1. ' Appellant abovenamed, being aggrieved by judgment dated 13-1-1980 of the learned Special Judge, Hyderabad, in Special Case No. 27 of 1978, by which appellant has been convicted under section 161, P. P. C. Read with section 5 (2) of Pakistan Criminal Law Amendment Act of 1958 and sentenced to suffer R. I. For 2 years and to pay fine of Rs. 500 or in default to suffer further R. I. For six months, has preferred the above appeal, on the following facts and grounds : ' Prosecution case, shortly stated, is that complainant's brother Khaki had taken land from Sukkur Barrage Authorities in open Katcheri, measuring about 10 acres, 5-6 years' back. He has been looking after that land. He has also his own land of about 28 acres by the side of that land. He had moved for a peach of water to Khaki's land by making application to the Engineer of Irrigation. The peach was sanctioned and the concerning correspondence came down to S. D. O.'s office and the S. D.
0. Gave the concerned letter to Abdar of the beat, for letting water to the land and putting it in the share list. The Karia from which the peach was sanctioned for this land is known as Muhammad Web Kario, The Abdar to whom the letter was given was appellant Ghous Bux About years back Nabi Bux complainant approached the appellant and he prepared. Share list and he took it to the Khatedars drawing water from the Karla for his turn, but they refused to allow him water. He then brought the share list back to the appellant and told him what had happened. He demanded Rs.
2. 500 from him as bribe for going with him to the site and getting him the water as per the share list.
3. He begged for reduction by requesting him and he then reduced the amount of demand to Rs.
300. He asked him to bring the amount to his Otak on the :second day. Next day be went in the morning the Anti-Corruption Office, Sanghar and be lodged his report. Police sent for a Magistrate in the office and he was produced before him alongwith his F. I. R. He enquired from him about the facts of the F. I. R. Police arranged for a trap. They went to Khipro. He was sent to find out, if the appellant was available. He bad gone to his Otak and there he learned, that he was out of station having gone to Dboronaro. They stayed over night at Khipro in Otak of Muhammad Saleh. ' Next day he made enquiry again and found that the appellant had reached Khipro at 7-00 p. m. He informed the Inspector and the Magistrate about that and then' one Moula Bux was called as Mashir. In their presence the Inspector paid him Rs.
300. The numbers of the currency notes were noted down in the Mashimama, which was prepared by the Inspector. He and Mashir were then sent to the Otak of the appellant. 'He and the Mashir came at the Otak of the appellant and he entered it, while the Mashir remained at the entrance. He met the appellant and he demanded from him the bribe money and he paid him the tainted money which he took. The appellant then came out of his Otak and be also followed him. By the time the Mashir had informed the trap party. On seeing the trap party the appellant tried to run away to his house, after throwing the tainted money on the ground, but one of the trap party challenged him to stop. Upon this the appellant stopped and the trap party surrounded and held him up. Police, after completing necessary investigation,' challaned the appellant.
4. ' Appellant pleaded not guilty, and claimed to be tried.
5. ' In section 342, Cr. P. C. Statement the appellant proclaimed innocence. He admitted that police secured Exhs. 10 and 11 from him. He stated that P. Ws. Have deposed against him at the instance of Haji Saleh, as he had asked him to leave his village. His statement under section 342, Cr. P. C. Was recorded on 8-11-1979. In his further statement Exh. 21, dated 17-12-1979 he submitted, that the case had been filed at the instance of Haji Saleh Hingoro, a relation to the complainant Haji Saleh had made representation for preparing fresh share list, which was accordingly prepared, but the season had already started in the meanwhile, and therefore it could not be put into operation.
6. According to irrigation manual if any change is to be brought in water rotation, then the share list is to be prepared and served upon all the Khatedars having land on the particular watercourse, before the season starts. In this case as the share list could not be prepared in time nor it was served upon the Kbatedars as envisaged by law, and the season had already started, it could not be put into operation. The complainant approached him to help him in getting water on behalf of one Khaki, but be told him that since the season bad already started he was not in a position to help him. On the day of incident he came out with him from his house with a view to see him off; when the complainant' took out money from his pocket and wanted to give him, but he slapped on his hand with the result, that the notes fell down on the ground and be now demanded money from him not he accepted the same. Mashir Moula Bux is real brother of Haji Saleh, while P. W. Mir Muhammad and Kamil Hussain inspector are his friends. Appellant bad led no defence, vide his statement EMI 20.
7. ' Learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant above-named as hearing before mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memd. Of appeal. The learned Advocate of the appellant in support of the above appeal submitted as under :-
(a) In respect of alleged demand, there is only statement of complainant and as such it ought not to have been relied upon. In support of this the learned counsel relied upon case reported in Allah Diwaya v. State (1973 P Cr. L J 1036).
(b) In respect of alleged passing of tainted money prosecution did not examine any other P. W.
8. Except complainant. Even Mashir was not examined. The learned trap Magistrate did not see passing of money at all.
9. (c)In respect of alleged throwing of money by appellant, there are material contradictions in the statement of I.
0. And Magistrate and as such no reliance can be placed on such statements.
(d) Motive for alleged bribe is flimsy and unbelievable.
10. (e). Raiding party did not find' appellant and waited for 31 hours for appellant to come, which shows that no arrangement as alleged by complainant was made between appellant and complainant.
(f) Explanation given by appellant in respect of falling down of money on ground is plausible and ought to have been accepted, as it created doubt in the story of complainant.
11. ' The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment for cogent reasons given in the said judgment as prosecution has established its case beyond reasonable doubt, through the statements of P. Ws.
12. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as impugned judgment.
13. Prosecution case rests upon the solitary statement of complainant for alleged demand of bribe by appellant as well as in respect of ,talks which actually took place between complainant and appellant, at the time of alleged passing of tainted money. , In view of this case cited by learned Advocate for appellant reported. In 1973 P. Cr. L J 1036 and 1978 P Cr. L J 247 fully applicable to facts of the present case, with which I am A in respectful agreement for reasons given therein. In addition to this the are material contradictions in the statements of 1. O., Magistrate and coin plainant inter se in respect of the alleged running of appellant and call of Mashir. According to P. W. 2 Mir..
14. Muhammad (Magistrate) Mashir w brought by complainant to the Otak of Haji Saleh, whereas according t P. W. 3 Islam, Incharge Circle 'Officer Anti-Corruption, he had sent of Mashir through constable. Appellant in his statement under section 343, Cr. P. C. Has alleged enmity with Haji Saleh and further stated that. Mashir Mola Bux was brother of Haji Saleh and at the instance of said Haji Saleb, complainant, who is friendly with him had filed the false report against him. Appellant further denied receipt of tainted money and/or demand for the same. In fact money was not secured from possession of the appellant, but from ground and appellant has given explanation for said trainted money being thrown on ground from the hand of complainant. It ma further be noted, that appellant was not available on alleged appointed time to receive money and raiding party bad to wait for 31 hours. This show that there was no time fixed for acceptance of alleged bribe between appellant and complainant as mentioned by complainant in F. I. R. And as such prosecution case as given in F. I. R. Becomes doubtful, in this connection.
15. ' Keeping in view the above facts, in my opinion, prosecution has failed to establish its case beyond reasonable doubt against the appellant.
16. ' Therefore, I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by appellant in above appeal.