' The appellants have been convicted by Special. Judge-eum-Enquiry Officer, Anti-Corruption, Hyderabad of offence under section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and they have been sentenced to simple imprisonment for six months and a fine of Rs, 500 or in default further R. I. For 2 months and to S. I. For four months and fine of Rs, 200 or in default further R. I. For one month, respectively.
2. The appellant Abdul Shakoor was an Overseer working in Building & Road Store Sub-Division, Hyderabad. Appellant Muhammad Iqbal was working under him as Mistry. One Abdul Hadi had taken the contract of transporting cement bags from the cement factories at Karachi to the B & R Store at Hyderabad. One Ghulam Hussain worked for him as Munshi. On 16-6-1967 16 trucks of cement were delivered by Munshi Ghulam Hussain at the stores, Appellant Iqbal gave him the receipt for 13 trucks only and when Munshi Ghulam Hussain demanded the receipt for 3 trucks more he was referred to the Overseer appellant Abdul Shakoor. Abdul Shakoordemanded Rs, 500 for himself and Rs, 200 for Mistry Iqbal before giving him the receipt'of the three trucks.
MunshrGhulam Hussain informed Contractor Abdul Hadi regarding the same. Meanwhile the demand was reduced from Rs, 700 to Rs, 450. Anti-Corruption Police were informed and a trap was organized. Mr. Sarang Ram Kela, Mukhtiarkar and F. C. M. Was deputed by the A. D. M. 'to supervise the trap. The 'statement of the complainant was recorded and the Mashirnama of marked currency notes of Rs, 450 was prepared. Munshi Ghulam Hussain along with the Mashir went to the store where one clerk Ghulam Hussain who happened to be there stopped the Mashir at the gate but allowed complainant Ghulam Hussain to go inside. The complainant gave the marked notes of Rs, 450 to Abdul Shakoor and also give him the three delivery vouchers for his signature. Appellant Abdul Shakoor kept them in his pant pocket and said that he would sign the receipt afterwards. He then saw the Police party and the Magistrate approaching. He accordingly took out the marked notes from his pocket and passed them on to clerk Ghulam Hussain who was standing there with instruction to disappear with the money. Clerk Ghulam Hussain was seen running and he was chased by the Magistrate and Anti-Corruption Police. He was eventually caught and the marked currency of Rs, 450 were recovered from the pocket of clerk Ghulam Hussain. The three truck delivery vouchers were recovered from the pocket of appellant Abdul Shakoor. After obtaining the necessary sanction the police sent up the two appellants and clerk Ghulam Hussain in Court of the Special Judge. Ghulam Hussain clerk was acquitted as he had nothing to do with the receipt of the bribe but the Overseer and the Mistry i. e. The two present appellants were convicted and sentenced as above.
3. It has been argued by Mr. Naimatullah Qureshi on behalf of the appellants that they have been falsely implicated by the contractor in this case. That it was the condition of the contract that the cement supplied by him would be stacked in the godown by coolies employed by the contractor; that the contractor Munshi had got the trucks unloaded and the cement bags were kept in the open compound for want of sufficient labour; that it had rained and most of the cement got spoiled for which the contractor had to pay damages amounting to Rs, 3,400. Mr. Qureshi has then argued that the statement of the appellants recorded by the Magistrate at the time of the trap could not be admitted as these statements were in the nature of confessions. He has also argued that against appellant Iqbal there is only the word of the complainant regarding demand of the bribe and this fact has not been corroborated by any other evidence.
4. The defence has relied upon the report made to the Executive Engineer, Exh, 35 that 16 truckloads of cement were delivered at the store on 16-6-1967 and the receipt was passed only for 13 trucks because the cement had been left in the compound and the bags had not been stacked inside the godown. This renort Exh. 35, however, shows that only 5 truckloads of cement had been stacked inside the godown and the remaining 11 truckloads of cement had been left outside in the open space. The Assistant Stores Officer, therefore, directed the Overseer to pass the receipt for the same which had been stacked inside the covered godown only. If this letter of the Assistant Stores Officer is to be believed then it does not explain why the receipt for 13 truckloads was passed on instead of for 5 truckloads as ordered by the Assistant Stores Officer. There is also no explanation for acceptance of the three delivery vouchers by Abdul Shakoor at the time of the trap when these vouchers were refused on the day of delivery.
5. On the other hand there is evidence of Mr. Sarang Ram Kela, Mukhtiarkar and Magistrate that he actually saw appellant Abdul Shakoor at the gate of the store; that he saw complainant Ghulam Hussain giving him the money and the receipt vouchers which Abdul Shakoor put in his pocket. He and Circle Inspector got down from the jeep and proceeded to the gate when they saw Abdul Shakoor passing on the money to clerk Ghulam Hussain who started running. They chased him and caught him at a distance of 45 paces. On search the tainted money was recovered from him while the receipt vouchers were recovered on search from the person of Abdul Shakoor. There is no reason to doubt the evidence of the Magistrate who is a public servant and who has no connection with any of the parties.
6. The burden was, therefore, on Abdul Shakoor to explain how he could be in possession of the 3 receipt vouchers and how the money was first accepted by him and then passed on to clerk Ghulam Hussain. Abdul Shakoor has stated in his examination under section 342, Cr. P. C. That on 26-6-1967 when Munshi Ghulam Hussain brought 3 receipts he refused to sign them as he had already made a report against the contractor that the cement had got damaged due to his fault and when the Munshi of the contractor insisted he kept the receipts in his pocket without signing them. That in order to avoid the loss arising due to his default he has fabricated this case against him. Appellant Abdul Shakoor has only denied the allegation that he accepted the tainted money which he put in his pocket and afterwards passed on to clerk Ghulam Hussain. Under these circumstances the case remains unexplained and this lends support to the story alleged by the prosecution.
7. As regards the case against appellant Muhammad Iqbal there is only the evidence of M unshi Ghulam Hussain that he had also demanded the bribe for himself. The trap proceedings recorded by the Magistrate, however, mention the fact that Muhammad lqbal signed 13 truck receipts and on demand to sign the remaining truck receipts he took Munshi Ghulam Hussain to Overseer Abdul Shakoor who demanded Rs, 700 as bribe. Afterwards Abdul Shakoor reduced the amount to Rs, 450 saying that he would keep Rs, 300 and give Rs, 150 to Iqbal. This report does not, therefore, make any mention of any demand for the bribe by appellant Muhammad Iqbal independently. In the statement of Ghulam Hussain recorded by the City Mukhtiarkar & Hnd Class Magistrate, Hyderabad Exh. 13, also it has been stated that Abdul Shakoor asked him to pay Rs, 700 as illegal gratification.
He informed Abdul Hadi who refused to pay anything. Thereafter on his request he reduced the amount to Rs, 450 only saying that he would receive Rs, 300 and pay Rs, 150 to Mr. Iqbal. He has then added that Mr. Iqbal had demanded Rs, 200 only for himself and Rs, 500 for Abdul Shakoor which is contradictory to the earlier statement that Abdul Shakoor demanded Rs, 700. Abdul Hadi contractor has stated in his evidence that Ghulam Hussain reported to him that Abdul Shakoor and Muhammad Iqbal were demanding Rs, 700. Apart from the evidence of Munshi Ghulam Hussain and Abdul Hadi which is not fully corroborated by the trap report, there is no other piece of evidence, oral or documentary to connect appellant Muhammad Iqbal with this offence. At the time of the trap Muhammad Iqbal was not present and he had not accepted any amount. On the other hand the entire amount said to have been demanded was paid to appellant Abdul Shakoo himself. In the absence of independent and reliable evidence the case against appellant Muhammad Iqbal does not appear to be free from reasonable doubt.
8. In the result the conviction and sentence passed against appellant Abdul Shakoor are maintained and his appeal is dismissed.
9. Appellant Muhammad Iqbal is, however, allowed the benefit of reasonable doubt and his conviction and sentence are set aside and his appeal accepted. Appellant Muhammad Iqbal is on bail; his bail bond is hereby discharged and he need not surrender.
10. Appellant Abdul Shakoor may be remanded to custody to serve out the remaining portion of his sentence.