2007 P Cr (PLP)

IJAZ AHMAD CHAUDHRY, J.

This appeal has been filed by Muhammad Shafique appellant, who was convicted under section 161, P.P.C. and sentenced to R.I. for six months with a fine of Rs.5,000 or in default of payment thereof to undergo R.I. for one month vide judgment, dated 30-3-2004 passed by the learned Senior Special Judge, Anti-Corruption Punjab, Lahore.

2. The brief facts of the case are that on 12-10-2002 Abid Pervaiz Khan complainant had filed a complaint before the Additional Director, A.C.E., Lahore Region, Lahore for conducting a raid upon the appellant. The matter was referred to Circle Officer, A.C.E., Lahore by the Additional Director, A.C.E., Lahore. The complainant stated before the Circle Officer concerned that about three years back the Excise and Taxation Department imposed property tax in the sum of Rs.9,000 relating to his house. The complainant filed an appeal and also deposited a sum of Rs.4,500 in the Government Treasury. The said appeal was decided with the observation for adjustment of the property tax. Instead of making adjustment in the property tax, the official of the Department was demanding a sum of Rs.5,000 as an illegal gratification which he did not want to pay and instead prayed for conducting a raid upon the appellant. A case under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 was registered against the appellant at Police Station A.C.E. Lahore Region Lahore vide F.I.R. No.128, dated 12-10-2002.

3. Ijaz Rashid Circle Officer got permission from the learned District and Sessions Judge, Lahore who deputed Mr. Ghulam Dastgir, learned Judicial Magistrate, Model Town to supervise the raid proceedings. The C.O. produced the complainant before the raiding Magistrate who recorded his statement Exh.P.B. The complainant handed over four currency notes of Rs.4,000 in the denomination of Rs.1,000 each Exh.P.1, to Exh.P.4 to the raiding Magistrate who tainted the same and handed over to the complainant for transmission of the same to the appellant. The learned Magistrate constituted a raiding party comprising Ijaz Rashid C.O. A.C.E., Ali Muhammad A.S.-I., Ghulam Mustafa Head Constable and Muhammad Yousaf Naib Qasid of A.C.E. to conduct a raid upon the appellant. Special signal was also taught to the complainant. Thereafter, the raiding party went to the office of Excise and Taxation Department Nasirabad, Lahore and kept on standing outside the office. After a short while Muhammad Yousaf Naib Qasid signaled the raiding party and the raiding Magistrate along with the raiding party and they went to the room of Muhammad Shafique appellant where he as well as the complainant were sitting on the chairs. The raiding Magistrate got himself introduced to the appellant and effected his personal search as a result of which the same tainted notes of Rs.4,000 were recovered from the pocket of the shirt of the appellant. The raiding Magistrate took the currency notes Exh.P.1 to Exh.P.4 into possession vide memo. Exh.P.E. attested by Ali Muhammad A.S.-I. and Ghulam Mustafa H.C. P.Ws. He recorded the statements of the appellant who raised a plea that about three months back, the complainant owner of Property No.64/C-P-III situated in Government Employees Housing Society, Lahore came to his office and told him that he was a Government servant and sought some special concession from him. The appellant told him that out of the due tax in the sum of Rs.25,000 he should deposit Rs.6,000 first for filing the appeal. On 12-10-2002 the complainant came to his office in order to deposit Rs.4,000 and he received the same as the tax amount, which was recovered from him. After recording statement of the appellant, the raiding Magistrate observed vide his report Exh.P.D. that the amount was bribe money as the appellant was not entitled to receive the same from the complainant as tax amount for depositing the same in the Government Treasury. The raiding Magistrate completed the said proceedings and handed over the appellant to the Investigating Officer for further investigation.

4. Ijaz Rashid Investigating Officer (P.W.4) conducted the investigation, recorded the statements of the P.Ws., completed the investigation and submitted the report under section 173, Cr.P.C. to the Court.

5. The appellant was charge-sheeted under the abovesaid offence who denied the same, pleaded not guilty and claimed to be tried. The prosecution in order to prove its case produced four witnesses. P.W.1 Ghulam Dastgir Special judicial Magistrate had supervised the raid. P.W.2 Ghulam Mustafa Head Constable was the recovery witness of currency notes of Rs.4,000 P.W.3 Abid Pervaiz was the complainant while P.W.4/C.O. was the Investigating Officer. Then the appellant was examined under section 342, Cr.P.C., who denied the allegation and professed his innocence. However, to a question that "why this case against you?" the appellant replied as under: "Due to the change in system of valuation of property payable by the complainant was increased which annoyed him and as a matter of such annoyance as well as to evade the liability of property tax, the complainant falsely involved me in this case."

6. The appellant did not opt to make statement under section 340(2), Cr.P.C. and in defence evidence produced certain documents (Exh.D.A., Mark A, B and C). The learned trial Court after hearing arguments of both the parties passed the impugned judgment of conviction and sentence against the appellant. Hence this appeal.

7. Learned counsel for the appellant contends that the name of the appellant is not mentioned in the complaint (Exh.P.F.) on the basis of which formal F.I.R. (Exh.P.G.) was drafted and raid was arranged; that the Investigating Officer and the raiding Magistrate had not heard the conversation and seen the manner of passing of the money by the complainant to the appellant; that the complainant had already sworn an affidavit at the bail stage that he had involved the appellant due to misunderstanding and his contradictory statement is not worthy of reliance; that the appellant had been falsely implicated in the present case, who may be acquitted as the prosecution failed to prove that the recovered amount had been received as illegal gratification.

8. Learned Additional Prosecutor-General on the other hand opposes this appeal on the ground that the complainant had no enmity or grudge to falsely implicate the appellant in the present case; that the recovery of Rs.4,000 at the time of raid had been admitted by the appellant which was tainted money given to him as bribe and the appellant had been rightly convicted and sentenced whose appeal may be dismissed.

9. I have heard the arguments of the learned counsel for the parties and also perused the record. It is straightaway noticed that in the application (Exh.P.F.) addressed to the Additional District Anti-Corruption, Lahore Region for registration of the case and for constitution of raiding party moved by Abid Pervaiz P.W.3, on the basis of which F.I.R. (Exh.P.G.) was recorded, the name of the appellant-had not been mentioned. However, the enmity of the complainant was clear that one employee of the Government had been repeatedly teasing the complainant, who had been started teasing much more. It is strange that the name of the appellant was introduced in the Karwai police and how the Investigating Officer carne to know that the Government employee, mentioned by the complainant was the appellant. It was also not incorporated that he had been demanding illegal gratification and any amount had been settled with the appellant; which the complainant was going to pay him. The detail was also not mentioned that what was the reason for what sort of teasing by Government employee to him. There is also no mention that what amount was being demanded by the appellant and how much was settled to be paid to him to save the skin of the complainant from the payment of the actual amount. It appears that vague application had been moved by the complainant on the basis of annoyance with some Government employee and the amount of Rs.4,000 was produced before the Investigating Officer. Then the learned Magistrate after putting his signatures returning the same to the complainant and the complainant passed on the said amount to the appellant. However, what was the offer of the complainant or promise of the appellant to do certain job for the complainant on payment of illegal gratification did not find mention in the F.I.R.

10. Ch. Ghulam Dastgir, Judicial Magistrate (P.W.1) during the cross-examination admitted that he had not heard the conversation and seen the manner of the passing of the amount to the appellant. P.W.4 Ijaz Rashid Circle Officer Anti-Corruption Establishment during the cross-examination also explained that they were not present at a place from where they could see the complainant while passing the money to the appellant and they were not in a position to hear the conversation. After perusal of the evidence on record, I am of the view that the prosecution failed to prove beyond any shadow of doubt that the recovered amount had been paid to the appellant as alleged gratification for doing certain job. On the other hand, in his first statement before the raiding Magistrate (P.W.1) the appellant explained that Rs.4,000 had been paid by the complainant to him in order to deposit the same in his name against the demand of excise property tax from him. Even otherwise the complainant also had taken contradictory stand, in the F.I.R. and did not mention the name of the person or the other details about the appellant and any settlement between him and the appellant. Moreover, when the bail application was moved by the appellant an affidavit was sworn by him in favour of the appellant exonerating him from the commission of the offence. So such a complainant cannot be relied upon as a sole witness to prove that the appellant had demanded any illegal gratification, received the same and it was the same amount recovered from the appellant, which was paid to the appellant as illegal gratification. In such facts and circumstances of the case the non-hearing of the conversation between the appellant and the complainant and non-seeing the passing of money between the two by the raiding Magistrate is fatal to the prosecution version. Further more, Yousaf Naib Qasid who accompanied the complainant and made signal to the Magistrate and the Investigating Officer on the basis of which the appellant was caught read-handed by the Judicial Magistrate and the Investigating Officer was not produced in the Court and was given up as unnecessary. So the prosecution in the present case had not been able to prove the case against the appellant beyond any shadow of doubt.

11. As a result of the above discussion this appeal is accepted, the impugned judgment of conviction and sentence is set aside and the appellant is acquitted by extending him the benefit of doubt. The appellant is on bail as operation of his sentence was suspended by this Court vide orders dated 27-4-2004 and his surety is discharged from the liability. N.H.Q./M-225/L Appeal accepted.