1986 P Cr (PLP)

Sh. Naveed Shahryar for Appellant. Ejaz Ahmad Ch. for the State. Date of hearing: 8th February, 1986. This Criminal Appeal arises from the judgment of learned Special Judge Anti‑Corruption, Sargodha whereby he, on 28‑7‑1985 convicted Raja Basharat Ali, appellant under section 161, P.P.C. and sentenced him to 11 months' R.I. and a fine of Rs.30,000 in default of payment of fine to further R.I. for three years.

2. The appellant was a Patwari. The charge against him was that he demanded and accepted Rs.6,500 as illegal gratification for entering and getting attested two mutations, from Muhammad Ashraf complainant P.W.2. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined four witnesses. Muhammad Ashraf complainant P.W.2 appeared to prove demand as well as acceptance of Rs.6,500 as illegal gratification from him by the appellant. Ghulam Nabi, Magistrate P.W.1 and Zahoor Hussain, Inspector Anti‑Corruption P.W.4 have been produced to prove the acceptance of the tainted currency notes by the appellant from the complainant and recovery thereof from the appellant. They have supported the prosecution case. Ghulam Ali P.W.3 has also been produced to depose about the demand and settlement between the appellant and the complainant with regard to the payment of bribe money. They have supported the prosecution case.

4. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. In reply to question No.13 he stated: -- "On 8‑12‑1982. I entered the mutation in the register in favour of Ashraf complainant. Actually, I entered one mutation regarding the land of complainant's father and of the next mutation was regarding the lands of Aunts (Phuphis) of the complainant. Both the mutation were entered by me in favour of Ashraf complainant. Then I informed the complainant that mutation fee for those two mutations is Rs.6,

500. I asked the complainant to deposit this mutation fee in Tehsil office and informed him that on 19th and 20th of December, 1982, Tehsildar visit the Illaqa and attest the mutations. On 19‑12-1982, the complainant visited me and requested me to accept the money and deposit the same in Tehsil office myself as mutation fee. I disagreed." In defence he produced Haider Shah Patwari who stated that the total dues for both the mutations were Rs.6,

505. The appellant also tendered in evidence the Notification with regard to the mutation fee and other charges.

5. The learned counsel for the appellant contended that the prosecution has not been able to prove beyond reasonable doubt that the tainted currency notes were received by the appellant as illegal gratification. Conversely the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the submissions made by the learned counsel for the parties with care. I find that the acceptance of tainted currency notes by the appellant is not only a proved but also an admitted fact inasmuch as in his statement recorded just after the occurrence the appellant had stated that the money was given to him as mutation fee. In these circumstances, the real question for consideration and determination is as to whether the money was received by the appellant as illegal gratification or not. I find that since the Magistrate and the Inspector had not heard conversation between the appellant and the complainant at the time of raid and Ghulam Ali P.W.3 was not witness of the raid therefore, so far as the nature of the transaction is concerned, statement of Muhammad Ashraf P.W.2 alone remains in field and that he being a decoy witness it would not be in accordance with the safe administration of justice in criminal cases, to place implicit reliance on his testimony. The rule of prudence requires independent corroboration of his statement which I do not see in the case in hand No doubt the accused/ appellant has also made inconsistent statements but it is well‑settled that weakness of defence cannot strengthen the prosecution case. It is also not less‑well‑recognized that the accused has been given a licence of telling lies which has also been recognized by the Courts. For all these reasons, I am of the view that prosecution has not been able to prove beyond reasonable doubt that the tainted currency were received by the appellant as illegal gratification.

7. For what has been said above, there being no satisfactory basis to uphold the conviction of the appellant, so while giving him the benefit of doubt, he is acquitted of the charge. M.Y.H. Appeal accepted.