' Appellant above-named, being aggrieved by Judgment dated 29th November, 1979 of Special Judge Karachi in Special Case No, 51 of 1977, by which appellant has been convicted under section 161, P. P. C. Read with section 5 or the Act II of 1947 and sentenced to suffer R. I. For one year, has preferred the above appeal, on the following facts and grounds :- ' The case of the prosecution shortly put is, that complainant Rashid Mirza was respondent/tenant in case filed by applicant/landlord in rent case filed by landlord Nazar Muhammad before the Rent Controller No, II. Whereas the appellant was on duty as Gunman for that particular Court. The matter in the Rent Controller was fixed for the determination of the preliminary issue whether relationship of landlord and the tenant existed between the parties. The appellant told Rashid M.
Mirza, the tenant, that if he gives him a bribe of Rs, 500 he would get the issue decided in his favour, which issue would dispose of the case itself filed against him by his landlord Nazar Muhammad and Rashid Mirza agreed to pay Rs, 500 and he actually paid him Rs, 500 as illegal gratification for rendering service to Rashid Mirza. Unfortunately the learned Rent Controller decided the issue against Rashid Mirza the tenant with the result, that Rashid Mirza contacted the appellant and told him to return the amount of Rs, 500 which he had demanded and accepted from him for getting issue decided in his favour. The appellant cunningly demanded further sum of 200 from Rashid Mirza for getting previous orders revised. It so happened that in the mean time, the learned Rent Controller, Mr. Abdullah Khan was transferred, who had decided the issue of relationship of Landlord and tenant between parties therefore, Rashid Mirza told him, that since the Rent Controller, who had passed the orders against him was transferred it was not possible for the appellant to get the orders revised and passed in his favour. The appellant further insisted and asserted that he would get the orders revised in his favour. Rashid Mirza consulted with his Advocate Mr. Asghar Ali and apprised him of the facts and further demand of Rs, 200 from him by the appellant. Mr. Asghar Ali being Advocate of standing told him that it was not possible to get the orders revised and anti-dated as such he should not pay Rs, 200 to appellant. Mr. Asghar Ali Advocate further advised Rashid Mirza to lodge the report with Anti-Corruption Police. Accordingly Rashid Mirza lodged report with Anti.Corruption Police which was recorded. Rashid Mirza and two Mashirs were taken by Anti-Corruption Inspector to the Magistrate in whose presence the tainted money of Rs, 200 was given to Rashid Mirza and such mashirnama was prepared containing currency notes Nos. In the mashirnama and then the programme, mode and manner under which the trap was to be laid was arranged. It was decided at the instance of Rashid Mirza, that the money to be passed on to the appellant in a Hotel outside the compound wall of the New City coyrt building, was according to Rashid Mirza Rs, 500 were also paid by him to the appellant in that particular hotel. It was decided that Rashid Mirza and one mashir to take the appellant to the hotel, whereas other mashir to stand at the entrance of the hotel who should watch the proceedings including passing of the tainted money to the appellant and that he should give signal to the Police and Magistrate suggesting thereby, that the tainted money was actually passed. In persuance of that plan Rashid Mirza and Mashir Muhammad Ali took the appellant to that particular hotel, where they ordered for tea and the appellant made the demand of Rs, 200 from Rashid Mirza in the hotel in presence of Muhammad Ali, when Rashid Mirza gave him tainted amount of Rs, 200 which appellant accepted and kept in his hand. The co-mashir who was standing at the door of the hotel, after having seen the tainted money being passed on to the appellant, gave signal to the raiding party, when Inspector and Magistrate rushed inside hotel, and caught the appellant and the Inspector secured the tainted money of Rs, 200 from the hand of the appellant, in presence of Magistrate and mashir and such mashirnama was prepared by him. Then after other usual investigation, including obtaining of prosecution sanction the appellant was sent up to Court to stand his trial.
' The case of the appellant proceeded on the footing that one Abu Zafar, who had a case pending in that particular Court had approached him to introduce him to some Advocate for conducting his case, accordingly he had introduced him to Mr. Asghar Ali Advocate, who charged fee of Rs, 500 from him. Mr. Asghar Ali had not yet filed his power in the Court, when the matter of Abu Zafar was compromised with other party, as a result of which Abu Zafar told appellant to get his fees back from Asghar Ali Advocate. Accordingly he requested Asghar Ali Advocate to return fee, which he promised to do so after two or three days. It is also the case of appellant, that on the fateful day complainant Rashid Mirza came to him and told him that he was wanted by his counsel Asghar Ali, who was waiting for him in the hotel. He went to hotel alongwith Rashid Mirza, who foundthe Advocate not present in the hotel. However according to him Rashid Mirza paid him Rs, 200 on behalf of his Advocate and promised to pay him Rs, 500 later on and he accepted the amount of Rs, 200, when he was trapped in this case.
' When the substance of allegation was read over and explain to the appellant, he pleaded not guilty and claimed to be tried.
' Learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently 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 trial of the appellant was in violation of the provisions of section 234, Cr. P. C., as he was tried for six offences together. In support of this learned counsel relied upon cases reported in PLD 1960 Dacca 413, PLD 1959 Dacca 817 and PLD 1957 SC (Ind.) 435.
(b) That motive alleged by prosecution is absurd.
(c) That trap not conclusively proved, in view of explanation of appellant under section 342, Cr. P. C.
In respect of Rs, 200 received by him.
(d) Mashir of trap not independent.
' In support of above contentions, the learned counsel for appellant also relied upon cases reported in PLD 1954 Sind 126, PLD 1963 Kar. 582, PLD 1971 Kar. 78, PLD 1975 Kar. 239, 1970 P Cr. L J 520, 1973 P Cr. L J 839/1036, PLD 1979 Kar. 294 and AIR 1952 Orissa 267 and submitted that prosecution has failed to establish its case beyond reasonable doubt.
' However, the learned counsel for State on the other hand submitted, that he was fully supporting the impugned judgment on merits, but sentence awarded to appellant is rather harsh, and as such the same may be reduced, keeping in view, that appellant remained in custody for one month.
' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial Court as well as the impugned judgment and cases cited by the learned Advocate for the appellant.
' I have carefully gone through the statements of complainant P. W. Rashid Mirza, P. W. Muhammad Idris and Muhammad Ali and Mr. Muhammad Sarwar Khan S. D. M. Hyderabad and I. O. As well as tnrough 342, Cr. P. C. Statement of the appellant and D. Ws. Statements.
Statement of P. W. Rashid Mirza, the complainant does not inspire any confidence at all, in view of various contradictions in his statement before the learned trial Court & F.I.R. And so also the statements of P. W. Muhammad Idris and Muhammad Ali, the mashirs. Motive for alleged bribe is also unconvincing according to me. It is also admitted position, that P. W. Muhammad Idris and Muhammad Ali are close friends of the complainan I.
0. In spite of this fact, did not care to choose independent mashirs fo the trap, for the reasons best known to him. Presence of P. W. Asgha Ali near about trap vardat is admitted by P. W. 2 Muhammad Idris, which fact corroborates the statement of appellant under section 342, Cr. P. C. That P. W.
Asghar Ali was interested for array the false trap harass the appellant, who was demanding from him refund of fees paid to him, by D. W. Abu Zafar. In addition to this P. W. 2 Muhammad Idris cross examination admitted, that he did not hear talks between complainant and appellant at the time of passing of tainted money. P. W. 3 Muhammad Ali the other mashir stated, that tainted money was recovered by I.
0. From the hand of the appellant. However, I find that P. W. 6 Mumtaz Khan I.
0. In his statement before the learned trial Court stated, that he recovered tainted money from shirt pocket of the appellant, in presence of S. D. M. And others, but later on changed after seeing Exh.
6. The facts on record show material contradictions inter se in the statements of P. Ws. It may further be noted, that P. W. Murtaza Hussain I. O. In his cross examination admitted, that appellant on being apprehended stated that the money in question was paid to him by complainant on behalf of P. W. Asghar Ali, Advocate for refund to his client D. W. Abu Zafar. In view of all these facts, statements of P. Ws. Do not inspire confidence at all, but on the contrary lend support to the statement o appellant under section 342, Cr. P. C. In my opinion. It would be unsafe to convict the appellant on such prosecution evidence, in the face o statement of D. W. Abu Zafar, whose statement is straightforward and convincing and fully supports the statement of appellant. At any rate statement of D. W. Abu Zafar has created reasonable doubt in the prosecution case, in my opinion.
' Therefore, I allow the above appeal and set aside conviction of the appellant sentence awarded to him and acquit him by giving him benefit B of doubt and discharge the bail bonds executed by the appellant in above appeal.