1. ' The appellant has assailed the judgment dated 31-3-1996 passed by learned Special Judge, Anti- Corruption, Karachi whereby the appellant was convicted under secdtion 161, P.P.C. Read with section 5(2) of Prevention/Corruption Act and sentenced to suffer R.I. Of two years and to pay a fine of Rs,3,000 or in default of payment of fine to undergo R.I. For six months.
2. ' The prosecution case in brief is that an F.I.R. Was lodged by complainant Rehmat Villayat on 8-3- 1993 at 1200 hours with Anti-Corruption Police alleging therein that he is a sweeper in ZMC Ward No, 5 Dathiawar Society, Aamjee Nagar Chowrangi No,5, Karachi and working alongwith other sweepers, namely, Saleem Mohabat, Rehmat Raheem and Khaliq Rafiq in the same area, Inspector Taj, Sub-Inspector Arif and Muqadam Abdul Rahman were appointed to supervise upon them from ZMC East, Karachi and they unnecessary put the sweepers in trouble by collecting Rs,200 to Rs,400 as monthly illegal gratification (Bhatta) from them and if any sweeper declined to give at the time of disbursement of monthly salary, is being transferred and is being put to loss by deducting his salary by marking him absent. It is further alleged that every month sweepers used to receive salary from the bank situated in K.M.C. Head Office where all the three officials remain available and as soon as the sweepers get salary they direct muqadam (appellant) to deduct monthly Bhatta from each sweeper of Rs,200 to Rs,400. The above officials have formed as gang and used to disburse the Bhatta amongst themselves. It is alleged that appellant receives back the salaries from the sweepers and after deducting his monthly gratification returns back the remaining amount to the sweepers or the sweeper himself used to make payment of monthly illegal gratification at the time of receiving the salary. On 6-3-1993, complainant and other sweepers met appellant and told him to spare them to which appellant said that this time he will get Rs,500 per month per sweeper. Complainant requested the appellant not to adopt this practice to which appellant said that he will not utilise the amount alone but all the three officials use to distribute and they also pay share to high officials. According to complainant, appellant had finally agreed to receive Rs,400 as monthly gratification from them. On 8-3-1993, it was a salary day when salaries to sweepers would be distributed, appellant and high officials were available in K.M.C. Head Office and complainant was asked to deduct Rs,400 from his salary otherwise he will be transferred.
3. ' The F.I.R. Of the Complainant was recorded by Inspector Khursheed Ali Khan of Anti-Corruption Police. He obtained the services of the Magistrate for supervising the raid. He brought the complainant before the Magistrate and P.Ws. Saleem Mohabat and Yousuf verified the contents of F.I.R. Said Inspector prepared a Mashirnama of handing over of tainted money of Rs,400. The notes were of of Rs,100 each denominations. The Investigating Officer Magistrate and raid party proceeded on foot to K.M.C. Head Office. Complainant alongwith P.Ws. Were directed to go inside the bank for passing on the tainted money while Investigating Officer Magistrate and raid party took position outside the bank in K.M.C. Building. It is further alleged that at about 4.00 or 4.30 p.m.
4. P.W. Saleem Mohabat gave signal to the raiding party and then they rushed towards the bank and complainant pointed out the accused to whom the tainted money was passed on. The Investigating Officer and Magistrate disclosed their identity. The Magistrate demanded tainted money from appellant but he did not give reply. The Magistrate on pointation of the complainant, took out the tainted money from the front side pocket of the shirt of appellant. The Magistrate verified the numbers of the notes with Mashirnama which were found to be correct. On personal search of appellant one pay slip alongwith cash amount of Rs,6,200 and Rs,700 separatedly were secured and apellant was arrested and brought to Anti-Corruption Office. After usual investigation appellant was challaned. Charge was framed to which he pleaded not guilty and claimed trial.
5. Appellant in his statement under section 342, Cr. P.C. Denied the allegations leveled against him by the prosecution.
6. ' I have heard Mr. S. Mahmood Alam Rizvi, learned counsel for the appellant and Mr. Ashiq Hussain for the State at length and have gone through the record. In this case P.Ws. Rehmat Villayat, Salem (Mashir), Khalid, Raheem, Dhani Bux, Magistrate, Yousf Hussain and Investigating Officer Khursheed Ali Khan were examined from the side of the prosecution, whereas appellant excepting examining himself on oath had examined Khalid Khan, sub-Inspector, K.M.C. And Zameer Ahmed, Inspector K.M.C. As D.Ws.
7. ' Reading the evidence as well as after going through the impugned judgment, it occurs to me that learned Judge while passing the judgment has not gone through the evidence properly and has based his reasons on misreading and non-appraisal of evidence. It is pertinent to note that though in this case as per case of prosecution excepting appellant one Arif Inspector and four others used to demand illegal monthly payment from the sweeper but said Arif has not been challaned and they were let off for no reasons. On the allegation of similar nature the co-accused are let of then the benefit of same could be extended to the appellant. Complainant Rahmat Villayat in his deposition/evidence has categorically said that he was paid Rs,400 in presence of P.Ws. Rahmat Raheem and Saleem Mohabat and Khalid Rafiq by Anti-Corruption Inspector but he does not know if. Any Mashirnama was prepared of a payment of tainted money to him. He has further deposed that no proceedings were recorded in his presence at the bank premises where arrest as well as recovery of tainted money is said to have been effected from the appellant. He does not know if police had obtained signatures of mashirs on mashirnama in his presence; and that he did not hear any conversation before appellant and complainant when he paid him the tainted amount.
8. He has also said that the raiding party was standing outside the bank while he went inside the bank to hand over the tainted money to the appellant. In cross-examination, complainant has said that appellant used to collect amount of salary of all the sweepers and then used to pay them the same as such, there was no justification of appellant's going to the bank and collect illegal amount from the complainant and other sweepers in the bank premises. Irrespective of this no one from the bank employees have either been cited as witness or examined in this case. P.W. Saleem, eye- witness as well as the Mashir has not supported the case of the prosecution and declared hostile.
9. He has categorically stated that nobody had demanded illegal gratification from him as well as from P.Ws. Rehmat, Khalid and Saleem. He has said that he has acted as Mashir in this case but his signatures were obtained on another Mashirnama and no money was exchanged in his presence and also amount was paid in his presence by the police to the complainant. In cross-examination, to P.D.S.P. He has denied all the suggestions and has said that neither complainant was given Rs,400 as tainted money in his presence before the Magistrate to be offered to appellant Rehmanuddin nor he had gone with complainant and co-Mashir Yousf Hussain to witness the handingg over of tainted money to the appellant. He has denied the preparation of recovery and search memo. Also P.W. Khalid though has generally said that appellant used to demand the monthly from all the sweepers but he did not demand anyting in his presence from the complainant P.W. Rehmat has very clearly said in his deposition that the talk of illegal gratificatin from the salary settled at Rs,400 with complainant by appellant was not made in his presence but he was informed about the same by complainant. He has further said that prior to this no monthly as either demanded or paid to the appellant. In cross-examination, he has denied the suggestion that appellant had demanded monthly from him any other sweepers. P.W. Dhani Bux, the Magistrate supervising raid in his examination-in-chief has said that he does not remember the names of mashir in whose presence Rs,400 was given as tainted money by the complainant to the appellant. He has further said that he and the other persons of raiding party went to bank where the complainant went inside and at the signal of Mashir they rushed towards the appellant standing in the bank. It is pertinent to note that from his evidence it becomes clear that the raiding party has neither seen handing over of tainted money to appellant nor have heard any conversation in-between the complainant and appellant. Moreover, not a single person from the bank employees has been associated to witness the recovery which renders the entire case to be of a doubtful nature as to whether the recovery and search had actually taken place inside the bank or not. P.W. Muhammad Yousuf the second Mashir has contradicted the complainant on the recovery of tainted money. According to the complainant raiding party secured the tainted money from appellant while he was holding the same in his hand whereas this witness said that the same was secured from the pocket of the appellant. On the question of learned counsel P.W. Yousuf said that he is not in a position to produce identity cards such in this situation the identify of his witness is shrouded in mystery. Investigating Officer the last witness in his examination-in-chief has said that the person from whose presence the tainted money was recovered disclosed his name as Abdul Rahman; and that in column of F.I.R. The date and time of incident was shown as 6-3-1992 instead of 1993. This admission of Investigating Officer entirely exonerated the appellant from the commission of offence and makes the case of the appellant of doubtful nature.
10. From the above discussion of the evidence, I am clear in my mind that the prosecution has failed to prove the case against the appellant beyond any shadow of doubt. He has extended benefit of doubt and acquitted.
11. ' Accordingly, I would allow the appeal, set aside the conviction and sentence awarded to the appellant. His bail bonds stand discharged.
12. ' Above are the detailed reasons of the short order 22-12-1997.