1998 PLP 1295 (MLD)

3. Nazir Ahmad accused appellant was charged as such under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act on 21-6-1993. He pleaded not guilty and faced trial. It was then that Shabbir Ahmad complainant P.WJ, Syed Sibte Hassan Magistrate P.W.2 and Muhammad Riaz Khan C.O./A.C.E. P.W.3 were examined by the prosecution for establishing the guilt of the accused. Mian Muhammad Ashraf Tahir A.D.(P) tendered in evidence sanction Exh. P.K. and closed the prosecution evidence.

4. The accused in his statement under section 342, Cr.P.C. denied all the allegations of the prosecution except that the complainant had contacted him for a licence for keeping partridge and the licence fee was Rs.

50. He, however, maintained that he had asked the complainant to bring with him Rs. 350 and two copies of the Identity Card for obtaining the licence because a sum of Rs. 300 was to be paid to the complainant as posters fee. He denied that amount of Rs. 350 was recovered from his pocket and asserted that this amount was recovered from his box lying in another room. He also maintained that Exh. P.G. is not the correct version/rendering of what he stated and he was forced to sign the same. He also produced Ata Ullah Junior clerk D. W.1 and Arshad Ali Game Watcher D.W.2 in his defence before making statement himself on Oath as D.W.3.

5. To give a resume of the prosecution evidence Muhammad Riaz Khan P.W.3 after deposing as to how the raiding party was constituted, stated that they reached National Bank Kotli Behram where the accused had his office on the first floor and sent the complainant to the accused, that the complainant Shabbir Ahmad had in their presence (i.e. of the members of the raiding party) given a sum of Rs. 350 to the accused and asked him to prepare the licence. The accused told the complainant that he would prepare the licence, that they heard the talk and searched (the person of the) accused and from the front pocket of his shirt were recovered three currency notes of Rs. 300 and one currency note of Rs. 50 the serial numbers of which tallied with the numbers already noted; that this tainted money was secured vide memo. Exh. P.C. whereafter the statement of the complainant was recorded and the accused was arrested and that it was he who after necessary investigation submitted the challan.

6. Syed Sibte Hassan had supervised the raid and a brief account of what he has deposed has already been given above. Shabbir Ahmad complainant (P. W .1) went to the accused Nazir, paid him the money and after he assured that the licence would be issued, he signalled the raiding party after which the person of the accused was searched. It is, however, pertinent to note that according to the complainant nothing was recovered from the person of the accused and the money was in fact found froth the box lying in the office of the accused, He was cross-examined by the learned Special Public Prosecutor in which he categorically denied the suggestion that he had stated before the Magistrate that the accused, after receiving the money from him put the same in the pocket of his shirt and the' Magistrate and the Inspector after introducing themselves recovered money from the pocket of his shirt. It was, however, so recorded in Exh. P.D. to A. He denied that he was deliberately making a concessional statement to show favour to the accused and in fact the money was recovered from the front pocket of the shirt of the accused. In his cross-examination he went to the extent of saying that the box from which the money was recovered was lying in the adjoining room. He also admitted the suggestion as correct that when a licence was issued the posters were also issued to the licence holders. He also could not deny the suggestion that Nazir accused had told him that he would have to purchase 15 posters. He added that he did not know that officially he had to pay the price of 15 posters and, therefore. he thought that the money was being demanded as bribe. He, however, turned down the suggestion that he got the case registered due to misunderstanding.

7. Ata Ullah Junior Clerk in the office of the District Wild Life Officer, Sialkot D.W. 1 produced photostat copies of the original notification and after letters issued by the Government of Punjab from time to time which are Exh. D.A., Exh. D.B., Exh. D.C., Exh. D.D. and Exh. D.E. Exh. D.E. and Exh. D.F. were the photostat copies of the challans. Arshad Ali Game Watcher claimed that he was also present in the office of the District Wild Life Officer Sialkot on 31-1-1993 where Shabbir P.W. alongwith another person came to Nazir accused for getting a licence and the accused told him that he would have to compulsorily purchase 15 posters at the rate of Rs. 20 per poster. Shabbir wanted some concession but the accused told him that he was not empowered to give him any concession. The complainant then sought time to arrange the money and only after one hour the complainant again appeared there, with another person. He added that the complainant did not pay any money to the accused but only after seeing the accused present in the office brought the raiding party. No tainted money was recovered from the person of the accused or his Almirah but after some time they were again called and the Inspector recovered the tainted money from the box lying in the third room. In his cross-examination he turned down the suggestion that he was not present at the time of raid and being a colleague he deposed falsely and the tainted money had in fact been recovered from the shirt of the accused. Similar is the version of accused Nazir Ahmad.

8. It was on the basis of this evidence and after hearing the learned counsel for the parties that the learned trial Judge found the accused guilty and convicted him and sentenced him as stated above, thereby obliging the convict to come up in appeal.

9. In substance the evidence against the appellant was that he demanded a sum of Rs. 300 froth the complainant as illegal gratification besides a sum of Rs. 50 which was the requisite licence fee and all this amount is the shape of tainted money was secured by the raiding Magistrate from the front pocket of the shirt of the accused-appellant after a conversation between him and the complainant was over heard by him and the Circle Office P.W.3. The learned trial Judge observed in the impugned judgment that it was clear from the deposition of the raiding Magistrate that the accused was not in possession of any posters when the raid was conducted but he did produce Exh. D.A. and Exh. D.F. to show the instructions regarding their sale. He was not impressed by the defence evidence because Arshad Ali D.W.2 being a colleague of the accused was interested in saving him. He, therefore, felt convinced that the instructions of the Government regarding sale of posters were misused by the accused

10. After giving my earnest consideration to the facts and circumstances of the case I fell convinced that there are inherent discrepancies and infirmities in the prosecution evidence entitling the appellant to benefit of doubt. The accused-appellant took the plea at the earliest possible opportunity i.e. immediately after he was apprehended, as is evident from his statement recorded by the raiding Magistrate Exh. P.G., that he had received a sum of Rs. 350 from Shabbir Ahmad with the intention to sell 15 posters to the complainant at the rate of Rs. 20 per poster besides the requisite licence fee of Rs.

50. There is nothing in the evidence of Muhammad Riaz Khan C.O./A.C.E. P.W.3 that he had carried out the necessary investigation regarding departmental instructions in respect of the price of posters, rather he has deposed in his cross- examination that he did not collect any such instructions nor did he interrogate any higher officer regarding the plea taken by the accused in his statement Exh. P.G. He, however, turned down the suggestion that he did not do so deliberately. A careful and minute perusal of the documents placed on record by the accused-appellant constrains me to hold that there is, in fact, an in built E mechanism/scope for prompting the low paid staff to indulge in illegal practices. I fail to understand as to how a Game Inspector was competent to issue the licence or sell the posters. According to Exh. D.A., which is a photo copy of the notification on the subject, the fee of alive bird for the issuance of a licence was Rs. 50 and the authority competent for issuing such licence was A.C.F. (P.W.), Deputy Game Warden, Assistant Game Warden, District Wild Life Officer and Honorary Divisional and District Game Warden. The Game Inspector is obviously not mentioned therein. According to Exh. D.B., which is a copy of the letter dated 2-12-1991 from Deputy Game Warden Publicity and Research Cell, the Secretary, Forestry, Wildlife, Fisheries and Tourism Department directed that all the persons approaching for the issuance/renewal of licences should be sold wildlife posters compulsorily, at the rate already intimated. Exh. D.C. and Exh. D.D. described the posters and the prices thereof. It has to be noted with concern that as per a hand written endorsement in English and also in Urdu dated 14-12-1991, copies of Exh. D.B. were sent to all the Game Inspectors District Sialkot and District Narowal for compliance of this letter and the instructions with regard to the sale of wildlife posters compulsorily. It follows that this letter impliedly enabled the Game Inspectors to exercise the powers regarding issuance/renewal of licences and also selling of posters compulsorily. This letter, however, is silent with regard to the number of posters which had to be compulsorily sold to persons seeking licences/permits of various categories, enumerated in column No. 2 of the table of the notification copy Exh. D.A. requiring for ranging from a meagre sum of Rs. 50 to a large amount of Rs. 25,000 (for netting of falcons). It was also thus left open for the staff to determine the number of posters and to coerce/elicit from the person applying for a licence to part with the price of the posters. I have not been able to find out any instructions in these notifications/letters as to how the price of the posters proposed to be sold compulsorily was to be received and deposited in the Government 'Treasury. It follows that this task was also left to the Game Inspector etc., to deal with the money at his discretion and to deposit it through challans etc., in the Government Treasury, at his sweet will, as was done as per challan forms copies Exh. D.E. and Ex. D.F. respectively, pertaining to-the month of July, 1992 and a specific date i.e. 16-1-1993. This illegal practice should have been adverted to by the concerned/competent Authorities.

11. It may also be noted that the version of the raiding Magistrate and the C.O./A.C.E. with regard to the hearing of the conversation between the accused and the complainant also does not inspire confidence. The contents of the conversation have not been elaborated. Shabbir Ahmad complainant P.W.1 convinced himself to stating that he went to the accused and paid him the money and the latter assured him that the licence would be issued after which he signalled the raiding party to come. Syed Sibte Hassan P.W.2 did not claim in his examination-in-chief that any such conversation was overheard by him or that he and the C.O. had gone inside the room/office of the accused on a signal given by the complainant. It was due to mishandling of the defence that he so deposed in the cross-examination that he had heard the conversation between the complainant and the accused before the payment of money but no details of this conversation were given. The version of P.W.3 that it was in their presence that Shabbir Ahmad gave a sum of Rs. 350 to the accused and asked him to prepare the licence on which the accused told him that he would do so, is also not worth credence. The principle that the conversation between the accused and the decoy witness/complainant should be over-heard by the raiding Magistrate and other C P.Ws. is obviously not a requirement of law but only a rule of prudence and caution but if it is pleaded it must be proved with cogent and convincing evidence. The accused had candidly admitted receipt of money at the very outset and has claimed bona fides which should have been gone into and considered by the Investigating Officer. It was his bounded duty to have collected the D instructions and to have joined the senior officer/competent Authority for issuing the licence in the investigation in order to determine as to how for the accused could be held to be guilty of indulging in this illegal practice and demanding illegal gratification. Nothing appears to have been done by the Investigating Officer on these lines.

12. It is also noteworthy that the complainant made a concessional statement and resiled from his original stand. He stated in so many words that nothing was recovered from the person of the accused and the money was found from the box lying in the adjoining room of the office of the accused and not in the room the accused was sitting. He added in his cross-examination that two years back no price of posters used to be charged and he did not know whether the price of posters had also to be charged at the rate of Rs. 20 per poster. He admitted the suggestion as correct that the accused told him that he would be required to purchase 15 posters and that since he did not know about it he thought that the money was being demanded as bribe. There is no denying the fact that being a decoy witness, the evidence of the complainant could not be implicitly relied upon but being a P.W. his version shall have to be considered and the benefit of doubt, if any, must go to the accused. It has, therefore, to be held that prosecution in the circumstances failed to prove its case beyond reasonable doubt, particularly so when it was pleaded by the accused right from the beginning that he received the money, over and above the actual licence fee, for selling the posters which could be a reasonable probability. It was imperative for the prosecution to establish that the money had passed as illegal gratification, which it failed to do.

13. After giving my anxious consideration to all these facts and circumstances of the case I am of the view that benefit of doubt must go to the appellant and he is entitled to acquittal. This appeal is, therefore, accepted. The conviction and sentence of the appellant are set aside and the appellant is acquitted, having been given the benefit of doubt.

14. A copy of this judgment should go to the Secretary, Forestry, Wildlife, Fisheries and Tourism Department for guidance and necessary action in the light of the observations made in this judgment. H. B. T./N-91/L Appeal accepted.