1. Appellants above-named being aggrieved by judgment dated 30th April, 1978, by which appellant No. 1 has been convicted under section 161, P. P. C. And under section 5 (2) of Act 11 of 1947 and sentenced to suffer R. I. For three months and to pay fine of Rs. 500 or in default to suffer further R. i.
2. For two months and-appellant No. 2 has been convic--ted under section 161, P .P. C. Read with section 109, P. P. C. And sen--tenced to suffer R. I. For three months, have preferred the above appeal on the following facts and grounds.
3. According to prosecution, appellant Ikramuddin was Manager, Hutab Cotton Ginning & Pressing Factory, New Saeedabad, Taluka Hala. Appellant Shamshad was also employee of said factory, but was working as a cook of appellant Ikramuddin. Complainant Haji Mohammad Aslam, an agriculturist of New Saeedabad, has supplied 1,500 maunds of cotton pods in his own account and 600 maunds of cotton pods in account of his father Haji Mohammad Hashim to appellant Ikramuddin, by way of sale at rate of Rs. 125 per maund of cotton pods Out of the amount of Rs.
4. 1,87,500 which the complainant was to get from said factory as price of 1,500 maunds of cotton pods, he was paid Rs. 1,62,000 only by appellant Ikramuddin as Manager of said factory.
5. Complainant was to get Rs. 25,500 as balance of payment in his own account and an amount of Rs. 75,000 in account of his father from appel--lant 1kramuddin. For releasing said amount to the complainant the appellant demanded from him illegal gratification amounting to Rs. 2,100 at the rate of rupee one per maund, as alleged. Complainant lodged such complaint with the F. I. R. On 5th November, 1976. In the F. I. R. He added that appellant 1kramuddin had asked him to pay him Rs.
6. 2,000 as bribe on 6th November, 1976 at said factory.
7. Police organized a trap on 6th November, 1976 after registering the case on 5th November, 1976. In presence of a Magistrate and two mashirs, tainted currency notes of the value of Rs. 2,000 were given to the complainant for paying the same to appellant Ikramuddin. The raiding party went to said factory at 11 a. m. On same day, when complainant passed on tainted currency notes to appellant Ikramuddin, who received the same and passed on the same to his cook co-accused Shamshad. This was witnessed by the Magistrate and mashirs. Police recovered the tainted amount from person of co-accused Shamshad, arrested both the appellant and prepared such mashirnamas.
8. Under a letter Exh. 1 dated 22nd February, 1977.Trial Court moved the Government of Pakistan for sanction. Said letter was acknowledged by the Ministry of Interior under their letter dated 6th May, 1977. Requisite sanction was neither accorded nor refused and the same was deemed to have been accorded, after expiry of statutory period and such order was passed on 6th November, 1977.
9. Charge Exh. 3 containing prosecution allegations was read over and explained to the appellant, who pleaded not guilty.
10. Prosecution examined complainant Haji Mohammad Aslam Exh. 4 and P. Ws. Ghulam Mohammad Exh. 6 Karamullah Exh. 10 and Mushtaq Ahmad Exh. 13 and prosecution was closed under statement Exh. 16.
11. In his statement Exh. 17 appellant Ikramuddin admitted, that dur--ing the month of November, 1976 he was Manager, Hutab Cotton Ginn--ing & Pressing Factory, New Saeedabad and was as such a public servant. He admitted that during the cotton season 1976-77 complai--nant Mohammad Aslam had supplied to said factory 15 maunds of cotton pods in his account and such entries were made at page 2 (Photo copy Exh. 15 of Register of Supply of phuties and payment thereof maintained in said factory. Appellant Ikramuddin denied if complainant also supplied 600 maunds of cotton pods, in account of his father during said season. Ikramuddin maintained that it was Haji Hashim father of the Complainant who had supplied to said factory during said season 402 maunds and 23 seers of cotton pods. Rest of the allegations about demand of Rs. 2,100 and about acceptance of Rs. 2,000 as illegal gratifica--tion were denied. It was also denied if appellant 1kramuddin had been charging illegal gratification at the rate of Re. 1 for each maund of cotton pod supplied to said factory through him. Appellant Ikramuddin alleged enmity with the complainant and contended that the witnesses were henchmen of the complainant. Accused Ikramuddin concluded his state--ment by saying that on 4th November, 1976 the complainant demanded from Accountant Nazir Ahmad sale proceeds of the cotton pods supplied by the complainant in his own account and in account of his father, That Nazir told the complainant that there was no cash in the factory and that after 2/3 days, the payment would be made. Accused Ikramuddin added that the complainant was brought to him by accountant Nazir. That he told the complainant that the cash permitted to by kept in the factory was over and that the amount payable to father of the complainant as sale proceeds of the cotton pods supplied could not be paid to the complainant. Ac--cused Ikramuddin alleged that the complainant rebuked him, threatened him and challenged him of securing the money by force. In respect of the happenings of 6th November, 1976 accused Ikramuddin stated, that on said dated at 9.30 a. m. He was in his office with his accountant when 4/5 persons came accompanied by the complainant, and they took him away after arresting hint. Accused Ikramuddin did not wish to be examined in his own defence.
12. Accused Shamshad, in his statement Exh. 18 admitted that in Novem--ber, 1976 he was an employee of said factory and was as such a public servant. He, denied that on 6th November, 1976 at 11 a. m. He took from co-accused Ikramuddin tainted money of Rs. 2,000 allegedly received by the co-accused as illegal gratification from the complainant for releasing the amount of cotton pods. Accused Shamshad alleged, that the witnesses bad deposed against him due to enmity with co-accused Ikramuddin, Accused Shamshad, added that on 6th November, 1976 at 9. 30 a. m., complainant gave him some currency notes for safe custody and that he took those notes in trust.
13. That after 15 minutes, the complainant return--ed and demanded back the money, which he had kept in trust. Accused Shamshad added that in the meantime, F. I. A. People came and they caught him and secured the money from him.
14. The learned trial Court taking into consideration the evidence ad--duced before it, convicted and sentenced the appellants above named as hereinbefore mentioned and consequently appellants have filed the above appeal, on the grounds mentioned in the Memo of Appeal.
15. The learned Advocate for the appellants in support of the above appeal submitted as under :- (a)That learned trial Court did not accept the assertion of the comp--lainant that appellant No. 1 demanded from him illegal gratifica--tion and as such no reliance can be placed on the statement of complainant that he gave tainted money to appellant No. 1, who passed on the same to appellant No. 2, without independent corroboration which is not at all available in present case.
16. (b)That learned trial Court wrongly discarded the evidence of co-accused 2 and his judicial confession and rejected the same on the grounds not at all warranted by law.
17. (c)That statement of P. W. 2 Ghulam Mohammad the learned Magistrate creates doubt about the veracity of the statement of P. W. 3 Karamatullah, the mashir of trap and P. W. 4 Mushtaq Ahmad, I.O. And complainant P. W. Haji Muhammad Aslam, regarding prosecution case that appellant No. 1 received the tainted money and passed on the same to appellant No. 2 in view of the evidence of appellant No. 2 and his judicial confession and as such prosecution has also failed to establish its case for receiving illegal gratification against both the appellants beyond reasonable doubt.
18. The learned Advocate for the State, at the outset submitted, that he was not supporting the impugned judgment, as motive for illegal gratifi--cation is absurd and false and no reliance can be placed on the statement of P. W. 3 Karamatullah, P. W. 4 Mushtaq Ahmad and complain--ant, in view of the statement of P. W. 2 Ghulam Mohammad, that P. W Mushtaq Ahmad first caught hold of appellant No. 1 and called upon him to take out money, on which appellant No. l said he had no money and thereafter I.O. Searched the person of appellant No 2 and recovered tainted money, as this shows, that neither P. W. 4 Mushtaq Ahmad I. O. Nor P. W. 3 Karamatullah, mashir could have witnessed the passing of tainted money between complainant .And appellant No. 1 otherwise, P. W.
19. 4 Mushtaq Ahmad (I.O.) would not have caught hold of appellant No. 1 first and asked him to take out tainted money, if actually he had witnessed the incident as alleged by him. In support of his contentions, the learned Advocate for the State relied upon cases reported in 1970 P Cr. L J 1011 ; 1973 P Cr. L J 1036 ; 1975 P Cr. L J 286 ; 1976 PCr.LJ273.
20. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court and impugned judgment and cases cited by the learned Advocate for the State.
21. P. W. Haji Mohammad Aslam statement which was not believed by the learned trial Court in respect of alleged demand of illegal gratification made by appellant No. 1 cannot be relied upon in respect of his statement for having given the tainted money by way of illegal gratification to appel--lant No.1 as alleged in his said statement, without independent corroboration, in my opinion, in view of the evidence and judicial confession of the appellant No. 2 which is on record.
22. For such corroboration, the learned trial Court relied upon the statement of P. W. Ghulam Mohammad (Magistrate) P. W. Karamatullah (mashir of trap) and P. W. 4 Mushtaq Ahmad (I.O.) after discarding evidence of appellant No. 2 and his judicial confession. In view of this, I have carefully gone through the statements of these P. Ws. P. W. 2 Ghulam Mohammad in his statement before the learned trial Court stated as under. ---After talk was over, complainant Aslam handed over the mono to accused Ikramuddin (appellant No. 1). In the meantime, Cashier of accused Ikram also came there, Accused Ikram passed on the money received by him from the complainant to his cashier. We saw all this. We then came forward. Inspector Abdul Ghafoor caught accused Ikram first. Abdul Ghafoor asked Ikram, but he said that he had no money. Thereafter, Inspector Abdul Ghafoor searched the person of Cashier Ikram (i.e. Appellant No. 2) and secured tainted money from his person.--- If the above statement of P. W. 2 Ghulam Mohammad was true and correct, then one cannot understand, why P. W. 4 Mushtaq Ahmad first caught hold of appellant No. 1 and asked him to produce tainted money when all P. Ws, it is alleged had seen appellant No. I passing on the said tainted money to appellant No. 2 forthwith, in their alleged presence. It may be noted, that the name of Inspector was Mushtaq Ahmad and not Abdul Ghafoor as mentioned by P. W. 2 Ghulam Mohammad in his statement before the learned trial Court. However in the face of above, mentioned statement, in examination-in-chief by P. W. 2 Ghulam Mohammad, no reliance can be placed on the statements of P. Ws. 1, 3 and 4 without independent corroboration, in my opinion in the face of the statement on oath of appellant No. 2 before the learned trial Court, which is straightforward and convincing and was not shaken in his cross examination, at all and has been further corroborated by D. W. 3 Nazir Ahmed. It maybe further noted, that talk between appellant No. 1 and P. W. 1 Muhammad Aslam complainant was not heard by P.Ws, 2, 3 and p 4 at all.
23. In addition to above facts on record, I find rejection of appellant No. 2, judicial confession on the grounds mentioned in impugned judgment was not at sit justified, as appellant No. 2, in his statement on oath before c the learned trial Court, did not resale from his said judicial confession, but on the contrary admitted the same to be true.
24. Keeping in view my appraisal of the statement of P. Ws, and D. W. 3 Nazir Ahmed, which was not shaken In his cross-examination and the statement of appellant No. 2, on oath and his judicial confession Exh. 20 In my opinion, prosecution has failed to establish Its case beyond reasonable doubt, against both the appellants in my opinion, as rightly conceded by the State counsel.
25. Therefore I allow the above appeal and set aside convictions of the appellants and sentences awarded to them and acquit both of them, by giving them benefit of doubt and discharge the bails bonds executed by them, in above appeal.