1994 P Cr (PLP)

Date of hearing: 24th January, 1994. The present criminal appeal has been fled to challenge the legality and propriety of judgment, dated 22-1-1990 passed by Malik Muhammad Afzal, Special Judge, Anti-Corruption, Sargodha, whereby he convicted the appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to nine months' R.I. and a fine of Rs.5,000 and in default thereof, the accused will undergo further R.I. for three months.

2. The prosecution story, in brief, is that Abaidullah (P.W.1) carries on business of fruit with his brother Hadayatullah. Pickup No.MI-6886 is in the name of his brother and its fitness certificate expired on 30-9-1,

986. The complainant approached accused Mirza Fayyaz Baig who was posted as Motor Vehicle Examiner for renewal of the certificate of fitness but the accused demanded illegal gratification. On 29-10-1987, the accused kept the registration book with him for renewal and under the instructions of the accused the complainant also affixed stamps of Rs.125 on the application Exh.P.A. The complainant -demanded back the registration book after renewal and the accused told him that the book will not be returned unless bribe is paid to him. The complainant then went to Police Station Anti-Corruption Establishment and produced three currency notes of Rs.50 each before Ch. Muhammad Ashiq P.W.2, then C.O./A.C.E., Mianwali and recorded F.I.R. Exh.P.B.

3. The C.O./A.C.E. then gave an application Exh.P.E./1 to the Deputy Commissioner for deputing a Magistrate for supervising the raid. Muhammad Amin Khattak P.W.3, then M.I.C. was deputed for this purpose. The complainant was produced before the raiding. Magistrate who, recorded his statement Exh.P.D. The complainant produced three currency notes of Rs.50 each, P.1, P.2 and P.3 and their serial number were noted. Raiding party was constituted and tainted money was given to the complainant. The raiding party went near the hotel in front of District Council, Mianwali and earlier the complainant was sent to the office of the accused. After payment of the money, the complainant gave a signal and the members of the raid party reached in the office of, the accused. On seeing the raid party, the accused who was holding bag in his fan and was ready to run away, was apprehended by the raiding party. From the front pocket of the shirt of the accused, three currency notes of Rs.50 P.l, P.2 and P.3 were found and the serial numbers tallied with the serial numbers already noted and these notes alongwith form Exh.P.A. were secured vide memo. Exh.P.F. In addition to that on personal search wrist-watch and articles and documents mentipned in memo. Exh.P.G. were also secured. The form Exh.P.A. according to the proceedings recorded by the magistrate was recovered from the drawer of the table on the pointing out of the accused. The raid Magistrate recorded statement Exh.P.E. of Abaidullah and statement Exh.P.J. of accused Fayyaz Baig and then he recorded his raid report Exh.P.K. The proceedings recorded by the learned Magistrate were handed over to the C.O. /A C. E. Accused was arrested and after necessary investigation, sanctioned order Exh.P.H. was obtained and the challan was submitted in the Court.

4. At the trial the prosecution examined as many as three witnesses, namely, Abaidullah P. W.1, Ch. Muhammad Ashiq P. W.2, Inspector and Muhammad Amin Khattak, M. I. C. P.W.3.

5. The accused when examined, admitted in his statement that the Pickup was in I,the name of brother of the complainant and form Exh.P.A. was in the office record and contended that on.29-10-1987 he had issued the certificate of fitness and the complainant had taken back the registration and fitness book. The accused denied that he demanded or accepted any amount as an illegal gratification and contended that the tainted money was recovered from the table. The accused also contended that the forms mentioned in memo. Exh.P.G. were recovered from the office record. The accused denied that he voluntarily gave statement Exh.P.J. The accused in his statement contended that the complainant often visited his office, with the forms, of other persons and he prohibited him from visiting his office and the complainant was annoyed and therefore, he arranged this raid. The accused did not lead any defence and also did not give statement on oath in disproof of the allegations. However, on 15-4-1989, after close of defence at the request of the accused, Mehmood-ul-Hassan D.W.l, was examined as defence witness.

6. The learned Special Judge, Anti-Corruption, Sargodha, after taking into consideration all the facts and circumstances highlighted above, convicted and sentenced the appellant as stated above.

7. The learned counsel for the appellant and the State were heard at length and the record of the case perused with their assistance.

8. The Court has given its anxious consideration to the submissions made on behalf of the appellant. It has been taken notice of that as argued on behalf of the appellant, there is no evidence on record to the effect that any one of the other two P.Ws. namely; Ch. Muhammad Ashiq, Inspector, P.W.2 and Muhammad Amin Khattak, M.I.C. P.W.3, the raiding Magistrate had witnessed the passing on of the recovered tainted money to the appellant by the complainant Abaidullah Malik P.W.1 and that, therefore, in the absence of any evidence on record to prove that the tainted money had been passed on to the A appellant by the complainant, it is hereby observed that the prosecution has failed to prove the charge against the appellant. It may further be observed that mere recovery of tainted money from the person of the appellant is not enough to prove the charge under section 161, P.P.C. read with section 5(2) of the 8 Prevention of Corruption Act, 1947, as held by the superior Courts, time and again. It shall be relevant to reproduce herein the relevant portion of the testimony of the said two P. Ws. P.W.3, Muhammad Amin Khattak, M. I. C. has stated as follows in his cross-examination: "I did not hear the conversation between the complainant and the accused at the time of payment of money. I did not also view the payment of money." P.W.2 Muhammad Ashiq, Inspector Police has also stated as follows in his cross-examination:-- "I did not hear the talk between the complainant and the accused at the time of payment of money and I also did not view the payment of money. "

9. Therefore, pursuant to the above discussion, the present criminal appeal is allowed and the impugned judgment is hereby set aside. The appellant stands acquitted of the offence charged. He is on bail, his bail bonds stand discharged accordingly. N.H.Q./F-159/L Appeal allowed.