2006 PLP 1911 (MLD)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts leading to the present appeal are that the complainant Ali Gul's father owned Survey No.216 in Deh Kooh Meenhon. His father died; therefore, the Revenue record was required to be changed. In that connection, he along with his brother Ali Anwar met the appellant Abdul Sattar for the change of Revenue record but the appellant demanded Rs.7,000 as illegal gratification for mutation of the record. After discussion, the appellant agreed to accept Rs.3,500 for the said purpose. Then he paid Rs.3,000 to the appellant in presence of his brother Ali Anwar and P.W. Moula Bux. It was further agreed that on the next day the remaining amount of Rs.500 would be paid to the appellant. The complainant then went to Anti-Corruption Police and lodged the report. The police recorded the F.I.R. arranged a raiding party under the supervision of Magistrate. Tainted money of Rs.500 was prepared and then the raiding party along with P.W. Mashir Walan in the company of Magistrate went to the upper storey of shops of Dadan Khan Lund. The complainant and P.W. Walan went to the room of the appellant where the complainant paid Rs.500 to the appellant in presence of Walan. The co-accused Lutfullah Kotwar was present. The appellant directed Lutfullah to give the money to shopkeeper Ashoke Kumar; therefore, co-accused Lutfullah left the room. In the meanwhile P.W. Walan went out and made gesture to the raiding party. The raiding party headed by the Magistrate reached the room of the appellant where the complainant informed them that the amount was sent to Ashoke Kumar shopkeeper; therefore,' the Magistrate and the other members of the raiding party went to the shop of Ashoke Kumar which was on the ground floor of the building where the Magistrate recovered the amount from him which was found .to be the tainted money. Therefore, the appellant and Lutfullah were arrested. The Magistrate prepared the report. The police after usual investigation, challaned the Appellant and co-accused Lutfullah in the Court. The learned Special Judge Anti-Corruption, Sukkur tried the appellant and co-accused Lutfullah, convicted the appellant for offence punishable under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to suffer R.I. for one year and fine of Rs.2,000 or in default thereof to suffer R.I. for two months under the impugned judgment, dated 25-9-1999. I have heard the advocate for the appellant, Assistant Advocate General for the State and perused the record of this case very carefully. From the reading of Paper Book, it has been found that the prosecution examined in all six witnesses. The evidence of complainant P.W.4 Ali Gul reveals that he gave same details of the incident as mentioned in the earlier part of the judgment; therefore need not to be repeated. From his evidence, the first allegation against the appellant is that illegal gratification was demanded in presence of Ali Anwar but the prosecution did not examine him to support the allegation of complainant. The second allegation levelled by the complainant is of payment of Rs.3,000 to the appellant in presence of P.W. Ali Bux and Moula Bux. P.W. Ali Bux has not been examined whereas P.W. Moula Bux did not support the complainant as he specifically stated that he never accompanied the complainant to the appellant for mutation of land nor the complainant paid Rs.3,000 to the appellant in his presence or that the appellant agreed to receive the amount of Rs.500 at the later date. The third allegation of the complainant is that he paid the amount of Rs.500 in presence of P.W. Walan in the room situated at the upper storey of the shops but P.W. Walan also did not support the complainant as he specifically stated that he did not accompany the complainant or the complainant paid the amount to the appellant in his presence. This witness was declared hostile. His 164, Cr.P.C. statement was brought on the record in which he supported the case but before relying upon the said statement, the prosecution was required to prove that the requirements of Section 265-J, Cr.P.C. were fully complied with by which the investigating officer was required to give a notice to the appellant for recording the statements of P.Ws. to provide him an opportunity to engage an advocate and cross-examine the witnesses. As the provisions of section 265-J, Cr.P.C. were not complied with; therefore, the 164, Cr.P.C. statement cannot be relied upon as a substantive piece of evidence. Even otherwise the P.W. Walan has made his statement highly doubtful; therefore, it is very unsafe to rely upon his evidence hence this part of the statement of the complainant is not supported or corroborated by the evidence available on the record. There is nothing on the record to prove that any amount was paid to the appellant in presence of any witness nor tainted money was recovered from his possession. The prosecution relied upon the statement of complainant which is neither supported nor corroborated by any piece of evidence hence it is unsafe to rely upon the same evidence. The evidence of Magistrate and police officer shows that a raiding party was formed but the raiding party did not secure the tainted money from the possession of the appellant. The presence of P.W. Walan along with the raiding party has also not been established beyond any reasonable doubt. Finding the above-mentioned defects in the prosecution case, the learned Asstt: A.G. has not supported the impugned judgment. In the light of what has been discussed above, the prosecution case is highly doubtful against the appellant; therefore, he is entitled to the benefit of doubt which was accordingly given to him while passing short order, dated 18-8-2006 by which 1 had allowed the appeal. These are the reasons of said short order. H.B.T./A-113/K Appeal allowed.