1. FAKHRUDDIN G. EBRAHIM, J.--This appeal calls into question the conviction of the appellant, a Sub-Inspector of Police, by the learned Special Judge, Anti-Corruption, Karachi for an offence under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 on the finding that he demanded and accepted a bribe of Rs.100. The appellant was sentenced to 3 months' R.I. And to pay a fine of Rs.200 or in default to suffer R.I. For one year which conviction and sentence were maintained in appeal by the High Court vide judgment, dated 2-4-1973.
2. The case of the prosecution is that on 8-6-1969 some hawkers of Iqbal Market in Soldier Bazar quarrelled amongst themselves and the first informant, P.W. 1, Asmatullah Jan, the Vice-President of the Fruit Hawkers Association, lqbal Market brought about a compromise amongst these persons which was put into writing (Exh. 3). Two days later, however, namely on 10-6-1969 the same parties seem to have quarrelled again and the first informant P.W.1 Asmatullah Jan took them to the Police Station and handed them over to the Police alongwith the compromise document which had been executed earlier. On the same day at 10 p.m. An F.I.R. Was lodged by one Ahmad who was shown as the complainant in the aforesaid compromise, against Ali Muhammad and Habib who were shown as the opposite party in the same document. In the ordinary course of assignment of duty the task of investigating this case lodged by Ahmad fell to the share of the, appellant. On the next day i.e. 11-6-1969 P.W.1 Asmatullah Jan, the first informant was sent for at the police station. The appellant rebuked him for having virtually set up a Court outside the police station where he was dispensing justice and that the appellant would not be allowed to go away, that is to say, he was under detention. While P.W.1 Asmatullah was at the police station, P.W.2 Habibullah, the General Secretary of the aforesaid Association came to the police station and the appellant told him that he will not allow the first informant to go away until a sum of Rs.100 was paid to him as a bribe. This amount, the first informant agreed to pay but asked for the inasmuch as he was without that much money on him at the the. The appellant then allowed the first informant to go away. The understanding being reached that the first informant would come in the evening and pay the money to the appellant. The first informant thereafter informed the P.W.4 Taj Muhammad, the President of the said Association and both of them went to the Anti-Corruption Office and lodged the F.I.R. At 6 p.m., as a result of which a raid was arranged. The raiding party consisted of Mr. Ali Muhammad Doomki, Magistrate, Investigating Officer Ashfaq Ahmad, Rafiqullah A.S.I., and Ibrahim, a Mashir. The first informant was given ten currency notes of Rs.10 each after noting down their numbers in Mashirnama. The raiding party then came to the Soldier Bazar Police Station. The first informant and Mashir Ibrahim were sent in to see the appellant while the remaining members of the raiding party stood outside. The P.W. Habibullah is stated to have met the first informant at the entrance of the police station and went with him inside to the appellant. The appellant was sitting, as usual, at his table and the first informant came up and the appellant asked him if he had got the money. In answer, the first informant passed on the money to the appellant in an envelope under the table. The pre-arranged signal was 'given as a result of which the entire raiding party came into the room and although nothing was secured from the person of the appellant, an envelop was found on the floor containing the noted money under the table and very near the feet of the appellant. Mashirnama for the recovery of this money was prepared as also a Mashirnama of various 'papers lying on the table which were concerned entirely with the investigation in the case filed by Ahmad against Ali Muhammad and Habib.
3. In his defence, the appellant alleged that he had arrested Ali Muhammad and Habib who were members of the Association of which the first informant as well as the P.Ws. Taj Muhammad and Habibullah were office-bearers, which had annoyed them and on that account they had falsely involved him in the case.
4. Mr. Muhammad Hayat Junejo the learned counsel for the appellant contended that on the vital question of the money having been paid by P.W. Asmatullah to the appellant and accepted by the latter the solitary evidence was of P.W. Asmatullah only and since this witness was admittedly an interested person and had a reason to be annoyed with the appellant, the conviction of the appellant on this solitary piece of evidence cannot be sustained in law. The learned counsel went on to argue that even the High Court was conscious of the fact that the conviction could not have been premised solely on the evidence of Asmatullah for he was the person who had arranged the very situation constituting the crime and the learned Chief Justice in the High Court went as far as to remark "that indeed if the case was to rest upon the evidence of Asmatullah alone, the well- settled principles of appreciation of evidence in these cases would certainly prevent me from accepting that version". The learned Chief Justice, however, found corroboration in the evidence of P.Ws., Habibullah and Taj Muhammad.
5. In so far as the P.W. Habibullah is concerned, though he was present at the the of the alleged passing of the currency notes yet he does not claim any personal knowledge for he stated that it was Asmatullah who had told him that he had passed the money to the appellant and that he had not seen the passing of the money to the appellant. In so far as the P.W. Taj Muhammad is concerned, no doubt the Magistrate Mr. A.M, Doomki, P.W.3 did say that this witness was instructed to watch the incident through the window of the police station, but P.W. Taj Muhammad did not say that he was either present at any window or that he had seen the money being passed to the appellant. The third person present at that the, namely Mushir Ibrahim, who was apparently an independent witness was not examined. Thus the only evidence of acceptance of the bribe by the appellant was of P .W. Asmatullah on which the conviction of the appellant cannot be sustained.
6. There is yet another aspect of this case which creates some doubt. The currency notes were handed over to the first informant Asmatullah at the residence of the Magistrate from where the raiding party proceeded to the police station. These currency 'notes were not placed in any envelope. What was found at the police station was an envelope containing the noted currency notes under the table of the appellant. How and when the marked currency notes came to be put in an envelope was not explained by the prosecution.
7. The result, therefore, is that this appeal is allowed and the appellant's conviction is' set aside, and he is acquitted.