1. This is an appeal against the judgment of the Special Judge, Central, Karachi, convicting the appellant for an offence under section 161, P. P. C./ (2) of the Prevention of Corruption Act, 1947 and sentencing him to pay fine of Rs. 2000 or in default to undergo R. I. For 6 months.
2. The appellant was working as S. D. O. Telephone, Sukkur in July 1969. He had purchased some furniture worth Rs. 850 through his subordinate Abdul Wahid Khan from complainant Muhammad Siddiq who had a furniture shop. The appellant paid Rs. 350 and. The balance was promised to be paid later but in spite of demand the amount was not paid. The com--plainant had a telephone bearing No. 3/ 111 in his shop with extension to his godowns. The appellant issued a notice for the disconnection of the extension but in the meantime the complainant got the sanction from the Divisional Engineer, Telephones, Quetta for the extension and thereafter a demand notice was issued and he paid the amount. When the complainant demanded the balance of Rs. 500 due on furniture the appellant told him that it was appropriated towards the gratification or reward for allowing him the extension. Thereafter the appellant started harassing the com--plainant and his brother Haji Rafique and issued notices to them for illegal extension of telephone No. 2393 and its extension to the house as well as another telephone No. 3/44 in the office of the complainant as Civil Defence Warden, with extension to the house. The complainant approached the appellant who demanded Rs. 300 as illegal gratification for withdrawing the notice and the complainant made a promise. Thereafter the complainant approached the Inspector, Special Police Establishment and a trap was arranged, with the assistance of Mr. Ghulam Kadir, Third Class Magistrate and two mashers Abdul Qadeer and Suleman. Rs. 300 consisting of three marked currency notes of Rs. 100 each were given to the complainant. The trap party alongwith the complainant went to the office of the appellant. The complainant and Suleman mashir went into the office while the others waited at some distance and the complainant delivered the tainted money to the appellant and, thereafter, signal was given. The Inspector Police and the Magistrate alongwith the other mashir went inside the office and searched the person of the appellant but nothing was secured. The tainted currency notes were, however, found lying on the ground under the table. The same were secured and mashirnama was prepared. After usual investigation and obtaining the sanction the appellant was challaned.
3. The appellant proclaimed his innocence and denied that he had either demanded any illegal gratification or had accepted it. He pleaded that he had issued notice to Haji Rafique brother of the complainant as ht had not paid the arrears since 1959 as intimated by Accounts Officers, Karachi, as well as the extension of his telephone up to a distance of 3 miles was illegal. He admitted that he had made corrections in the demand notice Exh. 12 by reducing the amount from Rs. 580 to Rs. 390 and also ordered the issuance of revised demand notice as the complainant stated that he was withdrawing the extension of telephone No. 3/44.
4. The prosecution examined Haji Muhammad Rafique, Sadiq Muhammad, Abdul Kadeer, Mr. Ghulam Kadir Magistrate, Muhammad Siddiq, Mr. Wazir Muhammad Inspector and Muhammad Suleman while the appel--lant examined three witnesses, namely, Abdul Wahid Khan. Engineering Supervisor, Telephones, Muhammad Ayoob, Telephone Inspector and Abdul Saeed Khan, Telephone Inspector.
5. From the statement of facts it is clear that the only evidence against the appellant for accepting the illegal gratification is the evidence of the com--plainant and mashir Suleman coupled with the recovery of the tainted money which was found lying on the ground when the trap party entered the office of the appellant on the signal, given by the complainant. I have considered their evidence and I am of the view that the case against the appellant has not been established. Even the learned counsel for the State expressed his doubt. Admittedly the complainant had a strong grouse against the appellant. In the first place the grievance was that although according to the complainant the appellant had still to pay Rs. 500 for the purchase of the furniture but this amount was never paid and on the con--trary the appellant claimed to have adjusted it towards the reward for allowing the extension. Secondly, there were three telephone connections which were sanctioned in the name of the complainant or his brother, but subsequently, the connections were extended by them without any previous permission. This was discovered by the appellant and he made a report to the Divisional Engineer, Telephones, Quetta. In the case of one telephone No. 2393 the permission had been obtained by the complainant and he had to make the payment while the extension of the other two was still unauthorised and the same were liable to be disconnected with further penalty, if any, unless permission was also obtained. Apart from this the illegal gratification was sought for telephone No. 2393 but prior to this demand and acceptance of the illegal gratification a suit had been filed in the civil Court and stay had been obtained. So there could be no question of any demand of illegal gratification to be made by the appellant or any payment to be made thereunder. Originally the demand note was for Rs. 580 and it was subsequently reduced to Rs. 390. With regard to this telephone number only the payment was to be made and no further action was con--templated. Thus the only benefit which the complainant was to receive was the reduction of the amount of Rs. 110 and for this an amount of Rs. 300 could not be demanded. Even the allegation of the complainant that the amount of Rs. 500 was still due from the appellant and it was adjusted as reward for the permission granted for the extension stands belied by the evidence of his own partner Muhammad Sadiq who admitted that the sum of Rs. 500 was paid after 2 -- months.
6. Yet, there is another circumstance which renders the payment of bribe as doubtful. The money was not recovered from the possession of the appellant, that is, either from his person or from the drawer of the table, but it was lying on the ground under the table and that spot was situated between the complainant and the Mashir, and nearer to them than the appellant. So the possibility that the complainant himself surreptitiously placed the money on the ground in order to implicate the appellant on account of previous grouse cannot be ruled out. Thus even the recover of this money does not serve to provide any corroboration to the evidence of the complainant and Suleman. With regard to the alterations in the amount shown in the demand note and the direction for the issuance of the revised demand note a satisfactory explanation has been offered by the appellant.