1. ' Appellant Muhammad Ibrahim son of Abdul Karim, being an Assistant Director Buildings, Civic Centre, Karachi, was tried for an offence under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 by the Special Judge, Anti-Corruption (Provincial), Karachi. By judgment, dated 6-8-1991 he is convicted for the said offence and sentenced to R.I. For 10 months and fine of Rs,25,000 or in default of payment of fine to suffer further R.I. For 6 months. This appeal is directed against the conviction and sentence.
2. ' The facts of the case in brief are that on 3-11-1983 complainant Chaudhry Faiz Alam lodged F.I.R.
3. With Malik Muhammad Khan, D.S.P., Anti-Corruption in which he stated that on a plot owned by him in Allama Iqbal Colony, he had constructed shops and flats. On 29-10-1983, appellant contacted complainant and gave him a chit Exh.13 on which appellant wrote his address. Appellant had allegedly told complainant that because of unauthorized construction, without approved plan the same was liable to be demolished but if illegal gratification of Rs,8,000 was paid, the construction would be regularized. Appellant is alleged to have referred to the case of one Naik Muhammad, a neighbor of the complainant in whose case the appellant was paid Rs,1,000 as illegal gratification for not giving him notice of demolition and that Naik Muhammad had still to pay Rs,500. Naik Muhammad, the neighbor of the appellant was also called who confirmed that he too had paid illegal gratification to appellant, as a result of which notice for demolition was not issued. Out of the total amount of Rs,8,000 so demanded, appellant is said to have agreed to receive Rs,2,000 as first installment on 3-11-1983 at the house of complainant.
4. ' On the basis of such report, D.S.P. Malik Muhammad Khan borrowed the services of a Magistrate Umer Khan in whose presence complainant admitted the contents of F.I.R. The tainted money was passed on to the complainant under a Mashirnama and the raiding party proceeded to Mahmoodabad and parked the vehicle near the house of the complainant. The Magistrate and the Investigating Officer sat in front of a tailor's shop while the complainant alongwith Mashir went to the shop of Kabari Naik Muhammad. After a while, complainant returned and informed that the Kabari Naik Muhammad was not present. He was directed by the Investigating Officer to pass on the tainted money to accused on his demand. After some time, appellant reached the shop of Naik Muhammad in his car where, one Ismail, brother of Naik Muhammad was present. Seeing the appellant arrived in his car, the complainant alongwith Mashirs Rasheed and Ismail went to him and the complainant passed on the oney to appellant who having accepted the same, passed on to Ismail. This was all witnessed by the Magistrate and the D.S.P. Who having received the signal from complainant rushed towards the car of the accused and recovered the tainted money from the right hand of Ismail, which they tallied with the Mashimama Exh.6. Appellant was arrested and after usual investigation he was sent up before the Special Court to stand trial on the said charge.
5. ' On 26-3-1986 charge (Exh.2) under section 161, P.P.C. Read with section 5(2) of Act II of 1947 was framed against appellant who pleaded not guilty and claimed to be tried.
6. ' 'Prosecution examined P.W.1 Umer Khan, A.C.M. (Exh.5) who produced Mashirnama of tainted money paid to the complainant (Exh.6), Mashimama of recovery of amount from accused (Exh.7), Mashirnama of personal search of accused (Exh.8), Mashimama of seizure of car and its search (Exh.9) and raid report (Exh.10), P.W. Complainant Chaudhry Faiz Alam (Exh.11) who produced F.I.R.
7. No,101/83 (Exh.12), a chit on which appellant allegedly noted his address and gave to the complainant (Exh.13), P.W.3 Rasheed Ahmad Mashir (Exh.14), P.W.4 Muhammad Ismail (Exh.15). On 24-5-1988 an application was moved by the D.S.P./Incharge Anti-Corruption Establishment, Karachi requesting therein to summon P.W.5 Naik Muhammad. Such application was granted and the prosecution then examined P.W.5 Naik Muhammad (Exh.18) P.W.6 Malik Muhammad Khan, D.S.P.
8. A.C.E. (Exh.19) who produced sanction order for appellant's prosecution (Exh.20).
9. ' In his statement under section 342, Cr.P.C. (Exh.21) appellant denied the allegations against him and stated that he neither demanded illegal gratification nor accepted Rs,2,000 as a part of it and the witnesses had falsely deposed against him under the influence of D.S.P. Malik Muhammad Khan. He further stated that the said D.S.P. Lived in the Mohalla of the complainant and the D.S.P.
10. Himself had raised unauthorized construction and when he was required to get it regularised, the D.S.P. Got annoyed and thus being inimical, had involved the appellant through the complainant Chaudhry Faiz Alam, his neighbour.
11. ' I have heard the learned counsel and have perused the entire evidence as well as the judgment impugned in this appeal. It is contended on behalf of the appellant that as per evidence, the tainted amount was recovered from Ismail, the brother of Kabari Naik Muhammad and not from appellant and the version regarding the passing on of tainted money by appellant to said Ismail is concocted. It is further contended that the conversation, if any, between the appellant and the complainant at the time the alleged amount was passed on to him was never heard by the Magistrate or by the Investigating Officer and it could not be said if the amount was intended to be paid to appellant towards the illegal gratification. The next contention of the learned Advocate is that there were material contradictions in the evidence inasmuch as the complainant stated that he gave the tainted amount of Rs,2,000 to appellant who tried to pass it on to the appellant but in the meanwhile the Magistrate and the Investigating Officer reached and recovered the money from Ismail. The Mashir, on the other hand, as argued, stated that the complainant gave Rs,2,000 to appellant who attempted to pass it on to Ismail but before he could do so, the D.S.P. And the Magistrate reached there and secured the amount from the hand of the appellant. It has also been pointed out by the learned Advocate that the parentage or the addresses of the Mashirs are not given in the Mashimamas which suggests that they were stock-witnesses and thus not reliable.
12. From the evidence of the Mashir Rasheed Ahmad (Exh.14), it has been pointed out that he is a truck-driver and his residential address is not given except that he is resident of Karachi. This fact by itself, according to the learned Advocate, is sufficient proof of the Mashir being not respectable resident of the area, where either the tainted money was paid to complainant for being passed on to the accused or at the place where the trap was subsequently led. It is lastly contended that the case against the appellant was not free from doubt and the benefit of doubt arising on any point should have been given to the accused and he should have been acquitted.
13. ' Mr. M. Sarwar Khan, learned A.A.-G., did not support the conviction and he argued that on material points the witnesses have either contradicted each other or on the point of actual payment of tainted money the evidence is not free from doubt. Learned A.A.-G. Has also challenged integrity of the Mashir who was unaware of his residence and such a witness cannot be said to be either trustworthy or independent so as to resist the influence of the D.S.P.
14. ' I have considered the above contentions of the learned counsel. The chit (Exh.13) purportedly written by the appellant in his own handwriting, is introduced by the prosecution to suggest that it was given by appellant to complainant so that he could contact him on the address noted on the chit. The writing on the chit is denied by the appellant and he has also denied that it was given by him to the complainant. The same was not sent to Handwriting Expert for opinion and, as such, it cannot be used as a circumstantial piece of evidence against appellant. Complainant himself was guilty of not having got the plan approved for constructing the shops or the house on the plot. It was the appellant who had objected to such unauthorized construction and because the D.S.P.
15. Was a neighbor of complainant, a cooked up story of demand of illegal gratification by appellant seems to have been concocted. For D.S.P. Malik Muhammad Khan it is stated by appellant, that even he had raised unauthorized construction and because it was objected to by appellant, the D.S.P. Seemed annoyed with the appellant and was on the lookout for an occasion to deal with the appellant.
16. On the point of payment of tainted money, there is material contradiction between the evidence of complainant himself and the Mashir Rasheed Ahmad. Such contradiction as has been referred to above while discussing the contentions of appellant's learned Advocate, has gone unresolved. The tainted money was recovered from P.W. Ismail' and the conversation between complainant and the appellant or for that matter even Ismail was not heard by the Magistrate who was sitting at a distance of about 25 paces from the place where appellant is said to have reached in his car. The prosecution failed to prove the case against appellant beyond all reasonable doubt and in such circumstances, it would be unsafe to maintain the conviction and sentence. In the result the appeal is accepted, the conviction and sentence awarded to the appellant is set aside and he is acquitted. These are the reasons for the short order, dated 13-10-1993.