SADAD ALI SHAH, J.-This acquittal appeal is filed by the State against the impugned judgment dated 15th July, 1978 of learned Special Judgecum-Inquiry Officer, Anti-Corruption, Hyderabad, whereby respondent named above has been acquitted in a case in which he was tried for offence under section 161, P. P. C. Read with section 5(2) of Prevention of Corruption Act, 1947.
2. Briefly stated the prosecution case is that complainant Amir Bux at the relevant time was bkamdar' of Zamindar Haji Abu Bakar Junejo, who had agricultural lands situated in Deh 15 Hirai, which were being irrigated by Water Course No, AR-9. On 13th June, 1975, complainant saw respondent at the said watercourse, who informed the complainant that he was newly posted and demanded Rs, 300 failing which he threatened that he would block the water from irrigating the lands of Zamindar Haji Abu Bakar. Ultimately, the bargain was struck at Rs, 200, which complainant promised to pay later. Complainant informed his Zamindar, who gave him Rs, 200 and further advised him to lodge report with Anti-Corruption Police. Complainant lodged such report with Kamil Hussain Sub-Inspector A. C. E., Mirpurkhas on 14th June, 1975. The Sub-Inspector obtained permission to investigate the crime from A. D. M., Mirpurkhas and arranged for Head Munshi and IIIrd Class Magistrate, Mirpurkhas to supervise the trap. In presence of the Magistrate and mashir complainant paid Rs, 200 in hundred rupees notes to the respondent near Hirai Mori at mile No, 8.
First complainant with mashir Wahid Bux, Haji Abu Bakar and Piaro went to the quarter where the respondent resided. Sub-Inspector and the Magistrate stayed at some distance. After the signal was given they went to the spot and found the respondent standing near the bridge of the watercourse and after disclosing their identity the person of the respondent was searched and Rs, 200 were recovered from the pocket of his shirt. Such mashirnama was prepared and after completing the necessary investigation challan was presented in the Court.
3. Prosecution has examined 5 witnesses in support of its case. P. W. 1 is Mr. Pershotamdas, who is Head Munshi and IIIrd Class Magistrate. He has deposed that on 14th June, 1975 he went to the Office of A. C. E. Where a trap party was arranged. Numbers of two hundred notes were noted and such mashirnama was prepared after which notes were given to complainant Amir Bux. Trap party then went to 8th mile Mori. He has then supported the story of prosecution with regard to the trap and arrest of respondent red-handed. P. W. 2 is Amir Bux complainant. He has supported the prosecution case as stated above and produced F. I. R. Exh.
10. P. W. 3 is Haji Abu Bakar, who is Zamindar and complainant Amir Bux is his kamdar. He has supported the complainant and further stated that he was present at the time of trap, P. W. 3 is again Mr. Pershotamdas Head Munshi and IIIrd Class Magistrate. It is not clear why the evidence of this witness is recorded twice. The evidence of this witness as P. W. 1 appears to have been recorded on 24th September, 1977 and this witness was subjected to a lengthy cross-examination by defence counsel. Again this witness was examined for second time on 16th April, 1978 and was cross-examined by the defence counsel. It appears that in between these two dates the Presiding Officer was transferred and the new Presiding Officer had taken over as the signatures of the Presiding Officer in both these depositions are different. P. W. 4 is Haji Piaro, who was driving the car in which the trap party went to the spot on the relevant day. He has deposed that he was present at the time of trap. Trap party went into two cars and one of them belonged to him and was driven by him. P. W. 5, Kamil Hussain Sub-Inspector has investigated the case as stated above. Prosecution produced sanction order and module book.
4. Before the trial Court in his statement under section 342, Cr. P. C. Respondent admitted that he was Sub-Inspector in the Irrigation Department at the relevant time and as such was a public servant. It is further stated by him that he was called by Flaji Abu Bakar and while he was talking to him he was apprehended by A. C. R. Party without tainted money. He has further stated that he has been implicated falsely in this case at the instance of Haji Abu Bakar as he had blocked the module on the direction of tapedar. He further stated that Haji Abu Bakar was an Ex-convict and got involved his maternal uncle Muhammad Ishaque with whom Haji Abu Bakar had old enmity. He further stated that Haji Abu Bakar is in the habit of tampering with irrigational water and modules he was caught in that act and his watercourse was closed as such Haji Abu Bakar had taken revenge for falsely involving him in this case. Respondent further produced certified copy of the report of S.H.O. Exh. 20 and other report Exh. 21 and a report from Executive Engineer to Superintending Engineer Exh.
22. He also produced a letter from Superintending Engineer to Executive Engineer Exh. 23.
5. We have heard Mr. Raja Qureshi, learned counsel for the State and Mr. Muhammad Ali Shaikh, learned counsel for respondent. Contention of Mr. Raja Qureshi is that the evidence has not been properly appreciated by the trial Court and the respondent should not have been acquitted when the prosecution was able to produce conclusive evidence to connect him with commission of crime. We have gone through the evidence of the witnesses and the impugned judgment. Mr. Shaikh appearing for respondent has argued that this is an acquittal appeal in which scope for interference is limited and even if the appellate Court comes to a different conclusion on the questions of fact, no interference can be made if there is no illegality committed by the trial Court in the conduct of trial. It was further submitted that the impugned judgment is very much consistent with the evidence brought on record by the prosecution which suffers from inherent infirmities and defects. The learned counsel for the respondent has criticised evidence of Haji Abu Bakar on the ground that he is inimical the respondent. Haji Abu Bakar has admitted in his cross- examination that he filed a case against Muhammad Ishaque Memon but expressed his ignorance whether Muhammad Ishaque was uncle of respondent. He further admitted that in earlier Martial Law he was prosecuted and convicted for giving false information and subsequently was let off on mercy petition. He denied having tampered with any module or that any S. D. O. Had made report against him on that account. He further admitted that P. W. Haji Piaro is his wife's brother and lived seven miles away from Mirpurkhas. He denied a suggestion that tainted money was put by them in the pocket of shirt of respondent which was hanging in the peg in the quarter of respondent. He has admitted that one Darogha was present alongwith others at the time of trap. P. W. 4 Haji Piaro has stated before the trial Court that respondent put Haji Abu Bakar and Amir Bux towards pacca road about 15 feet away from him and the raiding party was waiting about 45 feet away at the Mori towards east. Likewise complainant has also admitted that the trap party at the relevant time was some distance away and were waiting for the blowing of horn of the car as a signal to come and apprehend the respondent with tainted money. Complainant has also admitted that Darogha Khan Muhammad met them near his quarter on the watercourse, bridge No, 8 Hiral. He has further stated that horn of the car was blown by the driver on his own and not on account of the signal given by me (complainant) as was arranged. This witness complainant was confronted with his police statement wherein he has stated that he signaled the driver to blow horn. Mr. Shaikh has submitted that it appears from the evidence that complainant Amir Bux, Haji Abu Bakar and Haji Piaro have taken active part in giving bribe to the respondent as such they are no better than accomplices and their evidence must be corroborated by independent sources. He further submitted that Haji Abu Bakar is inimical to the respondent and is a previous convict and was convicted for giving false report. Haji Piaro is related to him as such is interested witness and complainant is kamdar of Haji Abu Bakar. It is submitted by the learned counsel for the respondent that the learned trial Judge apart from other reasons given in the judgment has relied upon the decision in the case of Mst. Mehrunnisa v. Crown in which it is held that evidence of accomplice cannot be accepted without independent corroboration. We find that in the reported case complainant Thigri Shah was considered as accomplice for the reason that he had indulged in the sale of Charas under certain arrangement with the officers of Excise Department including Ghulam Qadir who was Excise Inspector and Qadir Bux who was Excise Constable. Subsequently, he fell out with them when they demanded money from him and filed a report. In these circumstances, it was held that Thigri Shah was an accomplice and there was no corroboration of his evidence against appellants Ghulam Qadir and Qadir Bux. Moreover, the charge against the appellants was not that of bribery but of misconduct under section 5 of the Prevention of Corruption Act and that misconduct related to illicit sale of Charas. Mr. Muhammad Ali Shaikh, then submitted that in the instant case the raiding Magistrate and the Investigating Officer had neither seen the passing of money to the respondent nor had heard the conversation between respondent and the complainant before the money was allegedly accepted by the iespondent. He has argued that prosecution has no evidence to prove that the tainted money was accepted by the respondent as illegal gratification. On this point there is admission of the witnesses that the raiding party was away at the time when the tainted money was passed on to the respondent and neither Mr. Pershotamdas Magistrate nor Kamil Hussain Sub-Inspector saw the actual passing on of the money from the complainant to the respondent nor these witnesses claim that they heard the conversation as they were at quite some distance away and were waiting for the signal to commence the raid. Mr. Shaikh as cited the case of Muhammad Luqman v. State in which the conviction was set aside on the ground that the raiding Magistrate and the Inspector had not witnessed the passing of money as such there was possibility that money was foisted upon the accused in the case. Another decision cited is Elaz Ahmed v. State . In the reported decision conviction was set aside en the ground inter alia that conversation between the complainant and accused was not over heard before the passing on tainted money to the accused, hence in the1 2 3 circumstances acceptance of money cannot be inferred as illegal gratification. Another decision cited in Allah Diwaya v. Tate in which it is held that prosecution must show that accused accepted money with knowledge of its being illegal gratification. It is further held in the reported decision that complainant is Agent Provocateur passing money to another as bribe and he is no more than accomplice hence his testimony is not to be accepted unless corroborated by independent evidence. Mr. Muhammad Ali Shaikh has further submitted that no other independent witness has been examined by the prosecution although it is admitted that one Darogha and several other persons were present at the time of raid. In the circumstances, we hold that in the instant case the Magistrate and the Investigating Officer did not see the passing of money to the respondent and further they did not hear the conversation between the complainant and Haji Abu Bakar with the respondent and no independent witness has been examined. We are not inclined to put implicit reliance on the evidence of Haji Abu Bakar who has enmity with the respondent and is a previous convict for offence of giving false report. Haji Piaro is related to Haji Abu Bakar and complainant Amir Bux is kamdar of Haji Abu Bakar. Additionally, respondent has also produced documentary evidence to show that this particular module was tampered with and the matter was inquired into.
6. For the facts and reasons stated above we are of the view that prosecution has failed in its duty to prove the case against the respondent B beyond doubt, hence we give benefit of doubt to the respondent and maintain the impugned judgment. In consequence appeal is dismissed. 1969 SCM R 574 1975 P Cr. L J 456 1973 P Cr. L J 833 1973 P Cr. L J 1036