1995 P Cr (PLP)

Nazir Ahmed Oureshi for State. Date of hearing 8th June 1994 The present criminal appeal calls into question the legality and propriety of the judgment, dated 3-8-1991, whereby the learned Special Judge Anti-Corruption, Sargodha had convicted Abdur Rehman appellant for an offence under section 162, P.P.C. and sentenced him to R.I. for six months with a fine of Rs.10,000 or in default thereof to further undergo R.I. for two months and it was directed that out of the fine, if recovered, Rs.8,000 shall be paid to the complainant as compensation.

2. The brief. facts of the prosecution case are that in the year 1984 Mst. Ghulam Sakina wife of Muhammad Sultan `complainant:RN.2 was injured, for which a case under section 307/34, P.P.C. was registered at Police Station Musa Khel vide F.I.R. No.106/84. The complainant Muhammad Sultan P.W.2, being in service at Bahawalpur had come to his village on the next day of having learnt about the incident, and contacted the appellant, Abdur Rehman, who was Chairman Union Council, Muzaffarpur at that time; in connection with the investigation of the case. The appellant told the complainant that Thanedar was demanding Rs.8,000 for the redressal of the grievance. The complainant paid Rs.8,000 to the appellant for Thanedar iii three instalments, but later on he learnt that the, appellant instead of paying the amount to the S.H.O. had misappropriated the same. Then the complainant appeared before the Superintendent of Police, Mianwali, who referred him to Abdur Razzaq D.S.P. P.W.

6. Abdur Razzaq, D.S.P. P.W.6 recorded the statement Exh-PA. of the complainant Muhammad Sultan P.W.2 and sent the same,1o the Police Station Musa Khel for the registration of the case, on the basis of which Muhammad Iqbal, Moharrir Head Constable P.W.1 had recorded F.I.R. No.122/84, Exh. P. A./1, under section 162, P.P.C. read with section 5(2) Prevention of Corruption Act, 1947. After necessary investigation, the accused/appellant was challenged to Court.

3. At the trial the prosecution had examined as many as six P.W s. in support of its case P.W. l Muhammad lqbal had deposed that, being the Mohrrir of the police station concerned, he had recorded the F.I.R..Exh.P.A./1 on the basis of the complaint Exh. PA. P.W.2 Muhammad Sultan being the complainant of the instant case, had fully supported the case of the prosecution. In his cross-examination, he had denied the suggestion that he had falsely involved the accused/appellant in the instant case at the instant of Malik Muzaffar and Jahan due to political rivalry. P.W.3 Alam khan had supported the prosecution case by stating that in his presence the accused appellant had amended Rs.8,000 as illegal gratification for proper investigation, and that the said amount was paid to the appellant in three instalments after selling eight Killas of land to Fateh Khan P.W.4. In his cross-examination, he had deposed that the land was not sold to Fateh Khan, but it was leased out to him. P.W. 4 Fateh Khan had deposed that the complainant had leased out to him 8 Killas of 'land for three years in lieu of Rs.8,000 and that he was told' by the P.W s. that the said amount was to be paid to the Chairman for payment to the police, P.W.5 Sajjad Hussain SI had partly investigated the case and he had deposed accordingly. P.W.6 Abdur Razzaq D.S.P. had only recorded the statement of the complainant Exh. P.A., and had sent the same to the police-for registration of the case.

4. In his statement under section 342, Cr.P.C. the accused/appellant had denied the allegation against him' and claimed to be innocent: He' had also recorded his statement under the provisions of section 340(2), Cr.P.C. and stated that he is innocent.

5. The learned trial Court after taking into consideration all the facts and circumstances of the case convicted and sentenced the appellant as stated above. Hence, the present criminal appeal.

6. The learned counsel for, the appell4nt arid the State were heard at length and the record perused with their assistance. As pointed out by the learned counsel for the appellant, in the instant case Zulfiqar Ali Inspector/Investigating Officer was not produced as a P.W. during the trial that goes against the, prosecution. Furthermore, as the only other alleged eye?witness, namely, Ghulam Muhammad had died before the commencement of the trial, therefore, the statement of the complainant P.W.2, Muhammad Sultan, has to be scrutinized very carefully. The testimony of the said P.W.2 fails to inspire confidence as although he has stated that he had paid the money in three instalments to the appellant/accused, yet P.W.4 Fateh Khan has not stated a word about the lease money having paid in instalments to the said complainant P.W.2, which raised a serious doubt about the complainant's version that he had paid the bribe money in the instalments to the accused/ appellant. In addition thereto, as pointed out by the learned counsel, as the statement of P.W.3 Alam Khan had not been recorded under the provisions of section 161, Cr.P.C. by the police, therefore, his entire testimony at the trial is of no help to the prosecution, and in any case although he claims to have been present at the time when the bribe money was paid to the accused/appellant by the complainant P.W.2. Muhammad Sultan, yet the said Muhammad Sultan complainant P.W.2 contradicts him in that respect. Moreover, no question has been put to the accused/appellant under the provisions of section 342, Cr.P.C. in respect of the allegation that he promised to influence the Investigation Officer on behalf of the complainant, which further weakens the case of the prosecution against the appellant. Further notice has been taken of the fact that it is not the case of the prosecution itself that any money had been passed on to the S.H.O. concerned or any attempt had been made to influence him in the investigation of the case in question and that in fact the allegation as set up A by the prosecution against the appellant amounts to simple misappropriation of money in question even if it is accepted without being challenged in any manner and that under such circumstances no offence shall be made out under the provisions of section 162, P.P.C., as the appellant has been charged herein) and convicted pursuant thereto, vide the impugned judgment.

7. Therefore, pursuant to the above discussion, it is hereby held that the prosecution has miserably failed to prove the charge against the appellant. Hence, the present criminal appeal is hereby allowed and the impugned judgment is set aside, Resultantly, the appellant stands acquitted of the offences charged. He is on bail, his bail bond stand discharged accordingly. N.H.Q./A-719/L????????? ??????????????????????????????????????????????????????????????????????? Appeal 'accepted.