Appellant Safdar Hussain was tried in Court of the Special Judge Anti---Corruption Karachi, for the offence punishable under section 161 of P.P.C. Read with section 5(2) of the Prevention of Corruption Act. At conclusion of his trial, the appellant was convicted for the said offence and was sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs.2,000 or to suffer further R.I.
For one month. The appellant has challenged his conviction and sentence.
2. According to the prosecution on 24-10-1982 at about 7-00 a.m. Suzuki van of complainant Muhammad Din was stopped at Soldier Bazar, Karachi by Constable No.8936, while the complainant was driving the same to Mohajir Camp. The constable took the complainant and his vehicle and its documents to Police Station Soldier Bazar. At the Police Station the complainant was made to sit and when he entreated for being allowed to go out, for supplying to his customers biscuits of his bakery he was told by the same Constable to give something to the Head Mohrar and then take away the Suzuki Van. Complainant left his vehicle at the Police Station and went to P.W. Muhammad Akhter and requested him to get his vehicle released. Muhammad Akhter visited the Police Station and then told the complainant that the Head Moharrir was demanding Rs.100 as bribe. On hearing about demand of bribe, the complainant went to Anti-Corruption office, where he lodged his F.I.R.
3. Inspector Amanullah of Anti-Corruption establishment recorded the F.I.R. And moved P.W. Moula Bux, Magistrate through S.P. Anti-Corruption for supervising the trap. Thereafter, preparations were made for a trap. Tainted money of Rs.100 was given to the complainant in presence of the Magistrate and Mashirs for passing on the same to the concerned person. Subsequently the trapping party including the Magistrate and Inspector Amanullah went to Police Station Soldier Bazar, where the Inspector and the Magistrate remained in the car of P.W. Azeem Khan that was parked near the police station. The complainant and Mashir Bashir Ahmed went inside the police station, while Azeem Khan another Mashir stood at the main gate of the Police Station for receiving signal from the complainant and for passing on the same to the Inspector. Complainant went inside the Police Station with Bashir Ahmed and told the Constable that he had brought the money and that keys of the vehicle be returned to him. The Constable who was contacted brought the Head Moharrir. The complainant handed over the tainted money amounting to Rs.100 to Head Moharrir Safdar Hussain, who is present appellant. The appellant took the money and returned the documents and keys of the vehicle to the complainant. Thereafter, a signal was given to the raiding party. The Inspector and the Magistrate came there and caught the appellant, who tried to go inside the room. The appellant took out the tainted amount from his pocket and threw it on the ground, with the result that some of the notes fell on the table while some of the notes fell on the ground. The Inspector picked up the notes and then the notes were compared by the Magistrate with the notes given earlier to the complainant. The notes picked up from the wardat tallied with the notes with complainant except there was addition of five notes. Such Mashirnama was prepared and the appellant was arrested. The Inspector secured the key and the registration book of the concerned vehicle produced before him by the complainant. The Inspector also secured Suzuki Pick up of the complainant and handed over the same to the complainant, after seeking permission of the Magistrate. After due investigation the appellant was challaned.
4. At his trial the appellant pleaded not guilty to the charge.
5. Prosecution examined complainant Muhammad Din Exh.5, P.W. Muhammad Akhter Exh.7, Moula Bux Exh.8, Azeem Khan, Exh.13 and Amanullah Exh.14. Prosecution was closed under statement Exh.16.
6. In his statement Exh.17 the appellant admitted that on 24-10-1982 he was Head Constable/Head Moharrir at Police Station Soldier Bazar Karachi but he denied rest of the allegations. The appellant denied recovery of tainted money from him but admitted his arrest by the trapping party. He added that he was falsely implicated.
7 In his defence the appellant examined Bashir Ahmed Exh.18, MA. Khalil Siddiqui txh.19 and himself on oath Exh.22. After recording evidence of both sides, learned Magistrate under the impugned judgment dated 13-3-1988 convicted and sentenced the appellant as above. Hence this appeal.
8. Mr. Muhammad Ilyas Khan, learned counsel for the appellant argued that name of the appellant did not appear in the F.I.R. That Mashir Bashir Ahmed was not examined by the prosecution but as a defence witness he had supported the appellant. P.W. Muhammad Akhter the other Mashir did not go inside the place of trap and there was no evidence if any amount was demanded by the appellant from the complainant, as added. It was further argued that the Police Inspector and the Magistrate did not hear the conversation between the appellant and the complainant at the time of the trap, and as such the charge of acceptance of bribe money was not proved. P.W.
Muhammad Akhter was said to be related to the complainant and it was added that the Magistrate did not state if any demand of illegal money was made or if demand for illegal work was made. In respect of P.W. Azeem Khan it was argued that he was Mashir in three cases of Anti- Corruption and he did not see passing of the tainted money to the appellant. It was further argued that the vehicle in question was not seized by the appellant and that the defence evidence showed that the appellant was falsely implicated. In support learned counsel for the appellant cited the cases of (i) Noor Muhammad v. State PLD 1963 SC 38, (ii) Hafiz Aziz Ahmed v. State 1985 SCMR 1943, (i.e) Allah Ditta v. State 1982 PCr.LJ 729, (iv) Ijaz Ahmed Qureshi v. State 1973 P Cr. L J 833, (v)
Abdul Hayee v. State 1969 P Cr. L J 343, (vi) Muhammad Sadiq v. State 1975 P Cr. L J 1286, (vii)
Muhammad Ali v. State 1991 MLD 1327, (viii) Arshad Mirza v. The State PLD 1988 Lah. 640, (ix)
Khurshed Ahmed v. State PLD 1983 Lah. 514, (x) Muhammad Ishaq v. State 1978 P Cr. L J 257, (xi)
Sultan Ali v. State 1986 P Cr. L J 2324, (xii) Maqsood Ahmed v. State 1986 P Cr. L J 2273 and (xiii)
Muhammad Ilyas v. State 1986 P Cr. L J 2575.
9. Mr. Muhammad Hayat Qureshi, Advocate for A: G. Sindh, did not support the conviction on the grounds that the tainted money was not recovered from possession of the appellant and that the conversation between the complainant and the appellant was not heard by the Magistrate and that there was no direct evidence about demand of bribe by the Magistrate.
10. There is no allegation against the appellant if he demanded illegal gratification directly from the complainant or from P.W. Muhammad Akhtar. The vehicle of the complainant was stopped and taken to the Police Station by a Constable and not by the appellant. In his evidence Exh.5 the complainant did not state if bribe was demanded from him by the appellant. He did not state if any Police Constable told him that the money was demanded by the appellant. P.W. Muhammad Akhtar Exh.7 deposed that a Constable who was approached at the Police Station for release of complainant's vehicle, talked to the appellant/Head Moharrir and on return told him to come back with Rs.100 and with owner of the vehicle and take away the vehicle. In his cross-examination P.W.
Muhammad Akhtar said that he told police that Muhammad Din was his relative and that the appellant demanded the bribe of Rs.100 by raising his one finger. This shows that there was no direct talk between the appellant and P.W. Muhammad Akhtar. In this way the evidence about demand of bribe money is scanty.
11. On the point of acceptance of illegal gratification by the appellant, there is evidence of complainant Muhammad Din, Magistrate Moula BUY, Mashir Azeem Khan and Inspector Amanullah.
Before the trap an amount of Rs.100 was given to complainant Muhammad Din as tainted money.
This was stated by Mashir Moula Bux Exh.8, who deposed that Mashirnama Exh.9 was prepared about delivery of tainted money of Rs.100 to the complainant in presence of Mashirs Bashir Ahmed and Azeem Khan. That numbers of currency notes given to the complainant were mentioned in Mashirnama Exh.9. This was also stated by Azeem Khan Exh.13 and Amanullah Exh.14. They deposed that numbers of currency notes given to the complainant were mentioned in Mashirnama Exh.9.
Complainant Muhammad Din Exh.5 produced his F.I.R. Exh.6 and stated that he was given Rs.100 as tainted money under a Mashirnama.
12. Second stage came when Magistrate Moula Bux and Inspector Amanullah formed the trapping party and went to Police Station Soldier Bazar, where the appellant was working as Head Moharrir.
Complainant Exh.5 deposed that he entered the Police Station with Bashir Ahmed only, leaving remaining persons including the Magistrate outside and told a Constable that the money was brought and that keys of his vehicle be given to him. Complainant further stated that on receiving Message from the Constable, the appellant/Head Moharrir came out and he was handed over the tainted money amounting to Rs.100 which he kept in his pocket and returned the documents in respect of the vehicle and the key. Complainant added that he gave a signal to the raiding party which came. That the appellant tried to go inside a room and took out the money from his pocket and threw it on the ground, with the result that some of notes fell on the table and some fell on the ground. That the Inspector picked up the notes, which were compared by the Magistrate with the notes mentioned in the Mashirnama Exh.9. Prosecution could not examine Mashir Bashir Ahmed, who was said to have accompanied the complainant inside the Police Station. However, he was examined by the appellant, as a defence witness. Bashir Ahmed Exh.18 deposed that on 24-10-1982 he was taken by the complainant to the Anti-Corruption office where he was told by the complainant to sign Mashirnamas, which were already lying ready. Bashir Ahmed who belongs to Rahim Yar Khan, stated in cross-examination that he had not gone through the Mashirnamas on which his signatures were obtained. He denied the prosecution suggestions about his accompanying the complainant to Soldier Bazar Police Station, about the complainant passing on the tainted money to the appellant, and about recovery of tainted money from the appellant.
Prosecution examined Azeem Khan Exh.13. Who is the other Mashir. He deposed that he had accompanied the raiding party to Soldier Bazar Police Station, where the complainant went inside alongwith Bashir Ahmed, and he while standing near main gate of the Police Station, saw the complainant and Bashir Ahmed talking to the appellant in the Verandah. That the complainant gave signal, which was passed on to police and consequently Inspector Amanullah alongwith Magistrate Moula Bux rushed inside the Police Station, and saw the appellant talking to the complainant. That the appellant tried to run towards a room but he was caught by Police near door of the room. That the appellant took out money from his pocket and threw it on the ground, with the result that some notes fell on the ground and some fell on the table. That the Inspector collected the notes which amounted to Rs.105. That the Magistrate compared numbers of the notes picked up and found notes of Rs.100 to be the same, which were given to the complainant as tainted money. Magistrate Moula Bux Exh.8 and Inspector Amanullah Exh.14 deposed that the complainant and Bashir Ahmed were asked to go inside the Police Station and give the tainted money to the appellant, who was Head Moharrir. They added that Mashir Azeem Khan gave the pre-arranged signal, with the result that they with Mashir Azeem Khan went inside the Police Station, where the appellant was present and he tried to run but he was stopped. That on seeing the trapping party the appellant took out money from his shirt pocket and threw it on the ground.
That the appellant was caught brought inside the room. They added that the money was picked up from the ground and it amounted to Rs.105 out of which Rs.100 were the same, which were earlier given to the complainant as tainted money and those notes were mentioned in the Mashirnama Exh.9. They supported the Mashirnama of recovery Exh.10.
12. P.W. Muhammad Akhtar admitted in cross-examination that he had told police that the complainant was related to him. Complainant Exh.5 admitted in cross-examination having told police that Muhammad Akhtar had worked at his Bakery for some time. Hence Muhammad Akhtar is an interested witness. Moreover, Muhammad Akhtar did not state if the bribe was demanded by the appellant. He said that a Constable told him that he and the complainant should come back with R s.100 and take away the vehicle. Muhammad Akhtar stated in cross-examination that he did not complain to the S.H.O. Or to any other officer that vehicle of the complainant was detained illegally. He said in his cross---examination that lead Moharrir had demanded Rs.100 as bribe by raising his one finger. Bribe cannot be demanded by raising one or two fingers.
13. The most crucial evidence against the appellant is about his acceptance of the bribe.
Complainant Muhammad Din Exh.5 claimed to have handed over the tainted money to the appellant who returned to him the documents and key of his vehicle. He did not state if he had any talk with the appellant. Inspector Amanullah Exh.14 and Magistrate Moula Bux Exh.8 did not see passing of the tainted money from the complainant to the appellant. They claimed to have received a signal from Azeem Khan and they went inside the police station, where the appellant on seeing them went inside room of Moharrir and took out the money from his shirt pocket and threw the same on the ground. They did not hear any talk between the appellant and the complainant and as such the prosecution case that the money thrown on the ground was the same that was given to the complainant as tainted money, is not free from doubt. There were also contradictions.
Moula Bux said that the appellant was seen standing at first step of the staircase, while Amanullah said that the appellant was standing in the varandah and was talking to a person. Moula Bux said that the Inspector Amanullah caught hold of the appellant who was brought inside the room.
Inspector Amanullah said that a Constable prevented the appellant from going inside the room and stopped him at the door. Moula Bux said that the appellant threw the money on the ground.
Amanullah said that the appellant threw the money towards the Roznamcha Moharrir. Moula Bux said that he and the other members of the trapping party went in two vehicles, which were parked outside the residential flats near the police station. Inspector Amanullah said that he and members of trapping party went in a Suzuki Van of Anti-Corruption and Car of P.W. Azeem Khan and that the Suzuki Van was stopped at some distance from the police station, while he and the Magistrate remained in Car of Azeem Khan. In his cross-examination Amanullah said that Suzuki Van was parked one furlong away from the Police Station, while the Car of Azeem Khan was parked on the northern side of entrance gate of the Police Station, facing East and that it was 100 paces away from the boundary wall of the flats. Amanullah admitted that he had not seen passing of tainted money to the appellant. He failed to give the number of notes picked up by him from the table.
14. Even if the evidence of Moula Bux and Amanullah is accepted to be correct it would not make the appellant liable for the offence because they did not see him receiving the money and they did not hear any talk to indicate that the money in question was accepted by the appellant as illegal gratification.
15. Evidence of P.W. Azeem Khan Exh.13 does not further the case of prosecution because he claimed to have remained near the main gate of the police station from where he could not see acceptance of the tainted money by the appellant. He claimed to have seen the complainant and Mashir Bashir Ahmed talking to the appellant. Complainant did not state if he had any talk with the appellant. The only part played by Azeem Khan was that he received signal from the complainant and passed on the signal to police. He contradicted Amanullah and Moula Bux by saying that when he accompanied them to the place of trap he saw the appellant talking with the complainant.
Azeem Khan further stated that the appellant took out the money from his pocket and threw it on the ground after being caught by the police. On the other hand the evidence of complainant Exh.5 gives the impression that the appellant was caught after he took out the money from his pocket and threw it on the ground. In his cross---examination Azeem Khan stated that the vehicles were parked between the residential quarters of Police and boundary wall of the Police Station and that the car in which the Magistrate and Inspector were sitting was parked 80/100 yards from main gate of the police station. Moula Bux said that Azeem Khan was made to stand outside the main gate of the Police Station. Amanullah said that Azeem Khan stood at the main gate of the Police Station.
Complainant Exh.5 did not state if he gave signal to the raiding party through Azeem Khan. He did not state as to where Azeem Khan remained at the time of the trap.
16. Mashir Bashir Ahmed has given fatal blow to the prosecution by deposing as a defence witness that he was made to sign all the Mashirnamas in the Anti-Corruption Office. Bashir Ahmed was the only witness who could support the evidence of the complainant about acceptance of bribe money by the appellant. Azeem Khan Exh.13 admitted in cross-examination that the Inspector had obtained his signatures on the Mashirnamas in the Anti-Corruption Office on 25-10-1982; when the trap was arranged on 24-10-1982. He admitted that the S.P. Anti-Corruption was known to him. That he had appeared as Mashir in three other cases named by him. In the circumstances it is not safe to rely on the prosecution evidence about acceptance of the bribe money by the appellant, even if the evidence of D.W. MA. Khalil Exh.19 and statement Exh.22 of the appellant be ignored.
17. In view Of the above finding this appeal stands accepted and the conviction and the sentence passed against the appellant are set aside and the appellant stands acquitted.
The appellant is present on bail and he is released from his bail bonds.