1999 P Cr (PLP)

2. The prosecution produced five witnesses. Hassan Muhammad P.W.1 and Ibrahim, who filed a complaint alongwith seven others. Hassan Muhammad P.W.1, stated that appellant demanded huge amount but ultimately agreed to accept Rs.10,000 in the presence of late Iftikhar but despite this gratification he reduced his land. Similarly, Muhammad Sarwar/P.W.2 stated that Muhammad Ibrahim P.W.3 paid Rs.3,000 to the convict in his presence with a view to save his land in the consolidation proceedings. Muhammad Ibrahim P.W.3, stated that appellant demanded Rs.20,000, he, however, paid Rs.5,000, in presence of Sarwar P.W.2. Rana Aziz Ahmad P.W.4, stated that in his presence Ghulam Muhammad P.W., paid Rs.22,

500. Bashir Ahmad P.W. paid a sum of Rs.22,000 and Anwar Ahmad P.W.5 paid to the appellant a sum of Rs.10,000 with a view to allotment of good piece of land in consolidation proceedings. Fazal-e-Azeem P.W.5, Assistant Director, who conducted the inquiry and recorded formal F.I.R. Exh.P.A./l; while appellant appeared and gave statement under section 342, Cr.P.C. denied the allegations in the following terms:-- "The complainants could not get the land of their choice during the consolidation and sometimes their holdings were reduced. Being angry with this they managed to falsely involve me in this case."

3. The appellant produced five defence witnesses D.W.1 to D.W.5. Muhammad Ilyas D.W.l stated that he was Member of the Advisory Committee for the consolidation purpose; out of the complainant nobody lodged any complaint about the bribe allegedly received by the appellant before Consolidation Officer in D.W.2 also stated that he was member of Advisory Committee and stated that no money was paid to the appellant by any of the complainant in his presence. D.W.3 Lashkar Khan also supported the appellant and further stated that there was party friction in the village on account of murder of one Imdad and the appellant was involved on account of party friction in the village. Muhammad Aslam D.W.4, also supported the version of the appellant and stated that there is party friction in the village on account of murder of one lmdad. Hafiz Noor Muhammad also supported the version of the appellant.

4. The learned counsel for the appellant argued as follows: (i) The complaint was jointly filed by nine persons with general allegations regarding different incidents without specifying any amount of bribe demanded and accepted by the appellant without mentioning the names of witnesses in whose presence the appellant demanded and accepted the bribe. (ii) The complaint was filed by the complainants after. 7/8 months, after completing the consolidation proceedings. (iii) The complainants also agitated the matter before the Revenue Authority up to the level of Member, Board of Revenue but did not mention any allegation against the appellant qua the said allegation of demand and acceptance of bribe from them. (iv) The complainants having motive to involve the appellant, as complainants were not satisfied with the result of consolidation. (v) There are two versions available on the record i.e. prosecution version as well as defence version. In case both the versions put in juxtaposition then the defence version is plausible as compare to the prosecution version. (vi) The trial was conducted in violation of mandatory provisions of section 233, Cr.P.C. Therefore, the sentence is not maintainable in the eyes of law as the joint trial is not permissible under the law. (vii) The statements of prosecution witnesses are inadmissible. (viii) The statements of the witnesses are contradictory with each other and lot of improvements made by the witnesses of the prosecution, therefore, the prosecution failed to bring on record sufficient material to connect the appellant with the guilt.

5. The learned counsel for State strongly opposed and contended as follows:-- (i) All the witnesses produced by the prosecution having no direct enmity whatsoever against the appellant, therefore, their statement may be accepted in toto. (ii) The delay per se in F.I.R. is no ground to disbelieve the statement of the prosecution witnesses. (iii) There is no violation of section 233, Cr.P.C. as the acts committed by the appellant is result of one of the same series of witnesses. (iv) It is not necessary to mention all the details in the complaint which can be highlighted during the trial by producing witnesses. 6. 1 have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself with the assistance of respective learned counsel. It is admitted fact that complaint was filed after 7/8 months, after completion of consolidation proceedings. The complainants agitated the matter in the Revenue side up to the level of Member, Board of Revenue Consolidation but the complainants did not level any allegation against the appellant, that he demanded and accepted the bribe for allotment of better land to the complainants. The contradiction in the statements of prosecution was duly noted by the learned Senior Special Judge, Anti-Corruption in para. 7 of the judgment. It is admitted fact that the witnesses appeared and confirmed their own version without any corroboration except by Muhammad Sarwar P.W.2 and Rana Aziz Ahmad P.W.4 admitted in his cross-examination that the land allocated to him was of inferior quality and was also less than his original holding. Similarly P.W.2 also made the following contradiction and improvement:-- "I did not state before the Police that Rs.5,000 was paid. (Confronted with Exh.D.D. so recorded)." He is also a cultivator of the same village The prosecution failed to prove on record statement of any independent witness, who was present at the time of incident, therefore, the statement of such type of witness should be examined very carefully. The Honourable Supreme Court has considered this proposition of law in Noor Muhammad's case PLD 1963 SC 38 and laid down the following principle:-- "As however, the case mainly rest on his evidence it should be scanned with much caution and the Court must be satisfied that he is the witness of truth specially, when no other person was present at the time that he paid the alleged illegal gratification. " I am also fortified by the judgment of Ghulam Mustafa 1990 MLD 1575 and the relevant observation is as follows:-- "The mere word of the complainant cannot be relied upon made the basis of conviction unless corroborated by independent evidence." The aforesaid principle of law was also considered in Akram-ud-Din's case 1983 PCr.LJ 1589. There was no recovery from the appellant regarding the bribe money as mentioned above. The prosecution failed to provide any independent corroboration except Jan Muhammad who is also interested witness and his statement is also highly improved before the trial Court. This fact also brings the witnesses in the category of interested witness. D.W.3 has also motive against the appellant and the possibility cannot be ruled out that he was not satisfied by the consolidation proceedings. It must be observed at the very outset there lies heavy onus on the prosecution to prove the demand and acceptance of illegal gratification by a public servant. Once this basic fact has been proved itself thereafter, the onus shift on to the convict/accused to explain his position. Where, therefore, this basic fact was not proved beyond reasonable doubt, there arises no question of shifting of onus to the convict/accused. The matter is to be viewed with a correct degree of seriousness and caution where a plea has been raised by the convict/accused that his involvement in a case of this nature is motivated by malice, grudge out of spite. There is preponderance of view of the superior Courts to the effect that in order to prove on the charge to the convict/accused beyond reasonable doubt, the prosecution should have produced the witnesses who heard the conversation which took place between the bribe -giver and the bribe-taker at the time of demand and accepting the bribe. I, inter alia, propose to examine the merits of this case in the light of the criteria and principle for safe dispensation of criminal justice. As mentioned above the prosecution did not produce any independent witness who happened to be present at the time of settlement of bribe between the appellant and the complainants and the settled amount was paid by the complainant to the appellant. Coupled with the facts that there is extraordinary delay of 7/8 months in lodging the report, that the bribe money was not recovered from the appellant and that the ocular evidence version suffers from material contradiction and discrepancies on the point of place of payment of bribe money, the time of payment of bribe money and the person who allegedly paid bribe money to the appellant. The prosecution witnesses are related, in the circumstances of the case when there is friction in the two groups including murder enmity between themselves could have been easily enduced to be witness against the appellant; meaning thereby in a. case like the one in hand where the complainant or the witnesses are established on the record to harbour enmity, grouse or grudge and motivation exists for false involvement of the accused, the evidence of such witnesses cannot be treated to be that of disinterested persons, therefore, corroboration must be sought from the independent source and circumstances brought on the record. The evidence of P.W.2/P.W.4 cannot reasonably be said to have been corroborated by P.W.1 and P.W.3 their testimony is contradictory to each other. The prosecution has offered no explanation why they could not produce some other independent witnesses and why they did not mention this fact of bribe before the revenue side i.e. Commissioner and M.B.R. whenever any corroboration is required it implies that it should be an independent one. If the corroboration is also through the same witness whose statement is required to be corroborated, it will be no corroboration in the eye of law. In view of this principle statement of P.Ws.2 and 4 do not provide independent corroboration. The statement of Investigating Officer also did not inspire confidence as the Investigating Officer did not visit the spot and investigated the matter in office. Therefore, he did not pin-point Patwar Khana whether it was situated in village or not? The learned Special Court also appears to have acted in oblivious of the principle of appreciation of evidence in criminal matters inasmuch as it has been often said and reiterated that the defence plea of the accused at the trial must be placed in juxtaposition to the prosecution version and the Court must try to evaluate it and discover the probabilities of the case. Appellant categorically stated that he did not demand and accept the bribe from the complainants and the appellant was involved on account of enmity and the complainants were not satisfied with the consolidation proceedings. Coupled with the facts that the complainants did not mention word demand and acceptance of bribe before the Consolidation Officer, Commissioner and Member, Board of Revenue, therefore, prosecution could not succeed on record to connect the appellant with the guilt beyond reasonable doubt. The version of the accused/appellant found corroboration from the material on the record. The learned Special Judge, did not discuss the defence and the statement of defence witnesses. In view of what has been discussed above, this appeal is accepted by giving the benefit of doubt to the appellant. N.H.Q./U-22/L Appeal accepted