Appellant in the above appeals, being aggrieved by common judgment dated 31st May 1977 of the Special Judge-cum-Enquiry Officer, Anti Corruption, Karachi in special Case No. 16 of 1976 by which appellants have been connected under section 161/34, P. P. C., read with section 5 (2)-I1, 1947 and sentenced to suffer R. I. For one year, have preferred the above two appeals on the following facts and grounds.
2. Complainant Munshi Masih, his son and three other Sweepers Solla Khan, Shera and Doola Labba were the Sweepers in K. M. C work--ing under appellant Muhammad Arif Mali, who was the Sanitary Inspector. Appellant Muhammad Arif used to harass the complainant and other above-named sweepers, that in case they would not pay him illegal grantifi--cation of Rs. 30 per month per sweeper, they would be transferred in the office, due to which they would not be in a position to get time to work as Sweeper privately. Appellant Muhammad Arif however agreed to accept Rs. 20 from the complainant Rs. 20 from his son and Rs. 50 per month from the other above-mentioned sweepers respectively. Appellant Muhammad Arif further directed the complainant to collect all the amount of the illegal gratification from the aforesaid sweepers and hand over that amount to co-appellant Anwar Hussain, who was his Mukadam in place o f one Hayat. Appellant Anwar was present, when it was decided that the amount of illegal gratification collected by the complainant should be paid to Anwar, who would pass on the amount to appellant Muhammad Arif.
3. Being dissatisfied with this coercive method of extorting money, the complainant chose to report the matter to the Anti-Corruption Police. Consequently he went to Anti-Corruption Police and lodged the report. Police recorded his report read over to him and obtained his L.T.I. Police took the appellant to the First Class Magistrate, who examined the com--plainant in the light of allegations made by him in the F. I. R. Tainted money to the extent of Rs. 130 was given to the complainant, vide Mashirnama Exh.
4. The Police party and the Magistrate after giving full instructions to the complainant with regard to the method, mode and manner of payment of tainted money to the appellant, proceeded to Dastagir Colony Block No. 14 at the shop of Hafizul Rehman. The com-- plainant gave the tainted, money to appellant Anwar Hussain, who came at the appointed place and time to receive the money as decided by co-appellant Muhammad Arif in his (Anwar Hussain's) presence. The tainted money was passed on by the complainant to the appellant Anwar Hussain at a distance of about 20 paces from the shop of Hafeezul Rehman, where the police party and the Magistrate were sitting. The Magistrate and the Police party saw the tained money being passed on by the complainant to appellant Anwar Hussain. They also simultaneously saw the original of the complainant in token of having passed on the tained money to the appellant.
Accordingly the Magistrate and the Police party without any loss of time rushed to the spot and caught hold of appellant Anwar Hussain red handed. The Magistrate also prepared the raid report.
Then after other usual investigation and obtaining prose--cution sanction of both the appellants, the appellants were challenged.
4. When the substance of allegation was read over and explained to the appellants, they pleaded not guilty and appellant Muhammad Arif ascribed the case to enmity, as he had transferred the son of the com--plainant, for which the complainant had threatened him for dire conse--quences.
5. Whereas, the case of appellant Anwar Hussain proceeds on the footing that he accepted the tainted money from the complainant in good faith, as complainant told him that the said amount is to be paid to co-accused Muhammad Arif.
6. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above named as hereinbefore mentioned and consequently the appellants have filed the above two appeals, on the grounds mentioned in their respective Memos.
Of appeal.
7. The learned Advocates for the appellants in support of the above appeals submitted as under:-- (a)Conviction of the appellants on solitary evidence of P. W. I Munshi, against whom enmity is alleged by appellant Muhammad Arif, cannot be sustained, in view of the law laid down by this Court in case reported in PLD 1981 Kar. 1.
(b)That the prosecution has failed to establish its case against both the appellants beyond reasonable doubt.
(c) That conviction of the appellant Anwar Hussain in any case cannot be maintained, in support of this the learned Advocate for the appellant in question relied upon unreported judgment of this Court in Criminal Appeals Nos. 92 and 103 of 1951 dated 1st August, 1951, the certified copy of which has been produced.
(d) That the joint trial of the appellants was bad. In support of this contention the learned Advocate of the appellant relied upon cases reported in PLD 1971 Kar. 78, 1973 P Cr. L 1 132 and 1006, PLD 1970 Kar. 294 and 1971 P Cr. L J 723.
8. The learned Advocate for the State on the other hand submitted that, he was not supporting the impugned judgment as far as Anwar Hussain was concerned, in view of unreported judgment of this Court cited by the learned Advocate for the said appellant. As far complainant Muhammad Munshi was concerned, the learned Advocate submitted that he was fully supporting the judgment, as the prosecution has established its case against him beyond reasonable doubt.
9. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial Court and in the impugned judgment as well as cases cited by the learned Advocate before me.
10. The prosecution case against both the appellants rests upon the statements of P. W. 1 Munshi (complainant), P. W. 2 Shera, P. W 3 Idrees Ahmad, P. W. 4 Nazar Muhammad, P. W. 5 Ghulam Mustafa (I. O.).
11. P. W. Munshi (complainant) has fully supported the prosecution case as far as appellant Muhammad Arif is concerned. However co---appellant Anwar Hussain is concerned, this witness in this cross-examina--tion admitted, that appellant Anwar Hussain never demanded any money from him as illegal gratification. This witness further in his cross-examination admitted, that appellant Anwar Hussain was transferred from the area in question two months prior to this case, this witness, however in his cross denied any enmity with appellant Muhammad Arif. It may be noted that this P. W. Nowhere in his. Statement, has stated that appellant Anwar Hussain at any time demanded money as illegal gratification from him.
12. P. W. 2 Shera no doubt in his cross-examination-in-chief has supported the prosecution case.
However in his cross-examination has stated, that appellant Arif did not demand money as illegal gratification in his presence.
13. P. W. 3 Idrees Ahmad in his cross-examination-in-Chief has not involved either of the appellants.
In his cross-examination this witness admitted that appellant Muhammad Arif had complained to him against the son of P. W. 1 Munshi and he pulled P. W. 1 Munshi's son on this account. This witness further in his cross-examination admitted, that none of the Sweepers complained to him that appellant Arif was demand--ing bribe from them.
14. P. W. 4 Nazar Muhammad is Magistrate and was present at the time when appellant Anwar Hussain was apprehended with tainted money. This witness has only stated, that the tainted money was recovered from the possession of the appellant Anwar Hussain, however, this witness in cross-examination admitted, that he could not hear the talks between the complainant and appellant Anwar Hussain before tainted money was passed on the appellant Anwar Hussain.
15. P. W. 6 Ghulam Mustafa is (I.O.) and his statement is formal.
16. The appellants in their statements have denied prosecution allega--tion regarding demand of illegal gratification. Appellant Anwar Hussain in his statement under section 342, Cr. P. C. Stated, that P. W. 1 Munshi did pay him Rs. 130 for giving it to the appellant Arif as it was due to him and as such he accepted the same in good faith. This appellant further stated that, P. W. 1 was not working properly and as such he had pulled him and consequently he was annoyed with him. Appellant Muhammad Arif also in his statement has denied the prosecution case and further stated, that he had transferred the son of P. W. 1 Munshi and as such he was annoyed with him and threatened him and as such he has falsely involved him in this case.
17. It is clear from the statement of the above prosecution witnesses; that except for P. W.1 Munshi against whom appellants have alleged enmity, no other prosecution witness has categorically stated, that the appellants demanded illegal gratification. The assertions of the appellant Muhammad Arif, that P. W. Munshi had grudge against him is borne Out from the evidence of P. W.
3 Idrees, the Sanitary Inspector it is also admitted position, that appellant Muhammad Arif was not present when the tainted amount was given to the appellant Anwar Hussain. It is also admitted position that P. W. 4 Nazar Muhammad S. D. M. (II) South Karachi has clearly stated in his cross- examination, that he did not hear talks between the complainant and appellant Anwar Hussain at the time of passing of tainted money and as such the statement of appellant Anwar Hussain under section 342, Cr. P. C. In this connection cannot be ignored Keeping in view all these facts in my opinion, prosecution has failed to establish its case beyond reasonable doubt.
18. Therefore I allow both the above appeals and set aside the con--victions of the appellants as well as sentences awarded to them and acquit them by giving benefit of doubt and discharge the bail bonds executed by both the appellants.