On conclusion of the hearing of this appeal I had announced the order allowing this appeal and acquitting the appellant and I now proceed to give any reasons for the same.
2. This is an appeal under section 10 of the Criminal Law Amendment Act, 1958 filed by Abdul Rauf, a clerk in the office of the Executive Engineer, Northern Dadu Division at Larkana. The appeal is directed against a judgment dated 12-4-1969, passed by Mr. Allah Bux Khan, Special Judge, Anti- Corruption, Sukkur, whereby the appellant was convicted under section 161, P. P. C. And sentenced to undergo R. I. For 15 days and to pay a fine of Rs. 100.00 or in default to undergo further R. I. For one week. Along with the appellant one Haji Khan Noorani, the despatcher clerk of the same office was also tried but acquitted.
3. The facts of the case briefly are that complainant Rahim Bux had presented four, applications to the Deputy Commissioner, Larkana for grant of permission to cultivate paddy. These applications were made by the complainant Rahim Bux and three relatives of his namely Manzoor A.I, Allah Bux and Abdul Alim. These applications are dated 11-3-1966 and each one of these applications was forwarded to the Executive Engineer, Dadu Division, Larkana for remarks. It appears that about a week before 12-5-1966 viz. The date of offence, an order was passed by the Executive Engineer recommending- the grant of this permission. After the passing of this order the Executive Engineer sent the papers to the office for issue of formal orders. The prosecution case is that complainant Rahim Bux approached the appellant for obtaining this formal order but the latter demanded a bribe of Rs. 50.00. The complainant Rahim Bun has stated that he had Rs. 30.00 with him which he had paid to appellant immediately and promised to pay the remaining Rs. 20.00 on a day, a week hence.
4. On the day that had been fixed for payment, the complainant Rahim Bux reported the matter to the Anti-Corruption Police. The Anti---Corruption Police approached Deen Dar Khan, a Magistrate of the Third Class to arrange and supervise the trap. Deen Dar Khan paid Rs. 20.00 to complainant Rahim Bux vide Mashirnama Exh. 3 and alongwith Circle officer Pir Bux and Mashir Ghulam Sarwar proceeded to the office of the Executive Engineer. The evidence discloses that while the complainant and Mashir Ghulam Sarwar went inside the office, the Magistrate and the Police Officer stayed in the compound of the inspection bungalow. It was arranged that after payment of bribe money by complainant they would be Informed so that they could take steps to recover the tainted money. After sometime the complainant came and told Deen Dar Khan that be had paid the money to the appellant. Mr. Deen Dar Khan along with Pir Bux, Circle Officer, proceeded to the Office of the Executive Engineer and met Mashir Ghulam Sarwar at the Gate. Mr. Deen Dar Khan asked the appellant to produce the tainted money but he denied having demanded or accepted the same and thereafter the person of the appellant as well as the acquitted accused was searched, but nothing was recovered. The files lying on their tables and cupboard were also searched but without any result. It is then said that Ghulam Sarwar, Mashir, informed the raiding party that the tainted money had been passed on by the appellant to the acquitted accused Haji Khan. Haji Khan on interrogation denied having taken the tainted money but was thereafter slapped by the Sub-Inspector and Haji Khan then brought out the tainted money from the register lying in the cupboard. The money was seized under Mashirnama Exh. 5 and both the appellant and acquitted accused Haji Khan were arrested and taken to the Anti-Corruption Office. Mr. Deen Dar Khan prepared a separate trap report Exh. 7 and a F. I. R. Was drawn up incorporating this report submitted by Deen Dar Khan. Mr. Pir Bux, Circle Officer, Anti. Corruption Police, obtained permission of the Magistrate to investigate the offence and on completion of investigation he obtained an order of sanction for prosecution (Exh. 14) and sent up the appellant alongwith the acquitted accused Haji Khan to stand trial before the Special Judge.
5. At the trial the prosecution examined complainant Rahim Bun (P. W. 2), Mashir Ghulam Sarwar (P.
W. 3), Magistrate Deen Dar Khan (P W. 1), Circle Officer Pir Bux (P. W. 5). Besides these witnesses Azia Ahmad, Executive Engineer (P. W. 4) was also examined to depose regarding the applications for grant of permission to cultivate paddy and the orders passed thereon. These witnesses have substantially supported the prosecution story as disclosed above.
6. While the aforesaid appellant did not examine any defence witnesses, he had denied the prosecution allegations in his statement. He stated that the prosecution witnesses were giving evidence because they were friends of the complainant. Similarly acquitted accused Haji Khan denied the allegations and stated that neither, appellant Abdul Rauf had paid him any money nor did he produce any money before the Magistrate. With regard to the witnesses he stated that they were the friends of the complainant. He further stated that he had been beaten by the police and asked to make a statement that the money was recovered from the cupboard so that the appellant could be caught.
7. In this case admittedly the tainted money was not found on the per--son or at the instance of the appellant. Further to this there is no previous statement of the complainant to show as to whether the complainant had before the trap made any statement either to the Anti-Corruption Police or to the Trap Magistrate with regard to the person to whom he had to pay the money.
Admittedly, money has been recovered from an unlocked cupboard which according to the evidence was lying near the door of the office. In order to explain non-recovery of the tainted money from appellant and with a view to fix the responsibility on the appellant an attempt has been made at the stage of evidence to show that Mashir Ghulam Sarwar bad witnessed the passing of the tainted money by appellant to Haji Khan.
The evidence of Rahim Bux discloses that he had given money to the appellant and the latter had kept the same in the pockets of his pants. He has further stated that thereafter he came out and told the Magistrate that he had paid the money to the appellant. He has not stated in his evidence that Ghulam Sarwar had told the trap party that the tainted money had been passed on by the appellant to Haji Khan. On the-other hand Ghulam Sarwar has stated that after the appellant had accepted the money from the complainant, he left to inform the Police party about the success of the trap and was there after followed by the complainant. Evaluating and reading the two statements it would appear that the statement made by Deen Dar Khan in Court that after some time the Mashir informed him that the appellant had passed on the money to, acquitted accused Haji Khan is neither true nor reliable in the circumstances of this case. Both the complainant as well as the Mashir do not speak of having seen the appellant passing on the tainted money to Haji Khan nor do they say that Ghulam Sarwar informed the trap party about the passing of the tainted money by the appellant to the co-accused. Furthermore, if Ghulam Sarwar had given such information, it would neither have been necessary for the trap party to take a personal search of the appellant, or for the Sub-Inspector to slap the acquitted accused Haji Khan for the purpose of recovery of tainted money. In these circumstances I am of the view that this portion of the prosecution story relating to passing of the tainted money by the appellant to the co-accused is not reliable.
8. In the present case no previous statement of the complainant was recorded. When a complainant in a corruption case is produced before a Magistrate, the Magistrate normally first records his statement. In some cases the complainant produces a written report or complaint before the Police Officer who places the same before the Magistrate. There is no such statement or application in this case. This circumstance gains significance because in the absence of such previous statement it becomes doubtful as to whether the public servant had actually made a demand of bribe. To say the least there should be some document either with the Police Officer or the Magistrate inicating as to what was the initial story with regard to the proposed trap and in the absence of such a document the part of the story relating to initial demand of bribe is rendered pregnant with doubt. The Courts will in such cases be on guard on subsequent manipulation as to the identity of the person demanding the bribe. This would become necessary as rule of caution.
9. In cross-examination of complainant Rahim Bux it has been clearly brought out that money was recovered from an open cupboard and Deen Dar Khan has stated that there was a door near the cupboard. The suggestion is not without significance and seems to have been made with a view to show that the tainted money may have been placed in the cupboard without the knowledge of the appellant.
10. There is still another feature of this case and that is the delay in reporting the matter. The case of the complainant is that demand for bribe had been made about a week before he lodged the report. What is more, that the complainant did not even inform his relatives who had also made applications for grant of permission to cultivate paddy, that he had paid Rs. 30.00 to the appellant or that the appellant was still demanding Rs. 20.00. The co-applicants were his father and brothers and in normal circumstances, I would expect that they might have been asked by the complainant to pay their share out of this bribe amount. The only corroboration in this cash has come, from the evidence of mashir Ghulam Sarwar. Even this mashir is not independent as he admits that the com--plainant knew him before the incident and had in fact come to call him for the purpose of acting as a mashir.
11. There is still a further reason to cast a doubt on the prosecution story. Mr. Aziz Ahmed, the Executive Engineer, has been examined end he has stated that after he had signed the letter of recommendation (Exh. 6), the appellant would have no concern with the case. According to the witness the papers would then go to the dispatcher clerk viz. Acquitted accused Haji Khan. No doubt this circumstance by itself would not show that the complainant in that case would not pay any bribe to the appellant, but by itself it would not be sufficient to prove the case of the prosecution. Even Mr. A. A. Muhammadally, the leaned State counsel has not supported the prosecution case and is of the view that the case against the appellant is doubtful.
12. Regard being had to all the circumstances of this case, I am of the view that the guilt of the accused has not been proved beyond reasonable doubt and he is as such entitled to be acquitted.
The appeal is accordingly allowed and the appellant is acquitted. He is on bail and his bail bonds are cancelled.