1994 P Cr (PLP)

The appellant, Muhammad Yaqoob son of Abdur Rahim, was tried by the learned Special Judge, Anti-Corruption, Sargodha and Faisalabad Divisions with headquarters at Sargodha and was convicted under section 161, P.P.C. and sentenced to two years' R.I. and a fine of Rs.10,000 or in default thereof to further undergo R.I. for ten months, while his co-accused Sarfraz Khan was acquitted. The appellant has challenged his conviction and sentence by filing this appeal.

2. The case of the prosecution in brief is that one Barkat Ali was a Dakhilqar of agricultural land of Chak No.257/JB, Police Station Mochiwala, District Jhang. He died about 1-1/4 years before the registration of this case i.e. 3-4-1985. Umar Din complainant is his son. Mutation of inheritance regarding the landed property of the demised Dakhilqar of the land was required to be made. The complainant visited Muhammad Yaqoob accused in this connection. This accused was a Revenue Patwari in that Circle. On the complainant's request for making the mutation, a demand of bribe was made by this accused. The money demanded was Rs.2,

000. The complainant was keen to get the mutation of inheritance made in his favour. He paid, then and there, Rs.225. He left with a promise to pay the remaining sum of Rs.1,600 later. The part payment of bribe , money amounting to Rs.225 was made on 2-4-1985. The remaining sum of Rs.1,600 was promised to be paid on the 3rd April, 1985. On the promised day, first of all, Umar Din complainant appeared at Police Station Anti-Corruption Establishment, Jhang at 11-30 a.m. He lodged report Exh.PA. as to the demand and part payment of bribe money. Rai Ahmad Yar P.W.2, was then S.C.O./A.C.E. at Jhang. He registered this case on such report under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947. Then he made a petition Exh.P.E. and secured thereon, an order by the A.D.C.(G), Jhang, whereby Mr. Sarwar Hayat, M.I.C. P.W.3 was deputed for this raid. Then, the same day i.e. on the 3rd of April, 1985 at 1-00 p.m. the S.C.O./A.C.E. appeared before the said Magistrate, accompanied by the complainant. The complainant volunteered a statement before the Magistrate and tendered currency notes P.1 to P.16, of the total amount of Rs.1,

600. The raiding Magistrate copied the serial numbers of these currency notes at Exh.P.G., portion of his report. A raiding party was formed, which comprised of the complainant, the S.C.O./A.C.E., and the raiding Magistrate. This team reached near the premises of Tehsil Office, Jhang. The complainant entered the Tehsil Office. Some sort of Patwari's meeting was then on. He informed the raiding Magistrate accordingly. This entailed a few minutes wait. Thereafter the complainant met the accused and passed on the tainted money to him. Muhammad Yaqub accused having received the tainted money further transferred the currency notes, intact, to his co-accused Sarfraz Khan, who stood near him. On signal the raiding Magistrate went near both the accused. First of all, the person of Muhammad Yaqoob accused was searched. Nothing was found with him. Then the person of Sarfraz Khan accused was searched. Tainted currency notes of the value of Rs.1,600 were found lying in the pocket of Salooka of this accused. The serial numbers of the recovered currency notes tallied with the description of currency notes, recording earlier at Exh.P.G. The recovery was thus effected.

3. Soon after the recovery of the tainted money, the raiding Magistrate examined Umar Din complainant. He made his supplementary statement Exh.P.C. wherein he described as to the factum of acceptance of bribe money, from him, by Yaqoob accused, and that of passing on of the tainted money to his co-accused. Muhammad Yaqoob accused made a statement there to the effect that he knows nothing about the fact of payment of acceptance. Then, Sarfraz accused was called upon by the raiding Magistrate to make a statement. This accused took up this position that he was counting the currency notes, on a request made by the complainant, and that in the meantime he was hauled up. A few moments earlier the raiding Magistrate had recovered the tainted currency notes, not from the hands of this accused, but from the pocket of a Salooka, that was on his person. It was at that juncture that the raiding Magistrate recorded his concluding note Exh.P.J., wherein, he refuted this version of Sarfraz Khan accused in the following words in Urdu:-- The tainted currency notes had been recovered. The arrest of Sarfraz Khan accused was effected on the spot. The raiding Magistrate then handed over the papers to the S.C.O./A.C.E. Investigation was done. Ultimately, both the accused were challaned and sent up to the Court for trial.

4. The learned trial Court framed the charge under section 161, P.P.C. against Muhammad Yaqoob accused for having taken illegal gratification of Rs.1,600 in connection with his official functions as a Revenue Patwari. This charge was controverted by the accused.

5. At the trial the prosecution examined as many as three witnesses. Umar Din P.W.1, is the first informant as well as the decoy witness. He joined the raiding party, passed on the tainted money, and then witnessed the recovery thereof. Rai Ahmad Yar P.W.2, was then S.C.O./A.C.E. He is the scribe of F.I.R. Exh.PA. which is based on the complainant's statement. He took steps for this raid operation. He joined the raiding party as a member and witnessed the recovery. The case was investigated by him. Both the accused were resultantly challaned. The last witness of the prosecution is Safdar Sarwar Hayat raiding Magistrate P.W.3. He supervised the raid, from one end to the other. The tainted currency notes were recovered by him from one of the two accused. This concludes the prosecution evidence.

6. After the completion of the investigation, the accused were charge?sheeted by the learned Special Judge, Anti-Corruption, Sargodha to which they pleaded not guilt and claimed trial. The accused examined Allah Yar Lumbardar D.W.1 in their defence. He has stated as to the sanctioning of mutation copy Exh.P.E./8 and 9, and that of a sale mutation Exh.D.A. His testimony is off the point. Both the accused, in their statement without oath recorded on 22-9-1986 expressed their desire to make statement on oath to repudiate the prosecution version. Later on, however, they backed out and made statements on 6-10-1986 as to closure of their defence evidence.

7. The learned Special Judge, Anti-Corruption, Sargodha, keeping in view all the facts and circumstances convicted and sentenced the appellant as stated above, while his co-accused Sarfraz was acquitted of the charge against him.

8. The learned counsel for the appellant and the State were heard at length and the record of the case perused with their assistance.

9. The Court has taken notice of the fact that it is the case of the prosecution itself that the tainted money P.1 to P.16 i.e. 1,600 rupees notes had A not been recovered from the person of the appellant nor at his pointing out; and that, in fact, the case of the prosecution is that the said tainted] currency notes had been recovered from the pocket of the Salooka worn by the acquitted co-accused Sarfraz as duly recorded in Exh.P.J., which is the concluding note by the raiding Magistrate, P.W. Sarwar Hayat, M.I.C. Further notice has been taken of the fact that whereas P.W.1/complainant, Umar Din had stated in his testimony that the tainted money had been passed on to the acquitted co-accused by the appellant Muhammad Yaqub in the presence of the other P.Ws., namely Rai Ahmad Yar, Inspector, P.W.2 and P.W.3, Sarwar Hayat, M.I.C. respectively but the said P.Ws. denied E having witnessed the passing on of - the money to the acquitted co?accused of the appellant in their respective depositions before the learned trial Court. Therefore, it is hereby observed that there is no cogent evidence on the record to link the appellant with the recovery of tainted/bribe money from the acquitted co-accused's pocket. It .may be pointed gout that the State had not preferred an appeal against the acquittal of the co?accused Sarfraz of the appellant vide impugned judgment. Consequently, it is hereby held that the prosecution had failed to prove the charge against the appellant.

10. Resultantly, the present criminal appeal is hereby allowed and the impugned judgment is set aside. The appellant stands acquitted of the offences charged. He is on bail, his bail bonds stand discharged accordingly. N.H.Q./M-1678/L?????????????????????????????????????????????????????????????????????????????? Appeal allowed.