1. ' The appellant, being aggrieved by the judgment passed by the Special Judge, Anti-Corruption, Sukkur in Special Case No, 54/85 convicting the appellant under section 161, P.P.C. r/w section 5(2) of the Act II of 1947 and sentencing him to suffer R.I. For one year and to pay a fine of Rs,2,000 or in default thereof to undergo a further R.I. For 6 months, has filed the present appeal.
2. ' Briefly the prosecution case is that the complainant is in occupation of an open plot near the tomb of Masoon Shah beside the Auqaf Office and that he runs the crockery business there and used to pay Rs,100 per month to the Manager Auqaf in respect of the said plot for which no receipt was being issued to him. It is further the case of the prosecution that on 8-6-1985 the accused Manager of Auqaf sent for the complainant and advised him to vacate the said plot and assured him that he will be allotted 2-3 shops after the same were constructed. On this assurance the complainant started vacating the plot when on the next day again the complainant was sent for by the accused and asked to pay the gratification of Rs,3,500 for the allotment of one shop only.
3. The complainant is said to have reluctantly agreed to pay Rs,2,000 to the accused on the next day and balance within a week's time. It is also the case of the prosecution that during all these negotiations P.W. Muhammad Shafique, the brother of the complainant reported the matter to the Anti-Corrupton authorities and consequently the F.I.R. Was lodged and a trap was laid. According to the prosecution the tainted money was secured from the right side drawer of the accused.
4. Relevant files and documents were secured by the Investigation Officer and after completion of the usual investigation and receipt of sanction the accused was challaned. The charge was framed on 10-11-1985 to which the accused pleaded not guilty and the case was sent for trial.
5. ' The prosecution examined complainant Raja Muhammad Siddique P.W.1 who produced F.I.R. Ex.2/A and application Ex.2B, Mashir Mir Muhammad P.W.2 who produced mashimamas Exhs.3/A to D, Muhammad Shafiq P.W. 3, the brother of the complainant, Hafiz Muhammad Chhutal the Investigating Officer P.W.4 who produced the Register, file and receipt Exhs.5/A to C and lastly Mr. Habibullah the Magistrate P.W.5 who supervised the trap and produced the trap report as Ex.6/A.
6. The statement of accused was recorded under section 342, P.P.C. He denied the allegations. The accused further stated as under:-- "Raja Muhammad Siddique and his brother Muhammad Shafique wanted to have the possession of plot on lease at Rs,100 per month, I proposed allotment on lease to 11 persons at Rs,100 each per month. On 10-6-1985 M/s. Abdul Hameed son of Abdul Aziz and Anwar Ali son of Ali Murad had been to my office to execute agreement for allotment of pieces of plot for construction of shop. In their presence Raja Muhammad Siddique collected allotment order from me with a promise to execute the agreement at noon time. At noon time. I went to Minara to check the sanitation leaving Abdul Hameed to take care of my office as peon was on leave. On my return Abdul Hameed told me that Raja Muhammad Siddique' was sitting in my room. As soon as I entered my room and started talking to Raja Muhammad Siddique ACE: party rushed to my office and closed the door from inside. At the instance of complainant, they secured some money from the drawer of my table and took me to Anti-Corruption office without preparing any mashirnama. I produce copy of plaint, notice from Court, copy of written statement filed by Mayor., Sukkur Municipal Corporation and Manager Auqaf in 20 leaves Ex.7/A."
7. ' The accused also examined D.W. Abdul Hamid in his defence and closed his side. The trial Court after hearing the arguments of the advocates for prosecution and accused found the accused guilty and convicted him as above.
8. ' I have heard Mr. Nooruddin Sarki, Advocate for the accused and Mr. Muhammad Siddique Kharal, learned Additional Advocate-General for the State. Mr. Sarki the learned counsel for the appellant has taken me through the evidence. It appears from the reading of the evidence of the P.Ws. That the prosecution case is that the accused had demanded a sum of Rs,3,500 as illegal gratification for the allotment of the shop to the complainant. On this point the only evidence available is that of complainant himself and his brother P.W. Muhammad Shafiq only. It has been pointed out by the learned defence counsel that the complainant and his brother both being interested witnesses as they wanted to get the shop in question by hook or by crook cannot be relied upon unless corroborated by same trustworthy and strong corroborating evidence. I have no hesitation in accepting the submission of the learned counsel. In the circumstances of the case the mere word of the complainant cannot be relied upon and made the basis of conviction unless corroborated by independent evidence. The corroborating evidence brought on record by the prosecution is the evidence of Trap and recovery of tainted money. On this point the witness examined by the prosecution on the complaint, the Investigating officer, the Magistrate who supervised the trap and the mashir. The complainant with regard to the trap in his examination-in-chief states that he had passed on the money to the accused within the sight of mashir and that accused accepted the same and kept in drawer of his table. He further states that he informed the Mashir by way of gesture who in turn informed the trap party. At a late stage of his examination-in-chief he states that the accused informed the trap party about money lying in his drawer which was secured from the drawer by the Magistrate. The complainant further states that on seeing the raiding party the accused had torn the complainant's application for the allotment of shop and that torn pieces were secured by the trap party. In his cross-examination the complainant states that mashir had not gone with him inside the room of accused but he informed the mashir by way of gesture from the room. This evidence of the complainant shows that the Mashir was not present when the money was passed on to the accused nor could he have heard the conversation of complainant and accused. As against this Hafiz Muhammad Chhutal the Investigating Officer states that the complainant and the Mashir were sent inside the room of accused while he and the Magistrate concealed themselves at a short distance and that after a few minutes the mashir raised signal on which they went inside the office of the accused where they also saw mashir standing inside the office near entrance door. In his cross-examination he states that Mashir could see them from the GATE of the Auqaf office and that they had concealed themselves at a distance 10/18 paces from the Auqaf office. He also says that Mashir continued standing where he was. It is not said if the mashir had entered in the office of accused subsequently. The mashir on this point states that he had stood at the door of the room and saw the complainant passing the tainted money to accused through a hole in the curtain and then signalled the trap party who rushed into the office of accused and locked the door from inside while he remained outside. This mashir has not seen the tainted money being recovered from the drawer of the table of accused. It is admitted by the Investigating Officer in his evidence that he had bolted the door from inside. The above discussion of the evidence gives rise to the inference that the Mashir was not present at the time the tainted money was passed on to the accused or the same was recovered from his drawer. He could not have seen the same through a closed door. The existence of the curtain with a hole in it on the standing of the mashir by that curtain is also not substantiated as no other witness has said any thing about it. In these circumstances and by the above discussion of the evidence it can safely be concluded that the Magistrate, the Investigating Officer and even the mashir could not hear the conversation that could have taken place between the complainant and accused.
9. ' The learned counsel for defence has further pointed out that the alleged tainted money was not given by the ACE but admittedly the same was supplied by the complainant himself and that the same was returned to the complainant under the orders passed by the trial Court. Lastly he has submitted that the manner in which the mashir is alleged to have given signal to the trap party has not been disclosed and that all these circumstances show that the prosecution has failed to prove the case against the accused beyond any reasonable doubt. He has placed reliance on the case of the State v. Muhammad Umar 1984 P Cr. L J 1718 wherein a Division Bench of this Court has held:- - "In the circumstances, we hold that in the instant case the Magistrate and the Investigating Officer did not see the putting of money to the respondent and further they did not hear the conversation between the complainant and Haji Abu Bakar with the respondent and no independent witness has been examined. We are not inclined to put implicit reliance on the evidence of Haji Abu Bakar who has enmity with the respondent and is a previous convict for offence of giving false report. Haji Piare is related to Haji Abu Bakar and complainant Amir Bux is Kamdar of Haji Abdul Bakar.
10. Additionally, respondent has also produced documentary evidence to show that this particular module was tampered with and the matter was inquired into."
11. ' The learned counsel has also placed reliance on the case of Mohibullah v. State 1984 P Cr. L J 2744 wherein it has been held by a learned Single Judge of this Court that the other possibility cannot be ruled out where the tainted money was recovered lying in the register and was not given to the accused in presence of raiding Magistrate nor the conversation was heard by him. He has also relied upon the case of Abdul Hamid v. The State 1984 P Cr. L J 2774 wherein a learned Single Judge of the Lahore High Court has held that mere recovery of money is not sufficient to made it a bribe money but the prosecution is required to prove it to be an illegal gratification. The learned counsel has also placed reliance on the case of Syed Safdar Ali v. The State 1985 SCM R 1941. In this case it was alleged by the prosecution that after the money was kept in drawer by the accused. P.W.
12. Muhammad Sadiq gave signal to P.W. Wazir Ali who in turn gave signal to police but the manner in which the signal was given was not mentioned by the witness. For this reason the Hon'ble Supreme Court held that the prosecution had failed, to prove the case against the accused beyond all reasonable doubt. Met with the above facts and the law cited the learned Additional-Advocate General has feebly opposed this appeal.
13. I have given anxious consideration to the above submission of the learned counsel and examined the file of the case. It may also be observed that the complainant in his evidence has stated that seeing the raiding party, the accused had torn his application for allotment and that torn pieces were recovered by the raiding party. This application has been produced in evidence by the complainant as Ex.2B. This application is in one piece and there are no signs of pasting together of the torn pieces. Secondly the alleged tainted money in this case was provided by the complainant himself and not by the ACE. The case diary shows that on 9-10-1985 the copies of statements recorded under section 161, Cr.P.C. Were given to the accused and the case was set for framing of charge and adjourned to 10-11-1985. But on 19.10-1985 the alleged tainted money was ordered to be paid back to the complainant. This money was not produced in evidence nor shown to any of the witnesses although the said tainted money is the case property. The above fact would also contribute to the failure of the prosecution to prove their case beyond all reasonable doubt. The evidence does not show if the raiding Magistrate or the mashir had heard the conversation between the complainant and the accused nor does the evidence prove the recovery of alleged tainted money in presence of mashir - mashir stating that mashirnama was prepared at ACE office - and also that there is nothing in evidence to prove the manner in which the mashir had given signal to the raiding party. From the above discussion I have come to the conclusion that the prosecution has failed to prove their case beyond reasonable doubt. On the other hand the evidence of D.W. Abdul Hameed fully corroborates the version of the accused.
14. I, accordingly allow the present appeal, set aside the conviction and sentence and acquit the appellant. The appellant is on bail. His bail bonds are cancelled.