1. Appellant above named, being aggrieved by judgment dated 20-7-1978 of the learned Special Judge, Sukkur, in case No. 20 of 1976, by which appellant has been convicted under section 161, P. P.
2. C. And section 5(2) of the Act 11 of 1947 and sentenced to suffer R. I. For one year on each account, has filed the above appeal, on the following facts and grounds: The prosecution case briefly is; that appellant Muhammad Issa was posted as a clerk in the office of A. C. O. Mirpur Mathelo in the year 1975 and co-accused Rasool Bux as peon an the said office and as such they were public servants. Further that on 12-2-1973 appellant Muhammad Issa by abuse of his official position demanded illegal gratification of Rs. 300 from complainant Ali Muhammad as a motive or reward to show him favour on his application received from C. O., Guddu Barrage, Sukkur, in respect of payment of instalments of the agricultural land and on requests of complainant he agreed to accept Rs. 200 on 14-2-1975 and accepted the same on that date from complainant, in presence of witness Malang and after counting the same passed it on to co-accused Rasool Bux and the money was subsequently recovered from Rasool Bux from his pocket of shirt by the trap party, including the Magistrate. Hence the challan.
3. Appellant as well as co-accused did not plead guilty to the charges vide Exhs. 1 and 2.
4. The prosecution had examined Qutabdin Exh. 3, Ali Muhammad Exh. 4, Malang Exh. 5, and Muhammad Rafique Exh. 6.
5. Appellant Muhammad Issa in his 342, Cr.P.C. Statement Exh. 8 admitted to be public servant, posted as clerk in the office of A. C. O., Mirpur Mathelo in the year 1975. He denied to have demanded illegal gratification of Rs. 3C0 from complainant Ali Muhammad on 12-2-1975 to show him favour on his application received from C. O., Guddu Barrage, Sukkur, in respect of payments of instalments and to have agreed to accept Rs. 200 on request of complainant on 14-2-1975. He had also denied to have accepted Rs. 200 tainted money on 14-2-1975 from complainant, in presence of P. W. Malang and of passing of the same to co-accused Rasool Bux after counting and securing of the same from shirt pocket of co-accused Rasool Bux by trap party. According to him the P. Ws.
6. Had deposed against him due to enmity. He had declared his innocence and he had also stated, that application was given to him by Rasool Bux saying that applicant is his co-villager and he should oblige him by giving him legal help. He had led no defence.
7. Co-accused Rasool Bux in his 342, Cr. P. C. Statement Exh. 9 admitted to be public servant, posted as peon in the office of A. C. O., Guddu Barrage, Mirpur Mathelo in the year 1975. According to him Muhammad Issa gave him Rs. 200 and those were secured from his possession by the trap party, but he had no knowledge that the money was illegal gratification, as he had come from outside. He did not know why P. Ws. Bad deposed against him. He wanted to lead defence but on 16-7-1978 he gave statement that he did not want to examine any defence witness.
8. The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Rasool Bux, convicted and sentenced the appellant above named as hereinbefore mentioned and consequently appellant above named has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
9. The learned Advocate for the appellant in support of the above appeal submitted as under---
(a) That tainted money was not recovered from the possession of the appellant.
(b) Prosecution has led no evidence to establish that appellant accepted the bribe in question.
(c) That no P. W. Has involved the appellant at all.
10. In view of above submissions, the learned Advocate for the appellant submitted, that conviction and sentences awarded to appellant cannot legally be maintained.
11. The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as prosecution has failed to prove its case against the above appellant, beyond reasonable doubt.
12. I have taken into consideration the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as through the impugned judgment.
13. P. W. 1 Qutubudin in his statement before the learned trial Court in his cross-examination admitted, that he did not see complainant giving money to above appellant nor he saw appellant passing on said money to acquitted co-accused, from whose possession the tainted money was actually recovered.
14. P. W. 2 Ali Muhammad, complainant in his statement before the learned trial Court stated, that co- accused Rasool Bux had demanded bribe from him, which was settled at Rs. 200 and on the day of tra, he had paid the said amount to acquitted co-accused Rasool Bux, in presence of appellant, who thereafter at the request of Rasool Bux, took out his application for --disposal and Mashir gave signal and raiding party came and secured the money from pocket of acquitted co-accused Rasool Bux. In cross he admitted, that he did not mention in F. I. R. That he gave money to appellant, who passed on the same to co-accused Rasool Bux.
15. P. W. 3 Malang is Mashir of recovery of tainted money. He also corroborated-the statement of P. W.
16. 2 about payment of Rs. 200 to co-accused. Rasool, Bux. In his cross he denied that money was given to appellant and he passed on the same to Rasool Beg P. W. 4 Muhammad Rafiq. S. I. P. In his statement before the learned trial Court stated, that complainant and Mashir told him that money was passed to appellant, who passed on the same to co-accused Rasool Bux.
17. It is clear from the above statements of P. Ws. That above appellant neither received tainted money nor had he demanded the same from complai--nant. It is also admitted position, that tainted money was found in pocket of acquitted co-accused Rasool Bux. In view of this, I see no reason to agree with the conclusions and findings of the learned trial Court, that prosecution has established its case against above appellant, by statement of Magistrate and 10 as well as by F. I. R.
18. In the face of the statements of P. W. 2 All Muhammad (complainant) and P. W 3 Malang (Mashir).
19. In my opinion, prosecution has failed to establish its case against the above appellant completely.
20. Therefore I allow the above appeal and set aside convictions of, the appellant and sentences awarded to him by impugned judgment and acquit him and discharge the bail bonds executed by the appellant in above appeal.
21. Appeal accented.