office.
22. This mashir has also admitted that he is himself complainant in one A. C. E. Case State v. Samad.
23. He denied a suggestion that he was also complainant in the A. C. E. Case State v. Sadiq. From the admission made by mashir Abdul Rashid in his statement that Mohammad Saleh at the time of taking tainted money inquired as to whom the money was to be paid, it appears that Mohammad Saleh did not have intention to accept that money as bribe.
24. Mr. Hussain Bux, Head Munshi and Third Class Magistrate has deposed before the trial Court that after complainant and mashir went into the office of Resident Magistrate; mashir came out and signalled them whereupon raiding party including himself went into the office where they found complainant and respondent Mohammad Saleh- standing just at the door of the office room.
25. Complainant pointed out Mohammad Saleh respondent and this witness and others disclosed their identity. Inspector searched the shirt pocket of the respondent and secured the tainted money. He signed mashirnama. This witness further stated that mashirnamas of search and arrest were prepared in the corridor.
26. P. W. 8 Mohammad Shah, Inspector has deposed in support of the prosecution case and further stated that complainant and mashir were sent inside the office of Resident Magistrate and after about 15-20 minutes mashir gave them signal and all of them rushed in and found near the door of the office in the veranda complainant standing -with respondent Mohammad Saleh. They disclosed their identity and on their inquiry from respondent Mohammad Saleh as to where the tainted money was, he replied that it-was in his pocket and then this witness searched pocket of the shirt of respondent and took out the tainted money. This- witness has further stated in his cross-examination that he, prepared mashirnama In the Court room after the recovery- while sitting near the table. It is obvious that both witnesses Mr. Hussain Bux and Mohammad Shafi have not stated that respondent Mohammad Saleh fell down on the arrival of trap party and also there are other contradictions in their evidence as stated above.
27. It may be pointed out that prosecution examined P. W. 7 Nooruddin Who was at the relevant time peon in the office of Resident Magistrate. He deposed that he took the delivery book with two- letters to Nara Jail on 3rd September, 1976 and delivered them on the same day. In his cross- examination this witness stated that his statement was recorded 3-4 days after the delivery of the letter. Complainant was known to him as peon in the Land Record office. On the day when bail was granted he brought papers on which the order of bail was passed by the Magistrate in presence of complainant. There was another, person with complainant whose name is Uris Butcher. Uris is a professional surety and be stood surety in several cases. Complainant informed respondent Mohammad Saleh that his brother's bail has been ordered and Uris offered surety papers to Mohammad Saleh and who did not accept them as they were photo-stet copies. Uris did not have original papers. This witness has further stated that on 3rd September 1976, he returned from Nara Jail after delivery of letters at about 10 a.m. He had gone to the Jail in the morning, which is six mile away from the Court. The point worth noting is that raid was conducted on 3rd September, 1976 at 11-45 a.m. And according to the defence plea of the respondents they had already done what they were required to do and had made such entries, hence then could not have possibly exercised any control over the release order as it had been already issued, signed by the Magistrate, entered in the delivery book and sent away to Jail before the raid took place. The argument advanced on behalf of the respondents was that when they had already done what they had to do, there was no reason for them to demand, or accept the bribe. If the intention was to accept the bribe then they would have detained the papers and had not issued the release warrant.
28. Prosecution has examined` P. W. 2 Mr. Shamsudin who was at the relevant time Resident Magistrate, Tando Bago. He deposed before the trial Court that on 28 August, 1976 bail application was moved and he allowed the same on 1st Septembers, 1976. On the same day surety papers were produced before him which- he accepted. On the same day release writ was issued which he signed. He produced two entries one made on 1 September, 1976 as Exh. 10 and. The other on 2 September, 1976 as Exh.
11. First entry was in the hand of respondent Muhammad Saleh and the second in the hand off respondent Kazi Rehmatullah. First entry Exh. 10 related to the issuance of writ of release in respect of accused Bhiriyo. The first entry Exh. 10 appeared to have been delivered to addressee on 3rd September, 1976. The Magistrate further deposed that letters used to be sent to Jail by the peon of his office during the last hours .Of the Court timing or after the office timing.
29. He has not been asked specific question in his evidence whether peon Nooruddin had delivered letters in the Jail in the morning on.3rd Septem--ber, 1976 or not. In these circumstances as stated above much depends on the evidence of peon Nooruddin. He has categorically stated that he delivered both the letters in Nara Jail on 3rd September; 1976 in the morning at 10 a. m. It appears that this statement of peon Nooruddin was not challenged and there does not appear to be any cross-examination on this particular point that he did not deliver the letters on 3 September, 1976 at 10 a. m. On this point P. W. 2 Muhammad Siddiq clerk in Nara Jail at the relevant time was examined and he deposed before the trial Court that he received letters vide entries Exhs. 10 and 11 on 3rd September, 1976 and further stated that he could not give the time when those letters were actually delivered. This witness was also produced by prosecution as P. W.
3. Had he given the actual time of receiving the letters, then everything would have been cleared. In these circumstances there is probability that evidence given by peon Noooruddin may be truthful that he delivered the letter, at 10 a. m. And such benefit should accrue to the respondents.
30. The respondents have examined one defence witness Muhammad Uric. His presence on the day when bail was granted is mentioned by prosecutor witness Nooruddin who was not cross- examined on the lines that Uris was not present and did not offer himself as surety. Defence witness Muhammad Uris has fully supported the version of the respondents that he was with the complainant and offered himself as surety but his papers were not accepted by Muhammad Saleh and there was an altercation between the complainant and respondent Muhammad Saleh. This witness has also - admitted that he stood surety in 3-4 cases. This witness was cross-examined by the prosecution on the lines whether he was the professional surety or not but no such question was put to him that he was not present with the complainant and offered himself as surety and alteration took place between complainant and Muhammad Saleh. The trend of cross- examination on the other hand indicates that he was present and questions were asked from him as to who prepared his surety papers and affidavit.
31. In these circumstances and for the facts and reasons mentioned above we find that prosecution case is not free from doubt and the evidence has been properly evaluated by the trial Court and there is no illegality committed. We find no reason to interfere with the impugned judgment which is hereby upheld. 1n the result the appeal is dismissed.th st nd rd