1984 P Cr (PLP)

The facts briefly stated are, that appellant Ghulam Rasool was employed as Lineman in the office of S.D.O. Telephones Khairpur. Complainant Muhammad Idris had applied for telephone connection Exh.4 to S.D.O. Telephones for giving him telephone connection at his house. About one week thereafter, appellant Ghulam Rasool is said to have gone and contacted the complainant at his house and told that if he pays him Rs. 500 as illegal gratification, he would get the telephone connection within a week. The matter was subsequently settled at Rs. 300 and the complainant paid him Rs.100 and promised to pay him the remaining amount of Rs.200 after the telephone was installed. On the day of incident, when the appellant alongwith his two subordinates came to install the telephone at his house, the complainant went and lodged report with F.I.A. Police, which was recorded by Assistant Director, F.I.A. Sukkur. A trap was arranged and in presence of one Mashir Karam Hussain and S.D.M. Mr. Nazir Ahmed tainted money was given to the complainant and such Mashirnama Exh. 12 was prepared and the complainant and the Mashir were directed to go to pay the amount to the appellant and when he accept the same, Mashir may give such signal to the raiding party. The raiding party then proceeded to Khairpur. The magistrate and Inspector F.I.A. alongwith his subordinates waited on the road a few paces away from the Otak of the complainant, while the complainant and the Mashir went inside the room where the appellant alongwith his subordinates was waiting. On the receipt of the signal, the Magistrate alongwith other raiding party went inside the room and appellant Ghulam Rasool is said to have produced the tainted money given to him by the complainant before the Magistrate, which was secured. On his personal search, additional amount of Rs.380 one pocket diary and his identity card were secured. It was found that the number of currency notes produced by the appellant before the Magistrate tallied with the numbers of the currency notes noted down in the Mashirnama Exh.

12. Such Mashirnama Exh. 15 was prepared and the Police after obtaining sanction from the Ministry of Interior Exh. 19 sent up the appellant before trial court on 7th March, 1981 to stand his trial, for the offence punishable under section

161. P.P.C. read with section 5(2) of Act 11 of 1947. On 7th April, 1981 such charge Exh. 2 was read over and explained to the appellant, to which he pleaded not guilty. The prosecution had examined Hamid Hussain Exh.3, Muhammad Idris Exh.9, Karam Hussain Exh.11, Ali Ahmad Exh. 14 and Nazir Ahmad Exh.21 in support of their version. The appellant in his statement under section 342, Cr.P.C. Exh. 23 had denied of having demanded or accepted any amount, as illegal gratification from the complainant, for installing telephone connection at his house. He further stated, that when the raiding party entered the room, the complainant picked up the currency notes from the ground and produced the same before the Magistrate. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above named, as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in memo of appeal. The learned Advocate for the appellant in support of the above appeal submitted as under:- (a) That except for the statement of complainant in respect of alleged demand and payment of bribe, there is no other evidence on record in this connection, as P.W.3 Karam Hussain, the alleged Mashir of recovery of tainted money was declared hostile, as he did not support the prosecution case. In support of this learned counsel relied upon cases reported in P L D 1963 S C 38, 1970 P Cr. L J 675, 1977 P Cr. L J 256, 1982 P Cr. L J 729 and 1977 P Cr.L J 292. (b) Statement of learned Magistrate only confirms recovery of tainted money from pocket of appellant, but the learned Magistrate had heard no talks between complainant and appellant and as such said statement is of no avail to prosecution and in support of this the learned counsel relied upon cases reported in 1978 P Cr. L J 885, 1975 P Cr. L J 1286, 1973 P Cr. L J 833 and 1972 P Cr. L J 836. (c) That prosecution failed to examine Mr. Amir Bux, in whose presence it is alleged portion of bribe money amounting to Rs.100 was paid, one day earlier. (d) That it is admitted position, that telephone was installed before alleged payment and appellant was only lineman and had nothing to do with sanction of telephone at all. (e) That there are material contradictions in the statement of complainant and on account of complainant's serious grudge against the department, his statement required independent corroboration, which is not available in respect of demand and payment. In view of above submissions the learned counsel for appellant submitted, that prosecution has failed to establish its case beyond reasonable doubt. The learned Advocate appearing for the State on the other Hand submitted that he was fully supporting the impugned judgment, in view of the cogent reasons given by the learned trial Court and on account of recovery of tainted money from the present appellant, by learned Magistrate. I have carefully considered the above submissions made by th0i learned Advocates before me and have gone through the R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for appellant. It is admitted position, that prosecution case as far as alleged demand and payment and passing of tainted money depends solely upon the statement of complainant only, as P.W.3 Karam Shah, the Mashir of recovery did not support prosecution case and was declared hostile. In view of this admitted position, the cases cited by the learned Advocate for the appellant are fully applicable to the facts of the present case. It may further be noted, that appellant was only lineman and before passing of alleged bribe money, telephone was already installed and working and as such statement of appellant under section 342, Cr.P.C. cannot be ignored. In addition to this, according to complainant Rs. 300 were settled and out of this sum Rs.100 were paid a day prior to appointment in presence of one Allah Bux, but the said witness was not examined before the learned trial Court. Learned trap Magistrate admitted, that he did not hear any conversation between complainant and appellant and/or that he actually saw passing of tainted money. In view of this case cited by learned Advocate for appellant, that appellant is liable to benefit of doubt, are fully applicable to the facts of present case. P.W. 3 Karam Shah, stated, that learned Magistrate did not recover tainted money from pocket of appellant, as alleged by prosecution. No doubt, this P.W. was declared hositle, but I find his statement was not shaken in his cross-examination, in this connection. Keeping in view all these facts and my conclusions, in my opinion prosecution has failed to establish its case bey6nd reasonable doubt, against the appellant, as appellant as lineman was not in a position to sanction the installation of telephone and perhaps complainant on account of his grudge against the department has falsely involved the appellant. 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 by appellant in above appeal. M. Y. H. Appeal allowed