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Criminal Appeals Nos. 90 and 91 of 1985, decided on 31st March, 1986.

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S. 161/34‑‑Illegal gratification‑ Demand and acceptance‑‑Evidence, appreciation of‑‑Accused, M.R. an Assistant Director in a city Development Authority while accused R. A. Clerk under him‑‑Complainant alleging to have paid Rs.700 to accused M.R. who demanded a further sum of Rs.4,000 for completing lease deed‑‑Raid arranged by Anti‑Corruption Inspector‑‑One of Mashirs informing about passing of tainted money to accused R. A.‑‑Magistrate and Investigating Officer raiding accused‑‑Tainted money recovered from 'Khalasi' (acquitted co‑accused)‑‑Complainant alleging to have paid bribe money to accused R.A. at instance of accused M.R.‑‑Out of two Mashirs, one not supporting prosecution case‑‑Demand of bribe by accused M.R. stated only by complainant‑‑Complainant not knowing or identifying accused M.R. at trial‑‑Evidence of paying tainted money to accused R . A. and its passing on to acquitted accused found doubtful‑-‑Mashir examined by Police after .pretty long time‑‑Magistrate and Inspector Anti‑Corruption not witnesses of demand or acceptance‑‑Evidence of complainant and Mashir regarding demand and acceptance of bribe by accused, held, was incredible and cast doubt on the whole of prosecution story‑‑Accused acquitted in circumstances.

A.Q. Halepota for Appellant (in Appeal No. 90 of 1985).

M. Ilyas Khan for Appellant (in Appeal No. 91 of 1985).

G . R . Warsi for the State.

Date of hearing: 5th November, 1985.

Both the appeals have arisen from a judgment, dated 30th May, 1985, passed by the learned Special Judge Anti‑Corruption (Provincial), Karachi in Special Case No. 58 of 1983, whereby both the appellants were convicted of an offence punishable under section 161/34, P.P.C. read with section 5(2) of the Prevention of the Corruption Act, 1947 and were awarded sentence of R.I. for six months and fine Rs.2,000 or to suffer R.I. for one month more in default each.

Appellant Muhammad Rats was an Assistant Director, Lands', K. D. A. : and the appellant Rats Ahmed was a clerk under him. Complainant Fareedul Hasan son of Nazirul Hasan lodged report at the Anti‑Corruption Centre, Karachi on 7‑7‑1983, at about 5‑15 p.m., that he, being a attorney of one Mst. Shahzadi Begum, an allottee of a Quarter No.741, Sector 51‑B. Korangi No.6, had approached Muhammad Rats, Assistant Director K.D.A. in his office at Korangi, on 8‑2‑1983, for execution of lease‑deed in respect of the quarter in favour of Mst. Shahzadi Begum and he handed over to him the site Plan and other documents on 28‑6‑1983 and also paid him Rs.700 in presence of a witness Noor Ahmed demanded by him. He further alleged that the Assistant Director inspected the Site on 1‑7‑1983, and directed him to call on him in his office and he, accordingly, called on him in his office on 6‑2‑1983. He also alleged that the Assistant Director Muhammad Rats demanded Rs.400 from him as bribe for completing the transfer papers telling him that he would have Rs.3,000t for himself, and Rs.1,000 would be paid to Rais Ahmed Clerk and the payment was to be made on 9‑7‑1983. His report was recorded by Fatehuddin, Inspector Anti‑Corruption, Karachi. The Inspector, Anti‑Corruption, arranged a trap for 9‑7‑1983. He requested a Magistrate Mr. Muhammad Usman Shahani to supervise the trap. He called two Mashirs Amiruddin and Kamal Hussain Rs.4,000 in currency notes, duly marked, were delivered to the complainant as tainted money. The trap party sent to K . D . A . Office situated at Korangi. The complainant and the two Mashirs went to Office of the Assistant Director on the first floor of the building, while Investigating Officer and the Magistrate waited on ground floor awaiting signal from the Mashirs. After about an hour, Amiruddin Mashir' informed the Magistrate and the Investigating Officer that the tainted money had been paid to Rats Ahmed Clerk. The Magistrate and the Investigating Officer and the Mashir rushed to the Clerk's office. They, interrogated the clerk pointed out to them. He happened to be the appellant Rats Ahmed. The complainant informed the Magistrate and the Investigating Officer that he had paid Rs.4,000 to the appellant Rats Ahmed at the direction of the appellant Muhammad Rats, Assistant Director, and that the appellant Rais Ahmed had passed on the money to a "Khalasi" by name Abdul Lateef who was standing just behind his chair. The tainted money of Rs.4,000 was recovered from the shirt pocket of Abdul Lateef. Abdul Lateef and the appellant Rats Ahmed were taken into custody, then and there. A file of the papers pertaining to the quarter of Mst. Shahzadi was recovered from the appellant Rais Ahmed. Thereafter, the appellant Muhammad Rais also was put under arrest. After completing the investigation and obtaining sanction for the prosecution of the appellant, Fatehuddin, Inspector, Anti‑Corruption, challaned the appellants and Abdul Lateef in the Court of Special Judge, Anti‑Corruption (Provincial), Karachi.

The appellants and the co‑accused were tried op the charge of the offence punishable under section 161/34, P.P.C. read with section 5(2) of the Prevention of Corruption Act (Act No.II of 1947). They did not plead guilty. Prosecution examined before the trial Judge, the Magistrate Muhammad Usman Shahani (P.W.1), Mashir Amiruddin (P.W.2), Complainant Fareedul Hassan (P.W.3), another Mashir Kamal Hussain (P.W.4), Noor Ahmad (P.W.5) and Anti‑Corruption Inspector, Fatehuddin (P.W.6).

Both the appellants denied their involvement in commission of the crime. Co‑accused Abdul Lateef also made denial of his alleged complicity in commission of the crime. The appellant Mohomed Rais made specific denial that the complainant Fareedul Masan had ever approached him in connection with the quarter allotted to Met. Shahzadi Begum and that he had taken Rs.700 from him In the first instance and made demand for Rs..4,000 later. He took the plea that he was not competent to lease out any quarter to any person. However, he admitted that he had visited the quarter allotted to Met. Shahzadi Begum. He alleged that he was falsely involved as he had refused to oblige witnesses Dr. Kamal and Noor Ahmed for issuing them fictitious allotment orders for plots. He examined in his defence one witness by name Mr. Karamatullah Advocate. Similarly, the appellant Rats Ahmed also made specific denial of the allegation that he had accepted Rs.4,000 from the complainant Fareedul Haman in connection with the lease‑deed of a quarter in the name of Mot. Shahzadi Begum. He examined in his defence two witnesses Shamshad Ali and Muhammad Aqeel Ahmed. Co‑accused Abdul Lateef did not examine any witness in his defence.

The learned Special Judge, Anti‑Corruption, formulated following three points for determination:

"No. 1. Whether on 8‑7‑1983, accused Muhomed Rats being a public servant by virtue of his being Assistant Director, K . D.A. , Korangi, took Rs.700 as illegal gratification from complainant Fareedul Haman in presence of P.W. Noon Ahmed for showing him favour in getting the lease of Quarter No. 741/51‑8 Korangi executed in favour of Met. Shahzadi Begum

No. 2. Whether on 9‑7‑1983, accused Mahomed Rais, Rain Ahmed and Abdul Latif being public servants by virtue of their being the Assistant Director, clerk and Khalasi in K . D . A . Office at Korangi, Karachi respectively demanded and accepted Rs.4,000 as bribe from complainant Fareedul Haman for the aforesaid purpose and were caught red‑handed at the spot and the tainted money amounting to Re.4,000 was secured from the possession of accused Abdul Latif

No. 3. What offence, if any, was committed by the accused "

Point No.1 was decided against the appellant Mohomed Rais; pointed No. 2 was decided against both the appellants Muhomed Rais and Rats Ahmed. Both of them were held guilty of having committed an offence punishable under section 181/34, P.P. C. read with section 5(2) Prevention of Corruption Act, 1947 and were convicted and sentenced as indicated above; while the co‑accused Abdul Lateef was given benefit of doubt and was acquitted.

The main charge against the appellants to that they obtained a sum of Re.4,000 from complainant Fareedul Haman as illegal gratification for execution of Lease Deed in respect of a plot allotted to Mot. Shahzadi Begum. Demand for this money is alleged to have been made on 8‑7‑1983, the report thereof was made to the Inspector, Anti‑Corruption, Karachi on 7‑7‑1983, and‑trap was made on 9‑7‑1983. This charge is converted by point No.2 net down for determination. Evidence thereon consists of complainant Fareedul Hassan (P.W.3), Additional City Magistrate Mr. Muhammad Unman Shahani (P.W.1), two Mashirs Amiruddin and Dr. Kamal Hussain (P.Ws. 2 and 4) and the Anti‑Corruption Inspector Fatehuddin (P.W.B). The sum and substance of their evidence to that they, is pursuance of a complaint lodged by Faridul Haman that appellant Mohomed Rats had demanded Re. 4,000 for execution of lease‑deed infavour of Mot. Shahzadi Begum, formed a trap‑party and went to the appellants office in K.D.A. Building and the complainant Fareedul Haman was given tainted money Re.4,000 to deliver it to the appellant Mohomed Raees in his office on the first floor and the two Mashirs Amiruddin and Dr. Kamal Hussain were deputed to go with him, while the Magistrate and the Anti‑Corruption Inspector waited on the ground floor; and the tainted money was offered to the appellant Mohomed Rats and he directed its payment to the appellant Rats Ahmed and the money was actually delivered to the latter and he passed it on to third accused Mohomed Lateef 'Khalasi and the money was recovered from him by the Magistrate and the Anti‑Corruption Inspector and necessary documents were prepared.

The learned counsel for the appellants hove assailed the impugned judgment on various grounds. Mr. A.Q. Halepota, Advocate for the appellant Mohomed Rais has contended that there is only a word of complainant Fareedul Haman that the appellant Mohomed Rais had demanded bribe from him. As regards the next phase of the prosecution case, he has contended that Amiruddin Mashir has not supported prosecution case, that complainant Faridul Haman had offered bribe money Rs.4,000 to the appellant Mohomed Rais and he directed its payment to the appellant Rats Ahmed Clerk. He has next contended that the complainant Faridul Haman and the Mashir Dr. Kamal Husain have implicated the appellant Rats Ahmed clerk that he took the bribe money but the money, was not recovered from him and it was recovered from the third accused Mohomed Lateef who has been acquitted. According to him, there is absolutely no evidence against the appellant Mohomed Rais that he had demanded any bribe or that he had hand in the acceptance of the bribe money by the appellant Mohomed Rais. He has contended that mere word of complainant Faridul Haman that appellant Muhammad Races had demanded bribe Rs.4,000 is not sufficient to prove the question. He has advanced on argument that the complainant Faridul Haman was accomplice in the affair and his evidence alone is not sufficient to prove charge against the appellant. He has placed reliance on cases reported to P L D 1983 S C 39; 1977 PCr.LJ 258 and 1984 P Cr. L J 2358. Mr. M. Ilyas Khan, Advocate has adopted the arguments of Mr. A.Q. Halepota, Advocate and has added that neither the Magistrate nor the Anti‑Corruption Inspector had heard alleged conversation of the complainant with the appellants and, therefore, their evidence to the alleged trap of the appellants does not have incriminating force. He has cited following cases in support of his argument:

1982 P Cr. L J 557; 1985 P Cr. L J 2397; 1984 P Cr. L J 1494; 1975 P Cr. L J 1288; 1984 P Cr. L J 777 and P L D 1982 Kar. 255.

On the allegations for demand of money, the learned counsel has contended that the appellant Mohomed Rais was not competent to have done the job of execution of Lease Deed and there was no occasion for his asking for or accepting illegal gratification. He has placed reliance on the cases reported in P L D 1983 Lah. , 1984 PCr,LJ 2380 and 2774; 1989 P Cr. L J 1225 and 1984 P Cr. LJ 2774.

Mr. G.R. Warsi, Advocate for the State has not supported the judgment of conviction of the appellants, conceding to the arguments by the learned counsel for the appellants that there is no evidence to the involvement of the appellant Mohomed Rais in acceptance of the bribe money, whereas the alleged passing of the bribe to the appellant Rais Ahmed was not witnessed by the Magistrate and the Anti‑Corruption Inspector themselves and the recovery had been effected from a third person, namely Mohomed Lateef 'Khalasi', who has been acquitted.

Prosecution case, as regards obtaining illegal gratification of Rs.4,000 rests on the evidence of complainant Fareedul Hasan (P.W.3), two Mashirs Amiruddin (P.W.2) and Dr. Kamal Hussain (P.W.4), a Magistrate Mr. Mohomed Usman Shahani (P.W.1) and the Inspector A. C. E., Fatehuddin (P.W.6). A trap was organised under the supervision of the said Magistrate on the basis of a report lodged by complainant Faridul Hasan with the Inspector, A . C . E. , Karachi on 7‑7‑1983. The report is Exh.15. It was alleged that the appellant Mohomed Rais, who was Assistant Administrative Officer, K.D.A. Korangi Area, had taken Rs.700 from the complainant Faridul Hasan on or about 28th of June, 1983 for inspecting the site of Quarter No.471, Sector 51‑B Korangi Area No.6, Karachi allotted to one Mst. Shahaadi Begum, .for execution of Lease Deed in her favour, and demand by him, on 1‑7‑1983, for payment of another sum of Rs.4,000 for completion of execution of Lease Deed. The acceptance of Rs.700 on 28‑6‑1983 is alleged to have been witnessed by Noor Muhammad (P.W.5). Both Faridul Hasan and Noor Mohomed have implicated the appellant Mohomed Rais that he had taken Rs.700 from the former for inspecting the site of the quarter. The second phase of the prosecution case is that of payment /acceptance of the sum of Rs.4,000 during the trap operation. There is evidence of five witnesses, abovenamed, to the trap episode. The scene of the operation was K.D.A. Building, Korangi Area, Karachi. Complainant Faridul Hasan has given the following version of the operation of the trap:

"I was then taken to Korangi alongwith the Inspector, Magistrate, two witnesses Amiruddin and Dr. Kamal Hussain and the Police Staff. We had gone in two vehicles. We parked the vehicles near the K.M.C. Office Korangi. I alongwith the Magistrate and two witnesses namely Amiruddin and Dr. Kamal Hussain came to the office of accused Mohomed Rais Assistant Director which was situated on the second floor of the K.D.A. Building. Mohomed Rais was present in his office. On seeing me Mohomed Raisani enquired if I had brought the money with myself. I replied in the affirmative. Mohomed Rais told me to wait out side for one hour. After one hour I again went to the office of accused Mohomed Rais. He told me to hand over the money to accused Rais Ahmed Clerk. Accused Raees Ahmed Clerk was sitting in the adjoining room. When I had gone to the office of P.Ws. Amiruddin and Dr. Kamal Hussain were with me. I went to the office of Rais Ahmed Clerk alongwith Amiruddin and Dr. Kamal Hussain where Raees Ahmed Clerk was present. I delivered Rs.4,000 to accused clerk in presence of the witnesses. Accused Rais Ahmed Clerk after taking the money from me passed it on the one person who was standing behind his chair whose name was subsequently disclosed as Abdul Lateef 'Khalasil. Abdul Lateef after taking the money kept it in the right side pocket of his shirt. Thereafter, I sent P.W. Amiruddin to inform the Inspector about the passing of the tainted money to the accused. Within 2/3 minutes time the Inspector alongwith the Magistrate and the police staff came there. The Magistrate and the Inspector had enquired from me as to whom I had passed the money and I informed them that I had handed over the money to accused Rais Ahmed Clerk. The Inspector enquired from accused Rais Ahmed Clerk about the money and accused Raees Ahmed clerk told him that he had passed on the money to Abdul Lateef 'Khalasi'. The Inspector secured forty notes of Rs.100 each from the pocket of Abdul Lateef 'Khalasi' ....."

The Mashir Dr. Kamal Hussain (P.W.4), has stated as under:--

"We went to K.D.A. Office by foot. I alongwith Amiruddin and Faridul Hasan came to the first, floor of K . D . A . Office. The Magistrate and Inspector continued to wait in the vehicle. The place where the Magistrate and Inspector were sitting in the vehicle was at the distance of 200 paces from K . D. A . Office. Faridul Hassan went to the office of A.A.O. situated on the first floor. I and Amiruddin followed him inside the office. After entering in the office of A.A.O., Fareedul Hasan told one person sitting inside the office that he had done the work for which he had told him, on which the person sitting inside the office told Fareedul Hasan to wait outside for one hour. Thereafter Fareedul Hasan came out of the room of the A.A. O. I and Amiruddin followed. We waited outside of the office of accused Mohomed Rais for one hour. After about one hour Fareedul Hasan again went inside the office of the A.A.O. We also followed him. Accused Mohomed Rais who was sitting inside the office of A.A.O. told Faridul Hasan to go to Clerk Rais Ahmed and hand over the thing to him. Faridul Hasan came out. We also came after him. Thereafter, we all three came to the place where Clerk Rais Ahmed was sitting. Faridul Hasan was ahead of us. Clerk Rais Ahmed enquired from Fareedul Hasan whether he had brought money or not. Faridul Hasan replied in the affirmative. Thereafter, Faridul Hasan took out 4,000 and passed on to Rais Ahmed Clerk. Rais Ahmed Clerk passed on 4,000 to one person, who was standing behind him. That person after taking the money from Rais Ahmed Clerk kept it in the right side pocket of his shirt."

This witness Dr. Kamal Husain identified in Court the appellant Mohomed Rais to be the person with whom Faridul Hasan had aforesaid conversation in A.A.O's Office. He identified the co‑accused Abdul Lateef 'Khalasi' to be the person to whom Raees Ahmed appellant had allegedly passed on Rs.4,000. Raees Ahmed appellant was identified by him in Court.

The second Mashir Ameeruddin (P.W.2) has described the trap operation as under:‑-

"Thereafter, I alongwith Rasheed, Farid, Dr. Kamal, one Magistrate, Inspector and other police officials went to K . D . A . Office at Korangi. We had gone in three vehicles. We had left the Anti‑Corruption Office at about 1‑00 p.m. After reaching at the K.D.A. Office, I alongwith Rasheed, Fareed, Kamal and one Goldsmith who had also accompanied from the Anti‑Corruption Office went to the 1st floor of the K . D. A . Office. I and Kamal sat on the bench which was lying on the first floor near the staircase while Fareed and Rasheed went to the office of Rais Clerk. The office of Rate Clerk was not visible from the place where I was sitting. Rasheed and Fareed came to us after a short while and told us that Rats was not available in his office and he would come back after about one hour. Rate Clerk came after about 1 hour. Parsed, Raaheed, and Dr. Kamal went to his office. I continued sit on the bench. After about 2‑3 minutes we saw that Rasheed came back from the office of Rats Clerk. One peon was with him. I saw that Rasheed and that person who came to the 2nd floor. After a while Rasheed came towards me and told me that he had given the money to the peon, and I should go and call the Anti‑Corruption Police."

The Magistrate Mr. Mohomed Usman Shahani (P.W.1) has given following version of the trap operation.

"Thereafter I alongwith Inspector Fatehuddin complainant Faridul Hasan Mashirs Amiruddin and Dr. Kamal and other police staff went to K.D.A. Office at Korangi in the Government vehicle. We parked the vehicle near K . M . D . Office. We all got down from the vehicle. The complainant alongwith Mashirs went to the office of the accused which was situated on the 1st floor. I alongwith the Inspector and some police officials stood on the road. After about one hour, Mashir Ameeruddin came to us and informed us that accused Rats who was the clerk had accepted the money. I alongwith the Inspector Mashir Ameerudin and other police staff went to the office of accused Rats Clerk. His office was situated on let floor. We saw one person standing behind accused Reis Clerk. We also saw Mashir Dr. Kamal and complainant Faridul Hasan standing near the accused Inspector Fatehuddin disclosed his identity as well as my identity to the accused. Complainant Paridul Hasan told me that he had gone to accused Mohomed Rais Clerk to take the money from the complainant. He further told me that thereafter he came to the office of accused Rais Clerk to take the money from the complainant. He further told me that thereafter he came to the office of accused Rais Clerk where he handed over the tainted money amounting to Rs.4,000 to him in presence of Mashirs. I enquired about the money from accuses Reis Clerk which he had taken from the complainant but the accused denied having taken any money from the complainant. Complainant Faridul Hasan told me that accused Rais Clerk, after taking the money from him had passed it on to the person standing behind Rats Clerk. He took the search of that person and secured Rs.4,000 from the right side front pocket of his shirt. The Inspector had enquired about the name of the person from whose possession Rs.4,000 were secured who disclosed his name as Abdul Lateef Khalast."

The evidence of Inspector A.C.E., Fatehuddin (P.W.B), as regards the trap incident reads as under:‑--

"I alongwith the Magistrate two Mashirs complainant and police staff went to K.D.A. Office situated at Korangi in a Suzuki van. We stopped the vehicle near K . M . C . Office and we all went towards the K.D.A. Office. The Office of the accused was situated on the first floor in K.D.A. Office. The complainant alongwith two Mashirs went to the office of the accused situated on the first floor. I and the Magistrate stood at the ground floor inside the K.D.A. Building. After about one hour, Mashir Amiruddin came to the ground floor and informed us that complainant had passed on the money to accused Rats who was Clerk in the K . D . A . Office. I alongwith the Magistrate and police staff went to the let floor of K . D . A . Office. We came inside the room where Rats Clerk was sitting. We surrounded accused Rats Clerk. One person who was "Khalast" was standing behind the chair of Rats Clerk. I introduced myself and told Rats Clerk to take out money which he had taken from complainant. Accused Rats denied having taken money from the complainant. On my enquiry, complainant told me that at the directions of Rats, Administrative Officer, he had given the money to Rats Ahmed Clerk who passed on the money to Khalasi. On my request, the Magistrate took personal search of the Khalast Abdul Lateef who was standing behind the chair of accused Rats Ahmed Clerk and secured Rs.4,000 from the right side of pocket of the shirt of accused."

Analysing the evidence of complainant Faridul Hasan, Mashirs Dr. Kamal Hussain and Amiruddin, the Magistrate Mr. Muhammad Usman Shahant and the Inspector A.C.E., Fatehuddin, reproduced above, it appears that the tainted bribe money was recovered from co‑accused Lateef who has since been acquitted. The complainant Faridul Hasan has alleged that he had delivered the bribe money to appellant Rais Ahmed Clerk at the Instance of appellant Mohomed Rats and the former D had passed it on to the co‑accused Latif and all that had happened in presence of Mashirs Dr. Kamal Hussain and Amir Hussain. Dr. Kamal Hussain has supported what the complainant Faridul Hasan has alleged but Amiruddin Mashir has not supported that fact. Accordingly, the prosecution evidence to the involvement of the two appellants to the passing on of the tainted bribe money stands divided. The evidence of the Magistrate and the Anti‑Corruption Inspector does not by itself, implicate the appellants as regards the passing on of the bribe money, There seems no doubt that the tainted money was recovered from the co‑accused Lateef. But he was not concerned with the job for the accomplishment of which the bribe was allegedly asked for and accepted. It has been brought in evidence that the relevant papers concerning the lease of the plot to Met. Shahzadi Begum were recovered from the possession of the appellant Rats Ahmed Clerk and there is no doubt that he was the concerned clerk. But demand for a sum of Rs.4,000 for doing the needful is alleged to have been made by the appellant Mohomed Rais, who held the commanding position. Of course, the appellant Mohomed Rais has dissociated himself from the affair and it has been canvassed on his behalf by the learned counsel that he was not the concerned officer for having done the job but It is borne out from his own statement that he had actually visited the site in connection with the execution of the lease‑deed that he was concerned in finalisation of the execution of lease‑deed. But these circumstances alone do not conclusively prove the guilt of the appellants of the actual acceptance of illegal gratification unless there is tangible evidence against them that they had obtained the Illegal gratification. Dealing with the accusation against the appellant Mohomed Rais, the complainant Faridul Hasan has alleged that he had contacted him on 8‑2‑1983, when the appellant Rats Ahmed Clerk also was present and he i.e. Mohomed Reis asked for Re.3,000 for himself and Rs.1,000 for the appellant Reis Ahmed Clerk for finalising the execution of lease‑deed. This incident is said to have taken place when none else was present. As such, this phase of the prosecution case rests on the evidence of only complainant Faridul Hasan. Of course, this fact was mentioned in the First Information Report and if affords corroborative evidence but the complainant Faridull Hasan had faltered, while giving evidence, by stating that he did not know the appellant Mohomed Rais and he did not identify him in Court. By making such a statement he has made his evidence incredible as regards the involvement of the appellant Mohomed Rais. His evidence to the involvement of the appellant Rais Ahmed Clerk to the acceptance of the bribe money also stands shaken. He has, no doubt, been supported by Kamaluddin Mashir that the money was paid to the appellant Rais Ahmed but the tainted bribe money was actually recovered from the acquitted accused Lateef. The complainant and Mashir Dr. Kamal Husain have stated that the money was taken by the appellant Rais Ahmed and he had passed it on to the co‑accused Lateef. But it appears from the evidence of the Magistrate and the Anti‑Corruption Inspector that this fact was disclosed to them by the complainant Faridul Hasan after they interrogated the appellant Rais Ahmed Clerk and he denied having received any money. Had the money exchanged hands from the appellant Mohomed Rais to Lateef co‑accused as alleged, the complainant Faridul Hasan would have immediately pointed out to the Magistrate and the Anti‑Corruption Inspector that the money had been passed to Lateef. Thus, the version that the bribe money was given to Rais Ahmed Clerk and he had passed it on to Lateef co‑accused within the sight of the complainant Faridul Hasan and Dr. Kamal Husain Mashir is of doubtful nature. It is probable that the bribe money was taken by Lateef, co‑accused on behalf of the appellant but mere probability does not by itself tend to prove a fact in issue. Of course, the complainant Faridul Hasan does not seem to have been nursing in malice against the appellants as to have motivated him to make false accusation against them, but certain circumstances in the case, such as somersault by the complainant during the course of his evidence that he could not say whether the appellant Mohomed Rais was the same official who had made demand from him of Rs.4,000 for the execution of the lease‑deed in respect of the plot; backing out by Mashir Amiruddin from the evidence he was supposed to give that the bribe money Rs.4,000 was passed on to the appellant Rais Ahmed Clerk at the behest of the appellant Mohomed Rais; and, lastly, the recovery of the bribe money from a third person, namely Abdul Latif co‑accused have cast doubt on the prosecution case on the whole. All these facts relate to the alleged demand and acceptance of Rs.4,000.

Another item of charge against the appellant Mohomed Rais is that he had taken Rs.700 from the complainant Faridul Hasan in presence of witness Noor Ahmed on 28‑6‑1983 for taking steps for execution of the lease‑deed, Both the complainant Faridul Hasan and witness Noor Ahmed have implicated him and this fact was disclosed in the report lodged with the Anti‑Corruption Inspector before the trap was organised in respect of payment of Rs.4,000. The appellant Mohomed Rais has refuted the allegations and taken the plea that he was not concerned with the execution of the lease‑deed; but he stands falsified by another part of his statement that he had actually inspected the site of the concerned plot on 1‑7‑1983. Had he not been concerned in the matter, he had no occasion for having inspected the site. However, the accusation against him is to be examined on the evidence of the said two witnesses. It is in the evidence that Noor Ahmed is a friend of complainant Faridul Hasan but his statement was recorded by the police after pretty long time. The complainant Faridul Hasan had flattered in the evidence when he stated that he could not say if the appellant Mohomed Rais was the same officer who had demanded money for the execution of the lease‑deed. Obviously, the evidence on this item of the charge is not confidence inspiring.

On reaching the aforesaid conclusion in appraisement of evidence, it would not be necessary to discuss the cases cited by the learned counsel for the appellant which were decided in the context of the peculiar facts and circumstances of each of them distinguishable from the facts of the case.

The evaluation of the prosecution evidence, made above, brings out that the accusation against the appellants has not been proved beyond reasonable doubt and the finding of the learned Special Judge, Anti‑Corruption (Prov.), Karachi need to be set aside. Accordingly, the appeal is allowed and' the conviction of and the sentence awarded on the appellants are set aside and the appellants are acquitted. Their bail bonds stand discharged.

S. A. Appeals accepted.

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