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Criminal Appeal No. 2 of 1967, decided on 26th May 1969.

‑Trap‑case‑Recovery of tainted money explainable on an innocent hypothesis‑Not sufficient to prove charge of receipt of illegal‑gratification‑Prosecution must establish that money was passed as such.

Interested witness‑Fact that witnesses living in same vicinity for 10 or 11 years and on visiting terms with accused. Held, will not make out any interestedness in favour of accused.

Appreciation of evidence‑Statement of accused supported by statement of two defence witnesses‑Court disbeliev ing such statements as being after‑thoughts but not supporting conclusion by any material‑Finding that such statement could not be true, held, not justified in circumstances‑Conviction set aside.

Sardar Ali v. Crown P L D 1953 F C 93 rel.

M. Nasiruddin for Appellant.

Iqbal Baloch for A. A.‑G. for the State.

Dates of hearing : 20th and 21st May 1969.

Appellant Muhammad Ali (36) was tried and convicted by the learned Special Judge‑cum‑Inquiry Officer, Hyderabad of an. offence under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to suffer im prisonment till the rising of the Court and to pay a fine of Rs. 100 and in default of the payment of fine to suffer rigorous imprison ment for 6 months. The appellant has filed this appeal to question his conviction and the sentences imposed on him.

2. At the relevant time, that is on 13^th February 1965, the appellant was a public servant. He was working as a Booking Clerk in the Loco Shed (P. W. R.) at Mirpurkhas. The report of the illegal demand as having been made from Mushtaq (P. W. 1), a cleaner also working in the same Loco Shed, was lodged with the writer Head Constable of the Anti‑Corruption Establishment at Mirpurkhas on 13‑2‑65 at 12‑40 p.m. This report was incorporated in the 154 book maintained at the said Anti Corruption Establishment. It was to the following effect :‑

"I am serving in the railway department as a cleaner. A cleaner is also interested with the duty of a fireman, so as promoted senior hand. I requested Muhammad Ali Booking Clerk on duty to detail me as a fireman, as I was acting in that post, I am working in the shed since last 2 months. In the cases of emergency. I am detailed as a fireman. Today at 4 o'clock my duty is in the yard. Today in the morning I requested Muhammad Ali Booking Clerk to shift me from there and detail me as a fireman. Thereupon Muhammad Ali Booking Clerk told me that he would detail me as a fireman, if I paid him Kharchi' (tip money). He told me that if I bring for him Rs. 10 (Rs. ten) at 2 p. m. he would change my duty. I told him that I would try to bring money for him. Muhammad Ali Booking Clerk has been demanding Rs. 10 as a bribe from me. I have no money. I may kindly be given money officially, se. that I may give it to Muhammad Ali Booking Clerk as bribe I am complainant. Action be taken."

On the lodging of this report steps were taken to arrange for a trap and as a step towards it a sum of Ks. 10 was produced before Muhammad Ibrahim (P. W. 4) a III Class Magistrate and paid to Mushtaq (P. W. 1) for being passed on to the appellant in the presence of a mashir Ghulam Nabi (P. W. 2) which fact was recorded in the Mashirnama (Exh. 6). The party thereafter under the supervision of Muhammad Ibrahim (P. W. 3) III Class Magistrate, went to the Loco Shed. Mushtaq (P. W. 1) then went to contact the appellant in his office and he was accompanied by Ghulam Nabi (P. W. 2); Muhammad Ibrahim (P. W. 4) and Ansar Hussain Head Constable (P. W. 5) stood at a distance of 25 paces from the Loco Shed. After about 5 minutes, Mushtaq (P. W. 1), Ghulam Nabi (P. W. 2) and the appellant came out of the office together. They went to a nearby Pan Biri cabin. After about 15 minutes Ghulam Nabi (P. W. 2) gave a signal whereupon Ansar Husain (P. W. 5) and Muhammad Ibrahim (P. W. 4) rushed towards the appellant. Muhammad Ibrahim (P. W. 4) thereupon disclosed his identity to the appellant and took a search of his pockets. From one of the pockets of the pant of the appellant five notes of Rupee 1 denomination were secured. The remaining note of Rs. 5 was returned to the Magistrate by Mushtaq (P. W. 1). The said recovery was made as per Mashirnama (Exh. 7), in the presence of Ghulam Nabi (P. W. 2). Further investigations thereafter followed and after the receipt of the sanction, Exh. 21, the appellant was sent up to face his trial in the Court of the Special Judge‑cum Inquiry Officer, Hyderabad.

3. At the trial and in reply to the substance of accusation as read out to him he had pleaded not guilty and had proclaimed his innocence.

4. The prosecution examined Mushtaq (P. W. 1), Ghulam Nabi (P. W. 4) Muhammad Ibrahim and Ansar Husain (P. W. 5) in support of the allegation of demand and the recovery of the tainted money from the person of the appellant. Muhammad Husain (P. W. 3) was also examined and his evidence is formal in nature.

5. The appellant in his defence had denied the prosecution allegation and had again proclaimed his innocence. He had shown a desire to be examined on oath and had further stated that he would lead evidence in defence. The appellant was examined on oath as D. W. 1. In his statement on oath he had admitted having received the tainted money from Mushtaq (P. W. 1) but had given an explanation that this money was returned to him by Mushtaq which he had got from his house for purchasing sugar on the pretext that he had an urgent piece of work. He had produced an application (Exh. 25) submitted by one Wilayat Hussain, a cleaner in the same Loco Shed to the effect that Mushtaq (P. W. 1) had taken employment under a different name. His real name was Munir Khan and that he had personated as Mushtaq Ahmed son of Muhammad Shafi. Another document which is the plaint (Exh. 26) was also filed by the appellant in support of the assertion that the real name of Mushtaq (P. W. J) was Munir Khan. This plaint was filed in Court by the wife of Munir Khan, wherein she had prayed that the repudiation of her marriage be confirmed. Another document (Exh. 28), was also produced to show that the real name of Mushtaq as given in the Nikahnama was Muhammad Munir Khan.

6. Shaikh Lachoo Kazim, Head Clerk in the Loco Shed (D. W. 2) was examined to show that there was an inquiry against Mushtaq (P. W. 1) as he had sought employment under an assumed name and that since the time of inquiry, which was in March 1965, he had disappeared and had not resumed his duty. Wilayat Husain (P. W. 3) was examined to show that he had written the application (Exh. 25) and had given it to the appellant. Muhammad Farooq (D. W. 4) is the Panwala who had the Pan Biri shop in the Loco Shed. According to him, the appellant and one Noor Khan had come to his shop at about 3‑30 p.m. and that soon after Mushtaq (P. W. 1) came there and he returned the amount of Rs. 5 to the appellant saying that lie could not get the sugar and he was returning this money which he had brought from his house. This money was taken back by the appellant. Therefore, 2 or 3 other persons came there who surrounded the appellant and then took him away. He had heard this talk from a distance of about 2 paces. Noor Muhammad (D. W. 5) was also examined to corroborate the fact that this amount was returned to the appellant with the above explanation.

7. The trial Court while convicting the appellant has accepted the prosecution evidence of the incident and has held as under :‑

"Thus there is overwhelming evidence of the prosecution witnesses in the case to show that on 13‑2‑65 complainant Mushtaq Ahmed was sent with G. C. notes of Rs. 10 to pay illegal gratification to the accused who had demanded the same from the complainant. After an amount of Rs. 5 had been paid by the complainant to the accused as illegal gratification, the same was recovered and seized from his possession by the Magistrate and the Anti‑Corruption Police in the presence of a mashir."

As for the enmity, the finding of the trial Court is that there is nothing on the record to establish this fact. The version as given by Muhammad Farooq (D. W. 4) and Noor Muhammad (D. W. 5) that the money was returned by Mushtaq (P. W. 1) to the appellant with the explanation that he had brought it from his house for the purchase of sugar, which he had not so purchased, was according to the trial Court an after‑thought. Thus, the trial Court had convicted and sentenced the appellant as aforesaid.

8. On the point of demand, there is the evidence of Mushtaq Ahmad (P. W. 1) alone. According to him, it was the duty of the appellant to assign duties of drivers, firemen and cleaners. The senior cleaners are employed as firemen. The said witness had approacbed the appellant and had requested him to assign to him the duty of a fireman, upon which the appellant had demanded Rs. 10 per month from him as bribe money for appointing him in that capacity. It was because of this demand that he had gone and lodged the report with the Anti‑Corruption Police. Ghulam Nabi (P. W. 2), who is a mashir and who had accompanied Mushtaq (P. W. 1) when he had gone to pay the tainted money to the appellant, has admitted in his cross -examination that he did hear any talk between the appellant and the complainant and also had not seen even the passing of the money to the appellant. Muhammad Ibrahim (P. W. 4) has also admitted in his cross‑examination that he does not know as to what transpired as between Mushtaq (P. W. 1) and the appellant. There is, therefore, the only evidence of Mushtaq (P. W. 1) in regard to the demand of the bribe money uncorroborated by the witnesses who had been examined in the case. There is also no documentary evidence to give a support to the demand of bribe money. Certain documents have been produced by Muhammad Husain (P. W. 3) Head Constable, Anti‑Corruption Police, which were seized from the Loco Shed. There is no explanation in regard to any of the documents as to why they had been brought on record from any concerned person from the Loco shed and none has been examined. There is material in the cross- examination of Mushtaq (P. W. 1) to indicate that he had been working as a fireman even in the month of February 1965 for a period of 20 to 22 days and that previously too he had been working as a fireman. It is, therefore, suspicious that if he bad been working as fireman before then why a demand should have been made on this occasion. This witness also does not appear to me to be of a very reliable nature. He had denied that any application was filed against him by Wilayat Husain (D. W. 3) although there is material on record which has established this fact and I am convinced that he was aware of this fact. He had also secured an employment in the assumed name of Mushtaq and that on being confronted with this position he had given an explanation that he was also called as Munir Khan out of love and affection by his uncle and that in the family he is known as. Munnay or Munir Khan. This explanation obviously is false as the parentage appearing in the record while seeking employment as Mushtaq appears to be Muhammad Shafi although he is the son of Abdul Sattar. Therefore, this explanation is not such which can be readily accepted. If this witness is of such a character as to seek employment under an assumed name with a different parentage, it will not be safe to place implicit reliance on his assertion that a demand was made by the appellant and that the tainted money was paid for that purpose. In the context of his statement alone there is the evidence of Muhammad Farooq (D. W. 4) and Noor Muhammad (D. W. 5) which speak of the money having been returned by him to the appellant on the pretext that he could not buy the sugar and that he was, therefore, returning the money which he had brought from his house. This explanation was also put to him in his cross‑examination which, of course, was denied. There is the admitted position also that the appellant and Mushtaq (P. W. 1) had gone to a Pan Biri shop cabin of Muhammad Farooq and had purchased Pan from there. The talk as between the appellant and Mushtaq (P. W. 1) as deposed to by Muhammad Farooq (D. W. 4) and Noor Muhammad (D. W. 5) has not been dislodged or rendered doubtful by any question in their cross‑examination. No, interest of Muhammad Farooq (D. W. 4) has been brought out in his cross‑examination qua the appellant. Similarly, all that has been established from the cross‑examination of Noor Muhammad (D. W. 5) is that they had been living in the same neighbourhood for the last 10 or 11 years and were on visiting terms with the appellant. This fact alone will not make out any interestedness in favour of the appellant.

9. While considering the two sets of evidence it cannot be said that the explanation as given by the appellant in his statement recorded on oath and which was supported by the evidence of Muhammad Farooq (P. W. 4) and Noor Muhammad (D. W. 5) could not be reasonably true. The principle as laid down by the Federal Court in the case of Safdar Ali v. Crown (PLD 1953 FC 93) will be applicable to the facts of the present case on all fours. The learned trial Court has merely disbelieved these two witnesses on the ground that the explanation as given by them was an after‑thought without any supporting material for coming to that inference. The prosecution has thus failed to establish beyond a reasonable doubt that the demand money was paid to the appellant as illegal gratification. It is not sufficient that the A money was recovered from the appellant, for receipt of money can be explained on even an innocent hypothesis but the prosecution has still to establish that it was given on account of illegal gratification. In the present case, there is no convincing evidence on the latter aspect of the case.

10. In the result, for the reasons given above I would set aside the conviction and sentences of imprisonment and fire imposed on the appellant. The fine if paid will be remitted. The appeal is allowed and the appellant is acquitted of the charges.

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