1969 PLP 379 (SCMR)

AMIRUDDIN AHMAD, J.‑The appellant Muhammad Bachal, a Sub‑Inspector of Police, was tried along with Constable Dhanibux, and convicted by the Second Extra Special Judge of Sukkur, under section 5 of the Prevention of Corruption Act, 1947, and sentenced to rigorous imprisonment for 12 months and a fine of Rs. 150, for having taken a bribe of Rs.

120. He appealed to the High Court and his appeal was dismissed and his conviction and sentenced confirmed. According to the complainant, the prosecution case was that in September 1954, the District Magistrate of Sukkur received an anonymous application containing serious allegations against one Gul Muhammad and the men of his party alleging habitual commission of rioting, theft, gambling, robbery, dacoity, abduction and adultery, and having procured abortions by a number of women. The District Magistrate forwarded the application to the Superintendent of Police of the District for disposal, who in turn sent it to the Deputy Superintendent in charge of Rohri Division, who transmitted it for action to the Sub‑Inspector Police, Dabar, in the area of which Gul Muhammad resided. The Sub‑Inspector, Muhammad Baclial, proceeded to the village in course of his duties to make inquiries with . regard to the matter. While making inquiries the Sub -Inspector threatened the complainant Gut Muhammad and his family with disgrace and demanded a bribe of Rs. 500 to desist from doing so. The amount was, however, brought down to Rs. 120 and a day fixed for payment of the same. According to the complainant, all this talk took place in the presence of Rahamali Shah, Ghulam Mehdi Shah and Badu Shah. It was arranged that the payment was to be made at Police Outpost Salehpat, as the Sub‑Inspector was to be there at the time of payment. In the meantime the complainant Gul Muhammad contacted the Anti‑Corruption Police. The D. S. P. noted down the numbers of the notes, which were to be paid to the Sub. Inspector as bribe, and arranged a raiding party headed by himself with some Head Constables and Constables. What actually happened at the raid appears from the evidence of the D. S. P., who stated that when he was informed that the money had been passed on to the accused Sub‑Inspector, he walked in front of him and asked him to produce the bribe money that lie had received. As he was doing so, he heard shouts of men of his party that the other accused Dhanibux had passed on the money to one Imambux and asked him to run away, Imambux was caught and brought before him and the money was recovered from his person. But, according to the evidence of the com plainant, after he met the accused Sub‑Inspector he was asked to pay up the money and he then sent for Rahamali Shah, and then the complainant with both the accused and Rahamali Shah went out and there he gave the money to Rahamali Shah and he in turn gave it to the accused Muhammad Bachal. He, the complainant, signaled, and then the Sub‑Inspector gave the amount to Dhanibux accused and Dhanibux passed on that money to Imambux, who came about that way and asked him to run away. It may be noted here that the charge, on which the appellant Muhammad Bachal was convicted, as follows :‑ "That on or about the 16th October 1954, you Muhammad Bachal being the public servant, to wit, Sub‑Inspector of Police at village Ghari, Taluka Rohri, by corrupt or illegal means or by abusing your position as such public servant obtaining for yourself from Gut Muhammad Mirbahar a sum of Rs. 120 a pecuniary advantage and have thereby committed an offence punishable under section 5 of the P. C. Act . . . . . ." Constable Dhanibux was charged with abetting the offence. At the trial P. W. 1, Gut Muhammad's evidence, as already noted above, was to the effect that while the talk about the demand of bribe was going on with the Sub‑Inspector, Rahamali Shah, Ghulam Mehdi Shah and Badu Shah were present and that at the time of payment he gave the money to Rahamali Shah and Rahamali Shah gave it to accused Muhammad Bachal. On the other hand Rahamali Shah's evidence was as follows :‑‑ "Gul Muhammad and his men are also my cultivators . . . . . It is not correct that Gut Muhammad had paid the bribe to accused Muhammad Bachal through me. At the time the incident took place I knew that giving of bribe is an offence. It is not correct that I, Gut Muhammad and accused Muhammad Bachal went out and that the money was paid through me." While Ghulam Mehdi Shah in his evidence stated :‑ "Accused did not make any demand about the money in my presence, but he, Rahamali Shah and Gut Muhammad went and talked privately outside. They returned back. I asked Gut Muhammad what they talked and he told me that my uncle (Rahamali Shah) knew everything. I made no inquiry from my uncle." The other alleged witness to the demand Badu Shah was not examined. The learned Special Judge apparently treating both Rahamali Shah and Ghulam Mehdi Shah as hostile witnesses, though they were never declared to be hostile, left them out of consideration, and apparently relying on the complainant's evidence alone, coupled with the fact that some witnesses spoke of having contributed money at the request of the complainant for payment to, the Sub‑Inspector, held that the case against the accused Muhammad Bachal was proved and the case of abetment against Constable Dhanibux was not proved. He, therefore, convicted the Sub‑Inspector, Muhammad Bachal, and acquitted the Constable Dhanibux. It may be noted here that the charge did not mention the demand, but only the receipt of the bribe, which was on a later date. The case was dealt with by the High Court in an equally unsatisfactory manner. The grounds urged in support of the appeal by Mr. Mahmud Ali are fully supported by the. condition of the evidence. He contended that this was a case in which there was no evidence against the appellant that there was no evidence that the Sub‑Inspector even touched the money or that it was passed on to him and that the complainant himself said that he gave the money to Rahamali Shah, which was denied by Rahamali Shah. Rahamali Shah does not say that he passed the money to the Sub‑Inspector. The only evidence relating to payment was of the complainant, Gul Muhammad, in the form of informa tion to the D. S. P. and there too he was contradicted by his own witnesses as to actual payment. The High Court had relied on the complainant's evidence only about the demand of bribe by the Sub‑Inspector, with regard to which also the complainant is contradicted by his own witness, and upheld the sentence and conviction only on suspicion. There is much force in these arguments. This appeal must be allowed. The prosecution has hopelessly failed to bring the charge home to the appellant. His conviction and sentence are, therefore, set aside, and he is acquitted. Appeal accepted,