The appellant Din Muhammad and co-accused Khuda Bux were tried for the offences punishable under section 161, P.P.C. Read with section 5(2) of Act II of 1947 by Special Judge Anti-Corruption (Provincial), Sukkur. He convicted the appellant Din Muhammad only by judgment, dated 7th October, 1980 and sentenced him to suffer R.I. For 6 months. Accused Khuda Bux was given benefit of doubt and was acquitted.
2. The relevant facts briefly stated are that complainant Wahid Bux was working as Junior Clerk in the Office of Town Committee, Khanpur Mahar, District Sukkur. On 25th October, 1977 certain members of the staff were discharged and some were reverted by the appellant who was then posted as Administrator of the Town Committee. He had withdrawn the above orders of the staff including complainant Wahid Bux on the promise that they would pay Rs.300 illegal gratification to him and Rs.200 to accused Khuda Bux who was then working Secretary in the Town Committee. On 7-11-1977 Wahid Bux lodged report and case under M.L.O. 5 and 10 under section 161/34. P.P.C. And 5(2) 11, 1947 was registered by Circle Officer, A.C.E., Sukkur. F.I.R. Is at Exh.9-A. After recording the F.I.R.
Trap was arranged and in presence of Magistrate Israr Hussain Shah Rs.300 in currency notes of Rs.10 denomination were handed over to complainant and he was sent with Rajhumal for making payment to accused. Rajhumal came and informed the trap party that amount has been given to accused. They proceeded to that place and found that money was lying on the cot of accused Khuda Bux and one currency Note of Rs.10 was found from the pocket of appellant Din Muhammad and Rs.290 were secured from the cot, such Mashirnama was prepared. The sanction for prosecution were obtained and produced as Exh.9-B and 9-C.
3. The charge was framed on 2nd April, 1979 to which accused pleaded not guilty. Prosecution in support of its case examined five witnesses. P. W. Wahid Bux is complainant. He supported the case against appellant Din Muhammad but exonerated Khuda Bux. He has stated in his statement Exh.3.
That he had no cause of complaint against co-accused Khuda Bux P.W.2 Sudham Chand Exh.5 did not support the prosecution and stated that accused never demanded any bribe or illegal gratification. He was declared hostile P.W. Israr Hussain Shah IInd Class Magistrate, Sukkur has stated that 30 notes of Rs.10 denomination were given to complainant and such Mashirnama Exh.7-A, was prepared. The trap party came at Khanpur and stayed at Naka from where complainant called Rijhumal and told him to accompany him and after half an hour complainant came and informed that money has been given to accused at shop. The trap party proceeded and found Rs.290 lying on the cot and note of Rs.10 was missing. At the indication of complainant Rs.10 were secured on the search of complainant and Mashirnama Exh.7-C was prepared which he attested as Magistrate. He in his cross-examination stated that complainant told that he had to pass money through Rijhufial. He has stated that Mashir Rafique was not sent with complainant P.W.4 Muhammad Rafique Exh.8 was Additional C.O. A.C.E., Sukkur. He accompanied the trap party.
P.W. Hafeez Exh.9 was Circle Inspector. He registered the case and conducted entire investigation.
He has corroborated the statement as given by the Magistrate.
4. Appellant in his statement Exh.11 under section 342, Cr.P.C. Has denied to have demanded or accepted illegal gratification from complainant but admitted to have received RS.10 (tainted money) as being bill of Hotel because complainant and others stayed with hum at Hotel and told him to pay his bill and amount will be paid to him afterwards. He examined Yousuf Exh.13 and Pinjal Shah Exh.14 in his defence.
5. I have heard Mr. Samiullah Qureshi for the appellant and Mr. Sharafuddin Ada for the State. It is contended by Mr. Samiullah that demand has not been proved. He argued that appellant has wrongly been convicted under section 4 of the Act on presumption. He has cited cases reported in P. L D 1958 Kar. 21; PLD 1962 Dacca 270; PLD 1971 Kar. 78; PLD 1971 Lah. 799 and PLD 1979 Kar. 249.
6. It has been observed at the outsell by the learned Special Judge in his judgment that complainant has not implicated accused Khuda Bux. In this case admitted points are that Mashir did not accompany the trap party, the most important witness Rajhumal was not examined by the prosecution, P.W. Sudharam did not support on the point of demand of bribe money. The amount of Rs.290 was secured from the cot where acquitted accused Khuda Bux was sitting. The only evidence against appellant is that a note of Rs.10 denomination being tainted money was secured from him. Appellant has admitted this position and explained. The important point which requires consideration it whether Rs.10 were accepted by appellant as bribe money. The legal requirement on this point are missing. The Magistrate, Investigating Officer oil Mashir had not witnessed the appellant receiving the entire amount of Rs.300 or Rs.10. It has come in evidence that trap party went and secured money when complainant went and informed them and thereafter they proceeded to the place where appellant Din Muhammad and Khuda Bux were sitting. This happened after an hour. The Magistrate was not present therefore, no one heard any conversation between appellant and complainant. It has been held from time to time that to prove that money was being paid as bribe then it is one of the requirement that Mashir or Magistrate should be in a position to hear the conversation. On this for reference I cite the cases reported in 1975 P Cr. L J 1286; PLD 1962 SC 489; 1976 P Cr. L J 273.
The solitary evidence of complainant does not inspire confidence well the ground that initially in his F.I.R. He implicated appellant ash as Khuda Bux but at the trial he backed out from his, stand and favoured Khuda Bux from whose cot major portion of tainted money amounting to Rs. 290 was secured.
I accept the appeal for the reasons stated above and acquit the appellant. He is on bail. His bail bonds are cancelled. Since prosecution has not proved the case it is of no use to discuss the evidence of defence witness.