1. ' Appellant abovenamed, being aggrieved by judgment dated 28-9-1977 of the learned Special Jude-cum-Enquiry Officer, Hyderabad, in Special Case No, 86/77 by which the appellant has been convicted under section 161 P.P.C. Read with section 5(2) of Act II of 1947 and sentenced to suffer R.I.
2. For 6 months and to pay fine of Rs, 400 or in default to suffer further S.I. For 1 month, has preferred the above appeal on the following facts and grounds:- ' Appellant was an Abdar of Toori Minor Sub-Division Sanghar, during the year 1974. Complainant Loung had in his possession about 14 acres of land bearing S. No, 134/1, 2 and 155/1,2. He used to get water for cultivation from watercourse No, 7-L. Since his water was stopped and his crop dried up he made an application on 13-4-1974 to S.D.O. Sanghar (Exh. 8) for supply of water. The Canal Assistant on the same day viz. 13-4-1974 vide his letter (Exh. 9) directed appellant to give proper share of water to the complainant and further to make report without any delay. The complainant was making approaches for water, but could not succeed. Finally appellant told him to come on Tuesday on 2-7-1974. In response to that the complainant went to the Otak of the appellant, where Canal Assistant was also sitting. They told him that without spending money he could not get water. At that time Noor Nabi was also with him. Canal Assistant and the appellant after consulting each other told' the complainant to pay Rs, 200 as illegal gratification. The complainant told them, that it was a huge amount which he could not pay. Thereupon he was told, that if he could not pay that amount he should go away. Hence the complainant told them, that he would arrange for the money and reply to them on the next day. On 3-7-1974 he told appellant Rahimdad, that he would pay the amount, but should get water. The appellant told him that Canal Assistant directed that if he did not pay Rs, 200 by 4-7-1974, he would not get water at all. The complainant therefore, went to the Anti-Corruption Office, Sanghar, filed aforesaid F.I.R. At 10-30 a.m. On 4-7-1974.
3. ' Thereafter, on the same day viz. 4-7-1974 complainant was given tainted money, in presence of Mashir Jamil Ahmed and Trap Magistrate Muhammad Yakoob under Mashirnama (Exh. 3). The trap could not succeed on that day. Hence on 5-7-1974 the tainted money of Rs, 200 was passed on to the complainant in presence of Mashir Ghulam Muhammad and Trap Magistrate Muhammad Yaqoob under Mashirnama (Exh. 4). Trap was arranged. The complainant passed on tainted money of Rs, 200 in presence of Mashir Ghulam Muhammad. The Mashir gave the signal to the Trap party who came on the spot. Appellant on seeing the Trap party, threw the notes on the ground. The complainant picked up the Notes and handed over the same to the Circle Officer. This recovery was made under Mashirnama (Exh. 5) appellant was arrested.
4. ' After usual investigation the appellant was sent up to trial Court to stand his trial for the aforesaid offence, ' When substance of accusation was read over and explained to the above-named appellant, he did not plead guilty.
5. ' The prosecution had examined Trap Magistrate Muhammad Yaqoob (Exh. 2), who had produced Mashirnama of handing over tainted money to the complainant. On 4-7-1974 (Exh. 3), Mashirnama of handing over tainted to the complainant on 5-7-1975 (Exh. 4), Mashirnama of recovery of tainted money (Exh. 5) and Trap report (Exh. 6), complainant Loung (Exh. 7) who had produced his application, dated 13-4-1974 made to S.D.O. (Exh. 8), letter of Canal Assistant to the appellant of the same date (Exh. 9) and F.I.R. (Exh. 10), Mashir Ghulam Muhammad Exh. 11, P.W. Noor Nabi (Exh. 12), S.D.O. Bashir Ahmed (Exh. 13) who had produced Mashirnama of production of application of the complainant (Exh. 15) who had produced letter to A.D.C. Sanghar (Exh. 16) and sanction order (Exh.
6. 17).
7. ' Appellant in his statement Exh. 19 admitted, that he was a public servant at the relevant time.
8. He&had denied all other allegations made against him. He denied having demanded or accepted the bribe of Rs,200 from the complainant. He denied having thrown the tainted money on the ground. He stated that in fact the complainant himself had produced the money before police. He further stated as under:- "I have further to submit, that S. No, 134/1 and 2 and 135/1 and 2 of Deh Yarroo Hingoro belong to Hindu evacuee property. These S. Nos. Were in illegal possession of the complainant. There was no legal order, allotment order, lease order etc. In the name of complainant. The complainant !Desired that his name be entered in share list and he may get water. The share list was to be sanctioned by the Executive Engineer, S.D.O. And the Canal Assistant and the water was to be sanctioned and given to the Khatedar under their order for this purpose the share list and Karia Register were available with Lease Officer. I had no authority to give water to any Khatedar, without the orders of these officers. This case was registered against me on 4-7-1974, after 15 days I was transferred from Toori Minor beat to Bugdi beat. Even after my transfer the complainant could not get his name entered in the share list and also he could not get water. The complainant has made an application dated 30-7-1975, to Mr. Qurban Ali S.D.O. Sanghar for water. Mr. Ourban Ali Shah S.D.O.
9. Issued letter No, 361, dated 11-8-1975, to the complainant in reply his application and asked him to produce proof as to whether the land in question was given to him on lease or was granted to him on full rate so that the water may be sanctioned to him, but he did not produce any proof or order or any authority. Later on the Barrage Mukhtiarkar granted the land to the complainant on 20-4- 1976 and on the basis of it Mr. Qurban Ali Shah S.D.O. Sanghar issued Order No, 226, dated 7-5-1976, to me as I was Abdar of the same beat once again, and under his direction I made necessary entry and distributed the water to the complainant I produce the letter as Exh. 20 it is dated 7-5-1976. I am innocent. I pray for mercy."
10. ' The appellant had examined Mr. Qurban Ali Shah S.D.O. Irrigation Sanghar (Exh. 22) in his defence, who had produced Rubkari dated 11-8-1975 (Exh. 23) and application to S.D.O. Dated 30-7-1975 (Exh. 24).
11. ' The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo, of appeal.
12. ' The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That the tainted money was not recovered from the possession of the appellant but was picked up by the complainant from A ground and given to the trap party and as such no reliance can be placed on such recovery. In support of this contention the learned Advocate for the appellant relied upon cases reported in PLD 1982 Kar. 255 and unreported cases of the Hon'ble Supreme Court in respect of Cr. Appeal No, K-6/70 and Cr. Appeal No, K-28/73, the photo copies of the said judgments he produced.
(b) That the alleged Mashir of the trap is stock witness of the prosecution, which is evident from his statement on record, that he has acted as Mashir in other cases before present case and as such no reliance can be placed on the statement of such Mashir.
(c) That the learned Magistrate admittedly did not see actual passing of the tainted money from complainant to the appellant and in view of contradictions between the statement of 1.0. And the Mashir inter se in connection with the trap in question, the prosecution has failed to establish its case beyond reasonable doubt.
13. ' The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment as the prosecution has established its case beyond reasonable doubt by the statement of the prosecution witnesses, including P.W.
14. 6.
15. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court and impugned judgment and cases cited by the learned Advocate for the appellant.
16. It is admitted position, that tainted money was not recovered from actual physical possession of the appellant, but it is alleged, that he had thrown the same on ground, on seeing trap party. In support of this version prosecution has relied upon statements of P.Ws. Muhammad] Yakub (Magistrate). Loung Bhatti (complainant). Ghulam Muhammad (Mashir) and P.W. Noorul Nabi. Out of these P.Ws. P.W. Noor Nabi did not support prosecution case at all and was declared hostile by prosecution.
17. I find P.W. 1 Muhammad Yakub statement not at all convincing, as in cross-examination, he first stated, that when appellant and complainant came out of door, money was in the hand of complainant, but again said it was in the hand of appellant, who threw the same. It is unusual for appellant to hold tainted money in his hand and came out, in order to show the same to public.
18. P.W. 2 Loungh Bhatti is complainant and as such interested witness and as such his statement about acceptance of tainted money cannot be believed, without independent corroboration specially when the same was not recovered from the possession of the appellant. For this corroboration prosecution has relied upon the statement of P.W. Ghulam Muhammad (Mashir).
19. This P.W. Had not seen appellant throwing money on ground. In addition to this, he admitted to have acted police Mashir in some cases prior to this case, as such prima facie, he is stock Mashir of Anti-Corruption Police and as such no reliance can be placed on his statement, without independent corroboration. P.W. 4 Noor Nabi, denied that, appellant demanded bribe in his presence, as alleged by complainant. In face of such prosecution evidence. It would be unsafe to convict the appellant without independent corroboration specially keeping in view the statement of appellant under section 342, Cr.P.C. On the basis of the statement of 1.0., who admittedly picked up stock Mashir for raid in question. In view of this, prosecution has failed to establish case beyond reasonable doubt against the appellant, in my opinion.
20. ' 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 the appellant in the above appeal.