Briefly stated the facts of the prosecution case are that the appellant who is a Building Inspector of Karachi Municipal Corporation, went to the house of complainant Ghulam Murtaza, who is a tenant of Wall Muhammad Shah on 12-11-1968 and is alleged to have accused Ghulam Murtaza of making unauthorised construction on the first floor of the house in his occupation at Paposhnagar and demanded of the complainant to show him the approved plan. The story then is that the complainant Ghulam Murtaza or Wali Muhammad Shah, the owner of the house, did not show him the sketch and stated that they had no sketch, whereupon the appellant demanded a bribe of Rs.
500 from the complainant for condoning illegal construction. The complainant agreed to pay the amount and it was arranged that the appellant was to come to the house of the complainant the following day and obtain the money.
Complainant Ghulam Murtaza lodged a report with the Anti-Corruption Establishment at Karachi at 12-30 p.m. On 13-11-1968 whereafter the services of two mashirs namely, Mushtaq and Waheed were secured by Investigating Officer Abdul Rahman. Magistrate Muhammad Urs was requested to supervise the trap in regard to payment. The complainant together with the trap party proceeded to the house in question at Paposhnagar, Karachi, and, thereafter, the two conflicting versions in the prosecution case are that the complainant alongwith mashir Mushtaq went inside the room where the appellant was sitting alongwith Wali Muhammad Shah and the second version is that complainant Ghulam Murtaza went alone in the house and the remaining members of the raiding party waited outside the house. The bribe money was passed on to the appellant and on the arranged signal being given to the raiding party, it entered the room where the appellant was and it is stated that on seeing the raiding party the appellant threw the tainted money on the ground. It is stated that the five currency notes had in the meantime been wrapped in a piece of paper.
2. On success of the trap, the appellant was arrested and on completion of the investigation he was sent up to stand his trial. At the trial the prosecution examined Wali Muhammad Shah, the owner of the house who had paid the bribe money ; Mushtaq, the mashir who assisted the Police in the raid ; Muhammad Urs, the Magistrate, who supervised the trap and Abdul Rahman, the Investigating Officer. While the appellant examined no witness in his defence, in his statement under section 342, Cr. P. C. He admitted having gone to the house of Wali Muhammad Shah on 12- 11-1968 and having enquired about the approved plan. He went on to explain that Wali Muhammad Shah told him that he did not have the approved plan available with him and would be able to show the plan on the next day so that as per arrangement he went to the house ,of Wali Muhammad Shah for the purpose of inspecting the approved plan and it was at that time that the tainted money was foisted on him.
The appellant was convicted and the appeal came up for hearing before me on 8-2-1974. Mr. Ahsanul Haq Kureshi made a grievance that complainant Ghulam Murtaza was available and had been withheld by the prosecution. I had under these circumstances directed the Special Judge to record the evidence of Ghulam Murtaza in pursuance of provisions under section 428, Cr. P. C. On such remand the learned Special Judge had made efforts to secure the presence of Ghulam Murtaza but the established position on record is that the latter has left Pakistan and is not available. The approved plan in favour of Wali Muhammad Shah has also been proved through Ghulam Muhammad, another Building Inspector of the K. M. C. And such approved plan shows that the construction on the first floor of the house was in accordance with the authorization of the K. M.
C.
3. The report in this case was lodged by Ghulam Murtaza and he has not been examined. In the report it had been stated by Ghulam Murtaza that, the bribe money will be paid by him to the appellant and in fact the tainted money had been entrusted to Ghulam Murtaza for the purpose of payment to the appellant. For some reason, best known to, the prosecution and not calling for an explanation of the appellant, Ghulam Murtaza was not examined but Wali Muhammad Shah was examined in Court who gave an entirely different version in regard to the transaction. In fact the initial arrangement was that Ghulam Murtaza was to pay the amount and Wali Muhammad Shah has stated in his cross-examination that the appellant did not demand any approved plan from them. Under such circumstances it appears to be highly doubtful if Wali Muhammad Shah was either asked to pay any amount or had agreed to pay the bribe money to the appellant. What is more that Wali Muhammad Shah had an approved plan in his favour and for such reason there was no necessity for him to have paid the amount of bribe to the appellant.
4. In regard to the actual passing of the amount there are circumstances which reduce the probative force of the prosecution evidence. The consistent case of the prosecution is that five notes of one hundred rupees each were handed over to Gnulam Murtaza for payment to the appellant. Although Wali Muhammad Shah had denied that at the time of recovery these notes were found to be folded in a piece of paper there is suffcient material on the record to show that to such extent the evidence of Wali Muhammad Shah was not true. The Investigating Officer, the Magistrate and the mashirnama of recovery clearly show that when the amount was recovered the same was found folded in a piece of paper. No explanation whatsoever has been offered by the prosecution in regard to the fact of folding of the currency notes in a piece of paper or the reason therefore. In solemn proceedings undertaken to catch a Government servant with tainted money, one cannot overlook the circumstance of tampering with the tainted money given to the complainant for being passed on to the accused. In the present case since the notes had been folded in a piece of paper a reasonable probability exists, indicating that the tainted money was attempted to be passed on to the appellant as some document which the appellant innocently obtained. Even the learned State counsel has not been able to give any explanation in regard to such strange conduct of the complainant in folding the tainted money in a piece of paper. This circumstance had been over--looked by the trial Court and is not easily susceptible of an explanation.
There are further circumstances to indicate that the prosecution story suffers from infirmities in regard to the presence of the witnesses in the room next adjoining the room where the complainant had paid the tainted money to the appellant. In that context Wali Muhammad Shah had stated while Ghulam Murtaza had come to the room where he was sitting with the appellant, the raiding party was outside the house. Mashir Mushtaq, who on his own showing, has dealings with the Police because he is dealing in obtaining driving licences, has on the other hand stated that he had gone with Ghulam Murtaza to the room where the appellant was sitting and to such extent Wali Muhammad Shah has given a contradictory version. Magistrate Muhammad Urs has stated in his evidence that he sat in the room adjoining the room occupied by the complainant and the appellant. In like strain is the evidence of Investigating Officer Abdul Rahman. If the version of the prosecution in regard to the trap party being fin the adjoining room is accepted, I would normally expect the prosecution to have produced evidence in regard to over-hearing the conversation between the complainant and the appellant. In such regard neither Mushtaq nor Abdul Rahman has given any evidence but Magistrate Muhammad Urs had stated that he could hear the talk between the complainant and the appellant. Denying the statement that he had made; in the very next breath, he went on to state as follows ---I heard some discussion from the room of accused but I could not understand its nature, I cannot say if there was some talk about some papers and plan between the accused and complainant. The accused and complainant were talking in ordinary way. I. Am not able to re- collect the nature of the talk between accused and complainant due to lapse of long time.--- It would thus appear that in spite of the Magistrate stating that he overheard the talk he was unable to state anything in regard to what transpired between the complainant and the appellant.
Absence of such evidence in these circumstances assumes importance because the tainted money in this case has been found to have been folded in a piece of paper and there is likelihood of the tainted money having been passed on to the appellant under a pretence.
There is a further circumstance in the evidence which cannot be overlooked. Mashir Mushtaq had stated in his evidence that the tainted money was given to the appellant by complainant Ghulam Murtaza but Wali Muhammad Shah gave a different version that he handed over the tainted money to the appellant. Although he bad gone on to explain that initially the tainted money had been passed on by the complainant to him, such explanation in my view had become necessary because Ghulam Murtaza had not been examined. In any case the contradiction is of a serious nature.
5. To sum up, I am of the view that the prosecution having failed to examine Ghulam Murtaza, the folding of tainted money in a piece of paper having remained unexplained, total absence of evidence in regard to overbearing of talk between the complainant and the appellant ; divergent version in regard to availability of witnesses whether in the room or outside the house; are circumstances which have rendered the case against the appellant doubtful. I, therefore, set aside the conviction and sentence imposed on the appellant by the trial Court and acquit him. The appellant is on bail and his bail bond shall stand cancelled. The appellant need not surrender.