1986 PLP 2550 (MLD)

‑‑‑S.161‑‑Benefit of doubt‑‑Evidence, appreciation of‑‑No other evidence against accused except that of alleged securing of tainted money from a drawer of his table and his own confessional statement‑‑Probability of keeping bribe money in drawer of table by complainant, not ruled out‑‑Statement of accused alone, held, would not prove guilt in a criminal case‑‑Accused given benefit of doubt and acquitted, in circumstances. Muhammad Yousuf v. The State 1969 P Cr.L J 1408; Syed Safdar Ali v. The State 1985 S C M R 1941 and Ghulam Abbas v. The State 1968 P C r. L J 17 ref. Muhammad Hayat Junejo for Appellant. A . K . Jatoi for the State. Dates of hearing: 1st and 2nd September, 1986. Appellant Abdul Rahim was a clerk in the office of Sub‑Registrar, Mirpur Khas in November, 1983. He is alleged to have demanded Rs.500 as illegal gratification from one Muhammad Idrees Memon, a businessman in Mirpur Khas, for issuing to him a true copy of registered sale‑deed in respect of an agricultural land sold by him and his brother Muhammad Farooq to Noor Muhammad and others, and actually took from him a settled sum of Rs.150 on 20‑11‑1983. He is alleged to have been caught red‑handed accepting the bribe money Rs.150 during the course of a trap organized by the Local Circle Officer, Anti‑Corruption, on a report made to him by the aggrieved person Muhammad Idrees. The trap was supervised by a IIIrd Class Magistrate, Mr. Parshotamdas and the detection was witnessed by mashirs Mir Muhammad and one another. The appellant was tried in the Court of Special Judge, Anti‑Corruption, Hyderabad, on the charge of an offence punishable under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. The learned trial Judge convicted him of the aforesaid offence and sentenced him to suffer rigorous imprisonment for one month and pay fine Rs.1,000 or suffer rigorous imprisonment for three months more in default by judgment, dated 1‑8‑1985. The appellant has preferred this appeal against his conviction and the sentence awarded on him. The learned counsel for the appellant has contended that the alleged money was not recovered from the person of appellant but it was recovered from a drawer of a table in office and probability of planting of money on the appellant could not be ruled out in view of the fact that the appellant has declined to issue a certified copy of the sale‑deed to the complainant Muhammad Idrees without the order of the Sub‑Registrar on the application for copies and their having been altercation between them on that account. He has further contended that the trap episode is not free from suspicions as a IIIrd Class Magistrate involved in an enquiry pending with the Circle Officer. Anti‑Corruption, was associated to supervise the trap and selected persons were made mashirs. He has contended that the Special Judge has not considered the evidence in its real perspective and has accepted incriminating part of evidence of witnesses and discarded that part of their evidence which was favourable to the appellant /accused and such reliance has been placed on the statement of the appellant obtained from him at the time of his apprehension, which was not admissible in evidence. The learned counsel for the State has supported the judgment of the learned Special Judge, arguing that the evidence adduced by the prosecution was sufficient to have warranted conviction of the appellant. Prosecution case rests on the evidence of complainant Muhammad Idrees (P.W.1), mashir Mir Muhammad (P.W.‑2), Sub‑Registrar Gopichand (P.W.3), IIIrd Class Magistrate Mr. Parshotamdas (P.W.‑4), complainant's brother Muhammad Farooq (P.W.‑5), Ghulam Raza, a Senior Clerk in the office of Sub‑Registrar (P.W.‑6), and the Circle Officer, Anti Corruption, Mr. Atique Ahmed (P.W.7). The appellant did not adduce any evidence in his defence. He examined only himself and made denial of the allegations. The complainant Muhammad Idrees has alleged that the appellant had demanded Rs.500 for issuing a copy of the sale‑deed executed by him and his brother Muhammad Farooq and ultimately reduced the demand to Rs.150 and he delivered to him Rs.150 during the course of the trap organized by Anti‑Corruption personnel on his making report to them and the tainted money was recovered from the drawer of his table in presence of Mashir Mir Muhammad and a Magistrate. Mashir Mir Muhammad has supported the recovery of the tainted money of Rs.150 from a drawer of the table of the appellant but he has stated that the money was kept there by the complainant Muhammad Idrees: The evidence of the Magistrate Pershotamdas and the Investigating Officer Atique Ahmed is that the tainted money was recovered from a drawer of the table of the appellant. Their further evidence is that the application made the complainant for copy of the sale‑deed and two stamped papers also were recovered from the table of the appellant. The evidence of complainant's brother Muhammad Farooq is that he had gone to the office of the Sub Registrar to obtain a copy of the sale‑deed and he had come across a clerk by name Haii who demanded Rs.500 for issuing the required copy. The evidence of the remaining two witnesses Gopichand Sub‑Registrar and Ghulam Raza, Senior Clerk is that the appellant was serving as a clerk in the office and was dealing with supply of copies of documents which were registered in the office. The prosecution case is that demand of Rs.500 was made for supplying a copy of the sale‑deed and the amount of Rs.150 was actually accepted by the appellant for that purpose. Of course, the appellant was a clerk in the office of Sub‑Registrar and he was dealing with the matters of supply of copies of the documents registered in the office and application for copies made by the complainant's brother Farooq and two blank stamped papers provided probably for copying out there. on the registered sale‑deed were secured from his table. But the grievance of the complainant party was that initially a clerk by name Haji had made demand for money. This fact has been deposed to by the complainant's brother Muhammad Farooq and also by the complainant himself. The appellant is alleged to have appeared in picture when the complainant Muhammad Idrees went to the office of the Sub‑Registrar. The report of demand of the bribe money was made by complainant Muhammad Idrees to Circle Officer; Anti‑Corruption, against the appellant. Trap for catching hold of the bribe taker was organized against the appellant. However, the bribe money intended to be delivered to the appellant was 'recovered from the drawer of the table of the appellant. The complainant Muhammad Idrees has no doubt implicated the appellant that he had taken the bribe money and then placed it in the drawer of his table but evidence of the mashir Mir Muhammad is that the money was placed in the drawer by Muhammad Idrees. The learned trial Judge has considered this part of his evidence as obliging statement but there is nothing on the record that the witness was in any way obliged to favour the appellant. Neither the Magistrate nor the Investigating Officer saw the appellant taking bribe money from complainant and keeping it in drawer. The complainant had admitted that he had altercation with the appellant when he had visited him last before the eventful day and there is probability of keeping the bribe money in the drawer by the complainant on the appellant's refusing to accept it. Recovery of bribe/tainted money from drawer of the table of the accused in identical circumstances was not considered as totally incriminating evidence in the cases: Muhammad Yousuf v. The State 1969 P Cr.L J 1408 and Syed Safdar Ali v. The State 1985 S C M R 1941. Thus, the evidence of the complainant and witnesses did not prove that the bribe money was actually taken by the appellant. As regards the statement of the appellant before the Third Class Magistrate, it did not amount to be a confession as only a First Class Magistrate or a Magistrate second Class specially empowered can record a confession under section 164, Cr.P.C. confession of an accused recorded by the First Class Magistrate in a trap case of corruption of like nature at the spot was not relied upon by a Full Bench of Lahore High Court in a case Ghulam Abbas v. The State 1968 P Cr.L J

17. Moreover, the trap in a corruption case is generally laid after registration of the crime. The statement of an accused made during the trap operation is taken/recorded during the course of investigation in presence of the investigating officer and such a statement is supposed to have been made in the state of nervousness and perplexity and even under fear and it does not constitute the voluntary statement of incriminating nature. Even if the statement is of such a nature that it appears to be a voluntary one, it is to be considered in its entirety rather than in its parts. The statement 'of the appellant, read as a whole is exculpatory as he has stated that the amount delivered to him was paid as copying fees etc. The learned Judge seems to have attached undue weight to the statement made by the appellant to the Third Class Magistrate and considered it as incriminating piece of evidence. There was no other evidence against the appellant, except that of alleged securing of tainted money from a drawer of his table and his statement made before the Magistrate which is not sufficient to prove guilt in a criminal offence. For the reasons recorded above, the charge against the appellant, is not proved beyond reasonable doubt. Accordingly, he is given benefit of doubt and is acquitted of the offence he was convicted of and sentenced for. His bail bond stands discharged. These are the reasons, for allowing the appeal by short order, dated 2-9-1986. S.G.D. Appeal allowed.