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Criminal Appeal No. 64 of 1978, decided on 3rd May, 1983.

----S. 5 (2)-Penal Code (XLV of 1860), S. 161-Bribe-Tainted money not recovered from possession of accused-Prosecution witness denying contents of his statement under S. 164, Cr. P. C. which was got recorded after pressurising accused-Complainant highly interested witness and his statement also not corroborated by independent evidence-Prosecution, held, failed to establish case against accused beyond reasonable doubt-Conviction set aside.

Ghafoor Sadiq for Appellant.

Ashraf Khan Tanoli for the State.

Date of hearing : 3rd May, 1983.

Appellant abovenamed, being aggrieved by judgment, dated 21st March, 1978 of the learned Special Judge, Sukkur in Case No. 34/77, by which appellant has been convicted under section 161, P. P. C. and section 5 (2) of Act II of 1947 and sentenced to suffer R. I. for 6 months on each account, has preferred the above appeal, on the following facts and grounds: -

The prosecution case is, that complainant Wali Muhammad Kerio lodged F. I. R. with C. O. A. C. E., Nawabshah on 2nd August, 1976 at 8-15 a. m., that he cultivates 10-15 Acres of Mst. Umed Khatoon in deh 18 Sakrand since long The said land gets water for 2-45 hours. Such chit is available with complainant of Abdar Shamsuddin, who has been transferred appellant Jan Muhammad had taken over in his place about 20 days back The appellant on taking over as Abdar sent message to complainant, through Gul Muhammad Langah for payment of Rs. 300 or else his water turn will be reduced by 1i hours. He met Jan Muhammad Abdar at Sakrand and entreated him, but appellant told him that if he fails to pay him Rs. 300 he will sale away the extra water. Complainant being compelled, promised to pay the amount to appellant on the day of lodging of report. He produced chit of Shamsuddin, while lodging report.

C. O. Mr. Hakim Ali Shah after recording F. I. R. of Wali Muhammad Exh. 2-B, took Head Munshi and staff and went to Sakrand. He gave money to complainant per mashirnama Exh. 4-A. Complainant and mashir were went with instructions, that mashir to give signal. Complainant and mashir went inside the shop of Manghanmal. C. O. and Magistrate stood outside the shop. F. C. Kandero was stationed on the road and he gave signal after a short while. C. O. and Magistrate entered the shop along with mashir. Appellant Jan Muhammad set with Manghanmal. The amount was with Manghanmal. C. O. secured the same per mashirnama Exh. 4-B. He arrested appellant per mashirnama Exh. 4-C. He got 164, Cr. P. C statement of Manghanmal recorded before, Mukhtiarkar on the same day. He received trap report of Magistrate and recorded statement of Gul Muhammad Kandero, and further statement of complainant. He interrogated the appellant. On 6th August, 1976 he examined Canal Assistant Ghulam Nabi and secured share list i.e. true copy Exh. 8-A from him. On 7th August. 15176 he examined Abdar Shamsuddin. He issued final report to the Director. He had secured the chit Exh. 2-A produced by complainant, while registering F. I. R. Muhammad Sardar successor of Hakim Ali Shah on receipt of sanction for prosecution of appellant Exh. 9-A challaned the appellant.

The appellant did not plead guilty to the charge Exh. 1. The learned P: 1. had examined Wali Muhammad Exh. 2 Manghanmal Exh. 3 Gul Muhammad Exh. 4 Ghulam Nabi Exh. 6, Ali Muhammad Jumani Exh. 6, Kandero Exh. 7 Hakim Ali Shah Exh. 8 and Muhammad Sardar Exh. 9.

The appellant in his 342, Cr. P. C. statement Exh. 8, admitted to be posted as Abdar Sakrand Sub-Division (.1) Nawabshah and as such being public servant. He had denied to have demanded illegal gratification of Rs. 300 through Gul Muhammad from complainant for water turn for the land of Mst. Umed Khatoon. He had also denied to have accepted illegal gratification of Rs. 300 on 2nd August, 1976 from complainant and securing of the same from his possession by trap party. According to him P. Ws. are interested and haw deposed against him at the instance of Police. Further, that the case is false and complainant has foisted this case at the instance of Shamsuddin due to professional jellacy and with collusion of Anti-Corruption Police. He had declared his innocence and had led no defence.

The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant abovenamed as herein before mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. of appeal.

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

(a) That tainted money was not at all recovered from the possession of the appellant and as such the prosecution has failed to establish its case beyond reasonable doubt against the appellant.

(b) That prosecution has failed to lead any evidence to prove charges levelled against the appellant and consequently the conviction of the appellant cannot be maintained. On the basis of evidence on record.

The" learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment, as the prosecution has failed to establish its case beyond reasonable doubt, as the tainted money was not at all recovered from the possession of the appellant.

I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court and the impugned judgment.

It is an admitted position, that the tainted money was not recovered from the possession of the appellant and according to P. W. I Manghan mal, the said tainted money was given to him by the complainant directly. Although the prosecution declared' this witness hostile and brought 164, Cr. P. C. statement of this P. W. 9n record, but I find that P. W Manghan mal was hand-cuffed and perhaps pressurised before recording of this 164, Cr. P. C. statement. Furthermore, P. W. Maghanmal hag denied the contents of his statement under section 164; Cr. P. C. In the face of such evidence on record, in my opinion appellant has succeeded in creating doubt in the prosecution case and it will be unsafe to convict the appellant on the basis of uncorroborated statement of P. W. Wali Muhammad (complainant), as he is highly- interested witness and consequently his statement required independent corroboration. The prosecution for such corroboration has relied upon the statement of P. W. Gul Muhammad (mashir), but the said mashir was also declared hostile and, therefore, there is no independent corroboration available on record. In view of this in my opinion prosecution has failed to establish its case against the appellant abovenamed, beyond reasonable doubt, as in my opinion statement of P. W. Qandaro, police constable cannot be relied upon, as I find the said statement unconvincing.

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

M. Y. H. Appeal accepted,

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