1. Appellant above named, being aggrieved by judgment dated 24---8-1977 of the Special Judge Anti-Corruption, Sukkur, in Case No. 33/76, by which appellant has been convicted under section 161, P. P. C. Read with section 5(2) Act 11 of 1947 and sentenced to suffer R. I. For 2 months on each count, has preferred the above appeal on the following facts and grounds :- The prosecution case is, that one Bahrain son of Allah Bakhsal Lashari, Peon in Taxation Branch of Jacobabad - Municipal Committee lodged F. I. R., with Circle Officer A. C. M. Jacobabad on 22-9- 1975 at 9-00 a. m. That his cousin Muhammad Soomar son of Haji Khan Lashari had Electric Shock, 15-16 days prior to lodging of F. I. R. During rains and complainant became guardian of the family of deceased. Complainant met appellant on 20-9-1975 regarding pension papers and other funds who told him to bring death certificate of his.' Complainant took death certificate of Muhammad Soomar to appellant on 22-9-1975, who demanded Rs. 20 as Karachi from him whereafter he would give him service book of deceased for completion privately.
2. After recording this report of complainant Bahrain, the Circle Officer A. C. M. Jacobabad contacted Head Munshi Mr. Qadir Bux on Telephone to come to his office for secret duty who arrived. He called mashir Habibullah and held personal search of complainant and gave him Rs. 20 with instructions to pass on the same to Government servant concerned. He prepared mashirnama Exh. 3-A. There were four 5-rupee notes and one death certificate which were given to complainant and he was sent with Mashir to Municipal Committee Jacobabad. The Circle Officer alongwith staff and Head Munshi left in tonga towards Municipal Office. They reached at pre-arranged places and after half an hour Mashir gave signal. Circle Officer, Magistrate and the staff reached Municipal Office. They disclosed their identity to appellant. Magistrate held personal search of appellant and secured tainted money of Rs. 20 and Rs.2 extra from sleeve of appellant. The tainted money tallied with first Mashirnama. Such Mashirnama was prepared vide Exh. 3-B. Complainant then produced the service book of deceased, and death certificate of Muhammad Soomar, which were secured per Mashirnama Exh. 3-C. Circle Officer recorded further statement of complainant and examined Mashir. On same day, 164, Cr. P. C. Statement of P. W. Habibullah was recorded by Mukhtiarkar on 30-9-1975, Head Munshi filed raid report Exh. 4-B. The Circle Officer issued final report to Director on same day. The Director ordered for placing of case before Anti-Corruption Committee, which decided on 10-I-1976 that the case be sent up before the Court. Hence the appellant was challaned after sanction for prosecution; Exh. 5-A.
3. The appellant did not plead guilty to the Charge Exh. 1, A. P. P. Examined P. W. Bahrain Exh. 2, P. W.
4. Habibullah Exh. 3, Qadir Bukhsh Exh. 4 and Rajib Ali Exh. 5 for the prosecution.
5. The appellant in his 342, Cr. P. C. Statement Exh. 7 had admitted to be public servant having been posted as Clerk in Municipal Committee, Jacobabad. He had denied to have demanded the illegal gratification of Rs. 20 from complainant, Bahrain as a motive or reward, to get pension documents of deceased Muhammad Soomar prepared. He had also denied to have accepted Rs. 20 as illegal gratification in capacity of public servant on 22-9-1975 and having been caught red-handed, by the trap party, with tainted money secured from sleeve of right arm of his shirt. According to him complainant had taken a loan of Rs. 20 from him 2 or 3 days prior to trap, as he had denied the same from him at his office. They exchanged hot words and he had slapped him. In order to take revenge of that insult, complainant has falsely involved him in this case and that he had nothing to do with preparation of pension papers. Further that the complainant had given him back the loan amount at the time of alleged trap and on that account he accepted the same from him. He had also stated that P. Ws. Are police personnel. He had led no defence.
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 appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That P. W. 2 Habibullah the independent witness, of the prosecution has not supported the prosecution case at all and in fact has proved the prosecution case to befalse.
(b) That there is no evidence on record to warrant conviction of the appellant and the conviction of the appellant, on the sole testimony of the complainant, in view of the statement of P. W. 2, cannot be sustained.
7. The learned Advocate appearing for the State at the outset, submitted that he was not supporting the impugned judgment, as prosecution has failed to establish its case beyond reasonable doubt against the appellant.
8. The prosecution case rests upon the testimony of P. W.
1. Behram (complainant), who stated before the learned trial Court, that the appellant demanded from Rs. 20 as a bribe and therefore he lodged F. I. R: as a result of which trap was arranged and the appellant was arrested with the tainted money. In his cross this witness denied, that he has taken loan of Rs. 20 from the appellant and that while paying him Rs. 20 he told the appellant, that this was the loan amount. The statement of this P. W. Has been falsified completely by the statement of P, W. 2 Habibullah, the Mashir of the trap, who was declared hostile by the prosecution. P. W. 2 in his cross-examination as well as in his statement before the learned trial Court categorically stated, that the complainant while paying Rs. 20 to the appellant told 'him, that he was returning to him the loan amount. In view of this no reliance can be placed on the statement of this P. W., without independent corroboration, in my opinion.
9. P. W. 3 Qadir Bux Head Munshi and the Second Class Magistrate Jacobabad, who had arranged the trap at the request of the Police, has no--where in his statement stated, that he heard the conversation between the complainant and the appellant, at the time of passing of the tainted money and as such his statement does not corroborate the statement of P. W.
1. Similarly statement of P. W. 4 Rajab Ali also does not corroborate the statement of P. W. 1 complainant; as he also did not bear the conversation B between the complainant and the appellant, at the time of passing of the tainted money. In view of this, taking into consideration the statement of the appellant under section 342, Cr. P. C. That he had advanced a loan of Rs. 20 to the complainant and on account of this loan they bad exchanged hot words and consequently the complainant due to this enmity has falsely involved him in this case; cannot be overlooked, specially as this statement; of the appellant has been fully corroborated by P. W. 2 Hahibullah, in his cross- examination. Therefore, in my opinion prosecution has failed to establish its case beyond reasonable doubt, against the above appellant.
10. Therefore, I allow the above appeal and set aside the conviction of the appellant and sentences awarded to him and acquit him, by giving him, benefit of doubt discharge the bail bonds executed by tire appellant-An above