GHAZIDINO Versus STATE

ZAFFAR HUSSAIN MIRZA, J.-- This appeal by leave arises out of the judgment of a learned Single Judge of the Sind High Court dismissing the appeal of the appellant against his conviction and sentence passed by the learned Special Judge Anti-Corruption, Sukkur, under section 161, P.P.C. read with section 5(2) of Act II of 1947.

2. At the material time the appellant was posted as a Tapedar Scarp, Sukkur, under the Land Acquisition Officer, L.S.R.II Wapda, Sukkur. The place of occurrence is said to be the Circuit House, Larkana, where it seems the Land Acquisition Officer was camping at the relevant time. The charge against the appellant was that in order to obtain higher rate of compensation for the agricultural lands of complainant Muhammad Buxal which had been acquired by the Government, for the purpose of seepage drain, he had demanded Rs.200 as illegal gratification. The complainant reported the matter to the Circle Officer Anti-Corruption Establishment and a trap was arranged.

3. The tainted money was not secured from the appellant but from the co-accused, one Liaquat who was the Kotwar serving in the same organization. However, according to the prosecution certain papers in connection with the acquisition of agricultural land belonging to the complainant were secured from the appellant.

4. The prosecution case mainly rested on the testimony of complainant Muhammad Buxal, Police Constable, Khadim Hussain and Magistrate Second Class, Mr.Bashir Ahmad. The appellant denied the allegations of the prosecution that he had demanded illegal gratification and accepted the same. However, in his statement under section 342, Cr.P.C. co-accused Liaquat admitted having received Rs.200 from the complainant at the instance of the appellant, who according to him, represented that the complainant was his uncle.

5. Leave was granted in this case in order to examine the following contentions raised on behalf of the appellant: ---

(i) that it was incumbent on the prosecution to establish demand by and payment of illegal gratification to the appellant, as well as recovery of tainted amount from his possession;

(ii) that in the final analysis the conviction of the appellant was based upon the sole testimony of the complainant as no other witness testified to the fact that the appellant had demanded illegal gratification from the complainant;

(iii) that as laid down by this Court in two unreported judgments Muhammad Umar v. he State (Cr.A.No.K-6 of 1970) and Hafiz Aziz Ahmad Khan v. The State (Cr.A.K-28 of 1973), the rule of prudence required not to make the uncorroborated testimony of the bribe giver the sole basis of conviction for an offence of this nature; and

(iv) that even in the F.I.R. the name of the appellant was not disclosed as the Tapedar who had demanded illegal gratification from the complainant.

6. Learned counsel for the appellant has reiterated the aforesaid contentions in support of this appeal. Learned counsel appearing for the State has, however, been unable to meet the arguments advanced on behalf of the appellant. We have perused the evidence on the record with the assistance of the learned counsel for the parties. We find that even the complainant did not support the prosecution case fully. In the examination-in-chief the complainant did state that the appellant asked him to pay Rs.200 so that he could get higher rate of compensation for his lands but as regards the payment of the amount his version was that the appellant did not receive the amount of Rs.200 when it was offered to him, telling him to keep the amount with himself. Thereafter, a man whose name the witness did not disclose asked him to give the amount to him and accordingly he gave the tainted money to that man. He pointed out to the co-accused Liaquat present in Court as the person who received the tainted money from him. In the cross-examination he contradicted himself and stated that as his case was to be disposed of by the Land Acquisition Officer, the accused had not demanded any illegal gratification from him. He also made a statement to the effect that he was to give the amount to the Land Acquisition Officer and that it was co-accused Liaquat who had told him that he will get the work done for him. Further, on in the cross-examination the complainant admitted that the appellant had not demand Rs.200 from him. At this stage he was put questions by the Court in which he was confronted with the F.I.R. In the cross-examination he admitted that the appellant had demanded illegal gratification and said that he was in no position to state which of his two contradictory statements was correct as long period had elapsed since the event. The other important witness, namely, Khadim Hussain, Police Constable who according to the prosecution accompanied the complainant for payment of the tainted money to the appellant was declared hostile and his evidence has been discarded by the Courts below. It has been pointed out by the learned counsel for the appellant that there is nothing in the evidence of the complainant that he offered the tainted money to the appellant and at the latter's instance paid the amount to the cc-accused.

7. The learned Judge in the High Court notwithstanding the state of evidence as described above took the view that the other surrounding circumstances coupled with the evidence of the two Circle Officers and the Magistrate were sufficient to sustain the conviction of the appellant. However, we are unable to subscribe to this view and feel that the appellant is entitled to benefit of doubt. The learned Judge thought that the favourable admissions made by the complainant were obliging statements and their effect was wiped off by the answers given to the questions put by the Court. But the cardinal principle for the administration of criminal justice is that benefit of every statement favouring the accused should ordinarily be given to him and in any case the portion of the testimony pointed out above entitles the appellant to the benefit of doubt even if the evidence of the complainant is considered as a whole. The mere filing of F.I.R. without the name of the accused appearing therein and the recovery of certain papers pertaining to the case of the complainant from the appellant when he was present at the place of his work, would not be sufficient to establish the guilt of the appellant beyond reasonable doubt. Besides the Mashir of the recoveries of these documents was not examined as a witness.

8. For the foregoing reasons we accept this appeal, set aside the conviction and sentence of the appellant and giving him benefit of doubt, acquit him.

M.Y.H./C-66/S Appeal allowed.