1. ' Ghulam Rasool son of Karim Bux Dayo, Tapedar posted at Tapo Biro Chandio, Taluka Larkana and Bachal Shah son of Qalab All Shah working as Kotwar Tapo Biro Chandio, Taluka Larkana were tried by Special Judge, Anti-Corruption, Sukkur for an offence under section 161/34, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, II of 1947. Both were found guilty of the offence and were sentenced to undergo R.I. For one year each and to pay a fine of Rs,500 each or in default of payment of fine to undergo further R.I. For three months each. Both the accused have filed this appeal under section 410 of the Code of Criminal Procedure against their conviction and sentence.
2. ' According to the prosecution story appellant Ghulam Rasool was serving as Tapedar in Tapa Biro Chandio, Taluka Larkana whereas appellant No,2 Syed Bachal Shah was his Kotwar. One Muhammad Ishaque the complainant approached the appellant Ghulam Rasool for mutation of Khata on the basis of a registered sale-deed. The appellant Ghulam Rasool demanded illegal gratification of Rs,800 but the matter was settled at Rs,500. The complainant Muhammad Ishaque paid Rs,100 to the appellant Ghulam Rasool whereas remaining amount of Rs,400 was to be paid by the complainant on the next day. The complainant then approached the Circle Officer Anti- Corruption, Larkana and lodged the F.I.R. Thereafter, a trap party was arranged under the supervision of IIIrd Class Magistrate. On the fixed place and time the complainant paid the remaining amount of Rs,400 to the accused Ghulam Rasool who passed it to his Kotwar Bachal Shah. Thereafter, the amount was secured by raiding party and challan was submitted before the Court of Special Judge, Anti-Corruption, Sukkur where charge was framed against the accused persons and after recording the evidence of prosecution witnesses both the appellants were convicted as stated above.
3. ' I have heard the arguments of the learned Advocate Mr. Muhammad Nawaz Chandio for the appellant and learned Advocate Mr. Essardas appearing on behalf of the State and has perused the entire record of this case.
4. ' The contentions of the learned Advocate Mr. Muhammad Nawaz Chandio are that the tainted amount was not shown to the witnesses at the time of their examination and secondly that the said amount was not put to the accused at the time when they were examined under section 342, Cr.P.C. Thirdly that prosecution has failed to establish that the tainted amount was passed to the accused persons in the presence of the Magistrate and raiding party, or that they heard the conversation between the complainant and the accused whereas one of the witnesses namely Nematullah has admitted that the amount given to the accused was the amount for payment of land revenue assessm ent, therefore, the conviction awarded to the accused persons is illegal. In support of his contention learned Advocate has placed his reliance on following reported cases:
(1) Allah Diwayo v. The State 1973 PCr.LJ 1036.
(2) Abdul Razaque Rathore v. The State PLD 1992 Kar.
5. 39.
(3) 1985 M LD 139.
6. ' On the other hand the learned Advocate Mr. Essardas appearing on behalf of the State has submitted that the complainant and the witnesses examined by the prosecution have fully supported the case of the prosecution and further that the stand taken by the accused persons that the amount was towards the payment of land revenue has not been proved by the accused persons through any evidence as neither any record was produced nor any document was filed by the appellants.
7. ' In order to appreciate the contention of both the learned Advocates for the parties it would be proper to first examine the evidence of the Magistrate in whose presence the trap was arranged and the appellants/accused were arrested to see whether the Magistrate and the witnesses have heard the conversation between the complainant and the accused persons or that they actually saw the passing of the tainted money to the appellants.
8. ' Prosecution examined Muhammad Sulleman who was posted as Assistant Mukhtiarkar and T.C.M., Dokri on 22-7-1986 when at about 1(1-00 a.m. Additional Circle Officer, Larkana approached him with a request to accompany him for a secret duty, therefore, he accompanied with the Circle Officer, Larkana and was introduced to complainant Muhammad Ishaque in the Circle Office and the F.I.R. Was read over to them by the Additional Circle Officer and one Mashir Nematullah Murree was also brought by the Additional Circle Officer. The Additional Circle Officer noted the serial numbers of currency notes of Rs,400 and prepared a Mashirnama in his presence and thereafter the amount was handed over to the complainant for passing on to the appellant/accused Ghulam Rasool, Tapedar. Then the raiding party proceeded towards the Taluka Officer, Larkana, while complainant and Mashir went to the office of the Mukhtiarkar, whereafter the Magistrate and, Sher Muhammad the Additional Circle Officer, Larkana waited in a mosque of the Civil Hospital and the other staff of the Anti-Corruption Police took positions at different places and after a short while complainant informed the raiding party that he had passed on the tainted money to accused Ghulam Rasool who had given the amount to his Kotwar and when they were on the way to the Mukhtiarkar's Office when Mashir Nematullah met them outside the office of C.I.A. Who narrated the same facts.
9. ' Then the raiding party went to the Tapedar Hall in the Taluka Office where accused Ghulam Rasool was present alongwith his Kotwar Bachal Shah. Then the raiding party introduced themselves to the accused persons and enquired about the tainted money when Bachal Shah produced the same from his possession and after securing the money they compared the serial numbers with the numbers noted in the first Mashirnama and thereafter Circle Officer secured same register and register of sale-deed from the table lying in front of the accused Ghulam Rasool.
10. Thus, from the statements of the Magistrate it would be seen that the Magistrate who was member of the raiding party did not see the passing of the tainted money to the appellants and also did not hear the conversation between complainant and appellants. During the cross-examination this witness has disclosed that the mosque of Civil Hospital is about 100 paces away from Taluka Office and there is a boundary wall between Taluka Office and mosque as such it is presumed that the Magistrate would have not heard the conversation between complainant and the appellants and also did not see the passing of tainted amount. The Magistrate has also not stated in his examination-in-chief that either he has heard the conversation of the parties or had seen the passing of amount to the appellant. The Magistrate has also disclosed that when the accused was taken to the Circle Office in Jeep they disclosed that the amount collected was by way of land revenue assessm ent. From the perusal of the deposition of the Magistrate it would be seen that the tainted amount which was recovered from the possession of the accused in his presence was not shown to him when he was being examined before the Court. The defence put forward by both the appellants from the very beginning is that the amount of Rs,400 was towards the payment of land revenue tax by the complainant Muhammad Ishaque. It has been held time and again that mere recovery of the tainted money from the accused's possession is not enough to fix him with the guilt of having received bribe unless it can be shown to have actually accepted the same with the knowledge that it is illegal gratification. C Number of questions in this regard were put to the witnesses that the amount of Rs,400 was lying on the table in the hall all the Tapedars sit which hall is also called Tapedars Hall.
11. The complainant of this case Muhammad Ishaque was examined by the trial Court on 27-9-1987.
12. From the perusal of the examination-in-chief it reveals that the tainted notes of Rs,400 were even not shown to him to certify or to ascertain whether these were the same notes, the number of which were noted by the Magistrate and the Additional Circle Officer. This appears to be gross negligence on the part of the prosecution. Similar is the deposition of witness Nematullah which shows that the tainted currency notes were not shown to him while he was being examined before the Court and most important point to note is of the cross-examination of this witness in which he has admitted that he and complainant live in a common village and complainant was known to him before the incident. He further disclosed that he went into the office of the accused Tapedar, but he was busy with his work. He has also disclosed that it is correct that Muhammad Ishaque kept the currency notes worth Rs,400 on the table lying in front of accused Tapedar saying that it was the amount towards the payment of land revenue assessment and other charges. He has further disclosed that the complainant further stated that he would bring the balance amount after a shortwhile and collect the documents. It, therefore, appears that the plea taken by the accused persons that the amount of Rs,400 was towards the payment of land revenue assessment has been accepted by the witnesses of the prosecution which has placed shadow of doubt on the entire case of prosecution. This witness has also admitted that he is the friend of the complainant Muhammad Ishaque, therefore, I see that even prosecution was not able to prove its case against the accused persons before the trial Court. On the basis of this doubt I am of the opinion that the prosecution was not able to prove its case against the accused persons as the doubt has arisen whether the amount was towards the payment of land revenue tax or it was amount to be paid to the appellant as illegal gratification. This doubt was created by the witnesses of the prosecution.
13. In view of the above discussion both the appellants are entitled for their acquittal. I, therefore, set aside their conviction awarded under the impugned judgment and allow their appeal. They are on bail, their bail bonds stand cancelled and sureties discharged.