1968 P Cr (PLP)

Qasim Ali Rizvi for the State. Bashir Ahmad, a Patwari, has challenged his conviction under section 161, P. P. C. read with section 5 of the Prevention of Corruption Act, 1947, by way of this appeal. He was convicted by the Special Judge Anti Corruption. on ‑12‑1964, and sentenced to three months R. I.

2. The case of the prosecution is that Umar Din wanted to file some appeal against the consolidation proceedings in which some of his land was taken away. He wanted certain copies from the petitioner. The latter wanted him to pay the bribe. He reported the matter to the Anti Corruption Inspector, Nehmat Khan (P. W. 3). On 10‑4‑1963, the Inspector presented applica tion Exh. P. A before Mr. Manzoor Ahmad Ansari, A. D. M., who directed Malik Karam Din, section 30 Magistrate to supervise the raid. The Magistrate recorded the statement of Umar Din, which is Exh. P. B. Four corrency notes of Rs. 5 denomination, the numbers of which were noted in the memo, Exh. P. B/1, were handed over to the complainant Umar Din and he was directed to give a signal as and when he succeeds in passing the money to the petitioner.

3. A raiding party consisting of Malik Karam Din Magistrate (P. W. 1) Nehmat Khan (P. W. 3) and Abdul Wahid was formed. After sending the complainant alongwith Abdul Wahid, the raiding party waited in a fuel‑wood deposit of Ch. Allah Bakhsh. At about 5‑45 p. m., signal was given by Umar Din complainant. The raiding party went at the spot and recovered two currency notes of its, 5 each, Exhs. P.1 and P.2, from the pocket of tile shirt of the petitioner. They were taken into possession, ride memo. Exh. P. C. The petitioner produced two currency notes of Rs. 5 denomination and a certified copy of consolidation scheme which were taken into possession, vide memo. Exh. P. D. These notes are Exhs. P. 3 and P.

4. The number of these notes tallied with the numbers of those notes which were given to the complainant and were mentioned in the memo referred to above. The learned Magistrate recorded the statement of the petitioner, Exh. P. F. He recorded a raiding report, Exh. P. G. and arrested the petitioner. He handed over the papers and the petitioner to the police for investigation. On application Exh. P. H. made by the S.1. the Magistrate granted permission to investigate the case, vide his order Exh. P. H/

1. A formal F. I. R. was registered on the basis of the raiding report at police‑station Montgomery (now Sahiwal), the same day, at 6‑45 p: m. After completion of investigation, the matter was put in court.

4. At the trial, the prosecution produced Malik Karam Din, Magistrate (P. W. 1), Umar Din (P. W. 2), Nehmat Khan (P. W. 3) and Ch. Muhammad Siddiq (P. W. 4) in support of its case. Umar Din P. W. went back from his statement recorded by the Magistrate and did not support the prosecution story. Abdul Wahid was however given up.

5. The petitioner stated that Umar Din had a grudge against him because he had delivered possession of 1 Killas of land, which was in his possession, to Mst. Jano on 8‑4‑1963 and, therefore, he has falsely been implicated in this case. He produced Muhammad Anwar (D. W. I) and Faqir Muhammad (D. W. 2) in. his defence.

6. Now the complainant has not supported the prosecution story at the trial. He has admitted the defence version that the petitioner wanted to get five rupees notes in exchange for Rs, 10.00 note for the payment ‑of electricity bill. He made contradictory statement regarding the change of 10 rupees note into that of five rupees notes at the trial. He has also admitted that the petitioner was responsible for the transfer of possession of I J Killas of his land to Mst. Jano. No doubt the occurrence has taken place, but the question arises whether the conviction of the petitioner can safely be maintained on the evidence led in this case. In the absence of the testimony of Abdul Wahid, it is very difficult to hold that the recovery was made in the circumstances which were given out by the complainant in his statement under section 164, Cr. P. C. Even the Magistrate or his companion have not stated at the trial about the passing of the money, nor did they hear the talk between the petitioner and the complainant. Mere recovery of the two currency notes from the petitioner, to my mind, would not be sufficient to convict him, especially when there is a discrepancy between the statement of the Magistrate and that of the complainant about the place of recovery of notes. The Magistrate has stated that the notes were recovered from the pocket of the petitioner, but according to the complainant they were recovered from the cot.

7. For the foregoing reasons, I accept this appeal and giving benefit of doubt to the petitioner set aside his conviction and sentence and acquit him. He is on bail and I discharge him from his bail‑bond. Appeal accepted.