' The appellant was convicted vide impugned judgment dated 12-1-1994 and was sentenced to suffer R.I. For a period of six months and to pay a sum of Rs,1,000 as fine or in default of payment of fine to undergo further R.I. For a period of three months for the offence allegedly committed under section 161, P.P.C. Read with section 5(2), Prevention of Corruption Act, 1947 by the Special Judge Anti-Corruption (Provincial), Karachi.
2. According to the F.I.R., the complainant namely Habibullah son of Saeed Ahmed is a Burmese Muslim and since 1970 he is residing in Korangi Karachi. That his cousin sister Mst. Alfaraz Begum, a divorcee was married to one Nazarat Ali on 15-4-1988. It is alleged in the F.I.R. That the accused (applicant) who is a Head Constable in Police resides in the neighbourhood of the complainant.
That on coming to know that Mst. Alfaraz Begum has been remarried, he called the complainant at Police Station, Korangi and told him that he indulged in selling women and that recently he sold one Alfaraz Begum to a Punjabi man namely Nazarat Ali. The complainant denied such allegations and showed a valid Nikahnama and order of the Family Court showing dissolution of earlier marriage of the said woman. It is further alleged in the F.I.R. That the appellant was not satisfied and he demanded Rs,1,000 as illegal gratification for disposing of the complaint. The complainant asked for some time to meet his demands. Accordingly, on 23-5-1988 F.I.R. Bearing No,80 of 1988 was lodged with the Anti-Corruption Establishment, Karachi.
3. The trap could not be arranged' till 26-5-1988 when at about 10-00 a.m. The same was arranged and one Magistrate and the Police Party took position in the house of the Complainant whereas the complainant and Mashir took positing in the street near the house of complainant. At about 10-15 a.m. The appellant came there on a motor bike alongwith his wife who is also a lady constable and was in uniform. There was some exchange of conversation and then the complainant passed on the tainted currency notes to the appellant who accepted the same and put it in the pocket of his shirt. Immediately Mashir Allah Bux gave signal and the trap party reached the appellant and surrounded him. Upon the search of the accused tainted money was recovered and a Mashirnama was prepared on the spot.
4. Prosecution has examined P.W.1 Habibullah (complainant) as Exh.4, P.W.2 Rasool Bux (Magistrate) as Exh.7, P.W-3 Nazarat Ali (Mashir) as Exh.15 and P.W.4 Sub-Inspector Masood Ahmed (I.0.) as Exh.16. Appellant was examined under section 342, Cr.P.C. Who denied the prosecution allegation.
He also denied to have demanded any illegal gratification from the complainant, He has admitted to have received a sum of Rs,1,000 from the complainant on the date and place as alleged by the prosecution. The explanation extended by the appellant is that this was the return of the loan amount which the complainant had earlier obtained from the appellant. That on the date of alleged incident while he was going to drop his wife at Police Station Defence he was stopped by the complainant who returned him the loan amount and, thereafter, he was apprehended by the Anti-Corruption Police. He has disclosed motive of his false involvement in this case as he was pressing hard the complainant for return of this amount. The appellant has also produced D.W.1 Jaffar Ahmed as Exh.23 and D.W.2 Ishaque as Exh.26 in his defence. The learned trial Court framed only one point for determination which is as follows: "Whether the accused had received the sum of Rs,1,000 from the complainant as the amount of loan allegedly given by him to the complainant in 1987?"
5. I have heard Mr. Shahadat Awan, Advocate for the appellant and Mr. Muhammad Iqbal Chaudhry, Advocate for the State. Learned counsel appearing for the State, in support of impugned judgment has referred to section 4 of Prevention of Corruption Act, 1947 and argued that once recovery of tainted money was admitted by the appellant, the prosecution is relieved of the burden and the impugned judgment is, therefore, proper in the circumstances of the case. In my view the presumption imposed in section 4 of the Prevention of Corruption Act is not unrebuttable which can be rebutted by the statement of accused or by the circumstances of the case. The burden is still on the prosecution to prove beyond reasonable doubt that the tainted money was passed on to the accused and the same was recovered from his personal search. In this connection reference can be made to the cases of Sultan Ali v. The State (PLD 1971 Karachi 78), Kazi Nizamuddin v. The State (PLD 1979 Karachi 294) and Abdul Razak Rathore v. The State (PLD 1992 Karachi 39).
6. Mr. Shahadat Awan, Advocate for appellant has argued that admittedly the raiding party has not seen passing of tainted money nor have heard conversation between the complainant and the appellant according to the learned counsel for the appellant this creates doubts in the prosecution case and the impugned conviction is not sustainable. He has referred to the following cases:--
(i) Allah Din and another v. The State 1975 PCr.LJ 1289;
(ii) Noor Ahmad v. The State 1991 PCr.LJ 1015;
(iii) Ghulam Rasool v. The State 1994 PCr.LJ 120;
(iv) Nazir Ahmad v. The State 1988 PCr.LJ 120;
(v) Muhamamd Akhtar Siddiqui v. The State 1994 MLD 2029.
7. The superior Courts have never sustained a conviction in an Anti-Corruption case where the Magistrate was not able to hear the conversation between the complainant and the accused nor in a case where the Magistrate was not able to see passing of tainted money from the complainant to the accused. In the instant case, it is an admitted fact that P.W.2 was sitting in the house of the complainant and came out after the revived signal from the concerned Mashir. By that time the conversation between the complainant and the appellant was concluded and the tainted money had already passed. Therefore, in my considered view this is not sufficient piece of evidence to sustain the conviction ordered by the learned trial Court.
8. In the case of Bashir v. The State 1968 PCr.LJ 670, the Magistrate who was supervising the trap as well as the other raiding party did not state at trial about passing of money nor heard conversation between the complainant and the accused. Benefit of doubt was extended and the accused was acquitted. In the case of Arshad Mirza v. The State PLD 1988 Lahore 640, the transaction regarding payment of illegal gratification was neither seen nor the conversation between the complainant and accused was heard by the raiding party and, therefore, the conviction was set aside. In the case of Muhammad Akhtar Siddiqui v. The State 1994 MLD 2029 a learned Single Judge of Lahore High Court Mr. Raja Afrasiyab Khan, J. (as his lordship then was) allowed the appeal and set aside the conviction order after considering the cases of Muhammad Tahir v. The State 1992 PCr.LJ 490, Nazir Ahmad v. The State 1988 PCr.LJ 775 and Tariq Mahmood v. The State 1985 PCr.LJ 1105. Following is the relevant portion of the said reported case:-- "The prosecution had to prove that the members of the raiding party not only saw the payment of the tainted money to the accused but also overheard the conversation between the bribe-giver and the bribe receiver. In my view, the prosecution evidence does not inspire confidence in these circumstances. It is, therefore, not at all worth credence... ... ..."
9 After exclusion of the evidence of P.W.2 and P.W.4 the only evidence remains in the filed is of Mashir Nazarat Ali who is the same person to whom Begum Alfaraz was married with. In his cross- examination he has admitted that the complainant had informed him regarding his harassment by the appellant. He has also admitted that he was not able to hear the conversation between the complainant and the accused. He has simply witnessed passing of tainted money. Therefore, his evidence is also of no worth to sustain a conviction. On the question of solitary evidence of the complainant, Mr. Shahadat Awan, Advocate for the appellant has cited an unreported case of Inayat Masih v. The State Criminal Appeal No,9 of 1993 where a learned Single Judge of this Court after referring to the cases of Muhammad Ramzan v. The State 1990 PCr.LJ 633, Noor Ahmad v. The State 1991 PCr.LJ 1015 and Malik Zafar v. The State 1989 MLD 4215 held that it would not be safe dispensation of justice to base conviction on the evidence of such interested witness. Appeal was allowed and the conviction was set aside.
10. In the instant case, none of the witnesses have heard the conversation between the complainant and the appellant. The appellant has given a reasonable explanation which has been supported by the defence witnesses. Even if the tainted money had been recovered from the appellant that by itself is not sufficient to hold that the same was received by the appellant as illegal gratification. The evidence brought by the prosecution is scanty, inconsistent and not confidence inspiring. In my view the case against the appellant was not proved beyond shadow of doubt.
11. On 11-7-1995, through a short order, this appeal was allowed and the conviction and sentence awarded by the learned trial Court vide impugned judgment dated 12-1-1994 was set aside. The bail bonds of the appellant was cancelled and the surety was discharged. Above are the reasoning for the said short order.