1989 PLP 845 (MLD)

Muhammad Nawaz son of Khushi Muhammad and Gulzar Hussain Shah son of Karam Hussain Shah were sent up for trial by Police Station Anti Corruption Establishment, Sargodha, under section 5(2) of Prevention of Corruption Act, 1947. The Special Judge Anti‑Corruption vide his judgment, dated 19‑12‑1987 convicted Muhammad Nawaz to three years' R.I. and a fine of Rs.10,000 or in default R.I. for six months. It was further directed that the fine if recovered Rs.4,143 be paid to the complainant Mehmdi. Gulzar Hussain Shah however, was given the benefit of doubt and acquitted. Muhammad Nawaz has appealed against his conviction and sentence. 2.The prosecution story in brief is that during June, 1985, Muhammad Nawaz was posted as Patwari Consolidation of Halqa Manghi. Complainant Mehmdi had purchased some land, therefore he approached Muhammad Nawaz Patwari for the attestation of the mutation. Said Muhammad Nawaz demanded Rs.8,000 as expenses for the said attestation. On 26‑6‑1985 complainant Mehmdi in the presence of his brother Muhammad Yousaf and another Muhammad Amir P.Ws. paid Rs.8,000 to him at Saghir Hotel on the same day. Muhammad Nawaz took the complainant in the tehsil office where Gulzar Hussain, Girdawar co accused was present at his office. Muhammad Nawaz accused demanded Rs.500 more for the attestation which was to be paid to Gulzar Hussain. On 27‑6‑1985 the mutation was sanctioned and the first informant demanded the receipt for the amount deposited. Muhammad Nawaz did not give the said receipt. The first informant obtained the receipt on 3‑8‑1986 and it transpired that only Rs.3,857 were deposited and the remaining sum was misappropriated by Muhammad Nawaz, Patwari.

3. Complaint Exh.PA..was made by Mehmdi P.W.1 on 13‑8‑1985. On the basis of the said complaint F.I:R. Exh.PA./1 was registered on 10‑9‑1985. It was registered by Tilla Khan P.W.5.

4. The prosecution in support of its case produced 5 witnesses in all P.W.1 Mehmdi supported all the details given by him in his complaint Exh.P.A. Muhammad Yousaf P.W.2 brother of the complainant Mehmdi supported the version given by his brother. Muhammad Amir P.W.3 stated that on 26‑6‑1985 appellant Muhammad Nawaz in his presence demanded Rs.8,000 as fee for the attestation of the mutation from the complainant which was duly paid to him. Mr. Ashiq Hussain Randhawa P.W.4, Magistrate 1st Class, conducted an inquiry on the application Exh.PA. of Mehmdi P. W.1 Malik Talla Muhammad P.W.5 had conducted the investigation and challaned the accused. At the conclusion of the prosecution evidence the appellant was examined under section 342, Cr.P.C., wherein he refuted the entire prosecution evidence. He also produced Muhammad D.W.1, in his defence who stated that the present case had been got registered against the appellant due to party faction in the village. The appellant also appeared in his defence on oath and pleaded innocence. It is contended by learned counsel for the appellant that the case against the appellant has not been proved at all. Contends that there is misreading of evidence as the trial Court held that the mutation was sanctioned on 26‑6‑1985 and Rs.8,000 were alleged to have been paid to the appellant, instead mutation was sanctioned on 28‑7‑1985. Submit that there is material contradiction in the statements of the witnesses, therefore, no reliance can be placed. The contentions of the learned counsel for the, appellant have been controverted by learned counsel for the State.

5. I have heard the learned counsel and gone through the evidence with their assistance. The complainant in his application, Exh.PA. had stated that on the asking of the appellant he had paid Rs.8,000 which were delivered to the appellant by Muhammad Amir P.W. at Saghir Hotel. He had further stated that on the same date the appellant took them to the tehsil office and on receiving Rs.500 got the mutation attested. The learned counsel has drawn my attention to Exh.P.I., according to which t‑he mutation was sanctioned on 28‑7‑1985. Similarly P.W.1 in his statement in Court had stated that Rs.8,000 were delivered to Amir P.W. who passed on the money to the accused at Saghir Hotel. He had further stated in cross‑examination that the money was kept in a bag. Muhammad Yousaf P.W.2, has stated that he had handed over the money to the appellant. On the other hand, Muhammad Amir P.W. in cross‑examination had satated that Mehmdi P.W., had paid the money in question to the appellant in the Consolidation office. In these circumstances it is clear that the witnesses have contradicted each other with regard to the payment of money to the appellant. Similarly they have contradicted each other about the manner in which the money was paid. Mehmdi P.W. stated that the money was kept in a bag which was handed over to the appellant whereas Muhammad Yousaf stated that he counted the money and then handed over to the appellant. On the other hand Muhammad Amir P.W.3 stated that the currency notes were rolled in a piece of cloth which was handed over to the appellant. The witnesses have contradicted each other about the place where the money was paid to the appellant. Muhammad Amir stated that the money was paid in the Consolidation Office whereas the other two witnesses stated that the money was paid in Saghir Hotel. Mehmdi P.W., in cross‑examination also admitted that earlier he had filed an appeal against the Consolidation proceedings being conducted by the appellant. It is also on the record that the complaint, Exh.PA., was made against the appellant when he had already been transferred from the Halqa of the complainant. There is no explanation available on the record why the application was not made during the period when the appellant was posted there. It is on record that Muhammad Yousaf brother of the first informant was a policeman, Muhammad Amir P.W. was Vice‑Chairman, and it is strange to note that all of them stated that they did not know the amount of fee to be paid and they also did not bother to enquire about the same.

6. For what has been discussed above I hold that the prosecution has not been able to prove that the appellant was paid Rs.8,000 beyond doubt. Therefore, giving the benefit of doubt to the appellant, I accept the appeal and set aside his conviction. The appellant is on bail. His bail bonds shall stand discharged. SA./M‑1156/L Appeal accepted.