1989 P Cr (PLP)

5. On the assessment of evidence available on record, the learned Special Judge found the appellant guilty for the offence with which he was charged and Judge him accordingly.

6. I have heard Miss Wajahat Niaz, learned counsel for the appellant and Mr. Shaikh Aziz-ur-Rehman, learned counsel representing the State.

7. There are certain facts and circumstances in this case which are not in dispute. These are:- (i) That the tainted money had not passed on to the appellant in presence of Ansar Ahmad D.S.P. (P.W.4) and Ghulam Jeelani Inspector (P.W.3). (ii) That both Ansar Ahmad D.S.P. (P.W.4) and Ghulam Jeelani Inspector (P.W.5) had no opportunity to hear conversation between complainant Muhammad Ahsan and appellant Sakhawat Khan. (iii) That the tainted money and the challan forms were seized by Ghulam Jeelani Inspector (P.W.5) from the possession of complainant Muhammad Ahsan. (iv) That the raid was not supervised by a Magistrate. (v) That complainant Muhammad Ahsan did not pay the property tax at any time, although he was receiving bills every year. (vi) That complainant Muhammad Ahsan did not deposit even a single instalment towards the property tax when this facility was extended to him. (vii) That Muhammad Usman, brother of complainant Muhammad Ahsan in whose presence Rs.200 were paid to appellant and who had taken the appellant to his office for collecting challan forms was not put in the witness-box.

8. Let me in the light of these facts examine the story of complainant Muhammad Ahsan keeping in view what the appellant has stated to be his version of the case. 9.. Muhammad Ahsan (P.W.1) speaks of two payments made to the appellant. The first was made on 4-7-1987, when a sum of Rs.200 as advance was paid to the appellant. The F.I.R. (Exh.6) shows that this amount was paid in presence of Muhammad Usman and Muhammad Sultan. Muhammad Ahsan (P.W.1), when examined in Court, however, stated that this amount was paid in presence of Muhammad Usman, who is his brother. As observed earlier this Muhammad Usman was not examined, why? nobody knows. Sultan (P.W.2) who went to the cattle pan of complainant Muhammad Ahsan by chance, was informed about this payment by him. The statement of Sultan (P.W.2) to this effect is not admissible as complainant Muhammad Ahsan (P.W.1) has not stated so in his evidence. Thus, there is hardly any evidence worth consideration to prove the payment of Rs.200 to appellant on 4-7-1987.

10. The evidence of `trap' is also not convincing. No evidence of conscious acceptance of tainted money is forthcoming. The reason for not seeking the services of a Magistrate is not plausible. Although I honestly feel that a Magistrate should not be made as limb of police in such cases of raid, thereby perverting his judicial outlook, still the absence of a Magistrate in the circumstances of the present case, cannot be brushed aside lightly.

11. Section 4 of the Prevention of Corruption Act, 1947, raises a statutory presumption of guilt, where a public servant accepts gratification other than legal remuneration. This presumption, however, arises only upon proof that the accused has accepted or agreed to accept or obtain or attempts to obtain for himself or any other person any gratification or any valuable thing from any person. This does not mean that the burden of proof on the prosecution to establish the above facts is at all displaced. That burden still remains on the prosecution and it is only when the prosecution has discharged that burden that a presumption will be made against the accused. Admittedly the tainted money was with complainant Muhammad Ahsan when the raiding party reached the guest room and it was secured from his possession. There is also no dispute that both the Inspector and the D.S.P. had no occasion to witness the transaction or hear the conversation between the parties. The cases reported as Muhammad Nawaz v. The State 1987 P Cr. L J 182, and Noor Muhammad v. The State 1987, P Cr. LJ 1842 are also relevant to some extent.

12. Complainant Muhammad Ahsan (P.W.1) at his own showing appears to be a dishonest person. He has not paid the property tax in respect of the property owned by him. He got a blank cheque after getting the appellant trapped, as he did not pay any instalment, even after this facility was extended to him. The testimony of such witness alone is therefore, not sufficient to record conviction against the appellant. There is no doubt that the appellant did not explain satisfactorily his presence in the house of complainant Muhammad Ahsan at the relevant time. A conviction is certainly not to be based on the weakness of the defence. The prosecution has to stand on its own legs.

13. In these circumstances the prosecution has failed to prove the case against the appellant beyond all reasonable doubt. The appeal is accepted and the conviction and sentence against the appellant are set aside. S.A./S-343/K Appeal accepted.