' The appellant an Inspector of Excise and Taxation was tried and convicted for offence punishable under section 161, P. P. C. Read with section 5(2) of Act II of 1947. He was sentenced to three months rigorous imprisonment and a fine of Rs, 500 or in default three months further rigorous imprisonment. He has filed this appeal to challenge the above-said conviction and sentence.
2. The prosecution case in brief is that on 8th August 1972, in his capacity as such Inspector, he inspected the house belonging to one Mst. Zohra Begum for the purpose of assessing property tax and declared that to be of 'A' Class and informed the complainant Muhammad Khan that its annual assessm ent would be Rs, 5,400 or 5,500. He however suggested that if he is paid illegal gratification of Rs, 500 he could reduce the annual assessment to Rs, 1,800. The quantum of illegal gratification was finally settled on Rs, 300. This was done in presence of Moazam and Masood Kalimi and it was further agreed that the amount would be paid to the appellant on 10-8-1972 at the house of the complainant. In lieu the appellant had promised to give a copy of P. T. 13 at that time.
3. As Muhammad Khan was only a contractor and had a power of attorney from Mst. Zohra Begum he informed Qaiser Niazi her husband about the situation but the latter declined to pay any amount and instead suggested that a report be made with the Anti-Corrupation Police. The complainant therefore lodged the said report on 10-8-1972 whereafter a trap was arranged and the amount of Rs, 300 was given to the complainant so that he would pay the same to the appellant. Subsequently at about 11 O'clock Moazam brought the appellant to the house of the complainant where Masood Kalimi was already sitting in the drawing room. The appellant gave P.
T. 13 to the complainant and obtained his signatures on the duplicate copy. He then demanded the amount and the complainant gave him the same. The Investigating Officer and the Magistrate who were sitting in the adjoining room had witnessed the incident and they then entered the drawing room and secured the amount from the diary which was in the hand of the appellant. A mashirnama was prepared where after appellant was arrested. From the search of the appellant a duplicate copy of P. T. 13 in the name of Mst. Zohra Begum and duly signed by Muhammad Khan on her behalf was also secured. After usual investigation and obtaining the sanction to prosecute the appellant from the Director, Excise and Taxation, Karachi, the appellant was sent up in Court on 16- 3-1973. The substance of accusation was read over to him on 25-4-1973 to which he pleaded not guilty.
4. At the trial the prosecution examined P. W. Qaiser in whose presence the amount of Rs, 300 was paid to the complainant by the Anti-Corruption Police and who had subsequently witnessed payment of the amount to the appellant in the drawing room of the complainant's house. He also acted as a mashie of this transaction. In his cross-examination this witness admitted that he was a plumber and worked with the contractor, complainant Muhammad Khan. P. W. 2 Muhammad Khan was the complainant who had the power of attorney on behalf of Mst. Zebra Begum and with whom the amount of Rs, 300 was settled as illegal gratification and who later on paid the same to the appellant. P. W. Moazam was a witness in whose presence settlement about the illegal gratification had taken place and who was also a witness of payment of Rs, 300 to the appellant by the compiaivant in his drawing room. This witness was also on his own admission working under the complainant. P. W. 4 Bashir Ahmed was the husband of Mst. Zohra Begum who deposed that Muhammad Khan had informed him about the demand of illegal gratification of Rs, 500 but he had declined to give even a single pie. P. W. 5 Abdul Aleem was the Magistrate who had been approached by Inspector Ashfaq and who supervised the trap arranged by the Anti-Corruption Police. He had granted permission to arrest the appallant. P. W. 6 Ashfaq Abmed was the Anti- Corruption Inspector who had recorded first information report of the complainant, taken him to the Magistrate, entrusted him with marked notes. Of Rs, 300 and had arranged the trap and witnessed the amount being taken by the appellant in the latter's drawing room. He and the Magistrate then secured the marked notes of Rs, 300 from the possession of the appellant. He also produced the sanction order from the Director, Excise and Taxation, Karachi for prosecuting the appellant.
' In his statement the appellant denied to have negotiated for any illegal gratification or to have accepted the amount of Rs, 300 as such. He admitted to have accepted Rs, 300 from the complainant on 10-8-72 but this he claimed as the amount due as Rs, 293 were payable to him by the complainant who was his own friend. He added further :- "P. W. Moazam is a friend of the complainant he used to live with him in his house and P. W. Kalimi is also an old friend of the complainant and amount of Rs, 293 was outstanding against the complainant which he used to put off in spite of my repeated demands. One day I went to his house when he was not present, his wife was there who asked me as to what was the matter I told her that her husband has to pay me Rs, 293 and I had come for that I also told her that I was in the bad need of the amount. She assured me that she would ask her husband to pay the same immediately. On this the complainant was very much annoyed and he, therefore, wrote me a Chit Exh. 14, and therefore for some time he was not on talking terms with me but, thereafter, he became polite and told me that he would pay the amount very soon, then he conspired with the two witnesses and lodged the false report. These witnesses are therefore falsely implicating me.
' This complainant, is the old friend of mine. We were on visiting terms with each other at our respective houses. I produce the four photographs Exhs. 27 to 30. These photographs show, myself being with the family of Muhammad Khan and in two photographs Moazam is shown with Muhammad Khan and with his daughter. But then after the incident of the demand of money he was annoyed with me and therefore got me implicated in this case. I am innocent."
' He examined two witnesses Mumtai , Ali, Sub-Inspector Excise and Taxation, Karachi and Muhammad Suleman in defence.
6. In view of the circumstance that the amount of Rs, 300 was actually recoverd from the possession of the appellant on 10-8-1972 pursuant to the trap arranged by the Anti-Corruption Police and the fact that the acceptance of this amount was not denied by the appellant the important question in this case was whether the said amount was relatable to the illegal gratification alleged to have been demanded by him or whether the same was payable by complainant Muhammad Khan as an amount due. It is well settled that unless the amount recovered from the possession of an accused person is satisfactorily established to be illegal gratification the burden of proving that the same is innocent money would not shift to the accused.
Nor would any adverse presumption be raised against him. The evidence with regard to the point of demand would thus be of paramount consideration and on that point the prosecution relied on the statement of the complainant Muhammad Khan supported by Moazam his partner. But complainant Muhammad Khan admitted that Moazam apart from being his partner resided with him in his house and that he had imparted education to him. Even the trial Court found that he was an interested witness. Regarding the complainant Muhammad Khan also the trial Court came to the conclusion that he was an interested witness. He had admitted that he had to pay Rs, 293 to the appellant as he had borrowed the said amount from him but he claimed that he had paid the amount back before the demand of illegal gratification in this case. He admitted to have written the letter dated 22-1-1972 wherein he had made a grievance of the fact that the appellant had gone to his house in his absence and had demanded the amount of this loan from his wife. In that letter he had promised to pay back amount within a week and this he did on 25-6-72. He further admitted that the amount was due because the appellant had paid up taxes on his behalf and Exhs. 15 and 16 were the receipts thereof. He also claimed to have been on good terms with the appellant. This last statement appears to be borne out by the photographs Exh. 27 to Exh. 30 produced by the appellant in his statement in Court, as these photographs show the appellant with the complainant and his family. This actually indicated that they had intimate terms with each other.
7. The conclusion of the trial Court about the two witnesses Muhammad Khan and Moazam being interested appears to be based on some reasons. The trial Court therefore proceeded to find some piece of corroborative evidence to make their evidence reliable. The evidence of P. W. Bashir Ahmad, the husband of Mst. Zohra Begum was then considered to be sufficient to corroborate the evidence of Muhammad Khan. Bashir Ahmad had stated that he was informed by Muhammad Khan that a demand of Rs, 500 was made as illegal gratification in respect of the house of Zohra Begum, and that he had declined to pay even a single pie.
8. Now in view of the fact that Muhammad Khan admitted the amount of Rs, 293 to he due and to have been paid it was necessary to have a more reliable evidence about the payment than his mere word. The letter which was admittedly written by him does indicate that he was aggrieved with the conduct of the appellant in making the demand of the amount from the ladies in his house. He claimed that there was a reconciliation subsequent to it. If that was so it is not understood why he would readily act upon what Bashir Ahmad told him and approach the Anti- Corruption Police to implicate the appellant. This conduct is more reconcilable with a person having venom rather than one who is a friend. After all he was to make payment only when it was acceptable to Mst. Zohra Begum and not otherwise, It is also not understood why Bashir Ahmad should not have been informed about the figure of Rs, 300. He has deposed in Court that payment of Rs, 500 was made which is not a fact. Giving such information to Bashir Ahmad cannot be paid to be incompatible with the conduct of a person who might be desirous of falsely implicating another for after all there was no contact between Bashir Ahmad and the appellant.
9. The entire evidence in this case being that of witnesses who undoubtedly were interested and could not be entirely friendly, the same could not be accepted without corroboration which in this case is lacking. The evidence of recovery alone in the circumstances of this case cannot therefore, be considered to be incriminating so as to base the conviction of the appellant on the same.
10. Prosecution has not proved the case beyond reasonable doubt. In the result this appeal is allowed and the conviction of the appellants set aside.