1. ' This criminal appeal arises from the judgment of learned Special Judge, Anti-Corruption (Provincial) whereby on 6-1-1988 he convicted the appellant Sher Afzal under section 161, P.P.C.
2. Read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced him to undergo R.I. For four months and to pay fine of Rs.2,000 or in default to undergo R.I. For one month more.
3. ' The brief facts of the case are that the appellant in February, 1986 was serving as A.S.I. In Traffic Police at Karachi and as such in his capacity as public servant by abuse of his official position he demanded Rs.200 (Rs.50 for each truck) as illegal gratification per month from the complainant Muhammad Tariq as a motive of reward for not challaning the trucks including the truck of the complainant and accepted the said amount of Rs.200 from the complainant on 13-2-1986. He was apprehended by the trap party supervised by a Magistrate and the amount so accepted was found lying on the ground which was thrown by him when the trap party approached him. After completing the investigation and obtaining the necessary sanction the appellant was sent up for trial for offence under section 161, P.P.C. Read with section 5(2) of Act, 1947. Formal charge was framed against the appellant on 9-4-1987 which was read over to him and he denied the allegation and pleaded not guilty and claimed to be tried.
4. ' The prosecution in support of its case examined four witnesses, Muhammad Tariq P.W.2 who appeared to prove the demand and acceptance of the illegal gratification from him by the appellant, Noor Muhammad P.W.1, a Staff Officer of the Home Department working at the relevant time as A.C.M., who supervised the trap proceedings, Haq Nawaz P.W.3 who acted as Mashir of passing on of illegal gratification and recovery of the same, Abdul Hameed Qureshi, Inspector Anti- Corruption Establishment, who was the Investigating Officer in the case.
5. ' The appellant was examined under section 342, Cr.P.C. Vide Exh.17-A wherein he denied the allegations and also the incriminating circumstances asked in the statement. He specifically denied that the Magistrate had not asked him anything with regard to acceptance of illegal gratification from the complainant and explanation for the same. He further submitted that he had challaned one Khalid, younger brother of the complainant Tariq on 9-2-1986 and detained him at Nazimabad Police Station and challaned him in the Court and in support of his plea he produced extracts from the `Roznamcha' to prove arrest of Khalid and his release on bail as Exhs.18 and 19.
6. The two challan slips in the name of Khalid and his driver are Exh.20 and Exh.21. Apart from this one Muhammad Afzal Khan D.W.2 was examined in defence and the appellant himself also availed of the benefit of section 340(2), Cr.P.C. And appeared as a defence witness as Exh.23.
7. ' Mr. Azizullah Shaikh, the learned counsel has appeared for the appellant and Mr. Muhammad Hayat Qureshi has appeared for the State. Both the learned counsel have taken me through the evidence on record which I have minutely analyzed and thoroughly considered the entire evidence and the documents on the record.
8. ' The learned counsel for the appellant has contended that the prosecution has failed to prove the case beyond reasonable doubt and according to him the Magistrate, the Mashirs or the Investigating Officer had not heard any talk between the appellant and the complainant which preceded the passing on of the tainted money. He further emphasised that the demand of Rs.50 per truck as alleged is also not proved as the prosecution has led no evidence to show that the complainant was running or looking after the four trucks and for each truck Rs.50 were demanded per month. It is also contended by the learned counsel that the tainted two notes of Rs.100 denomination were not recovered from the physical possession of the appellant and in the entire case the witnesses examined are interested and the only witness who is unconcerned/independent is the Mashir who has not supported the prosecution case. He in the arguments, pointed out the infirmities and inconsistencies and improbabilities in the evidence of P.Ws. And argued that in view of the same evidence of the witnesses they cannot to treated as reliable and the appellant has been denied the benefit of doubt.
9. ' On the other hand, the learned counsel for the State has also not supported the judgment and submitted that corroboration to the evidence of complainant is lacking in the case and enmity, or grudge is admitted by the complainant.
10. ' I have considered the arguments advanced by the learned counsel for the parties with care. It is forcefully argued by the appellant's counsel that on the point of demand there is no evidence excepting the word of complainant although in the evidence the complainant Tariq has stated that he was looking after four trucks one of which being No.LS-4871 belonging to him and Muhammad Khalid was the driver of the truck. The remaining trucks belonged to his relatives. It was Muhammad Khalid who informed the complainant that appellant A.S.I. Sher Afzal had been demanding illegal gratification due to which information the complainant was prompted to go to Nazimabad Petrol Pump where he met the appellant but surprisingly neither the owners of the trucks or their drivers were examined by the prosecution nor Khalid who was the driver of the truck owned by the complainant was produced as a witness in the trial. It is also the case of the complainant that demand was made by the appellant when he met him on 11-2-1986 at 9-00 a.m.
11. It is argued that if it was true then on the same day he could lodge the report and there was no reason to delay the matter as the report in the case was lodged on the next date i.e. 12-2-1986 at 11-45 hours. The trap Magistrate was approached to accompany the Inspector. According to the Magistrate he had received the letter from S.P. Anti-Corruption to supervise the trap proceedings consequent to which he visited the office of the Anti-Corruption Inspector and participated with the trapping party to supervise the trap but for reasons unexplained the said letter was never produced in the Court. The trap party proceeded to the place of occurrence as notified by the complainant on 12-2-1986 and the two Mashirs who accompanied the trap party were Soofi Anwar and Haji Shirin Khan. Both these witnesses have not been produced to lend support to the narration given by Magistrate as regards reading over of F.I.R. To the complainant preceding to the proceeding to place of occurrence and passing on of the tainted money to the complainant. On 12-2-1986 the trap failed as the appellant could not be found at the relevant time at the relevant place to accept the illegal gratification. It has been pointed out by the learned counsel for the appellant that the numbers of notes are not mentioned by the Magistrate in his report prepared on 12-2-1986 although the Mashirnama of handing over of two notes of Rs.100 each was prepared before the raid report of failure of trap was prepared. The money which was given to the complainant as tainted money to be passed on to the appellant as illegal gratification was, therefore, returned back to the I.O. For which no document has been produced by the prosecution.
12. The Magistrate was asked to come again on the next date. The report Exh.8 mentions that the money was returned under a Mashirnama and according to the Magistrate he and the witnesses had signed the Mashirnama for return of the tainted money but the record does not reveal any such Mashirnama produced by the prosecution. It is also the case of the prosecution that same currency notes were used in the trap conducted on 13-2-1986 for which a separate trap report was prepared and is placed on record as Exh.13. In this document also, though prepared after the proceedings of handing over of the notes to the appellant by the complainant and the Mashirnama of recovery was prepared, but numbers of two tainted notes are not mentioned. The Magistrate has stated that when money was passed on he was standing at some distance which distance he has not disclosed in his evidence. But he has admitted that he could not hear the conversation between the appellant and the complainant. It has come in the evidence of complainant that the Magistrate and the Inspector of Anti-Corruption were standing at a distance of 25-30 paces from him. On this point A there is also evidence of Haq Nawaz Mashir but the conversation between the appellant and the complainant was also not heard by him. There was inconsistency in his evidence on the point whether he was sitting in the taxi alongwith Afzal when the tainted money was being passed on to the appellant or he had gone along with the complainant to pass on the tainted money to the appellant. He stated that he and Afzal did not get down from the taxi and continued to sit in the taxi. It is also the case of the Inspector that they were at a distance of 30-40 paces away from the taxi in which complainant and Mashir were sitting and that the bus was standing in front of the taxi which was occupied by the complainant and Mashir.
13. The learned trial Judge in his judgment has not taken into consideration the inconsistencies pointed out before me. It is also in the judgment of the learned trial Judge that Exh.12, the chit on which numbers of four trucks and the name of Tariq Masood was written cannot be relied upon.
14. The only Mashir examined by the prosecution is Haq Nawaz who has clearly stated that he cannot say from where the tainted money was secured. He also stated in his deposition that he did not see the complainant Tariq giving anything else other than tainted money while the Magistrate and the Inspector were standing behind the bus and according to Mashir the tainted money was shown to him in the Office of Anti-Corruption. He has been cross-examined very minutely at sufficient length after he was declared hostile and he categorically denied that when trap party came near the appellant, he took out the money from the pocket and threw it on the ground or that Inspector had picked up the notes from the ground. According to him, in his presence no personal search of the appellant was conducted.
15. ' From these infirmities and inconsistencies on the point of passing of tainted money and acceptance of the same and subsequently throwing of the tainted money reasonable conclusion is raised that the entire prosecution case in these circumstances is not free from doubt and does not ring true, much less convincing or natural. On giving careful consideration to the arguments advanced by the learned counsel for the appellant it is quite clear that the tainted money was not recovered from physical possession of the appellant and in his statements under sections 342 and 340(2), Cr.P.C. The appellant had denied the acceptance of bribe and stated that he has been falsely involved in the case. The illegal money was allegedly paid on the main road which was very busy road and it has come in the evidence that the traffic was going on. It has also come in the evidence that there were shops on both sides of the road and the Magistrate has not seen the passing over of slip on which name was allegedly written by the appellant. It is clear from the evidence on record that the Magistrate and the Investigating Officer had seen all this from a distance of 30-40 paces while they were behind the bus, hence it cannot be said with certainty that the money passed on to the appellant by the complainant was the same money particularly when the same was not secured from the possession of the appellant.
16. To sum up, there is nothing except the statement of complainant about the alleged settlement of bribe and passing on of the same to the appellant. Moreso when it is admitted by the Magistrate P.W.1 that he has supervised about 12 trap proceedings and he was senior in rank to Investigating Officer but if any irregularity was committed by the Investigating Officer it was not his duty to check it. It was suggested that the Magistrate did not act independently but under the influence of the I.O.
17. Who was the Inspector of Anti-Corruption. There is also admission on the part of the complainant that on 9-2-1986 the appellant had arrested his brother Khalid (not examined) who was detained at Nazimabad P.S. And subsequently was sent up for trial in the Court of S.D.M. Nazimabad and he also admitted that he had grievance against the appellant. The complainant had disclosed the names of three owners of the trucks and their drivers but the owners and the drivers have not been examined or produced as witnesses and it is also the complainant's case that it was the owners of the trucks and their drivers who had complained against the appellant for demanding of illegal gratification yet none has been produced to lend support to the contention of the complainant.
18. One P.W. By name Muhammad Afzal has been examined in defence. He has acted as co-Mashir in the case. The trial Judge seems to have been impressed by the fact that he has half-heartedly supported the case on the point of passing on of the tainted money, although he also denied having seen the appellant throwing the money nor he could say if slip Exh.12 was secured from the appellant or picked up from the ground along with the illegal money. Apart from this it is not the case of the prosecution that D.W.2 was with the complainant when he for the first time contacted the appellant on the road and the co-Mashir Hag Nawaz has stated that he and D.W.2 Afzal continued to remain in the taxi, his evidence cannot, therefore, be accepted and does not improve the prosecution case which suffers from infirmities and inconsistencies noted above.
19. ' In view of above discussion, I have come to the conclusion that in the facts and circumstances of the case a reasonable hypothesis of innocence of appellant cannot be excluded. I, therefore, give him benefit of doubt which I am persuaded to give by the circumstances available on the record and the submissions made by the learned counsel for the appellant. While extending the benefit of doubt to the appellant, the Criminal Appeal No. 24 of 1988 is allowed and the impugned judgment, dated 26.-1-1988 is set aside. The appellant is on bail, his bail bond is discharged.