Find a Lawyer

Criminal. Appeal No. 134 of 1978, decided on 17th April, 1983.

‑‑----S. 161‑Bribery‑Prosecution leading no evidence to prove alleged demand of illegal gratification by accused‑Statement of prosecution witness untrustworthy and unsafe to rely upon without independent corroboration‑Statement of accused under S. 342, Cr. P. C. fully corroborated by defence witnesses‑Prosecution wit nesses not hearing conversation between accused and complainant at time of alleged passing of money nor seeing it to pass through ----Counsel for State not supporting case of prosecution‑Prosecution, held, failed to establish guilt of accused beyond reasonable doubt --Conviction and sentence set aside.

P L D 1962 S C 489 ; 1976 P Cr. L J 273 and 1975 P Cr. L 1286 rel.

Faiz Muhammad Soomro for Appellant.

Rashid Tariq for the State.

Date of hearing : 12th April, 1983.

Appellant abovenamed, being aggrieved by judgment dated 7th June, 1978 of the learned Special Judge Anti‑Corruption, Hyderabad, in case No. 50/77, by which appellant was convicted under section 161, P. P. C. and sentenced to suffer R. I. for 3 months and to pay fine of Rs. 500 or in default to suffer further R. I. for 2 months, has preferred the above appeal on the following facts and grounds :‑

The prosecution case originated from the F. I. R. filed by Muhammad Shafi (hereinafter referred to as the complainant) in the office of Circle Officer Anti‑Corruption Establishment, Hyderabad as under :‑

That I own about 32‑00 acres of Agricultural land in Deh Nukarji, Taluka Golarchi, District Badin. That one Rehmat Ali Arain who is my relative is Hari on Government Agricultural land in Deh: Nukarji Taluka Golarchi. Mukhtiarkar Golarchi ordered Rehmat Ali to vacate the land "and we told him that Rehmat Ali was already Hari on the above land, Mukhtiarkar asked Rehmat Ali to produce the copy of Khasra‑Girdawari from Tapedar concerned. I contracted Tapedar Muhammad Juman at Golarchi who asked me that on 18th May, 1976, he will be at Hyderabad in the Court of Additional Commissioner Hyderabad, with concerned Khasra Girdawari Register. Tapedar Muhammad Jumman demanded Rs. 200 as bribe to give this simple copy of Khasra Girdawari. I promised to pay the same in one Hotel. And I have come for report and legal action.

S. I. P. Abdul Ghafoor of the Anti‑Corruption Police Hyderabad after registering the crime arranged for the trap. He obtained permission for investigation from Additional District Magistrate Hyderabad and took Head Munshi and IIIrd Class Magistrate, Hyderabad for super vising the trap. In presence of Mashir Muhammad Iqbal and the Magistrate Rs. 200 were paid to the complainant in Government currency Notes, the numbers of which were noted down in a Mashirnama pre pared by him. The complainant was then directed to go with the Mashir to contract the appellant and to signal to the Anti‑Corruption party, as soon as the bribe money was accepted. The complainant and the Mashir first went to the Additional Commissioner's office, where the appellant was to meet them and on information that he had proceeded to Yasrab Hotel, the trap party and the Magistrate proceeded and waited outside Yasrab hotel at Hyderabad, while the complainant and Mashir who were head of them, went into room No. 11 of the Hotel, where the appellant was staying. The complainant asked the appellant to issue him copy of Khasra Girdawari on which he stated that he had prepared it, but demanded Rs. 200 bribe which was at the request of complainant reduced to Rs. 100. The complainant passed on the sum of Rs. 100 out of the tainted money to him and the appellant after accepting it put in his Bunyan's pocket. He passed on the copy of Khasra Girdawari to the complainant. That having been done, the mashir signalled at the trap party who were waiting downstairs and they immediately rushed in. The trap party searched the person of the appellant and took out from his Bunyan pocket Rs. 100 part of the tainted money and also secured copy of Khasra Girdawari and Rs. 100 balance of the tainted money from the complainant. The accused also produced the Register of. Khasra Girdawari and some bills of Hotel which were secured. Necessary mashir namas were prepared and the accused was arrested and brought to the Anti‑Corruption Office where statements of the mashir and other wit nesses and the appellant were recorded. After necessary investigation was completed and the sanction for prosecution of the accused obtained he was sent up for trial in trial Court.

The appellant on the other hand denied having accepted any bribe from the complainant. He admitted that he was a public servant as Tapedar of that beat and he was arrested at the said Hotel alongwith Khasra‑Girdawari Register as he had come to Hyderabad to attend the Court of Additional Commissioner, Hyderabad, in a Revenue matter. He further stated, that the complainant did meet him on the day of incident at the Additional Commissioner's Office as be wanted to give him a chit or message for his brothers and he, therefore, asked him to come to Yasrab Hotel where he was staying and he, therefore, came at about 1‑30 p. m. and sat by his side after embracing him and while he was talking to him the Anti‑Corruption police entered and searched his person and he was later told, that some amount was secured from him. He denied, if any copy of Khasra‑Girdawari was passed on to the complainant there. He, however, admitted that the copy of Khasra- Girdawari was already issued to the complainant at Golarchi. In his defence he had examined Khair Muhammad Shah Reader of the Addi tional Commissioner Exh. 25, Gulzar Hussain Manager of Hotel Yasrab Exh. 27 and Nazir Ahmad present Tapedar of Deh, Nukarji Exh. 28 and successor of the accused. The first witness stated that the record of Deb: Nukarji was not detained by the Additional Commissioner's Court prior to 18th May. 1976. when the appellant appeared as a witness in the case of Ashraf Ali v. Rehmat Ali. D. W: Gulzar Hussain stated, that there was no change in the situation of room No. 10 and all of his hotel since 18th May, 1976, and further the interior of either of these two rooms was not visible from the balcony of the hotel. D. W. Nazir Ahmad stated that Khatedars Akram and Aslam, who are brothers of the complainant were defaulting Khatedars from whom Rs. 800 arrears of land assessment were due for the year 1975‑76.

The learned trial Court taking into consideration the evidence ad duced before it, convicted and sentenced the appellant above‑named as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo. of appeal.

The learned Advocate for appellant in support of the above appeal submitted as under :‑.

(a) That prosecution has failed to prove demand of illegal grati fication by appellant beyond reasonable doubt, on account of contradiction in the statement of complainant as given before the learned trial Court and the version given by him in F. I. R.

(b) Conversation between complainant and appellant at the time of passing of tainted money was not at all heard by mashir and learned Magistrate, who was in charge of trap and further the entire tainted amount of Rs. 200 was not recovered from the possession of the appellant and as such no reliance can be placed on the statement of complainant at all. 1n view of this learned counsel for the appellant submitted, that prosecution has failed to establish its case beyond reasonable doubt against the appellant.

The learned counsel appearing for the State at the outset submitted that he was not supporting the impugned judgment on account of the above submissions made by the learned Advocate for the appellant, as statement of appellant under section 342, Cr. P. C. has been fully cor roborated by the statement of defence witnesses. In support of his contentions the learned counsel for the state relied upon cases reported in P L D 1962 S C 480, 1976 P Cr. L J 273 and 1975 P Cr. L J 1286.

I have carefully considered the above submissions made by the learned Advocates before me have gone through the R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for the State.

P. W. 1 Hussain Bux Revenue Officer, who supervised the trap, stated that only Rs. 100 tainted money was recovered from possession of appellant, whereas balance of Rs. 100 were in possession of complain ant and were not passed on to appellant. This P. W. also was not in a position to hear conversation between complainant and appellant at the time of passing of tainted amount, complainant did not give any expla nation to this P. W. for not passing the entire tainted amount to appellant.

P. W. 2 Muhammad Iqbal (mashir) in his statement before the learned trial Court stated, that he was outside the room and only saw that complainant passing some money to appellant, but he did not hear conversation between them and confirmed that only Rs. 100 were re covered from appellant's possession.

P. W. 7 Muhammad Shafi (complainant) has more or less corroborated his F. I. R. and statement of P. Ws. 1 and 2. However he denied enmity suggested to him by appellant.

Evidence of remaining P. Ws. is not at all material to prosecution case of demand of illegal gratification and payment thereof to appellant.

Statement of appellant under section 342. Cr. P. C. about register being available with him in hotel in connection with some case, has been fully corroborated by D. W. Khan Muhammad Shah, and by D. W. Nazir Ahmad, about motive for false involvement by complainant.

Except for the statement of P. W. 7 Muhammad Shafi (Complainant) prosecution has led no evidence to prove alleged demand of illegal gratification by appellant. I find statement of P. W. 7 untrustworthy as be failed to pass on entire amount of Rs. 200 to appellant, for which his explanation is not at all satisfactory. Hence it would be unsafe to rely on his sole statement, without independent corroboration in view of the statement of appellant under section 342, Cr. P. C. which has been fully corroborated by D. W. Khair Muhammad Shah and Nazir Ahmad. The, cases cited by the learned State Counsel fully support his contentions that prosecution has failed to establish its case beyond reasonable doubt against the appellant. It may be noted that neither P. W. 1 nor P. W. 2 heard any conversation between appellant and complainant, at the time of alleged passing of money. In fact P. W. 1 did not see even passing of money. In view of all these facts on record in my opinion prosecution has failed to establish its case beyond reason able doubt against the appellant.

Therefore. I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in the above appeal.

M.Y.H. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.