P L D 1996 Lahore 271 (PLP)

certified copy of the Khasra Girdawari. Currency Note P‑1 bearing No.BAB 1350750 and P.2 bearing No.BAB 2350751 were signed and were handed over to Muhammad Sadiq complaint P.W.2. In this respect memorandum Exh.PB was prepared. The. raiding party reached a mosque in Gakhar Mandi, District Gujranwala where on the first floor Muhammad Zafar Patwari had opened his Patwarkhana. Muhammad Sadiq complainant reached the first floor while Ch.Muhammad Fazal, Magistrate Ist Class P.W.1 and Riaz Ahmad Circle ‑ Officer P.W.3 remained on the ground. At 12‑00 noon Muhammad Sadiq complainant made the planned signal. Both P.W. I and P.W.3 reached the first floor of the mosque and recovered the currency notes P.1 and P.2 from the left front pocket of Muhammad Zafar Patwari. The memorandum Exh.PC was prepared in this respect. Thereafter the statement Exh.PE of Muhammad Sadiq complainant P.W.2 was recorded who stated that he paid an amount of Rs.200 to Muhammad Zafar Patwari, that he informed the Raiding Party and that the amount of Rs.200 was recovered from the pocket of the patwari. Thereafter statement Exh.PG of Muhammad Zafar Patwari was recorded without oath being the accused who stated that Muhammad Sadiq came to him to get the copy of the Khasra Girdawari who was told that an amount of Rs. 12 was to be paid as the fee, that hc started preparing the Khasra Girdawari and that thereafter he forcibly placed the amount in his pocket. He added that he objected but the Raiding Magistrate arrived and recovered the amount' About the recovery of currency notes P.1 and P.2, recovery memo. Exh.PC was prepared which was attested by Riaz Ahmad, Circle Officer P.W.3 and Muhammad Hani Constable (not produced). The Raiding Magistrate handed over Muhammad Zafu Patwari and the currency notes to Riaz Ahmad, Circle Officer regarding which he prepared his memorandum Exh.PH. The sanction order Exh.PL about the. prosecution of Muhammad Zafar Patwari was passed and issued by the Commissioner, Gujranwala Division, Gujranwala.

2. The challan for the prosecution of Muhammad Zafar Patwari accused was submitted in the Court of the learned Special Judge Anti‑Corruption, Gujranwala who charged him on 23‑2‑1992 under section 161, P.P.C. read with ection 5 of the Prevention of corruption Act, 1947. Muhammad Zafar accused did not plead guilty And claimed ‑to be tried. .

3. At the trial Ch. Muhammad Fazal, Magistrate Ist Class P.W.1, Muhammad Sadiq complainant P.W.2 and Riaz Ahmad, Circle Officer P.W.3 stood in the witness‑box. However, Muhammad Hanif Constable was given up being unnecessary. Both dh. Muhammad Fazal Magistrate Ist Class P.W.1 and Riaz Ahmad, Circle Officer, P.W.3 admitted during the respective cross examination that each of them did not hear the conversation between the complainant and the accused and also did not see the accused receiving the tainted money. P.W.1 stated that the copy of Khasra Girdawari obtained from the accused was not produced before him by the complainant. In his examination‑in‑chief Muhammad Sadiq complainant P.W.2 supported the prosecution case wherein he deposed that after payment of the money he sent his son Naveed to inform the raiding party. However, in his cross‑examination he deposed that 2/3 days after the raid he came to know that the accused received the said amount of Rs.200 from him in connection with the ticket of a Dangal (wrestling bout) and the amount was not received by the accused as bribe.

4. When examined under section.342, CrY.C. Muhammad War accused claimed to be innocent who stated that shortly before the raid he accepted Rs.200 from Muhammad Sadiq complainant as the price of Dangal ticket. He produced Altaf Hussain Naib Tehsildar D.W1.1 who stated that Dangal (wrestling bout) Rustam‑i‑Punjab was to be held in Municipal Stadium, Gujranwala and that he had handed over 6/7 tickets to the accused for sale. He added that he paid cash amount of Rs.20,000 on the basis of the sale of the tickets to the Deputy Commissioner and that he had taken in advance the price of the tickets handed over to each Patwari. He stated that the Dangal was ultimately cancelled.

5. However, Muhammad Zafar Patwari did not choose to appear in the witness‑box on oath under section 340(2), Cr,P.C.

6. After hearing the parties learned trial Court gave the weight to the statements of Muhammad Fazal, Magistrate Ist Class P.W.1 and Riaz Ahmad, Circle Officer P.W.3. About the statement of Muhammad Sadiq complainant in his cross‑examination it was expressed that the same was the intentional concession given by him to the accused. It was observed that the story of Dangal (wrestling bout) was coined by the accused afterwards who did not take up that plea when he was arrested just after the ra1d was effected and was examined without oath by the Raiding Magistrate. On the same score the statement of Altaf Hussain Naib‑Tehsildar D.W.1 was ignored. Consequently the learned trial Court convicted and sentenced Muhammad Zafar Patwari to R.I. for a period of six months and to fine of Rs.5,000 or in default of its payment to further undergo R. 1. for a period of two months under section 16 1, P. P. C. read with section 5 of the Prevention of Corruption Act, 1947. The case property i.e. amount of Rs.200 was directed to be returned to the complainant Muhammad Sadiq after the period of appeal or revision, if any.

7. Feeling aggrieved Muhammad Zafar appellant/convict has filed this appeal which has been resisted by the State. 8. 1 have heard the learned counsel for the appellant as well as learned State Counsel and gone through the record before me. Learned counsel for the appellant argued that both Ch. Muhammad Fazal, Magistrate Ist Class P.W.1 and Riaz Ahmad, Circle Officer P.W.3 have unanimously stated that each of them did not hear the conversation between the complainant and the accused (appellant) and also did not see the accused receiving the tainted money and that this aspect of the matter is enough to exonerate Muhammad Zafar appellant of the charge framed against him. In this regard he referred to Muhammad Sadiq v. The State 1975 PCr.U 1286,(Lahore) according to which in such a state of affairs it was held that the charge was not proved by the prosecution beyond doubt and the conviction and sentence of the appellant was set aside. With. respect to the same dictum he relied upon Muhammad Rainzan v. The State 1976 PCr.U 273 (Lahore) and Khursheed Ahmad Zaidi v. The State PLD 1983 Lahore

514. He added that it is customary that the tickets about the Dangal (wrestling bout), benefit matches for prominent players, cricket matches and hockey matches etc, etc. are scild by the Administration through their subordinates and that the cross‑examination of Muhammad Sadiq complainant P,W,2 may not be considered to be an intentional concession, According to him just after the raid the natural conduct would have been that the accused may be perplexed and that the statement of the Naib Tehsildar D.W. I is entitled to due weight, Consequently he prayed for the acquittal of Muhammad Zafar appellant. Learned counsel for the State could not rely upon any case‑law contrary to the views expressed in the rulings relied upon by the learned counsel for the appellant. He argued that the statements of the three P.Ws. have connected Muhammad Zafar Patwari appellant with the present occurrence. He expressed that the appellant has rightly been convicted by the learned trial Court.

9. In my view the assertions raised by the learned counsel for the appellant have the legal force. In the circumstances of this case there is nothing on the record except the statement of the complainant Muhammad Sadiq P.W.2 about the alleged demand or settlement of bribe. Both the Raiding Magistrate P.W.1 and the Circle Officer P.W.3 did.not see the passing of money or hearing the talk between Muhammad Zafar appellant (accused) and Muhammad Sadiq complainant P.W.2 because both of them were on the ground floor while all what happened between the appellant and the complainant was on the first floor of the mosque. According to the Raiding Magistrate and the inspector, the signal was made by Muhammad Sadiq complainant and they reached the place of recovery of the tainted money while Muhammad Sadiq complainant stated that he sent his son Naveed to them to inform them about the episode. Thus the rulings relied upon by the learned counsel for the appellant are applicable to the facts of this case in clear terms and he shall obviously and legally derive the legal benefit thereof. In the instant matter keeping in view the trend of cross examination"' the statement of‑the appellant recorded under section 342, Cr.P.C. and the statement of Altaf Hussain, Naib‑Tehsildar, Wazirabad D. W. I; it can be 9 deduced that the defence raised by Muhammad‑ Zafar Patwari may be correct. Without prejudice I am tempted to express that on such occasions of wrestling bouts, hockey and cricket *matches etc. etc. the tickets. are sold by the Administration through the subordinate staff. After the raid Muhammad Zafar Patwari must be perplexed and the statement made by him immediately thereafter cannot be termed as sacrosanct so as to trap him as the case has to be independently proved by the prosecution on the strength of its own evidence and not on the weakness of the defence. Legally the accused is entitled to take the contradictory stand(s) and this aspect of, the matter would not bolster up or ornament the prosecution case. The only irresistible conclusion which can be C drawn from the aforesaid state of affairs, analysis. of evidence and discussion would be that the prosecution has failed to connect Muhammad Zafar Patwari appellant‑convict with the charge framed against him beyond reasonable doubt and he is held entitled to be acquitted through the grant of benefit of doubt to him in the circumstances of this case.

10. For what has been said above, I accept this appeal, set aside he impugned judgment dated 4‑5‑1992 and acquit Muhammad Zafar appellant the grant of benefit of doubt. He is present before me on bail. His bail is cancelled and surety, discharged. N.H.Q./M‑2635/L Appeal accepted