The appellant Ghulam Ali was tried for accepting illegal gratification of Rs. 180 by the Special Judge, Anti-Corruption, Sukkur who by his Judgment dated 13th December, 1979 convicted him under section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to R. I. For one month and fine of Rs. 1,000 or in default R. I. For one month. This appeal is from the said conviction and sentence. The case is also pending decision on the suo motu notice issued to the appellant for enhancement of the sentence.
2. Shortly stated the prosecution case is that Ghulam Sarwar brother of the complainant Raza Muhammad was granted in open Kutchery, some agricultural land in Deh Bisharat Khunhawar, Taluka Warrah on harap conditions. The orders to this effect were issued by the A. R. O. In favour of the said grantee. It is alleged that about one month after the grant the complainant approached the accused/appellant who was then working as the concerned supervising tapedar for preparing the necessary documents in his brother's case. The accused/appellant showed his readiness to do the needful if the complainant would pay the illegal gratification of Rs. 180 in addi--tion to the usual fee of Rs.
100. Thereafter the complainant went straight to the office of the Anti-Corruption Police and registered his complaint thereat.
3. The D. S. P. Anti-corruption, Mr. S. A. Siddiqui recorded his F.I.R. And arranged for trap by calling Mashir and Magistrate to witness the same. In their presence he prepared Mashirnama wherein he noted the numbers of the currency notes which he delivered to the complainant to be paid to the accused/appellant as tainted money. The complainant accompanied by Mashir Rahib proceeded to the Barrage Office in advance and the other members of the raiding party including the Magistrate followed them. The latter waited at some distance from the Am 14 the meantime the complainant in presence of Mashir Rahib delivered the tainted money to the accused/appellant who put the same in his pocket. The Masbir then left the accused/appellant's office and gave signal to the waiting mem--bers of the raiding party whereupon they rushed into the office.
Pointing to the person sitting in the office of the accused /appellant, who disclosed his name to be Muhammad Ali, the complainant informed the party that the tainted money had been passed on by the accused/appellant to the said Muhammad Ali. The D. S. P. Recovered the tainted currency notes from possession -of Muhammad Ali whose Judicial confession was subsequently got recorded before the Magistrate. After completing the usual investigation and obtaining the sanction for prosecution of the accused/appellant, the latter was put on trial alongwith Muhammad Ali. The co-accused Muhammad Ali has however been acquitted as according to the trial Court he had no concern in the land grant of Ghulam Sarwar.
4. The accused/appellant has denied the prosecution allegations, con--tending further that the money secured from possession of Muhammad Ali has been foisted on him at the instance of Rahim Bux Head Constable who is hostile to him. As for Rahib, he has stated that he is related to the complainant.
5. I have heard the arguments of the learned counsel for the accused/ appellant and the State counsel and with their assistance I have perused the evidence that has been brought on record.
6. It is not disputed that agricultural land has been granted to Ghulam Sarwar brother of complainant Raza Muhammad, whether he had authorized his said brother to pursue finalization of his case is not proved on the record. Even if it be assumed that he had requisite authority from his brother, the next question would be if the accused/appellant made the demand for illegal gratification from him and if so, whether he actually accepted the illicit money from the complainant.
7. On the point of demand there is solitary word of the complainant. He has stated that when he told the accused appellant for completion of the paper relating to his brother's land grant he demanded Rs. 180 as his 'Karachi' in addition to the normal fee of Rs.
100. It is admitted by him in the cross-examination that no one else was present when the accused demanded illegal gratification from him. The complainant's conduct before and after the alleged demand creates serious misgivings about the truth of his allegations. Admittedly he had not taken his brother Ghulam Sarwar with him when he approached the accused/appellant for finalization of his brother's case. It is also admitted by the complainant that be had no power of attorney from his brother. Thus if the grantee's signature was needed for finalization of the case, the complainant was not ready to produce the same. It is also clear from the evidence of Mr. S. A. Siddiqui, D. S. P. Anti-corruption that nothing was found from search of the complainant conducted at the time of giving him tainted money. This shows the complainant had brought no money from his village even for pay--ment of normal fee finalization of his brother's case. When the alleged illegal gratification was demanded from the complainant, in normal course he was expected to have communicated the position to his brother or in any case be should have consulted with some one about the payment. May be his brother who was really concerned in the matter had agreed to the payment. But instead he went straight to the Anti-corruption Police and lodged complaint with the said Police. Thus the course taken by him was some thing unusual for a man of the complainant's class who hails from rural areas and is not used to taking such actions without anybody's backing. It appears he had approached the accused/appellant for his brother's case for the first time, yet he had gone to him with the determination of "do or die". Such attitude of the complainant was unnatural and smelt of some malice embedded in his mind. I am also doubtful if the accused/appellant had made a bold of him--self to demand illegal gratification from the complainant who was complete stranger for him at the first meeting with him. Taking the above considera--tions into account the complainant's allegation about accused's demand for illegal gratification appears to be doubtful.
8. The next point to be considered is if the accused/appellant had accepted the illicit money. The complainant and Mashir Rahib have no doubt stated in their evidence that tainted money was paid to the accused/appellant. The complainant's statement in this connection is as follows :- "I and Mashir went upstairs in this office. The accused Ghulam Ali asked me whether I have brought the money. I delivered to him Rs. 280 the numbers of which were noted in Mashirnama. He demanded receipt given by the A. R. O. He mentioned area over it and signed it. Sketch was lying there and he said that land is not near the village. After taking the money from me, he kept the same in his pocket I gave signal to Mashir. He went down and gave signal to A. C. E. Police."
9. The Mashir Rahib has supported the complainant inasmuch as that when they both went to the accused's office, he asked the complainant if he had brought the money. The complainant accordingly paid him Rs. 280 which the accused placed in his pocket. Despite the evidence of com--plaintant and Mashir Rahib that tainted money was paid to the accused it is not denied that the said money was recovered from possession of co-accused Mohammad Ali.
The learned counsel for the appellant argued that since the tainted money was not recovered from the accused/appellant's possession he could not be held liable for the same. In this connection he has placed reliance on two authorities Muhammad Ishaq v. The State (1978 P Cr. L J 257) and Aijaz Hussain v. The State (PLD 1982 Kar. 255). In the first case tainted currency notes w; re recovered from 'Potli' and not from person of accused. The accused was not held liable. In the second case the tainted currency notes were actually found lying on the ground near feet of the accused. It was alleged that they were thrown there by the accused who was given benefit of doubt and was acquitted. In the instant case also the tainted money was recovered from possession of co- accused Mohammad Ali and not from the accused/appellant who therefore cannot be held liable.
10. However, the allegations are that the accused/appellant had passed on the money to Mohammad Ali. The prosecution have sought to prove this by the evidence of the complainant and confessional statement and the statement under section 342, Cr. P. C. Of co-accused Muhammad Ali. So far Muhammad Ali's confession is concerned, the learned Special Judge has excluded it from consideration on the ground that it is not shown in the confessional statement whether he was remanded to judicial custody or Police custody. Even otherwise confession of co-accused has very little evidentiary, value. It is invariably used as corroborative piece of evidence. No conviction can be based on such evidence alone. On careful perusal of the confession it would appear that it is not confession in strict sense. While exculpating himself, the co-accused Mohammad Ali has implicated the accused/appellant. This is confirmed from the fact that he has been acquit--ted obviously for want of evidence. It seems the confession given by him which is of course exculpatory and therefore not a confession in the true sense of the term has not been considered as good basis for his conviction. I the accused making judicial confession is acquitted it would mean that the confession suffers from some inherent defect rendering it unsafe for conviction. Indeed such confession cannot be used against. The co-accused. Accor--dingly the confession of co-accused Mohammad Ali who has been acquitted cannot be used as a piece of evidence against accused/appellant.
11. As for the statement under section 332, Cr. P. C. Of the co-accused Muhammad Ali, it can be used as an admission only against the maker hereof. It has absolutely no evidentiary value against co-accused. Thus even the statement under section 342, Cr. P. C. Of co-accused Mohammad Ali cannot be looked into for soliciting any support to the prosecution case against the accused/appellant. With exclusion of both statement of co-accused Mohammad Ali, the only evidence on the point that accused/appellant had passed on the tainted money to Mohammad Ali is the uncorroborated word of the complainant. He has stated in this connection as follows :- ---After departure of mashir, he (accused/appellant) gave the money to a young by i.e. Co- accused present in Court (co-accused Mohammad Ali).---
12. This statement of the complainant does not inspire confidence. As pointed out above complainant's statement with regard to accused/appellant's demand for illegal gratification has been looked upon with suspicion. It does not appeal to reason that accused/appellant would without any hesitation accept the tainted money and put it in his pocket in presence of Mashir Rahib. Since he accepted it in his presence it shows that he did not suspect any foul play.
Consequently he had no reason to pass it on to Muhammad Ali. He would take such precaution only when he had some apprehension in his mind. In that event he would not accept the payment even initially but would rather ask the complainant to deliver it to Muhammad Ali. There is no indication in Rahib's evidence that Muhammad Ali was sitting in the Office of the accused/appellant when the latter received the tainted money from the com--plainant. Then how and from where Muhammad Ali suddenly appeared so that the accused/appellant handed the money to him and that too after the departure of Mashir Rahib. It shows as if he got the intuition that the Mashir had left to give the signal to raiding Anti-Corruption party, and in the meantime he should relieve himself of the money.
13. The Mashir Rahib is not only caste fellow of the complainant but he also admits that his village is adjacent to the village of complainant. How he was made Mashir looks like a mystery. It is said that he happened to pass by Anti-Corruption office when he was called as Mashir. As stated above after the alleged demand for illegal payment was made by the accused/appel--lant the complainant did not deem fit to take his brother into confidence nor he held consultation with him or any one else on this issue. Instead he went straight to the Anti-Corruption Office and lodged his complainant. It so happened that his caste fellow living in his neighbourhood soon after his arrival at Anti-Corruption office came to pass by same office and thus made himself conveniently available to the Anti-Corruption police for utilizing his services as Mashir. Therefore, even the evidence of Rahib is not reliable.
14. Apart from above the evidence of the bribe giver has always been viewed with suspicion. He is placed at par with accomplice. Unless he is corroborated by independent evidence, no reliance is placed on his testimony alone. In this connection learned counsel for the appellant has relied upon Sultan Ali v. The State (PLD 1971 Kar. 78) wherein it was observed: - "I need hardly emphasize that ordinarily in such cases it is not safe to rely on the uncorroborated testimony of the bribe-giver."
15. In support of the view expressed above reference was made to some other authorities namely Emperor v. Anwar Ali (AIR 1948 Lah. 27), Osimuddin v. The State (PLD 1961 Dacca 798), Noor Muhammad v. The State (PLD 1963 SC 38). In the case of Anwar Ali following observations were particularly made :- "Money may be passed from one person to another on a variety of pretexts, and it cannot be remembered too carefully that persons who lend themselves for use as decoys and agents provocateur possess in--genuity and suppleness of wit above the ordinary. No stupid or simple person could ever hope to perform such a function. Therefore, it is of the utmost importance in cases of this kind that there should be independent corroboration of the statement of the decoy witness that the money was received by the accused person for an illegal pur--pose. Naturally, the decoy witness will be extremely keen that his trap should not fail, and having in the forefront of his mind that the central thing is that the marked money should be passed to the intended victim, and assuming a certain elasticity of moral character in the decoy witness, there is a real danger that he may passed on the money under some pretext which may even be wholly innocent, but in giving his evidence may represent that he gave the money for the purpose rele--vant in the case, feeling confident that having taken care that the money was passed with as little publicity as possible ; the case on this particular point will resolve itself into a conflict between his evidence on solemn affirmation and the statement of the accused person which must necessarily be made without an oath."
16. Similarly in Ossimuddin's case it was laid down :- "It is true that corroboration is not required in every minute detail or particular of the evidence of an accomplice or bribe giver; but it is certain that on two broad points such corroboration is absolutely essential, namely (1) as to the implication of the accused and (2) as to the offence itself."
17. In the third case of Noor Muhammad, it was held that where the case rests mainly on the evidence of bribe-giver it must be scanned with much caution; and the Court should consider whether the facts and circum--stances of the case support the story of the bribe-giver.
18. Judged in the light of principles laid down in the above reported cases, the uncorroborated evidence of the bribe-give, namely, the complainant on the point cannot be safely relied upon, particularly when his statement with regard to the demand for illegal gratification has been viewed with suspicion.
For above reasons the prosecution have failed to make out a case of corruption against the accused/appellant beyond reasonable doubt. The benefit of doubt is always given to the accused.
Accordingly appeal is accepted and the accused/appellant is acquitted of the charge of corruption.