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Criminal Appeal No. K‑9 of 1981, decided on 8th January, 1984.

(On appeal from the judgment and order of Sind High Court dated 30‑11‑1980 in Criminal Appeal No. 171 of 1976).

‑‑‑S. 161‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑ Re‑appraisal of evidence‑‑Prosecution having failed to establish its case beyond reasonable doubt, appeal allowed, conviction and sentence set aside.

M. Hayat Junejo, Senior Advocate and Muzaffar Hassan, Advocate‑on‑Record for Appellant.

S. M. Abbas, Advocate‑on‑Record for the State.

Date of hearing: 8th January, 1984.

‑This appeal by special leave is from the judgment and order of the High Court of Sind dated 30‑11‑1980 whereby the appeal preferred by the appellant against the judgment dated 13‑7‑1976 of the learned Special Judge‑cum‑Enquiry Officer, Anti‑Corruption Hyderabad convicting him under section 161 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act II of 1947 and sentencing him to undergo rigorous imprisonment for one month and to pay a fine of Rs.2,000 or in default of payment of fine to suffer rigorous imprisonment for one month more, was dismissed.

The appellant at the relevant time was a Head Clerk in the Rehabilitation Branch of the Office of the Deputy Commissioner, Sanghar, in 1974. According to the prosecution case, Haji Sharfuddin, Allah Ditta and Ismail had purchased 280 acres from the surrendered land of a claimant Ghulam Rasul and the Khata pertaining thereto was mutated in their names on 12‑1‑1974. Subsequently, it transpired that survey numbers 78, 79, 88 and 89, out of the said land stood doubly allotted to some other person. Shah Muhammad, P.W. 1, special attorney of the above purchasers, approached the appellant on 7‑2‑1974 for rectification of the Khata for which purpose he demanded bribe of Rs.1,000 but ultimately agreed to accept Rs.200. On 9‑2‑1974 Shah Muhammad reported the matter to the Circle Officer, Anti‑Corruption, Sanghar namely, Atiq Ahmad, P.W. 3, who after recording the F.I.R. gave tainted money to Shah Muhammad under a Mashirnama which was besides others witnessed by Mashirs P.W. 2 Muhammad Sadiq and Wazir Ali. Thereafter Shah Muhammad and Mashirs Muhammad Sadiq and Wazir Ali went to the office of the appellant followed by police party. Wazir Ali stood outside the office while Shah Muhammad and Muhammad Sadiq entered the office of the appellant where they found some persons sitting with him. The appellant after disposing of the visitors demanded money from Shah Muhammad in the presence of P.W. Muhammad Sadiq. The appellant kept the money in the drawer of his table and then proceeded towards an almirah in the office, when Muhammad Sadiq allegedly slipped out of the room and gave signal to Wazir Ali, who was standing outside in the Verandah, who in turn gave signal to the Circle Officer who knocked at the door of the office which was bolted from inside. The police party entered the room after the door was opened by the appellant. P.W. Atiq Ahmad disclosed his identity and asked for the money which the appellant refused to have. Shah Muhammad informed the police that the money was kept in the drawer from where it was secured and a Mashirnama to this effect was prepared.

The prosecution in support of its case relied upon the evidence of the complainant Shah Muhammad and Mashir Muhammad Sadiq regarding the acceptance of bribe and subsequent recovery of the amount from the drawer of the table of the appellant as deposed by above two witnesses and P.W. Atiq Ahmad. The other Mashir P.W. Wazir Ali was, however, given up.

The defence of the appellant was one of denial, false implication and enmity with Haji Sharfuddin.

We heard the learned counsel and have gone through the prosecution evidence. All the three prosecution witnesses stated that the money was recovered from the drawer of the table of the appellant having been pointed out by the complainant Shah Muhammad. According to Shah Muhammad and Muhammad Sadiq, when they entered the appellant's room some persons were already sitting there who were made to leave by him. Muhammad Sadiq was equally a stranger to the appellant and it has not been shown that, in the earlier negotiations with the appellant. When he had promised to do the needful on payment of bribe, this witness was present or otherwise known to him since before. In the circumstances, contention of the learned counsel for the appellant was that it was unlikely that the appellant would have accepted the bribe money in presence of this witness while he was cautious enough to drive away the other persons from his room. According to the prosecution witnesses, the appellant's room was found locked from inside and was opened after the police had knocked at the door. Atiq Ahmad, P.W. 2, admitted in his cross=examination that the office of the appellant had one main gate and one back door which was blocked by a cupboard kept in front of it. This is consistent with the evidence because the raiding party had to enter the room after it was opened by the appellant. In the circumstances, the statement of P.W. Muhammad Sadiq that he had slipped out of the room when the appellant had proceeded towards the almirah in order to give signal to Wazir Ali, on the face of it appears to be false. Such statement of Muhammad Sadiq is also not supported by Shah Muhammad, who merely stated that after the money was kept in the drawer by the appellant, Muhammad Sadiq gave signal to Wazir Ali and who in turn gave signal to the police. The manner in which the signal was given was not mentioned by this witness.

In view of defence plea of enmity with Haji Sharfuddin, for whom Shah Muhammad acted as attorney, the contention of the learned counsel that the money may have been stealthily kept by the complainant in the drawer when the appellant proceeded towards the almirah and for this reason it was he who had pointed out the same to the Circle Officer, is not without force.

As a result of the above discussion, we find that the prosecutions has failed to establish its case beyond reasonable doubt against the appellant. The appeal is, therefore, allowed and the conviction and sentence of the appellant are set aside. Fine, if realised, shall be remitted and the bail bonds furnished by the appellant are discharged.

M.I. Appeal accepted.

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