1973 P Cr (PLP)

5. On arrival in the office of the appellant, Rehmat Khan passed on the money to him and signalled to Foot Constable Muhammad Khan, as a result whereof, the raid party arrived in the office. On seeing them, the appellant threw away the tainted money. This was collected. Recovery memo. Exh. P. W. 1/3 was prepared. Statements of the complainant and the appellant were recorded and the latter was put under arrest and handed over to Sub-Inspector Muhammad Tufail for further investigation.

6. At the trial, the prosecution examined Sub-Inspector Muhammad Tufail (P. W. 1), Rehmat Khan son of Shuker Din (P. W. 2), Rehmat Khan son of Karam Din (P. W. 4) and Chaudhry Hameed Ullah, Magistrate (P. W. 6), to establish the passing of the tainted money and its recovery from the appellant. It is significant that Foot Constable Muhammad Khan, who also must have seen the passing of the tainted money and its recovery, was given up by the Public Prosecutor without assigning any reason. Mr. Muhammad Qaiser Khan, Naib-Tehsildar (P. W. 5), was examined to establish that the appellant was the only subordinate working in his office at Gujrat.

7. The appellant, while admitting that Rehmat Khan com plainant had made an application for the grant of loan, denied that he demanded bribe from him. He denied that he accepted the tainted money and he threw the same away on the entry of the Magistrate in his room. He stated :

"The amount was picked up from the floor in my office but it was lying near the table of clerk Abdur Rashid." He also added that Rehmat Khan complainant was annoyed with him over the partition of property, which he held in his possession alongwith his co-sharers. He examined Mr. Rashid Ahmad (D. W. 1), a clerk working in the same room, to establish the fact that the currency notes were recovered by the Magistrate from the floor near the seat of Rashid Ahmad.

8. I would, in the first instance, deal with the evidence with regard to the demand of illegal gratification, its alleged receipt by the appellant and recovery from him. Rehmat Khan son of Shuker Din is a most important witness in this connection. However, to start with, it may be pointed out that he is, at beat, an agent provocateur and an accomplice in the crime and, there fore, his testimony can be acted upon only, if it finds corroboration from an independent source. He is also, as I shall presently point out, a witness, who is, in all probability, inimical to the appellant. Before dealing with his testimony, I would like to point out that in his capacity as a 'refugee from Jammu and Kashmir, he obtained a ration card for the supply of free rations for' eight persons of his family including himself and his brother Sher Muhammad. In lieu of the free rations to which the family was entitled, land measuring 56 kanals, 4 marlas was allotted in his name on his application, by the A. R. C., Gujrat, on 10th May 1960. His brother Sher Muhammad had no separate allotment. He complained by means of application Exh. P. W. 5/1, that since the time of allotment of the land, no produce had been given to him by his brother, the complainant.' As stated by Mr. Muhammad Qaiser Khan (P. W. 5), the land belonging to Sher Muhammad was partitioned. Mr. Muhammad Qaiser Khan himself ordered the partition. However, he stated that the appel lant used to deal with this case. Rehmat Khan complainant has himself stated with regard to the aforesaid affair that he agreed to the partition. In the second breath, however, he deposed that he had filed an appeal against the decision of the authorities, which was still pending, because he suspected that his brother Sher Muhammad would transfer the land, which had been given to him in partition. He had to part with about 39 kanals 3 marlas of land. He also admitted that the appellant, at the relevant time, was working in the office when this application was disposed of by Mr. Qaiser Khan. The order of partition Exh. P. W. 5/21 shows that the partition was confirmed on 1st November 1968, by D. S. C. (L), Gujrat. In these circumstances, I would have to be doubly cautious in accepting the testimony of Rehmat Khan son of Shuker Din. He might have had a grievance against the appellant and might have been under the impression that the appellant was instrumental in getting the land 9f the family partitioned. I say so, because he does not seem to be satisfied with the partition and has thus filed an appeal. Would it be possible, under these circumstances, that within a few days of the confirmation of the partition proceedings, he would approach the appellant and offer to pay him bribe in getting a loan for him.

9. The second circumstance, which is no less important and which has affected my mind is that the statement of the com plainant is self-contradictory, so far as the demand of illegal gratification is concerned. He deposed that the appellant to start with, demanded a tribe of Rs. 50, but finally agreed to accept Rs.

30. He has added :

"I promised to pay the amount on the third day because I did not have any amount then. I did not pay any amount on this day." This statement was made by him in examination-in-chief on 6th April 19"

70. However, when cross-examined on 7th May 1970, he deposed :- "On this first contact with the accused, I gave him Rs.

5. My examination-in-chief to the extent ref my not paying any thing that day is wrong."' This is the type of the witness I have to deal with. It would, therefore, be essential that there should have been evidence, as to the talk that took place between the complainant and the appel lant, at the time of the passing of the money. This could have shown as to what was the nature of the money, which was being passed on to the appellant, in case it was actually passed on to him. The most important witness, who could depose to such circumstance was Foot Constable Muhammad Khan, who, as have said above, was given up. The presumption would be that if produced he would not have supported the prosecution case. His non-production, to my mind, is fatal to the prosecution version. However, besides the statement of the complainant with regard to the passing of the money, we have the statement of Rehmat Khan son of Karam Din (P. W. 4). In the first instance, he was not a member of the raiding party. His very presence in the office at the time of the passing of the money, is doubtful for be had no business of his own kgo to that office. He claimed that he had gone thereto make inquiry with regard to the case of one Bagh Ali. He admitted that he is not related to said Bagh All-. Normally, therefore, I would not expect that he would be in the office, in connection with the case of Bagh Ali, to whom he was not related. He does not say, why, Bagh Ali himself could not go to make the necessary inquiries. He was on his own admission, prosecuted for forging a claim, though he was ultimate ly acquitted. The case of the appellant is that one Muhammad Boota, who was a clerk in the office at Gujrat, was transferred to Rawalpindi on a complaint, about six or seven months before the raid. He was replaced by the appellant. However, even after his transfer, as admitted by Mr. Muhammad Qaiser Khan, Naib Tehsildar, he used to visit the office "and interfere with the work of the accused who complained against him." Boota was keen to return to Gujrat. There is a suggestion that he is also at the back of the present complaint against the appellant and Rehmat Khan son of Karam Din has been put by him as a witness. Whether, this assertion is correct or not, it would, to some extent, disminish the value of the statement of the aforesaid Rehmat Khan son of Karam Din. It would, thus, be very difficult to say that he is that independent witness, who corroborates the testimony of the complainant with regard to the passing of the tainted money to the appellant. Assuming that he was in the office, it is significant that he does not say, as to what exactly transpired between the complainant and the appellant, when the money was passed on.

10. Sub-Inspector Muhammad Tufail (P. W. 1) and Chaudhry Hameed Ullah Magistrate (P. W. 6), were standing at a distance of 100 yards from the office, when the tainted money is alleged to have been passed on. They could not have any knowledge as to why the money was passed on to the appellant. At the most, their statements reveal, which I must say again, are discrepant, that on seeing the Magistrate arriving, the appellant threw the money. The Sub-Inspector stated that the appellant threw the money "with his left hand from his pocket," when the Magistrate introduced himself to him. This is, however, not the position of the Magistrate himself. He stated during the examination-in chief :- "The complainant pointed out the accused to me. At the same moment, the accused threw away the currency notes." In cross-examination, he stated :- "I was the first man to enter the office accompanied by Rehmat. As we entered the accused was in his seat. The moment I entered and accused was pointed out to me, the accused threw the money under the table. I was at a distance of two steps, when he threw away the money." It is therefore, clear that the police officer is introducing a matter, which does not find place in the statement of the Magistrate. Be it as it may, from the recovery of the money from the possession of the appellant, it cannot be inferred that he accepted it as illegal gratification. I say so, on the assumption that the money was recovered from the appellant. It was the duty of the prosecution to affirmatively establish that the appellant demanded illegal gratification, which was paid to him as such, and was recovered in the aforesaid circumstances. It is needless to repeat that there was nobody near the appellant and the complainant, who had over heard the talk, if any, which took place between them. In the aforesaid circumstances, the learned trial Judge was not justified in relying on the tainted testimony of the complainant, when it is doubtful, whether the appellant could have, in view of the parti tion case, demanded bribe from him and if so, the amount was actually paid and recovered in the circumstances narrated by the prosecution.

11. Thus considering all the aspects of the case, I am of the opinion that the case against the appellant is highly doubtful. I would, thus, allow his appeal, set aside his conviction and sentences. He is already on bail. He shall be discharged from his bail bond. The fine, if realized from him, shall be refunded to him. Appeal accepted.