The appellant Mehar Khan son of Ghulam Hyder Jatoi, Darogha of P. W. D. Irrigation Sub-Division, Mehar, and Soomar Khan Chutto Chana, Muqadam working under him, were tried under section 161 read with sections 109 and 114, P. P. C., and also under section 5 (2) of the Prevention of Corruption Act, 1947. Both the accused were found guilty, but it is not clear as to what particular offences they were convicted. I may there--fore quote the relevant paragraph from the judgment of the learned Special Judge, Anti-Corruption, Hyderabad. It reads as follows :--- "In view of the above discussion, the guilt of both the accused has been fully established. The offence committed by them falls under Section 161, P. P. C. Read with sections 109 and 114, P. P. C. As well as subsection (2) of sections 5 of the Prevention of Corruption Act, 1947. I accordingly convict both the accused under this count and sentence each one of them to suffer R. I. For 2 (two) months and to pay a fine of Rs. 100 (one hundred) or in default of the' payment of fine to suffer simple imprisonment for a further period of one month."
2. The prosecution case briefly stated is that Haji Muhammad Hassan P. W. 2 who owns about 100 acres of land in Deh Lakhir Taluka Mehar bad difficulty in getting water supply, and ho approached the appellant for the facility of extra water but the Darogha demanded Rs. 100 as bribe to be paid for it. According to the Zamindar he, being a pious man, did not consider it honourable to give illegal gratification and, therefore went to Dadu and informed the Anti-Corruption Police who recorded his statement Exh. 3, and arranged for a trap to be set up to catch the culprit. Pir Ali Bux, the Mukhtiarkar and, Magistrate First Class, Dadu, on receipt of direction in this behalf from the Additional District Magistrate, went with Haji Muhammad Hassan to his village in the company of the Anti-Corruption Officer and Abdul Hakim mashir, and stayed in the otaq of the village. Sum of Ra. 100 provided by the Anti-Corruption Officer was paid to Haji Muhammad Hassan under Mashirnama Exh. 4, anti he was deputed in the company of Mashir Abdul Hakim to deliver the bribe-amount to the person who had made the demand. Shortly afterwards, Haji Muhammad Hassan returned and informed the Magistrate and the Police Party that the appellant had asked him to hand over the amount to his Muqadam, Soomar Khan accused. On being permitted to do so, Haji Muhammad Hassan went back and paid the amount to Soomar Khan. He then gave a signal upon which the Magistrate and the Anti-Corruption Officer went in jeep over to the site on the canal bank about 3 or 4 furlongs away, and secured the tainted money from the person of Soomar Khan under Mashlrnama Exh. 5, Report in this behalf was made by the Magistrate to the Circle Officer, Anti-Corruption, Dadu on the same day, on the basis of which F. I. R. Exh. 13 was recorded at 10 p.m.
3. At the trial Pir Ali Bux, Mukhtiarkar and F. C. M., Dadu, stated that he had supervised the trap on the direction of the Additional District Magistrate and handed over the tainted notes of Rs. 100 provided by the Anti-Corruption Police to Haji Muhammad Hassan in the presence of Mashir Abdul Hakim, and while they sat away in the otaq of the village, they directed Haji Muhammad Hassan and the Mashir to go and hand over the bribe amount. He narrated the facts as stated earlier, and in the cross-examination stated that Haji Muhammad Hassan had told him that the illegal gratification was demanded from him by the Darogha by caste Jatoi whose name he did not remember. According to him, the appellant was brought to the spot after the tainted money was secured from accused Soomar Khan, but he did not arrest him. In his report the reason that he gave for not arresting the appellant was that' "since the amount was not taken by Mehar Khan Darogha himself nor he was found at the spot, nor Soomar involved him saying that he had accepted the amount from the complainant for the Darogha, it was not found proper to arrest him at this stage for accepting illegal gratification". .
4. In his statement P. W. Haji Muhammad Hassan firstly explained the mode adopted by the Darogha and the Muqadam of his area who according to him were in the habit of taking illegal gratification. Their method was simple, in that they would not allow the full passage of water but only half of it, and the remaining half would be allowed on payment of illegal gratifica--tion. As this tactics was applied to- him during the relevant period, he met Darogha Mehar Khan and requested him for the full flow of water, but he demanded illegal gratification of Rs.
100. Being a pious man he did not consider it honourable to pay the illegal gratification and he therefore, went over to the Anti---Corruption Police and lodged the ref ort as a consequence of which the trap was organised. He was provided with the tainted notes of Rs. 100 in the presence of Mashir Abdul Hakim, and along with him be went to the bank of the Canal were accused Mehar Khan was said to be present. He had already sent two persons to bring the appellant on the module, and he went over there after receiving the information that appellant had arrived there. According to him, both the accused were present there, and the appellant asked Sumar Khan that he should receive the sum of Rs. 100 and open full flow of water, and he then left the spot. Haji Muhammad Hassan then went to say that he accord--ingly paid Rs. 100 to accused Sumar Khan who started removing the earth for full flow of water, and in the meantime he brought the trap party on the spot who caught hold of Sumar Khan and secured the tainted notes from his possession. In the cross-examination, he denied having known the appellant by name, and stated that he was not even aware of his cast, as the appellant styled himself as Jatoi, and some times as Chandio. However, he admitted having acted as a Police Mashir and appeared as a witness in an earlier case in which the appellant was the complainant.
5. The other witnesses examined by the prosecution were P. W. Muhammad Hassan, Mashir and P.
W. Dost Muhammad, Circle Officer, Anti-Corruption, who had recorded the complaint arid challaned the accused, after obtaining the sanction.
6. The learned counsel for the appellant vehemently argued on the basis of three cases reported in PLD 1963 SC 38, PLD 1961 Dacca 978 and PLD 1971 Kar. 78, that a bribe-giver is inherently no better than an accomplice, and before guilt of an accused person can be founded on the sole basis of his testimony, the version given by him must be scrutinised in minute details, and with great caution, so as to exclude a reasonable hypothesis of the defence story being true.
7. No exception can be taken with this rule of caution. In the present case, it is the prosecution case itself that the tainted currency-notes were not given to the appellant, but to accused Sumar Khan; the appellant being connected in that this was don at his behest. The only person in whose presence the appellant is said to have asked Sumar Khan to receive the bribe was Abdul Hakim Mashir. Strangely enough, he was not even examined at the trial, and it appears from the record that the learned Prosecutor through application, Exh. 17, gave him up "in view of the observation by the Honourable Court that sufficient evidence has come on the record". It is also not less surprising that the Anti-Corruption Officer admitted that he did not even record the 'statement of Abdul Hakim Mashir, at all ;although the prosecution case is that he was taken for the purpose of association in the investigation or the detection of the crime. The Mashir did play the: part assigned to him, and was through--out present up to the time of the recovery of the tainted notes from the possession of Sumar' Khan accused. It is further significant that although P. W. Pir Ali Bux, the Magistrate admitted having recorded the statements of other persons at the spot namely, Imam Bux, Allah Diao, Arab, Haji, but he also chose not to record then statement of the most important witness of theta all namely, Abdul Hakim Mashir. None of the others was produced at the trial. The argument that the prosecution even at the earliest stages of the investigation withheld the Mashir Abdul Hakim as he was not willing to support the prosecu--tion case against the appellant therefore becomes irresistible. That the learned Special Judge should have also asked the Prosecutor to give up this important witness, the sole corroborator of the bribe-giver, for the reason that sufficient evidence had already come on the record is, to say the least, most unfortunate, as an inference of the force of beacon-light to his already-made-up mind as to the guilt of the accused persons, before they had even entered their defence, becomes inescapable.
8. The testimony of the bribe-giver Haji Muhammad Hassan thus stands uncorroborated so far as the appellant's alleged association in the offence is concerned. The version given by Haji Muhammad Hassan as to the essential details is at variance with what the other prosecution witnesses stated at the trial. According to him, after the tainted money was given to him for delivery to the appellant, he along with Mashir Abdul Hakim went to the bank of the canal where the appellant was said to be present. In his own words : "I had sent two persons to bring Mehar accused on the module and after having got the information that Mehar had arrived there, I and mashir Abdul Hakim went with the tainted money on the bank of the canal at the distance of about 2 furlongs from my otaq. Accused Mehar and Sumar Khan were present there. Accused Mehar Khan told accused Sumar Khan that he should get Rs. 100 from me and open the full watercourse to flow in my land and then he went away. I paid Rs. 100 i.e. The tainted currency notes to accused Sumar Khan who started removing the earth for full flow of water and in the mean time I brought the trap party to the spot who caught hold of accused Sumar Khan and secured the tainted money from his possession. Imam Bux and Haji had been sent by me to bring accused Mehar Khan on the spot".
9. As against this P. W. Pir Ali Bux the Magistrate stated as follows:---- "The tainted money was given to informant Haji Muhammad Hassan and he along with Mashir Abdul Hakim went in advance to the module on the bank of the canal where accused Mebar Khan was said to be present. We continued to sit in that otaq and awaited the signal. After a short while informant Haji Muhammad Hassan came back and told us that accused Mehar Khan had told him to pay the amount to his beldar (Mucaddim) accused Sumar Khan. We allowed him to do so. After about 15-20 minutes he again came to us and told us that he bad paid the tainted money to accused Sumar Khan.
On receipt of this information we rushed to the spot which vas at a distance of about 3-4 furlongs from that otaq, in a jeep, and informant Haji Muhammad Hassan pointed out Sumar to us. We disclosed our identity to accused Sumar and asked him to hand over the tainted money to us. At our instance he took out the tainted money from the front pocket of the shirt which he was wearing and it was secured by us."
10. The version given by the Anti-Corruption Officer P.W. Dost Muhammad was to the same effect.
11. It would be seen from above that both the Magistrate and the Anti-Corruption Officer did not state that two persons Imam Bux and Haji were deputed to bring the appellant to the canal-bank, and then the bribe-giver and the Mashir were sent to deliver the tainted notes to him as bribe. It is only reasonable to assume that what they omitted to say did not happen, because, according to Haji Muhammad Hassan the bribe was demanded by the appellant, and he must have been sent in the company of the Mashir to give the tainted money to the person who had asked for the bribe.
Instead, it is the uncorroborated version of the bribe-giver that the appellant was sent a message to come to the canal-bank, and on his arrival there, he gave the instructions to the co-accused to receive the bribe from Haji Muhammad Hassan and then left the spot. It has also been brought out on record that Haji Muhammad Hassan knew the appellant for a long time as he is said to have been posted as the Darogba in that area since 1964, as per statement of Haji Muhammad Hassan's own brother, D. W. Muhammad Zaffar. On his own showing Haji Muhammad Hassan bad earlier appeared as a witness in the same case in which appellant was the complainant, yet at the trial he showed ignorance of the appellant's name, and all he could say as to his identity was that the appellant sometimes called himself as Jatoi by caste, and sometimes styled himself as a Chandio.
From the facts and the circumstances on record, it is difficult to resist the conclusion that be was quite aware of the name of the appellant, but he wanted himself to give the appearance of a total stranger who could not have possible motive to join a superior officer with the subordinate officer, who had taken or demanded the bribe from him.
12. The reasons that prevailed with the learned Special Judge in reaching the conclusion that the appellant was guilty are also interesting and worth quoting. This is how he connected the appellant with the crime: "It is not possible for accused Sumar Khan to have accepted the amount without the permission of accused Mehar Khan whose Landhi was nearby on the bank of the same canal. Further, it was accused Mehar Khan who was incharge of the work while as a Maqadam."
13. These are mere hypothesis and conjectures, having no foundation in evidence, and should not have, at till, weighed with the learned Special Judge for basing the conclusion of guilt being proved against the appellant beyond any reasonable doubt.
14. In view of the fact that the prosecution case itself admits of the circumstances that cast serious doubts as to the partici--pation of the appellant in the crime, I have no option but to grant the appellant what is due to him under the law, namely the benefit of doubt. I, therefore, allow this appeal, and set aside the conviction and the sentence passed against him.