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Criminal Appeal No. 323 of 1967, decided on 17th July 1969.

S. 161 read with Prevention of Cor ruption Act (II of 1947), S. 5(2)‑Trap case‑Prosecution witnesses giving different versions at different times and tainted money not shown to have been passed by complainant in presence of any witness‑Raiding party recovering money from beneath Roznamcha of Police Station lying on accused's table in open and unguarded Possibility of planting tainted money on accused, held, not excluded in circumstances‑Conviction set aside.

Azizullah K. Shaikh for Appellant.

Usman Ghani for A. A.‑G. for the State.

Date of hearing : 17th July 1969.

Appellant Ali Nawaz, a Head Constable, has been tried for having accepted illegal gratification in the sum of Rs. 100 from Rahmatullah (P. W. 1) by the learned Special Judge‑cum‑Inquiry Officer, Hyderabad, and convicted of the charge under section 5(2) of the Prevention of Corruption Act II of 1947 and sentenced to suffer rigorous imprisonment for two years. He has appealed against his conviction.

2. The facts as evident from the report (Exh. 16) are these The appellant was a head constable and attached to Police Station Pano Akil in Sukkur District. One Ali Murad had lodged a Report against Amanat Ali, the brother of complainant Rahmatullah, that he had committed an unnatural offence with his buffalo at Police Station Pano Akil on 3rd July 1962. About 10 or 12 days before the present incident Allahrakhio Shah, a constable had come to call his brother Amanatali while the appellant was sitting along with him in a hotel in the town of Pano Akil. He took the appellant as well as Amanatali to the Police Station and there he met the present appellant. The appellant informed them about the report and that he had investigated the matter and the facts alleged in the report were correct, although the complainant and his brother Amanatali had pleaded that the case was false. According to complainant Rahmatullah, his brother Amanatali was belaboured and he was forced to give a confession under threats. The complainant thereupon pleaded that his brother Amanatali be let off where upon the said appellant agreed to do so provided he was paid Rs. 600 as bribe and one buffalo was given to Ali Murad. The complainant having no other alternative agreed to the proposal and promised to pay the money and give the buffalo on the following day, whereupon the appellant released his brother Amanatali. The next day Amanatali gave one buffalo to Ali Murad and also paid Rs. 500 to the appellant through Radhomal, a Hindu. Out of this sum of Rs. 500 according to the complainant, he had taken loan of Rs. 400 from a shop keeper Dhani Bux Meher of Pano Akil and the balance of Rs. 100 was provided from. his own pocket. The said amount of Rs. 500 was accepted by Ali Nawaz in his presence as well as in the presence of his brother Amanatali. With regard to the balance amount of Rs. 100 the complainant had promised to pay him later on. Complainant Rahmatullah was, however, pestered to pay this amount and accordingly he went and informed the Anti‑Corruption Authorities on 18th July 1962 at 10 a.m. whereupon his statement was recorded by the First Class Magistrate at Sukkur and thereafter he was paid a sum of Rs. 100 as tainted money for being passed on to the appellant as per Mashirnama (Exh. 4) in the presence of Muhammad Ibrahina (P. W. 4), a mashir, Kadir Bux (P. W. 2), a III Class Magistrate and the investigating officer Mushtaq Ali (P. W. 5). The note was signed by P. W. Kadir Bux. The trapping party consisting of prosecution witnesses Rahmatullah, Kadir Bux, Muhammad Ibrahim and Musthaq Ali then proceeded to the Police Station Pano Akil in a taxi .which was at a distance of 25 miles. Having reached there, rnashir Muhammad Ibrahim accompanied complainant Rahmatullah towards the Police Station. The mashir, however, remained outside while Rahmatullah went under an open the of the Police Station. There was a table lying in the sled with two rows of chairs and a chair behind the table. On the table were lying the station diary and a newspaper. A telephone was also kept on the same table. No one else was present at that time in the shed except Rahmatullah and the appellant. Rahmatullah, it is alleged, then passed the signed note of Rs. 100 to the appellant who kept it under the Roznamcha. He then raised his hand which was a signal to the mashir, whereupon mashir Muhammad Ibrahim, Kadir Bux and the Investigating Officer had come to the shed. They took a personal search of the appellant. The tainted money was not recovered from his personal search. However, on being told by the complainant that the note was kept under the Roznamcha it was secured as per Mashirnama (Exh. 5) in the presence of mashir Muhammad Ibrahim and the other members of the trapping party.

3. On the conclusion of the investigation a challan was submitted on 28th August 1965 along with the sanction granted by the competent authority for the prosecution of the appellant on charges under section 161, P. P. C. and section 5(2) of Act II of 1947.

4. At the trial evidence of prosecution witnesses Rahmat ullah, Muhammad Ibrahim, Nadir Bux, Amanatali and Mushtaq Ali was led in support of the prosecution case. The trial Court while convicting the appellant had accepted the evidence of these witnesses for coming to the conclusion that the appellant had received Rs. 100 as illegal gratification. However, the trial Court did not convict the appellant on a charge under section 161. P. P. C. but convicted him only on the charge under section 5(2) of Act II of 1947 and imposed the sentence as aforestated. No sentence of fine was imposed although that was obligatory.

5. The appellant has in this appeal questioned the correct ness of his conviction. Mr. Azizullah K. Shaikh, the learned counsel for the appellant, has contended before me that complain ant Rahmatullah is an unreliable witness and that on the point of the passing of the money to the appellant his words alone that it was given to the appellant cannot be accepted, for the possibility of plantation of this money has not been completely excluded.

6. In the context of this contention I have examined the evidence on record. P. W. Rahmatullah does not appear to me to be a very straightforward witness. In his statement which. he gave before the City Magistrate which was subsequently incorporated in 154 Cr. P. C. Book he had given a different version about the payment of Rs. 500 to the appellant. According to him, he had borrowed Rs. 400 from a shopkeeper Dhani Bux and added Rs. 100 from his own pocket and gave it to Radhomal which amount was paid in his presence as well as in the presence of his brother Amanatali. In his deposition in Court he has given a different version. He stated that a sum of Rs. 400 was borrowed then and there from Radhomal at Pano Akil. On that day both he and Amanatali had gone to the Police Station and then Amanatali had been let off. Thereafter a sum of Rs. 100 was paid again after 8 days. The two versions are wholly different and neither Radhomal Lad been examined to support his version of having given him Rs. 400 nor the shop keeper Dhani Bux Mehar has been examined to support his version of having borrowed from him Rs. 400 as initially disclosed in his earlier statement. Although in both the statements he has deposed that a buffalo had also to be given to all Murad; yet no evidence in support of it has been produced. It is an admitted position that a report was registered on 3rd July 1962 in respect of an offence under section 377, P. P. C. against his brother Amanatali at Police Station Pano Atil and that the appellant, who was a head constable, was investigating this case. Complainant Rahmatullah himself has stated that he had gone to the Police Station to settle the matter. On the point as to actually what transpired there is the evidence of Rahmatullah himself and his brother Amanatali. Complainant Rahmatullah has given different versions at different times and one of such versions is also in conflict with the one as given by Amanatali. I am, therefore, not inclined to rely on his evidence with regard to the actual payment of Rs. 500 in the absence of any supporting evidence. For that reason, the evidence of Amanatali cannot also be reified upon. In this state of evidence it is also not possible to accept the words of these two witnesses that there was a demand for the payment of Rs. 600 and that a sum of Rs. 100 was being demanded as the balance of that amount. With this background the assertion of the complainant that he had passed on the 100‑rupee note to the appellant has to be appraised. At that moment no one else was present besides the complainant and the appellant. Muhammad Ibrahim, the mashir, was outside the Police Station and according to his evidence he had not seen the passing of the money. Thus, on this point is the evidence of Rahmatullah alone.

7. According to the evidence of the witnesses a personal search of the appellant was taken. If the money had been kept under the Roznamcha by the appellant there was no obvious reason for this personal search, as Rahmatullah could have certainly pointed to the trapping party that the money had been kept by him under the Roznamcha. There is an indication in the evidence that a search of the table was taken and Kadir A Bux (P. W. 2) recovered the note which was lying under the Roznamcha. This version is given by Mushtaq Ali, the investigating officer. According to mashir Muhammad Ibrahim, the complainant had cried out while the personal search was being taken that the money had been kept under the Roznamcha. This version is different from that given by the investigating officer. P. W. Kadir Bux, however, in his cross‑examination has stated that while he was searching the appellant, complainant Rahmatullah had not told him that the money was kept under the station diary (Roznamcha). To me all this appears to be very suspicious, for if the money had been given to the appellant and he had kept it under the Roznamcha, the personal search was out of question and so was the search of the table for the money. This fact could have been given at the outset to the trapping party by the complainant. In fact, the evidence of P. Ws. Mushtaq Ali and Kadir Bux shows that the complainant was silent as to where the money was. This being the state of evidence and the money not having been recovered from the person of the appellant, the question of the plantation of the money assumes significance. It may well be that without the knowledge of the appellant the complainant may have kept the note under the Roznamcha which was lying on the table unguarded and without anybody else present at that time. The possibility of plantation cannot be excluded alone from the evidence of P. W. Rahmatullah, on whose evidence it is no possible to place implicit reliance for the reasons as mentioned hereinabove. P. W. Kadir Bux in his cross‑examination has also said that immediately the note was found under the Rozna mcha the appellant had told him that the money was foisted on him and had pleaded has innocence. This being so and in the context of the above discussion I am not convinced in my mind that the prosecution has established beyond a reasonable doubt the guilt of the appellant. The plantation of the note has not been excluded and in the circumstances I would give the benefit of doubt and acquit him.

8. The learned trial Court while convicting the appellant had not imposed the sentence of fine which was obligatory under section 9 of the Pakistan Criminal Law Amendment Act. His attention is drawn to that provision of law and in future while recording a conviction he must impose the fine as it is a necessary requirement of law. The conviction and the sentence are accordingly set aside, the appellant is acquitted and his appeal is accepted. The appellant is already on bail and his bail bonds are cancelled.

Appeal allowed.

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