1. ' This is an appeal against the judgment of the Special Judge-cum-Inquiry Officer, Hyderabad, convicting the appellant for an offence under section 161 read with section 5(2) of the Prevention of Corruption Act and sentencing him to undergo simple imprisonment for 6 months and pay a fine of Rs, 1,000 or in default to undergo simple imprisonment for 3 months.
2. ' The appellant was posted as Assistant Engineer Agriculture Workshop at Sanghar. Abdul Karim complainant had taken a tractor on rent from the Agricultural Workshop for ploughing the land and he made the payment. The crew working on the tractor did the work slowly and, therefore, Abdul Karim complained to the appellant but no heed was paid. As the original time for which the tractor was taken on rent was expiring he approached the appellant for the extension of time whereupon the appellant demanded Rs, 400 as illegal gratification. An amount of Rs, 100 was paid and promise was made for the balance of Rs, 300 to be paid at his shop. After paying the amount of Rs, 100 the complainant went to the Anti-Corruption Police and made a complaint. His complaint was noted down in the station diary and a trap was arranged. The services of the Headmunshi and Thin Class Magistrate were secured. The Circle Inspector, Anti-Corruption accompanied by the Magistrate and one mashir Muhammad Akhtar went to the shop of the complainant. The mashir remained there while others waited at some distance. After some time the appellant sent to the shop of the complainant and the amount of Rs, 300 was paid to him. The signal was given to the Magistrate and the Circle Inspector. They went to the shop and disclosed their identity to the appellant who, thereupon, threw the tainted money on the ground. The money was secured and mashlrnarna was prepared. After usual investigation and obtaining sanction the appellant was challaned. The appellant proclaimed his innocence and pleaded that he had already disposed of the application made by the complainant by recommending and the money which was paid to him was as an advance money towards the rental charges which he was requested by the complainant to deposit.
3. ' The evidence tendered by the prosecution as well as the appellant was recorded. On the assessm ent of the evidence the learned Special Judge came to the conclusion that the appellant was guilty of the offence.
4. The learned Special Judge, apart from the evidence and other circumstances, relied upon the conduct of the appellant of his throwing the tainted money when the Magistrate and the Circle Inspector went there and disclosed their identity. The learned counsel for the appellant has made a grievance that this incriminating circumstance was not put to the appellant and could not be relied upon by the learned Special Judge while considering the guilt of the appellant. I entirely agree with this contention. Since this is a strop piece of circumstantial evidence against the appellant it is necessary that explanation should be sought from the appellant. I, therefore, allow the appeal and set aside the conviction and sentence passed against the appellant and remand the case to the Special Judge for seeking the explanation from the appellant with regard to the throwing of the money as deposed b the witnesses and allow him an opportunity to examine defence, if he would so desire and thereafter dispose of the case on merits.
5. ' The appellant shall be allowed to continue to remain on bail till the conclusion of the trial.