1998 P Cr (PLP)

This criminal appeal arises from the judgment, dated 16-1-1995 passed by the learned Special Judge, Anti-Corruption, Gujranwala in trial No. 15 of 1995 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. with a fine of Rs.5,000 and in default of payment of fine to undergo further R.I. for three months.

2. The prosecution case is that on 25-3-1994 Shah Nawaz complainant had met the appellant, who was Patwari of Halqa Village Hasan Bhattian to get a copy of Khasra Girdawari of the land under his cultivation and the appellant demanded illegal gratification of Rs.500 in addition to the official fee in the presence of Hafeez Ullah (P.W.4). The complainant reported the matter to the Police Station A.C.E., Sialkot on 6-3-1994. The Circle Officer/Anti-Corruption Establishment, Sialkot recorded F.I.R. (Exh.P.A.) and on his application (Exh. P.B.) the Deputy Commissioner, Sialkot deputed Syed Ali Ausat Shah (P.W.3) Magistrate 1st Class for raid. The CO/A.C.E. produced the complainant before the raiding Magistrate who recorded his statement (Exh. P.I.). The complainant produced one currency note of Rs.500 before the Raiding Magistrate who after obtaining the serial number returned the same to the complainant. The complainant informed the raiding Magistrate that he is to pay the money on 27-3-1994 at 11-00 a.m. to the appellant and further proceedings were postponed to the next day. On 27-3-1994 the raiding party was constituted and it went to Mauza Dulam Kahlwan. The complainant with necessary instructions was sent to pay the money to the accused. The complainant after about half an hour gave a signal from a distance about the payment of money and thereupon the raiding party entered the Dera of Hafeez Ullah (P.W.4) Lumbardar. The accused was sitting on a cot with his record and he was called and the raiding party introduced itself. One currency note of Rs.500 (Exh. P.I.) was recovered from the right pocket of the Salooka of the accused and serial number tallied with the serial number already noted. The tainted money was taken into possession vide memo. Exh. P.C. Statement of the appellant was recorded and he was arrested and proceedings recorded by the raiding Magistrate were handed over to the C.O/A.C.E. After necessary investigation, sanction order (Exh. P.J.) was obtained and the challan was submitted in the trial Court.

3. At the trial the prosecution examined four witnesses in all. P.W.1 is Rana Ashiq Ali C.O./A.C.E. who recorded F.I.R. Exh. P.A. on the statement of the complainant. He also stated that he made application Exh. P.B. to the Deputy Commissioner to nominate a Magistrate for raid. He also stated that he accompanied the raiding party and on the pointation of the complainant raided and took into possession a note of Rs.500 P.1 vide memo. Exh. P.C. from the search of the person of the appellant. He further stated that he took into possession another amount of Rs.111 vide memo. Exh. P.D. In his cross-examination he said that he had not heard the conversation between complainant and the accused and neither he saw the complainant giving bribe to the appellant.

4. P.W.2 is Shah Nawaz complainant. He stated that he had landed property in Mauza Hassan Bhattian. The accused-appellant was Patwari Halqa. About a year ago he met the Patwari to have a copy of Khasra Girdawari and the accused demanded a bribe of Rs.500. He said that on his pointation the raiding party made a raid and recovered the tainted money from the pocket of Salooka of the accused-appellant. He further said that at the time of search Rs.70 or Rs.72 were in the pocket of the accused-appellant which were taken into possession vide memo. Exh. P.D. In his cross-examination he said that he had no land in Dulm Kahlooan. He further stated that he did not tell the Magistrate about the number of the currency note but left it with the Magistrate. It was also stated that he gave a currency note of Rs.500 to Hafeez Ullah Lumberdar who went inside the room with the appellant and gave him the said note. He further stated that he did not see Hafeez Ullah, Lumberdar passing the money to the accused appellant.

5. P.W.3 is Syed Ali Ausat Shah, Magistrate 1st Class, Sialkot who conducted the raid and recovered the tainted money from the appellant on the pointation of the complainant.

6. P.W.4 is Hafeez Ullah, Lumberdar who allegedly gave the bribe to' the accused-appellant. He stated that on 27-3-1994 the accused-appellant was sitting on his Dera for Girdawari purposes when the complainant Shah Nawaz came there and gave a currency note of Rs.500 to the accused-appellant in 'his presence. Thereafter, raiding party conducted raid and recovered currency note P.1 vide memo. Exh.P.C. from the pocket of Salooka of the appellant, and nothing else was recovered.

7. In his statement under section 342, Cr.P.C. the appellant denied the allegations levelled by the prosecution and contended that shortly before the raid Hafeez Ullah (P.W.4) gave him a currency note of Rs.500 for obtaining change and the raid took place after he had given the change. The appellant also contended that his statement Exh.P.I. was not accurately recorded by the Magistrate and it was not read over to him. The accused contended that complainant Shah Nawaz neither owns nor cultivates land in the Mauza and he never demanded any copy from him and the raid was arranged by Hafeez Ullah (P.W.4) to falsely involve him in the case due to his personal grudge. The accused-appellant also examined Muhammad Yousaf (D'.W.1), Barkat Ali (D. W.2) and himself appeared as D. W.3 in his defence. Both the D. Ws. corroborated the statement of the accused.

8. Learned counsel for the appellant has vehemently argued that the prosecution evidence in this case is not reliable and it has failed to make out a case against the appellant. According to him the version put forth by the appellant in defence is more plausible and worthy of credit. Learned State Counsel has opposed the acquittal saying that mere minor discrepancies in the statements of the P.Ws. do not mean that the prosecution has failed to prove its case against the accused-appellant. He stressed for dismissing the appeal.

9. With the able assistance of both the learned counsel, I have myself carefully and minutely gone through the record and seen the evidence on the record. The complainant has deposed that he. gave note of Rs.500 to Hafeezullah Ltimberdar who passed it on to the appellant and that the complainant did not himself see the passing on of the money to the appellant. On the other hand Hafeezullah stated thai the tainted money was given to the appellant by the complainant and not by him. This shows either the complainant or his witness Hafeezullah, Lambardar is telling a lie which makes the passing on of the tainted money to the appellant as totally doubtful. The second material discrepancy fatal to the prosecution case is that the complainant has admitted that he did not note the serial number of the tainted currency note. Similarly in his cross-examination he has admitted that he had left the currency note with the Magistrate a day before the raid and he never came to the Court of the Magistrate on 27-3-1995. It means that no bribe was given to the appellant by Hafeezullah Lamberdar as the tainted note was not in their possession and was in the possession of the Magistrate. The raiding Magistrate, Syed Ali Ausat Shah (P.W.3) has frankly stated that he did not hear the conversation between the complainant and accused-appellant at the time of payment of money and he also did not see the accused accepting the tainted money. Same is the statement bf the Circle Officer/Anti-Corruption Establishment Ashjq Ali (P.W.1) who in his cross-examination stated that he did not see the passing on of the tainted money. In Sultan Muhammad v. The State 1994 PCr.LT 2356 (Lahore), and Sajid Naveed v. State PLJ 1997 Cr.Cases (Lahore) 1293 in similar circumstances the conviction was set aside. The stress of the learned State Counsel that the tainted money has been recovered from the appellant is of no help to the prosecution as 8 mere recovery of tainted- money in the absence of evidence to the effect that the amount was received by the accused-appellant as bribe is not enough to prove the charge. The view is fortified by the case Mirza,Fayyaz Beg v. The State 1994 PCr.LJ 2233 (Lahore). According to complainant Shahnawaz (P.W.2) he has no landed property in the village and the Fard was required for personal use creates serious doubts about the truthfulness of the prosecution case. Besides this, there was no one else present when the bribe was allegedly demanded, thus, the statement of complainant, who is decoy witness, is without consideration and on the basis of it conviction cannot be passed.

10. In view of the abovenoted discrepancies and contradictions and legal C position, I find that the defence plea is more reliable than the prosecution case, and the prosecution has no legs to stand upon.

11. As a result of the above discussion, I accept this appeal, set aside the judgment of the learned trial Judge, dated 1-6-1995 and acquit the appellant. The appellant is on bail. He is discharged of his bail bonds. H.B.T./N-79/L Appeal accepted.