1. ' Appellant Muhammad Luqman son of Muhammad Khan Bulo has been convicted under section 161, P. P. C. Read with section 5(2) of Act II ( 1947 and sentenced to three years R. I. And a fine of Rs, 200, in default to undergo R. I. For one month by the Special Judge-cum-Inquiry Office Anti- corruption, Sukkur.
2. ' The prosecution case in brief was that on 13-8-1971 P. W. Ys Muhammad appeared at Salehpat Outpost to lodge report in connectic with his house being set on fire by Sayed Faiz Muhammad Shah and other Appellant Luqman, Head Constable incharge of the out-post recorded to F. I. R. On a white sheet paper and thereafter reached the scene of offend at about 7 or 8 p.m. On the same day. He contacted the accused on to next day whereafter he told complainant Yar Muhammad that to accused Faiz Muhammad Shah and others had filed a case of cattle trespa against him (complainant) and others and advised him to get the matter decided by one Pir Ali Shah. The appellant also told the complainant that if, however, he paid Rs, 1.000, as illegal gratification, he would challan the accused in the fire case and would not challan him and others in the counter case of cattle trespass but if he did not pay, he would dispose of the fire case as B summary and challan him and others as accused in a cattle trespass case. After negotiations, it was finally settled that Yar Muhammad would pay Rs, 700, on the next day and Rs, 125 on 16-8-71 and the remaining amount on 18-8-71. Yar Muhammad accordingly paid Rs, 700, to the appellant at the outpost in presence of P. W. Shahbazdino and promised to pay the balance on the next day. The appellant informed him that he would be reaching the Ferry of Shahbazdino on the next day where he would take the amount of Rs, 125, from him. Yar Muhammad thereafter, sent Ghulam Haider to inform Anti-Corruption Police about the above incident. Ghulam Haider accordingly contacted P.
3. W. Khaliqdad, Circle Officer, Anti-Corruption, on 16-8-71 at 8 a.m. And lodged the report stating that appellant had already accepted Rs, 700, and was expecting to receive Rs, 125, on 16th and the balance on 18th as illegal gratification and that action be taken against him. P. W. Khaliqdad arranged the trap under the supervision of P. W. Muhammad Bachal, Head Munshi and III Class Magistrate, Sukkur. P. W. Khaliqdad alongwith the Magistrate, the complainant and his staff reached the village of the complainant which was near Shahbazdino Ferry on the Nara Canal.
4. There he gave marked currency notes under a mashirnama to complainant Yar Muhammad in presence of the Magistrate and the mashir Shahbazdino and sent away Head Constable Risaldin and Constable Qudrat Elahi and Sajjad Hussain to the other side of the Nara Canal before arrival of the appellant.
5. ' When the appellant arrived at the ferry as arranged, complainant Yar Muhammad and P. W.
6. Shahbazdino went over to him to make the payment. They however came back and told the Circle Inspector that the appellant had refused to accept the amount of Rs, 125 and was insisting on payment of the entire balance of Rs, 300, and that the appellant had gone to the other side of the canal telling them to bring the amount there. P. W. Yar Muhammad arranged Rs, 150 more and after preparing the fresh mashirnama, noting down the numbers of currency notes P. W. Khaliqdad sent Yar Muhammad and Shahbazdino towards the other side of the Nara canal on a boat. On reaching the other side of the canal, Yar Muhammad and Shahbazdino found the appellant sleeping on a cot. There, complainant Yar Muhammad put the marked currency notes of Rs, 275 in the hands of the appellant. Immediately thereafter, Head Constable Risaldin and constables Qudrat Elahi and Sajjad Hussain, who were hiding behind the bushes at a distance of 10 to 15 paces pounced upon the appellant while he was still holding the tainted money in his left hand. Risaldin and Qudrat Elahi caught hold of the appellant's left arm while Sajjad Hussain caught hold of his right arm and gave a call to the Circle Officer who was sitting on the other side of the Nara canal to reach. On hearing the call, the Magistrate and the Circle Officer came in a boat and secured the marked notes from the hand of the accused which was being held tight by the constable. The Circle Inspector thereafter arrested the appellant and recorded the statement of Yar Muhammad, Shahbazdino, Risaldin, Sajjad Hussain, Qudrat Elahi, Ghulam Haider and of the Magistrate. After completion of the investigation, the appellant was challaned in the Court of Special Judge, Sukkur to stand his trial.
7. ' The prosecution in order to prove its case examined complainant Yar Muhammad, P. Ws. Ghulam Haidar, Shahbazdino, Head Constable Risaldin, Supervising Magistrate P. W. Muhammad Bachal and Circle Inspector Khaliqdad.
8. ' At the trial, the defence of the appellant was one of total denial. He denied that any F. I. R. Was lodged by P. W. Yar Muhammad at the outpost. He also denied that he had demanded Rs, 1,000 from Yar Muhammad out of which Rs, 700 was paid to him and the remaining amount was to be paid to him at the ferry. Explaining about the recovery of the money from him, he stated in his statement under section 342 as under:- "It is all false. The money was foisted on me. On 16th August' 71 I had left police outpost at 9 a.m. For village of Imambux Bhambhoro to inform the witnesses of Case No, 49/71 of fire breaking for their appearance before the S. H.
9. 0., Dubar. While returning from the village of Imambux to the outpost I was having some rest at Saleh Pat Patan and was lying on the cot, when Anti-corruption police came there and foisted this money on me. The Anti-corruption police caught hold of by my legs and hands while I was sleeping on the cot, when the money was foisted on me."
10. ' The appellant also led the evidence in defence and examined Khawand Bux, Ahmed Shah, Amir Bux, Piral Shah, Imam Bux and also produced judgments one dated 26-1-1959 and the other dated 27-10-1953 to show that P. W. Shahbazdino was a previous convict and was therefore not a reliable witness.
11. ' The trial Court relying on the aforesaid evidence led by the prosecution, convicted the appellant and sentenced him as stated above.
12. ' Mr. Imam Ali Kazi, the learned counsel for the State very fairly stated that he would not support the conviction as it was based on the evidence which had all the appearance of fabrication.
13. ' Mr. N. K. Jatoi, the learned counsel for the appellant, contended that the prosecution case was totally false and had been fabricated against the appellant out of enmity. He argued, firstly, that the evidence of P. W. Yar Muhammad that he had gone to Salehpat Outpost to report about setting fire to his house by Sayed is belied by the fact that no such entry was made in the Roznamcha dated 13-8-1971 at Salehpat Outpost and there was no reason, at least at that time, why the appellant should not have made such entry. As to the appellant receiving Rs, 700, from the complainant, the learned counsel contended that it was also false as it could not be believed that Yar Muhammad who had come to complain against his house being set on fire, would have paid Rs, 700 merely because he was only threatened to be prosecuted under the Cattle Trespass Act.
14. ' He next contended that the presence of Head Constable P. W. Risaldin and the other two Constables namely Qudrat Elahi and Sajjad Hussain on the other side of the canal before the arrival of the appellant and the acceptance of the tainted money by the appellant and its recovery from him, as alleged by the prosecution, was also false and fabricated.
15. ' To substantiate his contentions, the learned counsel first argued that it was prosecution's own case that P. W. Yar Muhammad had already settled with the appellant that he would be paid Rs, 125, on that day and the remaining amount on 18-7-1971. Therefore, if the amount was really to be paid to the appellant, there is no reason why he should have refused to accept it when he had agreed to receive the settled amount. Then, it had been settled that Rs, 125 was to be accepted by the appellant on this side of the bank of Nara canal so that the raiding party must have expected that the incident would take place on this side of the bank of the canal and P. W. Head Constable Risaldin and Constables Qudrat Elahi and Sajjad Hussain must have been posted accordingly, as they could not have known from before that the appellant would refuse to accept this amount and when they did not know this, how is it that three constables were sent I hours before the appellant even reached the opposite bank of the canal from where this money is alleged to have been recovered from the appellant. The only possibility, therefore, is that these constables P. W. Risaldin and his companion constables must have reached the vardat after the arrival of the appellant and not before him. Consequently, the prosecution case that these constables had been already posted on the other side of the Canal before the arrival of the appellant was false on the face of it.
16. ' There is considerable force in the arguments advanced by the learned counsel for the appellant.
17. As to the prosecution version that appellant Luqman had demanded Rs, 1,000, from P. W. Yar Muhammad who paid him Rs, 700, on the next day in presence of P. W. Shahbazdino and promised to pay the balance later on, the main evidence consists of P. W. Yar Muhammad himself. He has stated in his evidence that the appellant told him that he would be going at the ferry of Shahbazdino and would take the amount of Rs, 125 from him at that place and that P. W.
18. Shahbazdino had stood surety for him for giving the amount to the appellant. In his cross- examination it was put to him if he had stated in his statement to the police about his paying Rs, 700, to the appellant in presence of P. W. Shahbazdino to which he replied in the affirmative.
19. Investigating Circle Officer, Anti-corruption, however, in his evidence categorically stated that P. W.
20. Yar Muhammad neither stated in his statement to the police that he had given the amount of Rs, 700, to the accused in presence of Shahbazdino nor that P. W. Shahbazdino had stood surety for the amount.
21. ' The next witness is P. W. Shahbazdino cousin of P. W. Yar Muhammad. In his evidence he tried to support P. W. Yar Muhammad in that he had given Rs, 700, to P. W. Yar Muhammad as loan for payment to the appellant and that Yar Muhammad had taken a further loan of Rs, 100, from him when the appellant refused to accept Rs, 125, and demanded full payment of Rs, 300. He was, however, asked in his cross-examination if he had stated about his giving loan of Rs, 700, to Yar Muhammad in the first instance and Rs, 100, in the second instance in his statement to the police to which he replied that he did not remember. P. W. Khaliqdad in his evidence, however, stated categorically that P. W. Shahbazdino had not stated in his statement to the police that Yar Muhammad had taken a loan of Rs, 700 from him in the first instance and of Rs, 100, in the second instance. He also admitted that P. W. Shahbazdino had not stated before him that he stood surety for Yar Muhammad for the payment of Rs, 1,000 to the appellant.
22. ' In view of above glaring contradictions in the evidence of these two witnesses, their evidence is not worthy of reliance and it cannot be said to have been proved that the appellant had demanded Rs, 1,000 out of which he had been paid Re. 700 as has been alleged by the prosecution.
23. Also, the Roznamcha maintained at the Salehpat Outpost does not mention about Yar Muhammad lodging any report. There is no reason why the appellant would not have made the entry if any such report was lodged.
24. ' As to P. W. Yar Muhammad and P. W. Shahbazdino offering Rs, 125 to the appellant, the prosecution evidence is that the Circle Inspector P. W. Khaliqdad and the supervising, Magistrate Muhammad Bachal sat near the house of Shahbazdino, when P. W. Yar Muhammad and Shahbazdino went to pay Rs, 125 to the appellant as previously settled. The appellant, however, refused to accept Rs, 125 and threw it on the ground demanding full payment of Rs, 300, and thereafter left in the boat for the other side of the canal. Thereafter, Yar Muhammad and Shahbazdino came and reported to the Magistrate and the Circle Inspector that the appellant had refused to accept the amount. P. W.
25. Yar Muhammad then arranged Rs, 150 more and, at the instance of Magistrate and the Circle Inspector, left for the other side of the bank of the canal and reached there 15 minutes after the appellant and there paid him this amount. Immediately thereafter P. W. Risaldin and the other two constables, who had already been posted there, pounced upon the appellant and held him tight by both the arms and the hand in which he was holding the money and gave a call to the Magistrate and the Circle Inspector who arrived and saw that one constable was holding him from one arm and the other constable was holding him from the other arm and the third constable was holding tight his hand with the money. According to P. Ws. Yar Muhammad, Shahbazdino and Okularn Haider, it had already been settled was to receive Rs, 125 on that day. If this was so, then it is firstly not understandable as to why the appellant should have refused the amount if he had agreed to accept it. Then, the evidence that P. W. Risaldin and the two constables had reached the other side of the canal 1 4 hours before the appellant arrived there is on the face of it false and cannot be believed. The raiding party had come expecting that the amount of Rs, 125, would be accepted by the appellant on this side of the canal as previously settled and, therefore, must have led the trap on that understanding and must have posted the three constables on this side of the canal, as, admittedly, it was not known to the raiding party, no it has even been alleged that it knew it from before, that the appellant ,vould refuse to accept Rs, 125 from complainant Yar Muhammad; so that, the prosecution case that Head Constable Risaldin and the other two constables namely, Qudrat Elahi and Ghulam Hussain, were posted not on this side but on the other side of the canal before even Rs, 125 was offered to the appellant is on the face of it false. Even P. W. Risaldin in his evidence has said that it took five minutes for a boat to cross over to the other side of the canal and that P. W. Yar Muhammad and Shahbazdino reached 15 minutes after the arrival of the appellant. This means that in all 20 minutes were taken from the time the appellant refused to accept Rs, 125, and the time when Rs, 275 were paid by Yar Muhammad to the appellant. How is it then that P. W. Risaldin and the other two constables, had themselves reached 1 hours before the incident, when it was admittedly not known to the raiding party that the , appellant would refuse to accept Rs, 125 in the first instance. The posting of P. W. Risaldin and other two constables I 4 hours before the reaching of the appellant would be consistent only with the suggestion that the raiding party already knew that this amount would be refused by the appellant and that he would demand full amount to be paid to him on the other bank of the Nara canal where these constables would catch him while accepting the amount. If this be so, then the version that complainant Yar Muhammad and P. W. Shahbazdino offered Rs, 125 to the appellant which he refused to accept and demanded full payment of Rs, 300 where after Yar Muhammad had to arrange Rs, 150 more to be paid to the appellant becomes false on the face of it and alongwith it, the evidence of Circle Inspector, P. W. Khaliqdad and the Supervising Magistrate P. W. Muhammad Bachal who have subscribed to that version. Mr. Imam Ali Kazi, the learned counsel for the State, therefore, rightly conceded that the three constables must have left for the other side of the canal after the appellant had left and not before. This being so, the prosecution case that P. W. Risaldin and the two Constables Qudrat Elahi and Sajjad Hussain had already concealed themselves behind the bushes and saw the appellant arrive on the other side of the canal followed by P. W. Yar Muhammad and Shahbazdino after 15 minutes where after the latter paid him (the appellant) the money immediately on their arrival is also proved to be false. What is then left of the prosecution case is the actual recovery of the tainted money from the appellant. The argument of the learned counsel for the appellant was that the tainted money was not recovered from the appellant but was foisted on bim. Mr. Imam Ali Kazi, the learned counsel for the State, conceded that the manner in which the money is shown to have been recovered from the appellant clearly shows that it was thrust upon and foisted on the appellant. I fully agree with him. The prosecution evidence in this respect is that the appellant was lying down on a cot when the money was paid to him by P. W. Yar Muhammad whereafer Risaldin and other two constables who were hiding themselves in the bushes, pounced upon him and held him tight from both the arms and the hand and gave a call to the Circle Inspector and the Supervising Magistrate sitting on the other side of the canal who heard it and arrived at the vardat and saw that two constables were holding the appellant by his arm while the third one was holding tight bis hand with money.
26. ' Now, in the first instance it is difficult to believe that having accepted the tainted money and having lay down on the cot, he would still be holding it in his hand. Then P. W. Risaldin has said that they were at 10 to 15 paces from the place where the appellant was lying on a cot, which must have taken the witnesses at least 1 to 2 minutes to cover the distance and reach the appellant. It is rather difficult to believe that the appellant being awake and seeing P. W. Risaldin and others running, towards him, he would still be holding the money in his hand and would not have thrown it on the ground or in the canal if he had really accepted it from Yar Muhammad. Then, the very manner in which P. W. Risaldin and the two constables had held the appellant clearly suggests that prosecution witness out of sheer were bent upon foisting this money on the appellant, the following extracts of the evidence of P. W. Muhammad Eachal Supervising Magistrate, P. W. Khaliqdad and P.
27. W. Yar Muhammad may be referred to in this connection.
28. ' P. W. Muhammad Bachal.
29. "The accused was lying down on a cot kept on the bank of the canal and the constables were holding his hands containing the tainted money. In all there were three Anti-corruption employees and one was holding his arm on one side and another was holding his another arm on the other side and the third one was holding his hand containing the tainted money."
30. ' After on in his cross-examination he further admitted that "One Head Constable was sitting on the legs of the appellant while he was lying on the cot."
31. ' P. W. Khaliqdad.
32. "The accused had tainted money in his left hand and Constables Risaldin and Qudrat Elahi were holding his hand which was closed. They were not allowing the accused to move in any way."
33. ' P. W. Yar Muhammad.
34. "Two constables caught hold of the accused by the hand in which he was holding money and one constable caught hold of his other hand."
35. The above evidence leaves no room for doubt that the raiding party having made the appellant helpless had foisted the tainted money on the appellant. In any case. In view of the above evidence, possibility of the defence of the appellant that the money was not accepted by him but was foisted on him cannot be ruled out. The learned trial Judge has not taken into consideration the above aspects of the case in their proper perspective while appreciating the evidence led by the prosecution.
36. ' For the aforesaid reasons, I have no hesitation in holding that the prosecution has failed miserably in proving its case against the appellant. I, therefore, allow this appeal, set aside the conviction and the sentence passed on the appellant and acquit him. The appellant is on bail, his bail bonds stand discharged.