1994 P Cr (PLP)

2. The brief facts leading to the present criminal appeal are that the appellant, a senior clerk in the office of Excise and Taxation Department, Faisalabad on 12-8-1986 while doing survey of property had demanded an illegal gratification of RS. 2,004 from Haji Muhammad Saeed P. W. 3 and told him that he will show favour in the matter of determination of property tax and a bargain was settled at Rs.

500. Muhammad Saeed P. W. 3 then approached Anwar Ali P. W. 4 and paid him amount of Rs. 500 for payment. On 13-8-1986 Anwar Ali P. W. 4 contacted Zulfiqar Ahmad, Inspector F.I.A. P. W. 7, on whose application Ch. Sardar Muhammad, Magistrate P. W. 2 was deputed to supervise the raid. The raiding Magistrate P. W. 2 recorded the statement of Anwar Ali P.W.4, Exh.P.C. and noted the numbers of four currency notes Exh.P.l to Exh.P.4 of Rs. 100 each and two currency notes Exh.P.5 and Exh.P.6 of Rs.50 each, vide memo. Exh.P.D. and after constituting a raiding party reached Mohallah Muhammadpura, Street No.3, Faisalabad. The complainant Anwar Ali P.W.4 separated from the raiding party and paid the tainted currency notes to Sultan Mahmood appellant who was sitting in the "Baithak" of one Younas and the appellant, according to the statement Exh.P.J. had put Rs. 300 in the pocket of his shirt and Rs. 200 in the pocket of his Shalwar. On receiving the signal the raiding party went inside the Baithak of Yousaf and introduced itself, whereupon the appellant had produced currency notes of Rs. 300 from the front pocket of his shirt and Rs. 200 from the pocket of his Shalwar, which were taken into possession vide memo. Exh.P_F. The accused/appellant was also in possession of register P.T.I for the years 1982-83 to 1986-87, which was also taken into possession vide memo. Exh.P.K. After recording the statement of the accused/appellant Exh.P.G., statement of Abaidullah Exh.P.H. and supplementary statement of Anwar Ali P.W.4 Exh.P.J. and passing the final order Exh.P.L., the proceedings, recorded by the Magistrate, were handed over to Zulfiqar Ahmad, Inspector P.W.7, who sent the raid report to the Police Station F.I.A. for registration of the case. On the basis of the said proceedings F.I.R. Exh.P.A. was recorded and as the accused was an employee of the Provincial Government, the F.I.R. was sent to Police Station A.C.E. Region, Faisalabad, where the formal F.I.R. Exh.P.B. was recorded by Jahangir Haider P.W.1. Abdul Majeed, Assistant Director, A.C.E. P.W.5 investigated the case and after obtaining the sanction order Exh.P.M. challaned the accused.

3. At the trial, the prosecution had examined Jahangir Haider P.W._1, Ch. Sardar Muhammad, Magistrate P.W.2, Haji Muhammad Saeed P.W.3, Anwar Ali P.W.4, Abdul Majeed, Assistant Director, A.C.E. P.W.5, Abid Naeem P.W.6 and Zulfiqar Ahmad, Inspector P.W.7, to prove its case. On the other hand, the accused/appellant, in his statement under section 342, Cr.P.C. had admitted that in August, 1986, being a senior clerk in Excise and Taxation Department, his duty was to survey the property for the assessment of property tax and that Muhammad Saeed P.W.3 owned a shop in the name of Javed General Store, but denied that he demanded or accepted any amount as an illegal gratification or produced the Register PT-I at the time of raid. He contended that he was forced to sign the statement Exh.P.G. His defence was that Anwar Ali P.W.4 was a member of a self-styled association for eradication of corruption and that, being a tout and professional witness of A.C.E. and F.I.A., the said P.W.4 had concocted a false story-to involve him in the case. He had also relied upon numerous documents in defence to show that Anwar Ali P.W.4 was not a reliable witness. He, however, did not produce any defence witness nor did he make statement on oath under the provisions of section 340(2), Cr.P.C. in disproof of the allegations.

4. The learned trial Court, after taking into consideration all the facts and circumstances of the case and having gone through the evidence on the record, had convicted and sentenced the appellant as stated above.

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

6. As argued by the learned counsel for the appellant, a perusal of the testimony of P.W.2, Ch. Sardar Muhammad, Magistrate, who had conducted the raid and P.W.7, Zulfiqar Ahmad, Inspector, F.I.A., shows that they had categorically stated before the learned trial Court that they had neither heard the conversation between the complainant P.W.4 and the accused/appellant nor had they observed the passing on of the tainted money to the appellant. Therefore, the conviction of the appellant cannot be sustained only on the basis of the tainted money having been recovered from him. Strength is sought by placing reliance upon Qamarul Islam v. The State 1978 P Cr. L J 32, Arshad Mirza v. 'The State P L D 1988 Lah. 640 and Allah Dewaya v. The State 1973 P Cr. L J ,1036. In this respect, further strength is sought by placing reliance upon the following authorities: (1) Noor Muhammad v. The State P L D 1963 SC 38, wherein it was held that it was unsafe to maintain the conviction only on the evidence of the complainant. (2) Sultan Ali v. The State P L D 1971 Kar. 78, wherein it was held that presumption of guilt not be taken merely on basis of money having passed into accused's possession. Proof of contrary need not necessarily be by evidence but may be furnished by statement of accused or by circumstances of the case. (3) Manzoor Hussain Shah v. The State 1978 P Cr. L J 885, wherein it was held that Magistrate not hearing conversation between the parties before trap

possibility that complainant might have talked on some other point, as an excuse for passing tainted money to accused not ruled out. Accused given benefit of doubt and acquitted. (4) Sultan Ali v. The State 1986 P Cr. L J 2324, wherein recovery of tainted money from accused admitted and proved

Magistrate and Investigating Officer not hearing conversation between complainant and accused

Only decoy witness stating about acceptance of illegal gratification

Rule of prudence, held, would require independent corroboration of decoy witness. (5) Abdul Razak Rathore v. The State P L D 1992 Kar. 39, wherein it was held that when the law raises a presumption against accused and calls upon him to prove the contrary, the same can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution. The Magistrate and the Police Officer who did not hear the conversation between complainant and accused

Both these witnesses had also contradicted each other about the location of the place of raid

Most important witness was the police official who had accompanied the complainant at the time of alleged passing of the tainted money but he had been withheld by prosecution

Accused was acquitted on benefit of doubt.

7. Therefore, pursuant to the above discussion, the present criminal appeal is hereby allowed, the impugned judgment is set aside and the appellant is B acquitted of the offences charged. The appellant is on bail his bail bonds stand discharged accordingly. N.H.Q./S-513/L Appeal allowed.