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Criminal Appeal No. 137 of 1985, decided on 28th May, 1986.

-‑S. 161‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Raiding Magistrate as well as Inspector of Anti‑Corruption neither witnessed passing of tainted money to accused nor heard any conversation between complainant and accused‑‑Tainted currency notes secured from ground‑‑Complainant who passed on tainted currency‑notes to accused and police constables who allegedly saw accused throwing such notes on the ground not examined‑‑Prosecution, held, failed to bring home charge against accused beyond all reasonable doubt in circumstances‑‑Conviction and sentence set aside.

Gul Zaman Khan for Appellant.

Abdul Ghafoor Mangi, A.A.‑ G. for the State.

Date of hearing: 26th May, 1986.

The appellant is aggrieved against the judgment, dated 19‑10‑1985 of the Special Judge, Anti‑Corruption by which he convicted the appellant under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced him to suffer R.I. for six months and also to pay fine of Rs.3,000 in default to undergo R.I. for two months.

2. The facts in brief are that on 7‑9‑1982 Inspector Ghulam Mustafa received spy information that a group of police officials stops empty trucks between Sohrab Goth and Gulshan‑e‑Iqbal on the pretext that their services are required by the Martial Law Authorities and the police officials used to take Rs.50 to Rs.200 as bribe from the drivers of the trucks and then allow them to go. On such information Inspector Anti- Corruption Establishment acquired the services of driver Mehmood Khan alongwith his truck in order to ascertain the truth of such information. A raid was arranged under the supervision of Magistrate Ghulam Muhammad H. Memon and D.S.P. Malik Muhammad Khan. The Magistrate and the D.S.P. sat in a car while Inspector Ghulam Mustafa alongwith his staff sat in Mazda Mini Bus. Driver Mehmood sat in the truck alongwith Mashir Abdul Karim and two constables. The driver Mehmood Khan was given Rs.200 as tainted money. The party started towards Sohrab Goth and the truck was followed by the car and Mazda Mini Bus. When it reached at the bridge between Federal 'B' Area and Gulshan‑e‑Iqbal it was stopped by A.S.I. Noor Muhammad, the present appellant. It is further alleged that the appellant sat with the driver on the front seat and directed the driver to take the truck towards Gulshan‑e‑Iqbal whereas the raiding; party and Jeep of A.S.I. Noor Muhammad followed the truck. The truck was alleged to have been stopped near House No. A‑201 Gulshan‑e‑Iqbal, Karachi where A.S.I. took Rs.150 as bribe from driver Mehmood and got down from the truck with the tainted money in his hand. On being apprehended it is alleged that the appellant threw the notes on the ground which were collected by Inspector Anti -Corruption who compared the numbers of the notes with the numbers mentioned in the Mashirnama of handing over the tainted money to the complainant, and found them to be same. The appellant was arrested and after usual investigation he was sent up to stand trial before the learned Special Judge, Anti‑Corruption.

3. At the trial the prosecution examined three witnesses in support of the case. They are P.W.1 Mashir Abdul Karim, P.W.2 Ghulam Muhammad Memon Magistrate and P.W.3 Inspector Ghulam Mustafa. Constable Afzal Sibtain was examined as a Court‑witness. After the prosecution side was closed the appellant was examined under section 342, Cr.P.C. and he denied the allegation.

4. In the present case the driver of the truck and the constables have not been examined. There is solitary statement of P.W.1 Mashir Abdul Karim who is resident of Landhi from where the witness was called and was taken to Gulshan‑e‑Iqbal. There is no evidence in support of the recovery of tainted money. The case of the appellant is that he has apprehended the truck on the direction of his superiors after making such Entry No: 35, dated 7‑9‑1982 at 1545 hours of Gulshan‑e‑Iqbal Police Station, Karachi. Again there is another Entry No. 47, dated 7‑ 9‑ 1982 whereby the appellant was sent to apprehend a truck. Though these entries have not been produced by the appellant but there is absolutely no evidence in support of recovery of tainted money. P.W. 1 was stated that Inspector Ghulam Mustafa inquired from the constables as to where was the money on which the two constables standing there showed him the notes lying on the ground. Constables further told him that the accused had thrown the same on the ground when they tried to apprehend the accused.

P.W.2 Ghulam Muhammad Memon, the, raiding Magistrate has deposed that Ghulam Mustafa was the first from amongst us to reach at the place where the truck was standing and he also caught hold of the police officer. He saw three notes of Rs.50 each lying on the lawn outside the bungalow. Inspector Ghulam Mustafa had picked up the three notes. This witness has admitted that he had not seen the tainted money being secured from the possession of the accused. The Investigating Officer has also admitted that the constables who had caught hold of the accused told him that the accused had thrown the money on the ground. He saw three notes of Rs.50 denomination each lying over the lawn and he collected the amount. Thus, there is no evidence that the two material witnesses had seen passing of tainted money to the appellant or having heard any conversation between the appellant and the truck driver. Non‑production of truck driver has not been explained and an adverse inference has to be taken. The police constables who had allegedly seen the accused throwing the notes on the ground have also not been examined. The Mashir has admitted that complainant driver offered Rs.50 to the accused who got annoyed with the driver and told him to go ahead. On the way the driver again offered Rs.100 to the accused which the accused refused to take from the driver. The Mashir has also stated that the accused told the driver that the truck was required by Martial Law Authorities and told him to take the truck to Ghulshan‑e‑Iqbal Police Station. He has not stated that the accused had demanded an illegal gratification from the truck driver. On the other hand the facts stated above would show that it was the driver who offered Rs.50 and Rs.100 to the appellant. Thus, the only incriminating piece of evidence against the appellant is, as deposed by P.W.1 that after going a little further the driver offered Rs.150 to the accused and told him that this was the only amount available with him which he could offer to him on which accused took the amount of Rs.150 from the driver. This witness in cross‑examination has admitted that the driver of the truck has been searched the accused to spare his truck but he did not accede to his request. He has also admitted that the driver was constantly offering the bribe to the accused and the accused refused for accept the same and told the driver to go ahead. The material witnesses namely Ghualm Mustafa and Ghulam Muhammad Memon have not seen anything. The tainted amount was lying on the ground. It was not recovered from the appellant. The Mashir has also given favourable reply to the defence counsel in cross‑examination.

In these circumstances, the prosecution has failed to bring home charge against the appellant beyond all reasonable doubt. In view of the inherent defects in the evidence the appeal is accepted. Conviction and sentences recorded against the appellant are set aside. He is on bail. His bail bond is discharged.

The appeal was accepted by a short order. The above are the reasons for the same.

S.G.D./N‑6/K Appeal allowed.

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