1. ' The appellant a Foot-Constable of Jati Police Station was convicted for offence under section 161, P. P. C. Read with section 5 (2) of Prevention of Corruption Act II of 1947 by the Special Judge, Anti- Corruption, Hyderabad, and was sentenced to undergo simple imprisonment for four months and to pay fine of Rs, 300 or in default to undergo simple imprisonment for two months more. He has now appealed against this conviction and sentence.
2. ' The prosecution case in short is that the appellant alongwith another constable of Jati Police Station had on 26-8-71 come to the village of complainant Luqman i,e, Chak No, 1 Taluka Tando Muhammad Khan and had taken his cousin Nazeer son of Ayub Ahmed in custody. Both the appellant and the Constable insisted on payment of Rs, 300 as bribe, otherwise threatened to take Nazir's wife Mst. Mariamun Nissa, besides some others also with them. The background of all this was that Nazeer had quarrelled with his brother-in-law Abdul Rashid some time before and had made an application to the Martial Law Authorities in which one Subedar Bashir of Jati had come for making an inquiry. He however has Settled the matter after taking Rs, 1,200 from both the parties. After about six months another Subedar Khan Khatayo of the C. I. A. Came to the village, and after beating the complainant and the accused in that case took Rs, 2,200 as bribe and settled the matter. Four months thereafter the D. S. P. Sujawal once again called both parties and settled the matter between them. He had however handed over the woman to her brother Abdul Rashid. It is after that, the appellant and his companion had come in the village of the appellant in connection with the same matter. The complainant left the appellant, and his companion at the otak of Nazeer and approached the Circle Officer Anti-Corruption, Hyderabad, who recorded his report Exh.
3. He then took the complainant to Tando Mohammed Khan wherefrom he picked up two mashirs Imam Bux and Mohammed Juman and proceeded alongwith Sultan Ali the Head Munshi and IIIld Class Magistrate and Mohammad Khan to the village of the complainant. The complainant was given Rs, 300 in 30 notes of Rupees 10 each in the presence of the Magistrate and sent to otak of Nazeer where the appellant was sitting. He was paid Rs, 300 which amount he kept in the front pocket of his shirt whereafter the Circle Officer, the Magistrate and the Mashirs came on the signal.
3. The appellant was caught by the Circle Officer and in his search the above money was recovered.
4. His statement was recorded by the Circle Officer in the presence of the Magistrate Exh.
20. The appellant was then sent up for trial after obtaining the necessary sanction Exh.
5. 21.
6. ' It appears that a case, being Crime No, 50170 was in fact registered at the Jati Police Station and that on 22-8-71 the appellant was given the papers of that case by Head Constable Nasrullah, and he was directed to produce the parties in that case and submit the challan in the Court of Civil Judge & F. C. M., Sujawal. This Case No, 50/70 had been registered under sections 343 and 344, P. P.
7. C. In which Mst. Mariamun Nissa was shown as the complainant while Shafiqur Rehman, Zulfiqar All and Nazeer Ahmed were shown as the accused. It is in this connection that the appellant had visited the village of the complainant where he demanded a bribe of Rs, 300 and was trapped. The case of the appellant was, that he was a public servant and as such on 22-8-71 he was entrusted with the police papers of Crime No, 50/70 with the direction to take the parties and submit the charge-sheet in the Court. He however denied that on 26th August he came to the village of the complainant and threatened to arrest, Nazir Shafiq, Zulfiqar and Mariam or that he demanded Rs, 500 and finally agreed to a bribe of Rs, 300 as reward for leaving these persons. He also denied that on 28-8-71 he accepted illegal gratification of Rs, 300 from the complainant and kept the same amount in the front pocket of the shirt when he was caught red-handed by the Magistrate, Circle Officer and the mashirs or that the said amount was secured from his pocket in search. About his statement recorded by the Circle Officer he denied to have made any such statement and even denied the signatures to be his. He further denied to have attempted to receive this amount.
8. According to him he had been made a victim of the grievance that the witnesses had against the police in general as they had been admittedly harassed in the past. He added :- "Police had fraudulently extorted money from them in this case and hence they had grudge against police and therefore I was made victim of this (sic). The complainant and mashirs are teachers."
9. ' He examined two witnesses Dilshad Ali and Hassan Ali in his defence. The first one was the Head Constable at Jati Police Station who produced the entry in the station diary of that police station showing that on 22-8-71 the applicant had received the case papers of Crime No, 50/70 on that day and had signed in token of having received the same. The other witness Hassan Ali was the surety of Nazeer. He stated that he accompanied complainant Luqman to the otak of Nazeer where the appellant was sitting. He requested the appellant to accept some money and leave the parties for some time. Luqman had told the witness that Mst. Mariam was against them and if she was produced before the Court she would have implicated them. The request made to the appellant was not accepted by him who insisted that he would take the parties to the Court on the next day.
10. The appellant then went to Chak No, 8 to bring witnesses from there. Luqman then informed the witness that he would speak to the Deputy Collector at Tando Muhammad Khan, who was a Bengali, and then arrange with the Anti-Corruption Police to implicate the appellant who had bused him. On the next day Luqman had brought the Anti-Corruption Police and he told the witness to accompany him and see the fun. The witness went to the otak of Nazeer but the appellant was not there. However the Anti-Corruption Police was in the otak. In his presence the appellant was called and Luqman offered him money which the appellant refused. Thereafter Luqman raised the alarm and the Anti-Corruption police came and arrested the appellant and asked him to change his dress. This witness had refused the direction of the Anti-Corruption police to act as a mashir because he was not prepared to speak falsely.
11. ' The learned counsel for the appellant has contended that although the appellant is alleged to have threatened to take Nazeer, Zulfiqar, Shafiq and Mst. Mariam, none of these persons have been examined in Court. According to the F. I. R. Filed by complainant Luqman before the Circle Officer, Anti-Corruption the prosecution case was "now on 26-8-71 two constables of Police Station Jati came to our Chak and they have taken Nazeer into their custody. They demanded Rs, 300 as bribe else to produce the woman and other witnesses. We do not know the names of the police constables. They are sitting in the otak of Nazeer". But in his deposition in Court the complainant Luqman gave a different version altogether. The date of the arrival of the appellant was shown in the F. I. R. As 26-8-71 while in Court he gave it as 27-8-71. He did not say that Nazeer was arrested and that the money was demanded as bribe only for not securing the woman and other witnesses but he said that the demand was as he threatened to arrest Nazeer, Zuffiqar, Shafiq and Mariam and to take them to D. S. P. At Sujawal. Although he did not take the name of Hayat as a person who had accompanied him and approached the appellant but in Court he has mentioned Hayat as his companion in whose presence appellant first demanded Rs, 500 and later on entreatments reduced the demand to Rs, 300. According to the learned counsel the omission of the name of Hayat from the first report and also the omission of prosecution to have examined him in Court is a serious omission, which in the context of the facts of this case had the effect of rendering the very demand of illegal gratification as doubtful. He submitted that unless the demand of money was first established even the securing of the same would not be effectively incriminating.
12. ' The second contention raised by the learned counsel was that the prosecution witness Muhammad Juman who had acted as a mashir of recovery had not supported the prosecution case. In this respect he said the complainant went to the otak where accused was sitting. He said, "It was a hut. I got standing across the wall on the side of the house. I could see inside the otak from a hole in the wall. Then I saw that Luqman was offering money to the accused that was refusing to accept. After 5-10 minutes Luqman came and told the party that he had made the payment. Then we all went to otak from one door and others from the other door. When I reached I saw policemen and Bengali beating the accused. Therefore I kept back and did not go there. I went afterwards. I found a `purse' in the hands of Circle Officer and he stated that he had secured it from the accused. On opening the 'purse' the same notes were found to be there which were given by the circle officer to the complainant. Then I was getting late and Circle Officer obtained the signatures from me on blank papers and I left." This witness according to the learned counsel was an independent person as he did not belong to the caste of the complainant or the appellant and was a primary teacher in the same village. His evidence therefore was more reliable and that the prosecution by declaring him hostile had lost the advantage of the evidence of an independent witness.
13. ' The third contention of the learned counsel with regard to the statement of the appellant. Exh. 20 which was recorded on 28-8-71 at the time when the amount of Rs, 300 was secured from him, and in which statement he had explained the possession of this amount as under :- "I was sitting in the otak of Nazeer. Luqman came there who gave me Rs, 300 and asked that the bullock cart of his haries was coming as they were going to purchase manure from Golachi and I should give that money to them and that he was also going with them. I believed him and kept the same in my purse. In the meanwhile the Anti-Corruption staff came there and conducted the search of my person and recovered the money."
14. ' The above statement was recorded by P. W. Muhammad Usman, the Circle Officer as admitted by him, but was also signed by the Head Munshi and IIIrd Class Magistrate, Tando, Muhammad Khan, P. W. 2 Sultan Ali. The latter has made a reference of this statement in his report also but has not claimed to have recorded the statement himself. The appellant in his statement has denied to have made this statement or even to have signed the same. The contention therefore, was that the trial Court had erred in considering this statement as a substantial piece of evidence against the appellant.
15. ' I have gone through the record of this case and the evidence led by the prosecution as well as the appellant with the assistance of the learned counsel and Mr. Manzoor Hussain Barrister, the learned counsel appearing for the State. There appears to be any amount of force in the submission of the learned counsel for the appellant that the amount recovered from the possession of the appellant i,e, Rs, 300 cannot be considered as illegal gratification unless it was positively proved that the amount was in fact demanded and was thus an amount of bribe. As stated above the prosecution has failed to examine Hayat who could be a proper witness on this point. There is no other witness who stated that the appellant had demanded Rs, 300 or for that matter any other amount as an illegal gratification for the purpose of not taking the parties to the Court. Even at the time of actual payment to the appellant the conversation, if any, between Luqman complainant and the appellant is not proved through any witness to be incriminating. On the other hand P. W. Juman did not support the prosecution and defence witness Hassan Ali gave the favourable version to the appellant on that point. It is an established rule of law by now that the amount recovered from an accused person in a trap case must be shown to have been accepted by him as illegal gratification. The burden of proving this fact is on the prosecution and therefore it is incumbent that evidence be led to prove that the appellant actually demanded the money as illegal gratification. In the present case the word of witness Luqman alone does not carry much weight particularly on account of the changing statements made by him in the first report and in Court. An adverse inference cannot be drawn against the appellant even if it be assumed that the amount of Rs, 300 is proved to have been secured from him. The fact itself is not free from doubt as not only it is denied by him, but witnesses who have been examined, support him and depict a picture of the circumstances which makes the whole transaction doubtful. It is not understood why the Magistrate himself did not record the statement of the appellant and why he merely signed the statement which was recorded, admittedly, by the Police Officer. The learned counsel has referred to the case of Muhammad Sarwar v. State (1) in which, with regard to such sort of statements it was observed on page 293 as under :- "As far as the admissibility of a statement made by an accused person regarding the recovery of the tainted money from him, this would depend on the purpose for which the statement is being used qua the offence to which it relates. If it is found to have been made in the course of the investigation of an offence and is of a confessional nature it must conform with the requirements of section 364 of the Criminal Procedure Code, if it is proposed to use it as such in proof of that offence. If it falls short of a confession, it is to be recorded under section 164 (2) of the Code in such manner as prescribed for the recording of evidence in Court, which in the opinion of the recording Magistrate is best fitted to the circumstances of the case. {{FOOT NOTE}}
(1) PLD 1969 SC 278 {{FOOT NOTE}} ' But if a confession is recorded in disregard of the formalities of the law as required, it need not be ruled out altogether as it may still be saved by the curative provisions of section 533 of the Criminal Procedure Code and prove by aliunde evidence, if the error committed in non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused in his defence."
16. ' The statement Exh. 20 therefore in the light of the above observation have not much evidentiary value. The case as a whole suffers from lack of examining necessary evidence, which in spite of being available with the prosecution was not brought on the record. The trial Court has mainly relied on the admission of the appellant about his presence in the village of the complainant and the statement of the appellant recorded by the Circle Officer in the presence of the Magistrate, but has omitted to see that the demand of the money as illegal gratification was not proved beyond reason A able doubt.
17. ' In the circumstances of the case, I find that the offence alleged to have been committed by the appellant for which he has been convicted has not been proved. This appeal is therefore allowed and the conviction recorded by the trial Court against the appellant is set aside. Consequently the appellant stands acquitted.