GHULAM RASOOL Versus STATE

1. The appellant Ghulam Rasool son of Nabi Bux Soomro was tried by the learned Special Judge, Anti-Corruption, Sukkur who by his judgment, was tried by Special Judge, dated 20-4-1986 convicted the appellant for the offence under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act II of 1947 and sentenced him to suffer R.I. for 3 years and fine of Rs.5,000 or in default of payment of fine to undergo R.I. for one year more. The appellant has challenged his said conviction and sentence under this appeal.

2. The case of the prosecution is that is October, 1982 complainant Munir Ahmed and Fida Hussain had paid Rs.4,000 to the appellant as bribe for getting both of them appointed as Primary Teachers. The appellant himself was posted as Primary Teacher at village Jan Muhammad Bughio, Taluka Ubauro. After the receipt of the said amount, Fida Hussain was appointed but the complainant was kept on hopes. In January, 1983, the appellant had also taken the complainant to Sukkur before the District Education Officer alongwith a fresh application who marked the same to his clerk. Thereafter, the complainant was informed by the appellant that the D.E.O. was demanding an additional sum of Rs.1,000 for issuing his appoitment order. The complainant then informed his father P.W. Muhammad Ramzan in respect of the additional demand made by the appellant. It was then decided to lodge the report with the Anti-Corruption Police. As such, the complainant reported the matter to the Circle Officer P.W. Amir Ali at Sukkur and on 21-2-1983 the case was registered in which the complainant mentioned that he has promised to pay the balance amount of Rs.1,000 to the accused on the same day (21-2-1983) during school hours.

3. After recording the F.I.R., the services of Mr. Muhammad Bux Malah, Assistant Mukhtiarkar was taken to supervise the trap proceedings. Under a Mashirnama, currency notes of Rs.1,000 were given to the complainant for its onward payment to the accused as promised. P.W. Noor Muhammad was chosen to act as Mashir: Thereafter, the trap party comprising of all concerned proceeded to the school of the accused where the complainant made the payment of Rs.1,000 to the appellant on his demand in the presence of Mashir Noor Muhammad. On the signal of the Mashir, the Magistrate and the said Circle Officer intercepted the appellant and recovered the tainted amount from his pocket which was secured under a Mashirnama duly signed by the Mashirs. The appellant was arrested and thereafter the trap party proceeded to the office of the Anti-Corruption Police. The Circle Officer had secured the application of the complainant from the office of the D.E.O. After recording the statements of the witnesses and obtaining the necessary sanction, the appellant was challaned before the Special Court Anti-Corruption, Sukkur.

4. At the trial, the prosecution examined P.W.1 Munir Ahmed complainant, P.W.2 Noor Muhammad Mashir, P.W.3 Muhammad Ramzan father of complainant, P.W.4 Muhammad Bux Assistant Mukhtiarkar and P.W.5 Amir Ali, Circle Officer. Thereafter, the appellant was examined under section 342, Cr.P.C. He denied the prosecution allegations and stated that in the first week of October, 1982, he had given a loan of Rs.3,000 to the complainant and his father as they wanted to purchase some land. On 21-2-1983, Muhammad Ramzan had paid him the instalment of Rs.1,000 which was not the tainted money. He promised to pay the second instalment in March, 1983. He had complained to D.S.P. Mirpur Mathelo on 5-1-1983 against Muhammad Ramzan and Munir Ahmad. He had taken the said complaint duly forwarded by D.S.P. to Police Station Mirpur Mathelo where he was called on 7-1-1983 and at that time Muhammad Ramzan was also called who fell on his feet and paid him the first instalment. Thereafter, he had asked the S.H.O. to file his complaint. The appellant wanted to examine himself on oath and also wanted to examine defence witnesses, namely, Jamaluddin, Yar Muhammad, Fida Hussain and Abdul Rehman. At the time of examination of appellant on oath, he produced photo copy of his complaint against the complainant and his father as Exh.12/B and his statement recorded by the S.H.O. as Exh.12/C.

5. It may be mentioned that the trial Court called for the record in respect of the complaint made by the appellant and in this regard Court witness, namely, H.C. Ahmed Yar was examined and he stated that the original record was not traceable. Thereafter, another Court witness namely H.C. Khair Muhammad Shah was examined who produced Inward Register of Police Station Mirpur Mathelo and Outward Register of D.S.P. Mirpur Mathelo. In the said Outward Register of D.S.P. at entry No.17, dated 5-1-1983, despatch of application of appellant Ghulam Rasool against Muhammad Ramzan for legal action was mentioned. Similarly in the Inward Register of Police Station Mirpur Mathelo at Entry No.21, dated 11-1-1983, receipt of application of the appellant against Muh=mad Ramzan from the D.S.P. is mentioned.

6. The third Court witness is the S.H.O. of Police Station Mirpur Mathelo, he stated that he could not trace out the original application of the appellant, therefore, he could not produce it. After examining all the aforesaid witnesses, the trial Court convicted the appellant as already mentioned above.

7. It may be observed that the learned counsel for the appellant has chosen to remain absent. Though he is a local advocate of Sukkur, yet a separate notice dated 28-8-1993 was also issued to him which was duly served on 8-9-1993 and the copy of the said notice bears his signature. For reasons best known to the learned counsel, he has chosen to remain absent without any intimation. As such I have decided to dispose of this appeal with the assistance of the learned A.A.-G. as this is an old appeal of 1986 and the same is pending for the last more than 7 years.

8. I have gone through the entire evidence on record with the assistance of the learned AA.-G. and after taking into consideration all the circumstances of the case, I am of the view that the case against the appellant is not free from doubt for the reasons which I shall presently discuss.

9. The case of the prosecution is that the appellant was successfully trapped as he had accepted illegal gratification from the complainant Munir Ahmed who had passed on the tainted money to the appellant in the presence of Mashir Noor Muhammad which was subsequently recovered by the Trap Magistrate Muhammad Bux and Circle Officer Amir Ali. P.W. Muhammad Ramzan who is father of complainant Munir Ahmed also accompanied the trap party but he does not claim that the tainted money was either paid or recovered in his presence. Apart from these five witnesses, the Circle Officer had also examined two other witnesses namely, Fida Hussain and Abdul Rehman who were not examined by the prosecution, but both of them were examined by the appellant as his defence witnesses.

10. On the other hand, from the trend of cross-examination and the statement of the appellant, it appears that the appellant has accepted the factum of recovery of Rs.1,000 from his possession but has disputed the same to be tainted money. His case is that the complainant and his father Muhammad Ramzan had taken a loan of Rs.3,000 from him and it was in satisfaction of that loan, that the first instalment of Rs.1,000 was paid to him which has been recovered by the Circle Officer. In other words, the appellant's case is that he neither demanded nor accepted the said amount as a bribe but he had accepted the same as repayment of his loan amount. The question now arises whether the case set up by the accused is reasonably possible or not. In this regard the case of the defence will have to be kept in juxtaposition with the prosecution case, to see if from the evidence on record the case set up by the appellant appears to be reasonably possible.

11. In this regard, evidence has come on record to show that the complainant and his father Muhammad Ramzan were already known to the appellant. P.W. Muhammad Ramzan has admitted in his evidence that he knew the appellant since one year prior to this incident. It is also apparent that they had close intimacy as P.W. Muhammad Ramzan had even assisted the appellant in getting his transfer order from Jan Muhammad Bughio to Reti cancelled as admitted in his cross-examination. On behalf of the appellant systematic suggestions have been made to the complainant as well as P.W. Muhammad Ramzan to the effect that in, September, 1982 they had taken a loan of Rs.3,000 from him, and that he had also lodged a report against them with the police, and that they were called by Mirpur Mathelo Police, and that they had asked him to accept the repayment of the loan by way of instalments, and that the amount of Rs.1,000 was in fact paid to him as an instalment of loan or that he has been falsely implicated by them. All the said suggestions have been denied by the complainant and his father but there are circumstances on the record to show that perhaps the defence version might be true.

12. In this regard I may first refer to the evidence of P.W. Noor Muhammad. This witness has admitted in his cross-examination that he came to know that the appellant had made a complaint to A.S.P. Mirpur Mathelo against the complainant and his father. It may be mentioned that the appellant did make a complaint to the police on 5-1-1983 against the complainant and his father and Court witness H.C. Khair Muhammad Shah was examined who produced the Outward Register of D.S.P. Mirpur Mathelo and its Entry No.17 did indicate that on 5-1-1983, the application of the appellant against P.W. Muhammad Ramzan was forwarded to S.H.O. Mirpur Mathelo. Likewise the Inward Register of Police Station Mirpur Mathelo also indicated receipt of the said report. Reverting back to the evidence of P.W. Noor Muhammad, he has also admitted that at the time of recovery of Rs.1,000 from the appellant, the appellant had claimed to be innocent and had stated that he had taken Rs.1,000 as instalment of his loan. It will thus it from the initial stage of the trap, the appellant has taken the plea that he had accepted the amount of Rs.1,000 as instalment of his loan. The appellant has also produced the copy of the complaint which he made to the D.S.P. as Exh.12/B, it is dated 5-1-1983 and it is also attested by an Oath Commissioner on 5-1-1983. In these circumstances, it is difficult to believe that the plea taken by the appellant could be an afterthought. The complaint made to the police by the appellant on 5-1-1983 could not be a managed affair as the trap took place on 21-2-1983, that is, one month after the said report. In the said complaint it is specifically mentioned that a sum of Rs.3,000 has been given as loan to P.W. Muhammad Ramzan and when he demanded the same, to has refused to repay the same

13. There is another aspect Ln this case which also needs to be mentioned. The report of the complainant shows that he and Fida Hussain had paid Rs.2,000 each to the appellant for getting this order of appointment. Fida Hussain was taken up but the complainant was not. This Fida Hussain is a prosecution witness in this case but he has been examined as a defence witness by the appellant. This witness not only does not support the case of the complainant but he has mentioned that on the next day of trap, the complainant and his father came to him stating that they have managed a false case against the appellant and they have cited his name as a witness to support their case but Fida Hussain refused to support them in this concocted case.

14. Similarly, the complainant and his father also tried to seek support from another witness Abdul Rehman whose name also they had cited as a witness. This witness Abdul Rehman is a close relative of the complainant. His sister is married to P.W. Muhamamd Ramzan, so P.W. Munir Ahmed happens to be his nephew. Abdul Rehman also declined to give evidence in their favour in this false case. Now the question is, if this was not a false case, why would the complainant ask them to give evidence in their favour.

15. In the aforesaid circumstances of the case, it is quite possible that the appellant may have taken the amount from the complainant towards satisfaction of his loan and not as a tainted money. In the result, the plea taken A by the appellant is quite possible and accepted. Accordingly I allow this appeal and set aside the conviction of the appellant. He is on bail, his bail bond is discharged. The appellant stands honourably acquitted.

16. N.H.Q./G-344/K Appeal allowed.