2004 PLP 1368 (MLD)

Fazlur Rehman appellant while posted as Patwari Halqa Afzal Abad is said to have demanded and accepted Rs.1,000 as illegal gratification from Irfan Gul (P.W.1), in return he was to supply him copies of 'Fardat' from Revenue Record.

2. Appellant was tried by learned Special Judge Anti‑Corruption N.‑W.F.P Camp Mardan and vide judgment dated 18‑2‑2004 held guilty convicted under section 161, P.P.C, to one year R.I. with a fine of Rs.10.000 and in default of payment of fine to three months S.I. He is further convicted and sentenced under section 5(2) Prevention of Corruption Act and sentenced to six months R.I. with a fine Rs.5,000 and in default of payment of fine to two months S.I. with benefit of section 382‑B, Cr.P.C. extended. Irfan Gul (P.W.1) on 26‑4‑2003 walked into the office of P.W.2 Israruddin Khan Circle Office ACE Mardan and stated that his grandfather Abdul Qayyum has left some landed property and that in connection with obtaining 'Fardat' he approached Patwari Halqa namely; Fazal‑ur‑Rehman the appellant, paid him Rs.1,000 and demanded further amount of Rs.1,000 to which complainant did not agree, therefore, requested for arranging a trap/raid.

3. P. W. Israruddin after getting approval of learned Sessions Judge went to the Court of Malik Amjid Rahim (P.W.3) a Judicial Magistrate who has conducted the raid.

4. According to the raid report the Magistrate, Circle Officer Israruddin and complainant Irfan Gul all proceeded to the Balakhana of accused Patwari, before proceeding a currency note of Rs.1,000 denomination bearing No.CF 4951626 presented by the complainant was initialed by the Magistrate as bribe money which was allegedly recovered from the front pocket of the accused‑appellant on raid.

5. After hearing the learned counsel for the appellant and learned counsel representing the State, I am of the view that learned trial Judge without caring to notice that prosecution has failed to prove certain very important and material documents, yet believed and convicted the appellant. (a) Statement of appellant which should have been recorded under section 164, Cr.P.C. by the Raiding Magistrate immediately after the raid has not been recorded. (b) I do not find any recovery memo. through with 'Fardat' Exhs.P1 to P5 were taken into possession. (c) Neither Circle Officer not the Magistrate in their statements have referred to taking into possession through memo. the above 'Fardat' arid neither of them have exhibited them. (d) 'Fardat' Exhs. P.1 to P.5 though on record and though dated with red ink while exhibiting them but does not carry the signature of the trial Judge. (e) `Fardat' which are the bone of contention if prepared by the accused Patwari they are generally prepared under hand and copy given duly attested. (f) Exhs.P.1 to P.5 are the photocopies and they do not carry the date of their preparation; (g) It is in the statement of complainant that no sooner he passed 6n the tainted currency note, the accused Patwari prepared the photocopies of the 'Fardat'. (h) It is nowhere in evidence that in the office of Patwari accused there was any Photostat machine. (i) The 'Fardat' though exhibited and though allegedly prepared by the accused, given to complainant who at the time of raid handed them over to the Investigating Officer/Magistrate but no specimen handwriting of accused Patwari was obtained to confirm that they were in the handwriting of the appellant. (j) It is admitted by P.W. Malik Amjid Rahim that he was standing on the road side with the Circle Officer and have not seen the passing of the currency note nor has heard the conversation which had taken place between the complainant and the appellant. (k) The Investigating Officer has failed to prepare sketch map of the scene of crime so to enable either the trial Judge or this Court to determine the inter se position of the raiding party and the complainant. (l) It is admitted by complainant (P.W.1) and Magistrate (P.W.3) that at the time of raid 2/3 other persons were also present in the Balakhana of the appellant. None was examined as P. W. They should have been the best witnesses of the recovery of the tainted currency note. On their non‑production a presumption can be drawn against the prosecution. (m) The Investigating Officer (P.W.2) who should have been more watchful in comparison to complainant and the Magistrate did not care to see if some other persons were present with the Patwari rather he added that he was all alone. (n) According to p.W.2 the Investigating Office, raid report was prepared by the Magistrate on the spot who himself recorded it whereas P.W.3 stares that it was recorded in the handwriting of Israruddin (P.W.2). (o) The stance taken by the defence that no ' Fard' could have been issued to any applicant if there were any outstanding dues including agricultural tax and it is not denied by complainant that there were outstanding dues of the Revenue Department against the father of complainant. (p) The defence taken by the appellant‑Patwari that there were outstanding dues in shape of agricultural tax finds support from defence documents and in particular document Exh.D.4 where at S.No.5 Sanab Gul father of the complainant is recorded as defaulter of agricultural tax amounting to Rs.4,300.

6. Not only for the above reasons which are both factual and legal but also it is strange to note that raid report has not been exhibited' by the trial Judge by giving it 'exhibit number under his signature. Similarly is the statement of complainant recorded before conducting the raid. (a) Complainant's statement recorded after raid is exhibited as Exh.P.W.3/1 but not signed by the Special Judge. (b) Memo. of taking into possession the tainted currency note (P6) though exhibited as Exh.P.W.2/2 but it does not carry the signature of learned Special Judge. (c) Exh.P.W.2/1, application by P. W.2 for getting the assistance of the Judicial Magistrate from Sessions Judge is worth perusal. Although before getting the Approval of the Sessions Judge who nominated P.W.3 as Raiding Magistrate F.I.R. had already been registered specifying of the complainant as well as the accused but in the application it is only mentioned that a civil servant has demanded bribe from a public person.

7. The upshot of the above is the prosecution has miserably failed to prove its case against the appellant. Therefore, this appeal is allowed, conviction and sentences awarded to the appellant by the learned Special Judge Anti‑Corruption N.‑W.F.P. (Camp Mardan) are set aside and appellant is acquitted of the charge. He be set at liberty forthwith, if not required in any other case. H.B.T./114/P Appeal allowed.