1989 PLP 2750 (MLD)

After the registration of the case, the Sub-Inspector moved an application to the Deputy Commissioner for deputing some Magistrate to supervise the raid. Mr. Muhammad Munir Laghari, M.I.C. was accordingly deputed who recorded the statement of Talib Hussain, Exh.P.C. and also noted down the numbers of the currency notes which were in the denomination as follows:- (i) Two notes of Rs.100 each, (ii) one note of Rs.50, and (iii) five notes of Rs.10 each. Thereafter the raiding party went to Darkhani Bungalow and saw the accused sitting in a chair outside the office. The raiding party stayed behind. Talib Hussain, complainant and Abdul Ghafoor were sent to meet the accused. On the signal received from the complainant, the raiding party went to the accused and introduced themselves. Thereafter they recovered the tainted currency notes from 'inside the office under some files on the mantelpiece. The Magistrate recorded the statement Exh.P.S. of Liaqat Ali accused and thereafter ordered the arrest of the accused.

3. The prosecution in support of its case produced five witnesses in all. Talib Hussain, P.W.1 supported the prosecution case as well as the allegations leveled in the F.I.R. Abdul Ghafoor, P.W.2 accompanied Talib Hussain P.W. and in his presence illegal gratification of Rs.300 was paid to the appellant. Bashir Muhammad P.W.3 stated that in his presence the appellant had demanded Rs.500 as illegal gratification from Talib Hussain, and ultimately the bargain was struck at Rs.300. Muhammad Munir Laghari, M.I.C. P.W.4 supported the prosecution case and a detailed account of the occurrence the way it transpired. He also deposed about the recovery of Rs.300 at the pointation of the appellant. Syed Parvaiz Shah, S.I., A.C.E. P.W.5 corroborated the statement of the Magistrate on all the aspects. At the conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. wherein he denied the prosecution allegations and pleaded innocence. He also appeared in his defence on oath and pleaded innocence.

4. It is contended by learned counsel for the appellant that the prosecution has not been able to prove its case beyond doubt because there is no evidence that the appellant had put the tainted currency notes at a place from where they were secured. Submits that the place of recovery was not in the exclusive possession of the appellant, therefore, the same cannot be used against him. Contends that there is a material discrepancy with regard to the description of the currency notes as far as the first informant and the Magistrate are concerned. Submits that neither the raiding party heard the conversation nor saw the money changing hands, therefore the recovery of tainted currency notes at the pointation of the appellant from another place would be immaterial. The contentions have been opposed by learned counsel for the State.

5. I have heard the learned counsel and perused the record. As far as the filing of application Exh. P.A. at the instance of Talib Hussain, P.W. with regard to his water turn is concerned it has not been disputed, therefore, the same stands proved. As far as the payment of illegal gratification at the instance of Talib Hussain to the appellant is concerned, it has also been deposed by Abdul Ghafoor P.W.2. Talib Hussain as well as Abdul Ghafoor was cross-examined at length. As far as Talib Hussain is concerned, he stated that he tendered three currency notes of the denomination of Rs.100 each to the Magistrate who noted down the numbers. In cross-examination he further admitted that there were three currency notes which were passed on to the appellant. He had also stated that he paid the currency notes to the. appellant while he sat outside the bungalow premises and at the same place the raiding party apprehended the appellant. Abdul Ghafoor, P.W. in cross-examination stated that in his presence the appellant did not demand illegal gratification. He also stated that the appellant was arrested at the same place where he had received the bribe money. As far as the description of currency notes is concerned, Muhammad Munir Laghari stated that the currency notes were in the denomination of: two notes Rs.100 each, one of Rs.50 and five of Rs.10 each. In these circumstances, the witnesses have contradicted each other. It is also in evidence that the currency notes recovered at the pointation of the appellant were not produced during the trial at all. Muhammad Munir Laghari, M.I.C. P.W.4 and Syed Parvaiz Shah S.I. P.W.s stated that they did not hear the conversation between the appellant and th, complainant. Syed Parvaiz Shah, P. W. 5 further stated that he did not see the appellant placing the money from where it was recovered. In answer to a question he further stated that he did not remember if Talib Hussain P.W. went inside the office of the appellant. From the perusal of the statements of the witnesses it is clear that they are not unanimous with regard to the description of the currency notes which were passed on to the appellant. The prosecution is unanimous that the illegal gratification was passed on to the appellant when he was sitting outside his office, and was also apprehended there. Strangely enough, the recovery of the illegal gratification was effected from inside the office of the appellant under the files on a mantelpiece. There is no evidence whatsoever that the appellant after receiving the money ever went inside the office. In these circumstances, the recovery of the tainted currency notes from inside the office under the files remains a mystery. Even if the entire prosecution evidence is accepted, it does not connect the appellant with the recovery of the tainted currency notes in any manner. . For what has been discussed above, I hold that the prosecution has not been able to prove its case against the appellant, therefore, giving him the benefit of doubt I accept the appeal and set aside his conviction. He is on bail. His bail bond shall stand discharged. N.H.Q./L-58/L Appeal accepted.