1. ' This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption at Sukkur, whereby he, on 25-8-1987, convicted the appellant and sentenced him on the first count to suffer R.I. For six months and on the second count to suffer R.I. For one year and to pay a fine of Rs,500 or in default to further undergo R.I. For six months and both sentences of imprisonment to run concurrently.
2. ' The facts of the case are that the appellant was a police constable and, according to the prosecution, was posted at Sui Gas Check Post in District Khairpur in May, 1985 and on 10-5-1985, the appellant along with Constable Daud Ali went to the Autaq of complainant Sultan Ahmed and took him away to Sui Gas Bus Stand on the pretext that a Tali tree lying at the saw mill of Muhammad Ramzan was stolen property. The said Sultan Ahmed was confined wrongfully in a room. When his relative Muhammad Waris approached the appellant, he demanded an illegal gratification of Rs,500 for the release of Sultan Ahmed. Ultimately the appellant agreed on payment of Rs,150, out of which Rs,100 was paid to the appellant and the balance was promised to be paid within couple of days. On 13-5-1985, Constable Daud Ali demanded the balance amount from Muhammad Waris, complainant Sultan Ahmed reported the matter to Anti-Corruption Establishment, Khairpur, where his F.I.R. Was recorded by Circle Officer Noor Muhammad Solangi.
3. ' After registration of crime, the Circle Officer arranged a trap against the appellant and obtained the services of Mukhtiarkar and F.C.M., Kotdiji and making Muhammad Waris as Mashir. According to the prosecution case, tainted money of Rs,50 was forwarded to the appellant by the complainant at the time of trap which was recovered in presence of the Magistrate and Mashir from the right side pocket of shirt of the appellant, in addition to his black glasses and identity card issued by Superintendent of Police, Sanghar. On completion of investigation and sanction for prosecution, the appellant was brought to trial.
4. ' In support of the case, the prosecution examined Sultan Ahmed as P.W.1, Muhammad Waris as P.W.2, Arbab Ali Dinnari as P.W.3 and Noor. Muhammad Solangi as P.W.4. The appellant in his statement under section 342, Cr.P.C., recorded by trial Court, denied the allegations and complained that this case is outcome of enmity and that the complainant and Mashir Muhammad Waris are related to each other and no independent person from the place of recovery has been cited as witness against him. He examined one Ghulam Muhammad Shah, a witness, in his defense. The trial Court framed two points for determination, one relating to wrongful confinement of Sultan Ahmed in appellant's quarter and the other of accepting illegal gratification of Rs,100 on 10-5-1985 and Rs,50 on 14-5-1985 from Muhammad Waris and Sultan Ahined. The trial Court decided the points against the appellant and convicted him on both counts as above.
5. ' I have heard the learned counsel Mr. Sher Muhammad Baloch for the .Appellant and Mr. Khadim Hussain for the State.
6. ' The learned counsel for the appellant submitted that the prosecution has not been able to prove beyond reasonable doubt that the tainted currency notes were received by the appellant as illegal gratification. None of the witnesses has deposed about hearing any conversation between the appellant and the complainant before the tainted currency notes changed hands. The counsel argued that the notes do not show any specific marks. According to the complainant, the tainted money was paid to the appellant at the hotel of Muhammad Sharif, where the trap was arranged but neither Muhammad Sharif nor anyone else from there has been cited as witness to prove this.
7. Mashir Muhammad Waris has stated in his deposition that it was Muhammad Waryam who informed the trap party about the passing of the tainted money to the appellant and he also admitted that his signature on the Mashirnama was obtained at Khairpur.
8. ' Mr. Sher Muhammad Bloch argued that Arbab All Dinnari, Mukhtiarkar and F.C.M., Kotdiji, had deposed at trial that at 6-00 p.m. Mashir Muhammad Waris informed them that the appellant was present at the hotel of Muhammad Hanif, situated at the Bus Stand. He then sent complainant and the Mashir to pass on the tainted money to the appellant and after five minutes Mashir Muhammad Waris came and told them that the appellant after accepting the tainted money has kept it in his right side pocket of his shirt. He and Circle Officer went to the hotel of Muhammad Hanif where complainant was already sitting and after introducing themselves, he secured tainted money of Rs,50 from his personal search. From this, according to the learned counsel, it appears that the actual passing of tainted money has neither been witnessed by the raiding Magistrate nor by the Circle Officer and no conversation of delivering tainted money to the appellant has been heard by the trap party, therefore, the conviction is not sustainable in law. He referred 1986 PCr.LJ 2273 and 2575 and 1994 PCr.LJ 675 and 2356.
9. ' Mr. Khadim Hussain, the learned State Counsel conceded to the above contentions of the learned counsel for the appellant and raised no objection to the setting aside of the appellant's conviction.
10. ' I have considered the submissions made by the learned counsel for the appellant with due care and caution. From the perusal of statements of complainant Sultan Ahmed, Mashir Muhammad Waris and Arbab Ali Dinnary, Mukhtiarkar and F.C.M., Kotdiji, recorded at trial, there appears a controversy as to the hotel, where the tainted money is said to have been forwarded to the appellant, belongs to Muhammad Sharif or Muhammad Hanif. None of these two has been examined to testify this contradiction. Who either of the two, i,e, Muhammad Waris or Muhammad Waryam informed the trap party about the passing of tainted money to the appellant, is shrouded in mystery. The evidence of Mashir Muhammad Waris that his signatures were obtained on Mashirnama at Khairpur, makes the case of prosecution more doubtful. It is also evident that the Magistrate and the Inspector had not heard any conversation between the appellant and the complainant before the tainted money notes were handed over to the appellant by the complainant. Therefore, no implicit reliance could be placed on the word of the complainant alone regarding the demand and acceptance of illegal gratification by the appellant as bribe. From the deposition of Mukhtiarkar and F.C.M., Kotdiji, it is apparent that neither he nor the Inspector had actually seen the passing of tainted money to the appellant. He has clearly deposed that Mashir Muhammad Waris came to them and told them that the tainted money has been handed over to the appellant by complainant Sultan Ahmed who is sitting at the hotel of Muhammad Hanif. In a case where neither any conversation between the complainant and the appellant before the tainted A money notes changed hands is heard nor the actual passing of the same is witnessed by the raiding Magistrate and the Circle Officer, Anti-Corruption Establishment, it is quite unsafe to base conviction on the mere words of the complainant. In the cases of Muhammad Ejaz v. The State 1986 PCr.LJ 2575 and Sultan Ahmed v. The State 1994 PCr.LJ 2356, the Lahore High Court had allowed the appeals exactly under the similar circumstances of the present case.
11. ' Therefore, pursuant to the above discussion the present criminal appeal is hereby allowed and the impugned judgment is set aside. The appellant is on bail. His bail bonds stand discharged accordingly.