1. By this appeal the appellants have challenged the judgment passed by the learned Special Judge, Anti-Corruption (Provincial), Hyderabad in Special Case No.65 of 1987.
2. According to the facts of the case the Circle Officer Anti-Corruption Establishment, Hyderabad had sent up the present appellants to the Court for trial on 11-8-1987 under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act II of 1947, hereinafter referred to as the Act. In this case the F.I.R. Was lodged by one Lalchand at the A.C.E. Police Station, Hyderabad on 17-7-1984 to the effect that Subedar Muhammad Sharif of Nasarpur Police Station had arrested his brother Neno who was kept in wrongful confinement and that the said S.H.O. Was demanding Rs.25,000 from the complainant which was ultimately reduced to Rs.2,200. Such F.I.R. Was registered by the Circle Officer and he then procured the witness Ghulam Nabi Memon the then Mukhtiarkar and F.C.M., Hyderabad and ultimately, formed a trap party. The circle officer then with others went to Nasarpur in a Suzuki vehicle where they reached at about 1-30 p.m. At that stage the complainant was introduced to the circle officer and the Magistrate who was supervising the trap and the contents of the F.I.R. Were got verified from him. One of the members of the trap party namely S.I. Mulazim Hussain had brought P.W. Muhammad Qasim to act as Mashir in the case. The amount was given to the complainant for onward transmission to the accused. It is said that trap party kept themselves concealed while the complainant and the Mashir Muhammad Qasim went to the police station where they found appellant Motan Head Constable sitting with one P.W. Abdul Jabbar Memon and it is alleged that after having paid the money the Mashir signalled the trap party who pounced upon the accused and recovered the money from P.W. Abdul Jabbar who stated that appellant Motan had given this money to him for counting. The trap report was prepared and after usual investigation the case was sent up for trial against both the appellants and the charge was framed when the above said sections of the Act to which the appellants pleaded not guilty and claimed trial. The prosecution examined 15 witnesses and also gave up five witnesses. The trial Court after hearing the arguments of the parties was pleased to pass the impugned judgment and convicted and sentenced the appellants to suffer R.I. For 3 months each under section 343, P.P.C. Read with section 34, P.P.C. And to pay a fine of Rs.500 or in default to suffer further R.I. For three months. The appellants were also awarded identical sentences by convicting them under section 5(2) of the Act. Being aggrieved the appellants have preferred this appeal.
3. I have heard the `learned counsel for the appellants as well as Mr. Abdul Ghani Memon, Advocate appearing for the State. The points for determination in this case are:-- "(1) Whether the accused in collusion with each other or in furtherance of their common intention wrongfully confined P.W. Nenomal at P.P. Nasarpur from 15-7-1984 to 17-7-1984?
(2) Whether accused Muhammad Sharif being a public servant agreed to accept from complainant Lalchand for himself gratification of Rs.2,200 other than legal remuneration, as a motive or reward for releasing Nenomal brother of complainant Lalchand from his wrongful confinement?
(3) Whether accused Motal Khan being a public servant agreed to and actually accepted a sum of Rs.2,200 from complainant Lalchand as gratification other than legal remuneration from himself or for S.I. Muhammad Sharif, as a motive or reward for releasing Nenomal from the wrongful confinement?"
4. Learned counsel for the appellants has submitted that this is a case, which, on the face of it suffers from material irregularities and can certainly be said to be a case of no evidence. At the very outset counsel has pointed that though the present appellant Muhammad Sharif the then S.H.O. Of Nasarpur Police Station has been tried and convicted but there is no iota of evidence against him.
5. Admittedly he was not present at the police station at the time when the amount is alleged to have been handed over to the appellant Motan nor the said Motan or P.W. Abdul Jabbar, from whom the money has been recovered, have made any statement that they had received the amount for or on behalf of appellant Muhammad Sharif. Mere word of complainant by itself would not be sufficient to pass the conviction of any such matter where the prosecution has not been able to prove their case even against other appellant. Accordingly, I find that the prosecution has miserably failed to bring home the charge against the appellant Muhammad Sharif.
6. As regards the appellant Motan, the learned counsel for the appellants has pointed out to one glaring irregularity i.e. The same person (City Mukthiarkar and F.C.M., Hyderabad) has acted as the Magistrate supervising the trap and has also drafted and submitted the trap report while he has also acted as a Mashir in the case. The learned counsel for the appellants has then pointed out that in the present case according to the prosecution the amount was handed over to H.C. Motan in presence of Mashir Muhammad Qasim and that this Motan had handed over the amount to P:W.
7. Abdul Jabbar. The said Mashir Muhammad Qasim does not support this contention of the prosecution. He has categorically stated that no amount was paid in his presence. The other witness Abdul Jabbar in his evidence has stated as under: -- "I was talking with Jamadar and he was going through my application when one boy came there and asked about Subedar. The Jamadar told him that the Subedar is not there. Then the boy asked Jamadar Motan to take from him the money as Amanat. The Jamadar asked the boy to bring Gul Kakepoto and give the money to him by himself, whereupon the boy went away but he came back and told the Jamadar that Gul was not available. Thereafter, the boy gave back money to me for counting but just then there was the raid of Anti-Corruption Police. They beat me, snatched the money from me and arrested me. They made me sit in the car. I was taken to the Anti-Corruption Office and was confined there."
8. The above piece of evidence would not only show that no such amount had been passed to the hands of appellant Motan but factually this P.W. Abdul Jabbar was made an accused and treated as such but subsequently for the reasons best known to the prosecution he was converted and assigned the role of a witness. It may also be observed that according to the entire evidence brought on record not a single witness had seen the money passing from the hands of the complainant to those of the appellant Motan including the Motan support the claim.
9. In view of the above discussion I am of the view that the prosecution has utterly failed to prove the case against any of the appellants. Accordingly I allow this appeal, set aside the judgment, conviction and sentence. The appellant is on bail his bail bonds are cancelled.