2007 PLP 282 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present Appeal are that the ancestors of complainant Muhammad Usman owned an agricultural land in Deh Golo and Deh Gangar Taluka Gambat. After the death of the father of complainant, he approached the appellant Ghulam Abbass who was Tapedar of the said area with a request to change the entries in the revenue record. The complainant also produced registered sale-deed to show his ownership for mutating the record. The appellant demanded Rs.3000 from the complainant for doing the needful, which he agreed to pay. On 15-5-1998 the complainant went to Circle Officer Khairpur where he lodged the report. After lodging F.I.R. a raiding party was prepared under the supervision of P.W.5 Assistant Mukhtarkar Muhammad Saleem. A private mashir P.W. Habibullah was associated to become a Mashir of the .incident. The complainant gave Rs.3000 to the Investigating Officer, the number of the notes were noted down by the Magistrate and such Mashirnaina was prepared. Thereafter, the raiding party reached the Office of appellant. The complainant and P.W.4 went to the Tapedar's Hall whereas co-mashir P.C. Mukhtiar Hussain was made to stand outside the Office, who had concealed. himself. The complainant gave the tainted money to the appellant in the Office which he had received in presence of mashir P.W.4. Thereafter the tainted money was passed on to acquitted accused Muhammad Ramzan peon of the Office who kept in his side pocket. As per plan, P.W.4 gave signal to the Circle Officer, the Magistrate reached there and they secured tainted money from the possession of acquitted accused Muhammad Ramzan. The appellant and accused Muhammad Ramzan were arrested, such Mashirnama was prepared. The offenders and property were brought to the Police Station. After usual investigation the appellant and acquitted accused Muhammad Ramzan were challaned in the Court. The learned trial Judge tried them, convicted the appellant for offence punishable under section 161, P.P.C. read with section 5(2) of the Prevention. of Corruption Act, 1947 and sentenced him to suffer R.I. for 3 years and fine of Rs.10,000 or in default thereof to suffer R.I. for 6 months whereas co-accused Muhammad Ramzan was acquitted under the impugned judgment, dated 27-10-1996. I have heard the Advocate for the appellant, A.A.-G. for the State and perused the record of this case very carefully. In order to prove the case the prosecution examined Complainant Muhammad Usman, both the Mashirs, Magistrate and Investigating Officer. They gave the same details of the incident as mentioned in the earlier part of the judgment, therefore, need not to be repeated. However, the private Mashir P.W.4 Habibullah supported the incident but did not state that the Complainant had paid the amount to appellant or that he received the same or that he transferred the amount to the acquitted accused Muhammad Ramzan. Before the trial Court both the accused persons were tried together. The P.W.4 simply stated that the Complainant delivered the 'amount to the accused who received the same and then he gave the signal to the party and then the Magistrate came and recovered the tainted money from accused Muhammad Ramzan. This witness did not clarify as to what he meant by the "accused" to whom the amount was delivered but in subsequent statement he stated that the amount was secured from the possession of accused Muhammad Ramzan. This is a very serious case of bribery, therefore, the Mashir should have been 13 specific with regard to delivery, receipt and transfer of the amount by a particular accused to whom he should have named in the evidence so that he should have been saddled with the responsibility. The vague statement of P.W. Habibullah and further clarifying the same pointing out towards the accused Muhammad Ramzan, clearly shows that the evidence of the witnesses is insufficient to implicate the appellant with the responsibility of receiving the amount. He did not say that the accused who received the amount had transferred the same to other accused. His evidence is that the Magistrate recovered the amount from the accused who received the amount. He named such accused as Muhammad Ramzan who has been acquitted by the trial Court. However, the second Mashir P.W.2 Mukhtiar Hussain tried to show that every thing was done in his presence but the evidence of P.W.4 clearly shows that only he was with the Complainant when the transaction took place between the accused persons and Complainant and raid was conducted. The presence of P.W. 2 Mukhtiar Hussain has been excluded by this Witness. Furthermore from the evidence of complainant it is clear that P.W. Habibullah gave signal to the raiding party which was confirmed by P.W.4. However the P.W.2 Mukhtiar Hussain deposed that he gave the signal to the raiding party but the Investigating Officer falsified the complainant and P.W.4 by stating that the raiding party received the signal from co- mashir Mukhtiar Hussain. Thus on the above point the evidence of witnesses is contradictory to each other. It is not known as to who is speaking truth, therefore, a doubt has been created on the above aspect of the case. As regards the place of raid and alleged transfer of the money the complainant's evidence shows that the amount was transferred in the Office of appellant. The P.W.2 mashir did not specify the place where the amount was transferred. Whereas according to P.W.4 the amount was paid at Tapedar's Hall then he gave the signal and Magistrate came and recovered the amount from accused Muhammad Ramzan. Thus on this point also the evidence is not unanimous. As regards the place of recovery of amount from the possession of acquitted accused Muhammad Ramzan, after the alleged transfer of the amount they all were proceeding further when the raiding party came and stopped them and then the amount was recovered. Whereas according to P.W.4 the amount was recovered at Tapedar's Hall. According to P.W.5 Magistrate the amount was recovered in the Varanda of Mukhtarkar's Office. According to P.W.6 the amount was recovered from the acquitted accused Muhammad Ramzan when they were present in the Mukhtarkar's Office. In the cross-examination he further added that the accused were arrested from the courtyard near the Office of Mukhtarkar. Thus on this -point also the evidence of witnesses is contradictory to each other. The complainant alleged that he went to appellant for mutation of record and he demanded illegal gratification. This was not as simple as the complainant stated because the prosecution examined P.W.3 Assistant Mukhtarkar (Revenue) Mir Muhammad. His evidence reveals that in the year, 1988 one month before the trap the complainant presented an application to the Incharge Assistant Commissioner complaining that the appellant was not mutating his revenue record, therefore, Assistant Commissioner, called the appellant and enquired from him about the matter who informed him that the registered sale deeds were old and he would examine the same before making any mutation. In the cross-examination he admitted that he had also received such complaint and verified the registered sale-deed in favour of Muhammad Usman and found that seller entry was not already available in the revenue record, therefore, he directed the appellant to prepare and produce such report. He further admitted that in view of the entries in the revenue record the appellant was not able to keep the entries of registered sale-deed in the said record after mutating the same. Furthermore the complainant himself admitted that the registered sale deeds were executed in the year, 1978. The revenue record was not in favour of the seller of the registered sale-deed but he voluntary added that in the year, 1925 the land was in their names but subsequently by playing fraud it was shown in the name of different persons in the revenue record. He also admitted that he made complaints to Assistant Commissioner but in spite of that his revenue record was not mutated. All the above facts clearly show that the revenue record was such where the same could not have been mutated in the name of the complainant. Therefore it was not possible for the appellant to have mutated the record. The complainant has admitted that the record stood in the name of different persons till the date of his examination in Court. Apart from the above facts there is no evidence to show that any conversation was held between the appellant or the complainant at the time of alleged delivery of amount to him. Nor any of the Mashirs deposed such facts. It is further clear that the tainted amount was not recovered from the possession of the appellant but the person from whom such amount was recovered has been acquitted and the prosecution was satisfied with such acquittal, therefore, no appeal was preferred against the acquitted accused Muhammad Ramzan. After considering the material available on the record I am of the considered view that the case of the prosecution is highly doubtful against the appellant. Therefore, he is entitled to the benefit of doubt which was accordingly given to him while passing the short order, dated 28-8-2006 by which I had allowed the Appeal. Above are the reasons for the same. H.B.T./G-37/K Appeal allowed.