1988 P Cr (PLP)

Muhammad Akram Nasir for Respondent. Appellant Asghar Ali was sent up for trial by Police Station .A.C.E., Sheikhupura before the Senior Special Judge Anti-Corruption, Punjab, Lahore, for an offence under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. The trial Court vide its judgment dated 17-8-1987 found him guilty for the abovementioned provisions and sentenced him to six months' R.I. and a fine of Rs.1,000 or in default in payment thereof R.I. for one month. The appellant has filed an appeal challenging his conviction and sentence, which shall be disposed of by this judgment.

2. The prosecution story in brief is that Mahboob Ahmad, P.W., owns 6/7 acres of land in village Wan, District Sheikhupura. He wanted to sell 3 acres of his land for which he needed a copy of Jamabandi. He approached the appellant, who was a Patwari, but he demanded RS-1,000 as illegal gratification for doing the said job; ultimately the bargain was settled at Rs.400. The said Mehboob Ahmad on 17-11-1985 got in touch with Mahmood Ahmad Cheema, C . O . A . C .E. , Sheikhupura, and lodged a report Exh.P.A. to that effect. Thereafter, he was produced before Abdul Rashid, Magistrate Ist Class, Sheikhupura who recorded the statement of the complainant, and constituted a raiding party after noting down the numbers of the currency notes P.1 to P.4. Then the raiding party went to the Patwarkhana of the appellant. The raiding party remained outside the Patwarkhana but Mahbood Ahmad complainant went inside and got prepared a copy of the Jamabandi. After preparation of a copy of Jamabandi he paid Rs.400 and signalled the raiding party. The tainted currency notes were recovered from the pocket of the appellant by the raiding party. After necessary investigation, the appellant was challaned.

3. The prosecution in support of its case has produced 3 P.Ws., in all. Mahboob Ahmad, P.W.1, complainant, has supported the version given in the F.I.R. Exh.P.A. He has stated that the appellant had demanded Rs.1,000 as illegal gratification for the preparation of a copy of Jamabandi of his land but the bargain was struck at Rs.400. He has deposed that on the day of the raid he went with the raiding party and after paying the appellant, he signalled the raiding party and then the amount was recovered from the pocket of the appellant. In cross-examination, the witness has stated that he offered the money after the copy of Jamabandi had been prepared. He has further admitted that when he paid Rs.400 to the appellant, he refused to accept the same but on his insisting he kept the tainted currency notes. Mahmood Ahmad Cheema, C.O., A.C.E., Sheikhupura, and Abdul Rashid, M. I. C., P.Ws. 2 and 3, respectively, have corroborated the statement of the complainant by deposing that they entered the Patwarkhana when they were signalled by the complainant. In cross -examination, both of them admitted that they neither heard the conversation nor saw the money changing hands. At the conclusion of the prosecution evidence the appellant was examined under section 342, Cr.P.C. without oath, wherein he has refuted the entire prosecution version and stated that the appellant's son came to him for the delivery of copy of the Jamabandi and offered him Rs.400. He refused to accept the same and the notes fell down on the ground. At that time the Magistrate came and took, the money which was lying on the ground. He also appeared in -his defence on oath and stated the same story.

4. It is contended by learned counsel for the appellant that the prosecution has failed to establish the case against the appellant. It is submitted that the prosecution's own case is that the appellant had already prepared copy of the Jamabandi before receiving the illegal gratification, therefore, even if the money had changed hands subsequently, it cannot be termed as illegal gratification. Urges that Mahboob Ahmad complainant in his statement has admitted that the appellant refused to accept the money offered to him, therefore, no, offence has been committed by the appellant.

5. I have heard the learned counsel at length, perused the record and gone through the evidence with his assistance. A perusal of the statement of Mehboob Ahmed complainant clearly indicates that at no stage the appellant asked him for the illegal gratification on the day of the raid. On the contrary, when the complainant offered Rs.400 it was refused by the appellant. This part of the conversation was not heard by the remaining two witnesses Therefore, the statement of the complainant if placed in juxtaposition with the statement of the appellant, it becomes clear that the statement of the appellant is more convincing which is also corroborated to some extent by the statement of the appellant. It is also in evidence that the appellant had already prepared copy of Jamabandi. therefore, in such circumstances, the ingredients of section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 are not attracted. The prosecution has not been able to prove that the appellant demanded illegal gratification or he accepted the same voluntarily. For what has been discussed above, I hold that the case against the appellant is not proved. Therefore, giving him the benefit of doubt I accept the appeal and set aside his conviction and sentence. The appellant is on bail. His bail bonds shall stand discharged. S.A./A-438/L Appeal accepted.