1. Appellant Muhammad Panah son of Rab Dino and Muhammad Panjal son of Haji Muhammad Bux were tried by the learned Special Judge, Anti-Corruption, Sukkur who vide his judgment, dated 25- 9-1988 convicted the appellant Muhammad Panah under section 161/34, P.P.C. Read with section 5(2) of Act II of 1947. Appellant Muhammad Panjal was convicted under section 161/162/34, P.P.C.
2. Both of them were sentenced to R.I. For one year each or in default to undergo R.I. For three months more. The appellants have challenged their conviction and sentence through this appeal.
3. The brief facts of the case are that on 22-3-1986, the accused Muhammad Pariah visited Huli Bhatti Village Taluka Gambat and took into custody Suhbat, Ghullam All, Allah Dad and Hub Ali and brought them to their office. Complainant Ali Bux contacted accused Haji Panjal for the release of the accused. It is alleged that Haji Muhammad Panjal then convicted the accused Muhammad Panah and it is said that accused Muhammad Panah had disclosed that accused Hub Ali will be challaned while other accused will be released on payment of Rs.4,000 as bribe. It. Is alleged that part payment of Rs.1,000 was made and the balance amount of Rs.3,000 way, to be paid after a week's time. It is further alleged that on 28-3-1986, accused Muhammad Pariah again visited the village of the complainant for the collection of the balance, amount. He advised the complainant to make payment on the following day in the premises of Sessions Court, Khairpur. The complainant then reported the matter to Mr. Noor Muhammad Solangi. Circle Officer, Anti- Corruption Establishment, Khairpur where the F.I.R. Was registered as Exh.3/A.
4. After the registration of the F.I.R.; a trap was arranged, which was to he supervised by Mr. Badaruddin Shaikh, Assistant Mukhtarkar and 2nd Class Magistrate, Khairpur. Accordingly the trap party proceeded to the appointed place and time. It is alleged that in presence of witness Kehar, the tainted amount of Rs.1,000 was passed to accused Muhammad Panjal, who was arrested after the payment wits made to him whale accused Muhammad Panah could not be arrested. After completion of the investigation, both the appellants were challaned and convicted by the trial Court as already .Mentioned hereinabove.
5. At the trial, the prosecution examined P.W.1 Ali Bux, who is complainant, P.W.2 Suhbat, P.W.3 Ghullam Ali, P.W.4 Kehar, who is the Mashir in this case, P.W.5 Hub Ali, P.W.6 Allah Dad P.W.7 Sikander Ali P.W.8 Badaruddin Shaikh, the trap Magistrate and P.W.9 Noor Muhammad Solangi, the Investigating Officer.
6. After the, completion of the prosecution case the statements of both the appellants were recorded under section 342, Cr.P.C. Accused Muhammad Panah denied all the allegations against him and in respect of the witnesses he alleged that they have deposed due to enmity as P.W. Hub Ali was arrested by him in a Hudood case, in which, he has been convicted. He did not wish to be examined on oath, but he has examined Imam Bux as his defence witness.
7. On the other hand, accused Muhammad Panjal has also denied all the allegations against him and in respect of the witnesses, he states that they have deposed due to enmity over the matrimonial affairs. He also did not wish to be examined on oath, but has examined Muharam Ali as his defence witness.
8. I have heard Mr. Samiullah Qureshi, learned counsel for the appellants and Mr. Mushtaque Ahmed Ameer Mahar, Advocate for A.A.-G for the State. The latter has not supported the convictions of the appellants.
9. The learned counsel for the appellants has pointed out though appellant Muhammad Panah has expired during the pendency of this appeal yet his legal heirs wished to pursue this appeal and by order, dated 23-4-1992 permission was granted by this Court. The learned counsel for the appellants has submitted that both the appellants have been implicated falsely and both the appellants have enmity with the material witnesses in this case. In this regard, he has contended that appellant Muhammad Panah had challaned P.W. Hub Ali in a case of recovery of Hemp in which he was convicted as such the witnesses Ali Bux, Suhbat, Ghullam Ali and Allah Dad are closely related to him and to each other. Ort account of conviction (if Hub Ali, they have implicated him in this false case. In respect of appellant Muhammad Panjal, he has pointed out that the same set of witnesses are also related to Muhammad Panjal and they have deceived and tricked him into accepting the tainted money at the time of trap.
10. I have carefully applied my mind to the facts and circumstances of the case and I have also gone through the evidence on record.
11. It is evident from the evidence of private witnesses that they arc all related to each other.
12. Complainant Ali Bux is maternal-uncle of P.W. Flub Ali, Suhbat and Ghullam Ali are brothers inter se while P.W. Allah Dad is their father. Complainant Ali Bux is also father-in-law of P.W. Suhbat. This relationship will go to show that all the witnesses arc closely related to each other and they all reside in the same village. It is also an admitted position that P.W. Hub Ali was arrested by accused Muhammad Pariah, who was an Excise Inspector and had also challaned him in which case Hub Ali was convicted. Obviously, these private witnesses, on account of the conviction of Hub Ali, had a motive to depose against the appellant Muhammad Pariah. Again, it is also an admitted position that at the time of trap the appellant Muhammad Panah was neither available at the spot nor he was alleged to have accepted the tainted amount. He is -not even shown to have spoken to any of the witnesses on the date of trap.
13. In respect of appellant Muhammad Panjal it has come in evidence that he was also related to the private witnesses in this case and it is also alleged that the witnesses were of the view that it was Muhammad Panjal who had brought Excise Inspector Muhammad Pariah for arrest. This fact has been admitted by P.W.6 Allah Dad in his cross-examination.
14. Prosecution examined P.W.1 Ali Bux, who is the complainant in this case. In his evidence, he states that P.W. Allah Dad and his three sons namely P.W. Suhbat, Ghulam Ali and P.W. Hub Ali were arrested by appellant Muhammad Panah. For their release he approached Muhammad Panjal and after paying Rs.1,000 as bribe except Hub Ali all the others were released. There was balance amount to pay on the following date but he lodged report against the accused and the trap was arranged. On 29-3-1986 he paid Rs.1,000 to Muhammad Panjal, who was trapped by the Anti- Corruption Police.
15. P.W.2 Suhbat, P.W.3 Ghullam Ali, P.W.5 Hub Ali and P.W.6 Allah Dad all of them also state the same facts as narrated by the complainant Ali The prosecution examined P.W.4 Kehar, who is the only Mashir in this case. He has deposed that Rs.1,000 was given to complainant Ali Bux for payment to appellant Muhammad Panah. He accompanied with the trap party and paid the tainted, amount to appellant Muhammad Panjal and thereafter trap party arrested Muhammad Panjal. The Mashirnama was prepared to that effect, which was signed-by him.
16. Thereafter, the prosecution examined P.W.7 Sikandar Ali, who was then Circle Officer, Khairpur. He states that the case papers were received by him from Mr. Noor Muhammad Solangi. He further states that he interrogated Muhammad Panah who produced before him F.I.R. In respect of P.W.
17. Hub Ali, Mashirnama of recovery of Hemp and after completing investigation, he submitted the police papers for sanction. After receiving sanction he challaned The next witness examined is by the prosecution is P.W.8 Badaruddin who acted as supervising trap Magistrate. He has stated that the amount of Rs.1,000 was paid to the complainant for payment to the accused, but trap party was arranged, they had gone to the appointed place where the payment was made to Muhammad Panjal, who was arrested and the amount was recovered from him. The Mashirnama was prepared at the spot. Thereafter he returned to his office where he prepared the trap report.
18. The last witness examined is P.W.9 Noor Muhammad Solangi, who is Investigating Officer. He states that complainant Ali Bux had lodged the report, which was recorded by him. He arranged for the trap party' of the accused which was supervised by Mr. Badaruddin Shaikh. Amount of Rs.1,000 as given to the complainant for payment to the accused. They proceeded to was appointed place where the amount was paid to accused Muhammad Panjal in the presence of Mashir Kehar, accused Muhammad Panjal was arrested and the tainted amount was recovered from his possession. He prepared Mashirnama of arrest and recovery. He examined the witnesses, he could not arrest accused Muhammad Panah, thereafter he submitted interim challan and on 20-4-1986 he handed over the charge of his office to P.W. Sikander Ali as was transferred.
19. I have applied my mind to the facts and circumstances of the case and I have also gone through the evidence on record.
20. It is an admitted position that appellant Muhammad Panah neither received the tainted amount nor was he present at the time of trap. The allegations against him arc to the effect that he had received the first instalment of Rs.1,000 bribe amount from Muhammad Panjal which was given to him by complainant Ali Bux. In this regard, I may observe that the appellant Muhammad Panah had arrested P.W. Hub Ali in a Hemp recovery case, in which said Hub Ali was convicted. These witnesses who were all closely related inter se obviously, have a reason to depose against appellant Muhammad Panah, as such the evidence of these witnesses cannot be relied upon without independent corroboration. That corroborating circumstance is not available in this case.
21. Moreover, the said payment of Rs.1,000 is supposed to have been made one week before the registration of this case. If accused Muhammad Panah had really demanded this amount, then prevented the complainant from lodging the report against him. The complainant did not even make any complaint against Muhammad Panah before any authority. In respect of this first payment, it is a case of word against word. The possibility that the appellant Muhammad Panah has been implicated regarding the first payment on account of arrest and conviction of P.W. Hub Ali cannot be ruled out. In this regard, there is another important circumstance and that who paid the first amount of Rs.1,000 to Muhammad Panjal for its onward payment to Muhammad Pariah. In this regard P.W. Allah Dad had stated before the police that Rs.1,000 was paid by him. While on the other hand the complainant Ali Bux claims that he paid Rs.1,000 to Muhammad Panjal. In this view of the matter when the witnesses did not know who had made the payment of the first instalment, it is quite obvious that the story of the payment of the first instalment is false, story which has been made to implicate the appellant Muhammad Panah and also to show a connection between the two appellants.
22. The trap proceedings in which the appellant Muhammad Panjal was arrested and the recovery of the tainted amount of Rs.1,000 was effected is also not free from doubt. In this regard, according to the complainant Ali Bux, the Circle Officer P.W.9 and the Magistrate P.W.8 could not witness the passing of the tainted money by the complainant to Muhammad Panjal. Moreover, the complainant admits in his cross-examination that Mashie Kehar had signed the Mashirnama in the Anti-Corruption Office. According to P.W.4 Mashir Kehar he states when Muhammad Panjal was arrested he was claiming that he had received the amount from the complainant on account of .Lands. In his cross-examination he has made the following admissions:- "Ali Bux paid the tainted money to Muhammad Panjal stating that it was on account of lands. I signed the Mashirnama in Anti-Corruption Office."
23. From this admission of the Mashir it is quite obvious that the complainant had passed on the tainted money to accused Muhammad Panjal on account of lands, but at that time obviously Muhammad Panjal did not know that a trap party had come to arrest him. He being a relative of the complainant was obviously tricked by the complainant into accepting that amount. It, therefore, cannot be said that accused Muhammad Panjal had either demanded or accepted the bribe amount from the complainant. The possibility cannot be ruled out that Muhammad Panjal may have accepted the amount from the complainant innocently. This is also evident from the evidence of Mashir Kehar that as soon as Muhammad Panjal was caught he immediately stated that amount was paid to him on account of lands.
24. As already mentioned, appellant Muhammad Panah was not available at the time of trap. In fact there is no evidence to show that he had anything to do with co-accused Muhammad Panjal on the day of trap. Though an effort has been made by the witnesses to show that both the appellants had come together. Even if I believe this aspect again Muhammad Panah had appeared in the Sessions Court and. Therefore, possibility cannot be ruled out, that he might have gone on account of his official duty.
25. All the above circumstances clearly go to show that there is all along doubt in the prosecution case, and it appears that a false provisions regarding payment of first instalment has been created so as to implicate Muhammad Pariah while the payment in the trap proceedings to accused Muhammad Panjal was not made on account of any demand made by him. As already mentioned, it was an innocent acceptance of amount by Muhammad Panjal from the complainant Ali Bux, therefore, I am of the considered view that the prosecution has not been able to prove its case beyond reasonable doubt.
26. Consequently, I allow this appeal and set aside the conviction and sentence awarded to the appellants. They are acquitted of the charges levelled against them. This appeal is accordingly allowed.
27. N.H.Q./M-1665/K