1998 P Cr (PLP)

4. The accused-appellant produced in his defence, previous statement of Muhammad Shafi about his caste being Arain and not Rajput as Exh.D.A. Exh.D.B., Exh.D.C. and Exh.D.D. were regarding the litigation between the parties concerning the land in question. The learned trial declared Exh.D.E. not admissible on the ground that it was not a certified copy and Exh.D.H. on the ground that it was neither a public document nor relevant. He believed the evidence of complainant, Muhammad Seed and Muhammad Shaft, P.W. on the ground that they were not inter se related nor interested witnesses nor they had any enmity with the accused. The learned trial Court did not find the justification to award separate punishment under section 5(2) of the Prevention of Corruption Act, 1947, while awarding sentence under section 161, Cr.P.C.

5. Learned counsel for the appellant contended that there are material contradictions as to the presence of the witnesses at the time of demand or at the time of actual payment; on the point of motive for which the illegal gratification was accepted by the accused-appellant and also regarding the going of the witnesses together from the village Sattoki. According to the learned counsel, neither any raid was conducted nor any recovery was effected. It was also contended that the F.I.R. itself was illegal as it was fully known that the accused was a public servant and could only be reported against by the Anti-Corruption Establishment. On these premises, it was argued that the appellant is entitled to acquittal.

6. Learned counsel for the State has supported the impugned judgment.

7. I have heard learned counsel for the parties at length and have gone through the record with their able assistance.

8. The ocular evidence on record shows that there is contradiction as to the presence of the witnesses at the time of demand or actual payment of the bribe inasmuch as Muhammad Saeed (P.W.1) stated that Muhammad Mansha and Muhammad Shaft were present with the complainant when the accused-appellant had demanded the illegal gratification of Rs.5,000 while Muhammad Shafi (P.W.2) stated that the amount was paid to the accused in his presence. The other witness who was allegedly present at the time of passing of the amount was not examined by the prosecution. It, therefore, follows that none of the witnesses had in fact seen the occurrence or they were present. Further, the prosecution witnesses also contradicted each other on the point of motive as to whether the mutation was to be entered, revised or it was to be set aside. According to Muhammad Saeed, P.W.1, it was to be revised in one breath anti to be set aside in the next breath while Muhammad Shafi, P.W.2, stated that the accused had told that he will get the record relating to title of Muhammad Hussain cancelled.

9. The documentary evidence on record shows that Mutation No.3049 was sanctioned by A.C.-II on 23-1-1969, that is, 2 years before the F.I.R. and not ten years before, it and an appeal titled "Alt Muhammad v. Ghulam Muhammad and 2 others" was filed before the Assistant Commissioner with the powers of Collector Kasur who vide his order, dated 6-7-1991 (Exh.D.C.) dismissed the appeal and observed that the Revenue Officer committed no irregularity in implementing a registered document of voidable transaction. The remedy of the appellant lies clearly in civil Court. A civil suit titled "Alt Muhammad and 2 others v. Muhammad Sharif and 3 others was instituted which was dismissed on 9-5-1979. Again a civil suit titled "Muhammad Said and 8 others v. Mst. Bakhtawar and 18 others" was filed on 29-10-1988 (Exh.D.E.) which was fully contested and dismissed on 6-1-1991 (Exh.D.B.) being barred by time. The complainant was plaintiff No. l in that suit and fully aware of the whole situation. There was, thus, no question of inducement of the appellant to the complainant for entering or cancellation of the mutation.

10. So far as the company of the witnesses from the village Sattoki is concerned, that too is not believable as according to Muhammad Saeed (P.W.1) they got a lorry from their village for Raja Jang and from there got another lorry to reach Kasur while according to Muhammad Shafi (P.W.2) he alongwith the complainant left the village in the morning for Rukhanwala on foot and from there, got a lorry to reach Kasur.

11. Now coming to the question as to whether the police of Police Station "B" Division, Kasur was competent to register the case under section 161, Cr.P.C. when admittedly, the accused-appellant was a civil servant? This controversy earlier became subject-matter of a Constitutional Petition bearing No.4636 of 1989 and the matter was reported as Muhammad Afzal and 2 others v. Muhammad Siddique Girwa, Additional Sessions Judge; Gujranwala and 3 others 1992 .MLD

311. The learned Judge dealt with the matter exhaustively and held as under:-- "Under section. 3 of the Ordinance the Government has been empowered to establish Anti-Corruption Establishment. The said sections of the P.P.C. under which the said F.I.R. was got registered are scheduled offences. The said offences committed by public, servants jointly with other person are to be tried and investigated in accordance with the provision's of the said Ordinance and the rules made thereunder. Rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985 provides that preliminary inquires and investigations shall be initiated by the Establishment against public servants on complaints received from the Government, Heads of Departments or other reliable sources. Under Rule 7 a Deputy Director or an officer of or above his rank has been empowered to initiate preliminary inquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint/information. Rule 8 of the said Rules deal with the registrations of case against public servants and any other person who commits offences jointly with public servants. This rule provides that criminal cases shall be registered by the Establishment under the Prevention of Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set-forth in the Schedule to the Ordinance. According to this rule a criminal case shall be registered against public servant under a written order of officer of Establishment mentioned in sub-clauses (a), (b) and (c) of sub-Rule (2). The case against the public servant in B.P.S. 1 to 16 according to this rule can be registered under the written orders of an officer not below a Deputy Director and against public servants in BPS-17 and 18 under the orders of the Officer not below an Additional Director and against civil servants in BPS-19 and above by a Director. Rule 15 provides that the case after registration could be dropped in the circumstances mentioned therein." It was further ruled as under:

"A close scrutiny of the relevant provisions of law' as discussed above leaves no doubt that the case against the petitioners could not have been registered except under the orders of the officers mentioned in Rule 8 as discussed above." The writ petition in the supra case was accepted and- the order of the learned Additional Sessions Judge for registration of a case and registration of the case through F.I.R. was declared to have been passed and registered without lawful authority and of no legal effect and quashed.

12. The appellant-accused in this case was admittedly working as Patwari Halqa Sattoki District Kasur as is evident from his statement recorded under section 342, Cr.P.C., as such, the appellant being a public servant and the offence alleged against him falling in the category of "Scheduled Offences", under the Punjab Anti-Corruption Establishment Rules, 1985 framed under section 6 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, the case out of which these proceedings arise could not have been registered against him by the local police.

13. It is also an admitted position on record that no raid was conducted, no recovery was affected, the matter was reported to the police with a delay of one year and the witnesses are collaterals. In a case of such like nature, this Court has held that it created doubt in the prosecution story. Reliance can be placed on Saleh Muhammad v. The State 1988 PCr.LJ 653.

14. As a result of the above discussion, the appeal is liable to be accepted both on merits as well as on law. Order accordingly, and as a result thereof, the impugned conviction and sentence is set aside. The appellant is on bail and is discharged from the bail bonds. N.H.Q./M-450/L Appeal accepted.