Appellant Dilmir Khan who was at all material times posted as Head Constable Police in Nawabshah town has been convicted under section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to suffer R.I. For one year.
2. The prosecution case against him was that on 28-11-1965, he demanded and accepted an amount of Rs. 40 from complainant Salahuddin as a bribe on the pretext that he would bring about a compromise between the complainant and his opponent Abdul Aziz. It appears that Salahuddin had filed a complaint against this Abdul Aziz and the matter was entrusted to the appellant by the S. H. O. For investigation, on 20-11-65. The appellant submitted his report on 27th November 1965, in which he had recommended that as the complainant's case appeared to be false no action was called for against Abdul Aziz. This complaint was made against the appellant by Salahuddin on 28- 11-1965, as Exh. 4 would show.
3. To support their case the prosecution examined P. W. Salahuddin, who stated that at the appointed time he paid Rs. 40 to the appellant. These notes were given to him in presence of a Magistrate under a Mashirnama, Exh.
9. It was the case of the complainant that after he paid this amount to the appellant, the latter put the money in his pocket. On a signal the Magistrate and the Investigating Officer, Kamil Hussain, P. W. 5 approached the appellant and on seeing them he threw the money on the ground. He is supported by Sardar Ahmad P. W. 2 and Kamil Hussain, P. W. 5 who were both Head Constables in the Anti-Corruption Establishment at Khairpur. They also said that the appellant threw the money on the ground after he saw the Magistrate and Head Constables approaching him.
The evidence of the Magistrate Kifayat Hussain was, however, entirely different. He stated that when he reached the appellant and disclosed his identity he found a bundle of currency notes lying on the ground near the cycle of the appellant. The said notes were recovered by the Magistrate under a Mashirnama Exh.
10. The Magistrate searched the person of the appellant but nothing concerned with the case was found. In cross-examination the Magistrate made a statement that he did not see the complainant and the Mashir entering the Musafir Khana at all.
At this stage it will also be useful to examine the evidence of Mashir Noor Muhammad P. W.
4. He stated clearly that he saw nothing except Rs. 40 lying on the ground behind the cycle of the It would thus be seen that while the case of the complainant P. W. 1 and the two Police Head constables namely, Sardar Ahmed And Kamil Hussain is that the money was accepted in presence of the mashir Noor Mohammad P. W. 4 and thereafter thrown on the ground in presence of the Magistrate P. W. 3, Kifayat Hussain, the evidence of the mashir and the Magistrate completely falsified this position. I would consider it safer to rely on the evidence of the Magistrate and the mashir who are both reliable witnesses. In any case their evidence is entitled to more weight than that of the complainant who has a grudge against the appellant on account of the latter having submitted an adverse report against him. The evidence of the Magistrate and the mashir also inspires more confidence than that of two police head constables.
The version of the appellant was that on account of the adverse report the complainant was annoyed with him and that this case had been filed on account of that grievance.
6. The appellant examined three witnesses in his defence. D. W. Mohammad Amir was a head constable of police who stated that Salahuddin had filed a report against Abdul Aziz D. W. 2 Talat Hussain, who was then S. H. O., Nawabshah stated that on 20-11-1965, he had entrusted the appellant with the investigation of this case and the appellant had submitted the report on 27th November 1965. The case of the appellant was that this case had been filed against him by Salahuddin on account of the adverse report against him. There is nothing on record to controvert this position. On the other hand, the fact remains that this case was filed against the appellant only one day after he had made a report in favour of Abdul Aziz, which was against the interests of the complainant. D. W. 3 Abdul Aziz was also examined in this case and he stated that he had produced defence witnesses Anwar and Yousuf before the appellant who was conducting the enquiry against him on the complaint of complainant Salahuddin. The evidence of these three defence witnesses no doubt lends support to the case of the appellant.
The learned counsel for the State does not support the conviction of the appellant as in his opinion the case is not free from reasonable doubt.
7. On consideration of the evidence as a whole I agree with the learned counsel for the State. This appeal is, accordingly, allowed and the conviction and the sentence passed on the appellant afire set aside. His bail bonds stand cancelled.