This appeal under section 410, Cr. P. C. Read with section 10 of Criminal Law Amendment Act, 1958 is directed against the judgment dated 30th September, 1980 of the learned Special Judge Anti- Corruption, Karachi, whereby he convicted the appellants under section 161/34, P.P.C. Read with section 5 (2) of Act 11 of 1947 and sentenced each one of them to undergo R. I for 12 months and pay a fine of Rs. 1,000 and in default of payment of fine to suffer further R.
1. For three months.
2. The facts of the prosecution case are that one Mst. Sardar Begum resident of Nai Azam Basti House No. 228 of Karachi claiming herself to a social worker filed an application before the K. M. C, Magistrate, Karachi which reads as under :- ToThe K. M. C. Magistrate, Karachi.
Respected Sir, it is submitted that yesterday on 2nd January, 1979, K. M. C people broke open the lock of the locked house of the applicant and took out my buffaloes for taking them to buffaloes-pound and after going at a quite far-off distance released grown up buffaloes, after receiving Rs. 1,000 and impounded their young ones and calves numbering three big calves and three young ones in the "PEN" and asked to bring Rs. 500 more and after making payment of the K.M.C. Fine, they would release them also. Besides this K.M.C. People also receive Rs. 150 monthly each month from us.
Appli--cant has kept his buffaloes at a far-off distance from the city away from Nai Azam behind Mahmoodabad which place is very far from the city population. In spite of this applicant, pays Rs.
150 each month, to the K.M.C employees as allowance. Yesterday they took Rs. 1,000 as prompt payment for releasing few buffaloes and impounded few buffaloes and further amount of Rs. j00 is being demanded. Applicant's small children are much troubled with tortures and excesses of the K.M.C people. K.M.C. People have stopped us from earning even our livelihood and are continuously causing torture. The filth other entire city is also thrown there close to our houses. If we have kept buffaloes there it does not resulting such filthiness which the K.M.C., staff throw near our houses and on the contrary they are causing upon us by impounding our cattles. On 28th December, 1978, they had impounded the cows and when the owners of the cows threatened to beat them, they fled away. I am a social worker, therefore, the cattle owners press me to apprise the Higher officials of this situation due to which there is apprehension that the situation would become still worse and therefore these people should be stopped."
3. This application somehow reached the Additional Deputy Com--missioner (S), Karachi, who on 3rd January, 1979 forwarded it to the S.P., Civil Lines, for necessary action. It eventually reached Saeed Ahmed Khan PW. 6, Inspector A C E, Karachi who after inquiry and required permission of the SP_ ACE Karachi registered the F 1 R Exh. 11 which reads as under :- "On behalf of State, the complaint is as under: On or about 2nd January, 1979 in between 1600 to 1700 hours Syed Arif Shah Inspector Land & Estate K.M.C. Alongwith this S.I. Abdul Razak Baloch and other staff working with him had visited the ---buffaloes --Bara" situated in Azam Basti Mehmoodabad, Karachi belonging to Natha Khan. Thereafter the aforesaid delinquent officials removed 13 buffaloes and 2 calves from the said "Bara" for depositing in cattle pound and for taking legal action against Natha Khan. When the said buffaloes and calves were being taken by the delin--quent officials, Natha Khan and Nasiruddin approached them for taking lenient view. On this both the delinquent officials demanded Rs. 1,500 and agreed to accept Rs. 1,000 for showing favour for release of 15 buffaloes only. Thereafter Nasiruddin gave Rs. 1,000 as illegal gratification to Abdul Razak Baloch S. I. Land and Estate K.M.C. Who released 15 buffaloes with the direction that Natha Khan should take buffaloes back through other way as to avoid their appearance in public.
The remaining 5 buffaloes, 2 calves were however taken by the delinquent officials for depositing in cattle-pound with a view to regularise the illegal gratification taken by them. From enquiry made so far as prima facie case under section 161, P. P. C., read with section 5 (2) of II-47 against Syed Arif Shah Inspector Land and State K. M. C. And S. I. Abdul Razak Baloch has been made. Hence the registration of this case after obtaining permission from S. P., A. C. E., Karachi against N.G. Os. K. M. C.
Officials. I am investigating the case.
Sd. (Saeed Ahmed Khan)
Inspector A. C. E., Karachi."
4. He after lodging the F. I. R. On behalf of the State on 12th February, 1979 recorded the statements of Mst. Sardar Begum, Natha Khan, Bulla, Maqbool Ahmed and Nasiruddin on 20th February, 1979.
He got required prosecution sanctions Exhs. 12 and 13 respectively and challaned the accused to stand trial in the Court.
5. The prosecution case is based on the evidence of Mst. Sardar Begum P. W 3 (the original applicant) Natha Khan P W 1 (the aggrieved person), Bulla P.W. 2 Maqbool Ahmed PW 5 and the Inspector A C E Saeed Ahmed Khan PW (1).
6. The accused however denied the allegations and examined Rao Muhammad Shafi, Sub- Inspector K. M. C. D. W. (1), Ghulam Jeelani DW 2 who is working as `Kuli' in the K.M.C. Land Department and Ashiq Husain DW 3, who is a senior clerk in the K. M. C. Land Department.
7. The point for determination is whether the accused accepted illegal gratification from Natha Khan.
8. I will first of all examine the evidence on record. Mst. Sardar Begum PW 3 who is a social worker of the locality has stated before the trial Court that she knew the complainant Natha Khan who lived in hot locality. Natha Khan possessed buffaloes. It was in year 1979 when Bulla PW 2 approached her with a complaint that the K. M. C. People were taking away their buffaloes. She went with him and found that some buffaloes were taken out from the cattle-pen of the complainant by.
10 persons including policemen amongst them were two K. M. C. Inspec--tors. She therefore requested the accused not to take away the buffaloes of the complainant but they refused. She sent Bulla and his daughter to inform the complainant. It was in the evening at about 7.00 p.m., on the same day when she was informed by Natha Khan that the accused had released 15 buffaloes after getting bribe of Rs. 1,500 and for others they had directed Natha Khan to bring Rs. 400 on the next day. Natha Khan again informed her on the next day that he got the buffaloes released after making payment of Rs. 400 to one Inspector. She therefore made an application to the Additional Deputy Commissioner (South) narrating all the facts of the incident. She produced the application Exh.
5. Natha Khan who has claimed to be an aggrieved person has stated that the accused demanded Rs. 150 per month from him and he used to pay them regularly. He has further stated that the accused first came to Mehmoodabad a few months before the incident and untied his buffaloes and took them towards cattle-pound. He requested them to leave the buffaloes. They on this demanded illegal-gratification of Rs. 1, 000 which he paid to them and they released his buffaloes. After 2/3 months, the accused again went to his cattle-pen and untied his buffaloes and took them towards cattle-pound. They demanded Rs. 1,000 for release of the buffaloes and he paid them. It was after 2/3 months when again the accused went to his place when he was not present there. His servant Bulla P. W. 2 was there. They broke open the lock of his cattle-pen and took away the buffaloes forcibly towards cattle-pound. Bulla sent his minor daughter to him and he reached there on cycle and met the accused near Baloch Colony. He saw the present accused along--with 10/12 other persons taking away his 18 buffaloes and two young ones. He requested the accused to release the buffaloes but this time they demanded Rs. 1,500 for the release of buffaloes. Bulla and Maqbooi were with him when the accused demanded Rs. 1,500 from him. Nasiruddin Milk-Seller also arrived there. Since he had no money, he demanded it from witness Nasiruddin who paid him Rs. 500. Similarly he demanded Rs. 500 from. Maqbool who also paid him. He gave Rs. 1,000 to Nasiruddin who paid the same to accused Razak. They excused him from payment of Rs. 500 on his request. Bulla, Nasiruddin and Maqbool Ahmed have supported the complainant on payment of Rs.
1,000 to the accused. Saeed Ahmed Khan P.W. 6 who is the Inspector A. C. E., Karachi has stated facts about his investigation of the case.
9. Mr. A. Q. Halepota, the learned counsel for the appellants con. Tends that no application, complaint or F. I. R. Has been filed by Natha Khan (aggrieved person) for any of the incidents. The last incident for the first time has been reported by Mst. Sardar Begum, P. W. 3, through an application addressed to the Magistrate K. M. C., Karachi. The name of the applicants, aggrieved person and witnesses have not been given in this application by Mst. Sardar Begum. There is only an allegation against the K. M. C. Employees. It has also been pointed out that there is no mention in the application if Natha Khan borrowed Rs. 500 each from Nasiruddin and Maqbool for making payments to the accused. Moreover evidence of Mst. Sardar Begum is contradictory on material points what has been stated by her in her application. There is also no plausible explanation as to why the application, made by Mst. Sardar Begum in respect of this incident was not incorporated in the 154, Cr. P. C, book which was the basis to initiate investigation of the case. Therefore the F. I. R.
Lodged by Saeed Ahmed Khan in no way can be termed as the F. I. R. Particularly when the application of Mst. Sardar Begum about the incident was available on the record of the Anti- Corruption Establish--ment. Moreover F. I. R. Lodged by the Inspector A. C. E. On behalf of the State is delayed by about more than a month and contradictory to material facts disclosed in the application Exh. 5 of Mst. Sardar Begum. It has also been contended by him that all the witnesses are closely connected with each other and no reliance can be placed on their evidence. P. W. Bulla is servant of Natha Khan whereas Maqbool is brother of Bulla and Nasiruddin is brother-in-law of Natha Khan. It is surprising as to how Nasiruddin and Maqbool Pbecame available at a place where Natha Khan reached at the time when his buffaloes were allegedly taken away by the accused.
There being no other independent evidence against the appellants the prosecution has failed to bring home guilt against the accused.
10. Mr. A. A. Dareshani, the learned counsel appearing for the State, on the other hand has contended that the appellants have been charged for four items of accepting illegal gratification i.e. (i) monthly bribe of Rs. 150, (ii) acceptance of Rs. 1,000 on one occasion and (iii) Rs. 2,000 on 2nd occasion and Rs. 1,000 only on 2nd January, 1979. He straight away does not press conviction on charge of three items except one of 2nd January. 1979. He has therefore contended that Natha Khan who is an aggrieved person has been supported by as many as three witnesses. It is true that they are connected and related inter se but their evidence cannot be rejected only on such considerations. They are not on inimical terms with the accused and they have no grudge whatsoever against them so as to implicate the accused falsely. Moreover it's a broad-day light incident and the prosecution has successfully proved its case beyond any reasonable doubt against both the appellants as far as acceptance of Rs. 1,000 is concerned. He therefore presses con--viction against both of them.
11. I have heard the learned counsel for the appellants as well as State. I have also read the evidence on the record, Mr. A. A. Dareshani has rightly not pressed conviction on three item's of accepting illegal gratification as there is only an uncorroborated word of Natha Khan which cannot be accepted. As far as acceptance of Rs. 1,000 is concerned it is no doubt true that Natha Khan has been supported by Bulla, Maqbool and Nasiruddin. It is therefore necessary to consider the circumstances under which the alleged payment is made to the appellants and the action of reporting it to the authorities. As far as report is concerned Natha Khan has admittedly not reported any instance to police or any other authority. He has not in fact reported the last incident also. It was Mst. Sardar Begum who got the investigation initiated on her application. It will be clear from simple reading of the contents of the application of Mst: Sardar Begum and her evidence before the trial Court that there are material discrepancies between the two versions. Moreover the facts incorporated in F. I. R. By the Inspector A. C. E., are again different from the facts of the application of Mst. Sardar Begum. I actually do not find any reason as to why the application of Mst. Sardar Begum was not incorporated in the 154, Cr. P. C.- book. To me, it appears that it was done only to improve the prosecution case as the facts given by Natha Khatr did not fit in with the case set up by Mst. Sardar Begum.
It is therefore difficult to accept such improved versions after long delays particularly when the aggrieved person failed to approach any authority at any time for any of the incidents. Actually there is no explanation as to why Natha Khan did not report any of the incidents to the authorities.
There are other discrepancies in evidence also. For instance it has come on the record that Natha Khan after receipt of information that his buffaloes were being taken away followed the appellants.
He reached the appellants at a far away distance from his residence. It does not appeal to reason that how Nasiruddin and Maqbool reached there when no one went to inform them. However they could at best be termed as chance witnesses. It has also come on the record that PW Nasiruddin is brother-in-law of Natha Khan whereas Maqbool is brother of ---Bulla--- who is servant of Natha Khan. Bulla is also not an independent witness being an employee of Natha Khan. Therefore there is absolutely no independent corroboration to what has been stated by Natha Khan who did not make any application to the law enforcing agency till he was examined by the Anti-Corruption Inspector Saeed Ahmed Khan PW.
6. It is therefore not safe to rely on such evidence without there being independent corroboration on material facts of the case. The prosecution has produced evidence which consists of only interested and related witnesses though incident is of a broad-day light and the buffaloes passing from main thoroughfare to Baloch Colony and must have been witnessed by so many independent persons of the locality. It is surprising that none of them has come forward to corroborate the prosecution case. I therefore do not consider the evidence on record sufficient to maintain the convictions and sentences awarded to the appellants.
12. For the foregoing reasons I accept this appeal, set aside the convictions and sentences awarded to the appellants by the trial Court and acquit the appellants. They are already on bail and their bail bonds shall stand cancelled.