' Through this appeal, the appellant has called in question the legality of his conviction and sentence, dated 7-3-1993 passed by Special Judge (Central), Multan whereby the appellant was convicted under section 5(2), 47, PCA and under section 161 read with section 165-A, P.P.C., R.I. For one year alongwith fine of Rs.10,000 on each count in default to further suffer six months R.I.
2. Briefly narrated the facts of the prosecution case are that Mirza Abdul Hameed, the complainant, owned a mechanical workshop for repairi of tractor trolly in Gaggo Mandi, District Vehari when he received an excessive electricity bill for the month of August, 1985 and then he contacted SDO, WAPDA, Burewala and made a complaint regarding the same who referred the matter to the appellant and advised the complainant to contact him. The appellant demanded Rs.500 as illegal gratification from the complainant and assured him that the electricity bill would be corrected, whereupon the complainant informed Muhammad Nawaz Khan, Inspector FIA (P.W .3) who vide Exh.P.W.3/1 applied that a Magistrate be deputed to supervise the raid. ConsequenIty, a raiding party was formed. The Magistrate recorded the statement of the complainant Exh.P.W.1/1 and thereon his signatures Exh.P.W.1/2 in token of its correctness. The complainant produced five currency notes of the denomination of Rs.100 each, number thereof were recorded by the Magistrate and then currency notes were given to the complainant for passing those on to the accused appellant as bribe. The raiding party left for the Revenue Officer, WAPDA, Burewala where the aforesaid currency notes were given by the complainant to the appellant and then the raid was made and the tainted money was taken out from the possession of the appellant upon the search made by the Magistrate. After completion of raid proceedings the appellant was arrested and then handed over to the police. After due investigation the accused was challaned.
3. At the trial a formal charge under section 5(2)/47 and section 161 read with section 165-A, P.P.C.
Was framed against the accused appellant to which he pleaded not guilty and claimed to be tried.
4. In his statement under section 342, Cr.P.C. The accused appellant denied the commission of crime charged and professed his false implication. However, he did not produce any witness in his defence.
5. In order to bring home the charge against the accused appellant as many as five witnesses were produced by the prosecution. Consequently believing the prosecution version conviction and sentence was passed against the appellant, hence this appeal.
6. It is vehemently argued by the learned counsel for the appellant that the impugned condition and sentence passed by the learned trial Court is against law and facts; than the prosecution miserably failed to bring home the charge against the appellant beyond any shadow of doubt; that the raiding party had neither heard conversation between the appellant and the complainant nor saw the transaction of passing of money. It is lastly contended that the impugned conviction and sentence awarded to the appellant is liable to be set aside.
7. On the contrary the learned State counsel opposed the contention of the learned counsel for the appellant contending that the impugned conviction and sentence passed by the learned trial Court does not call for interference by this Court; that the prosecution by way of producing evidence fully succeeded in proving the charge against the accused appellant, therefore, the appeal is liable to be dismissed.
8. Heard both the parties. Record perused.
9. From the perusal of the statement of Mirza Abdul Waheed, complainant, it is obvious that Ch. Muhammad Ashraf A Magistrate had not recorded his statement and the statement Exh.P.W.1/1 was not made by him. However, he had obtained his signatures on the blank papers after the raid.
Moreover Muhammad Nawaz Khan, Inspector (P.W.3) in his cross-examination frankly admitted that he neither saw the transaction of passing of tainted money by the complainant to the accused appellant nor he heard the conversation. It has also come on the record that the said Magistrate had also not seen the transaction of alleged exchange of money nor he heard the conversion between the appellant and the complainant. In this view of the matter, it is clear that the prosecution has miserably failed to substantiate the allegation leveled against the accused appellant. The recovery of the tainted money from the possession of the accused appellant especially when the raiding party had not heard conversation between the appellant and the complainant nor sayer transaction of passing of money to the accused appellant is of no consequence to the prosecution case. In these circumstances the conviction and sentence awarded to the accused appellant is not sustainable in the eye of law. (sic) Therefore, in my view the learned Trial Court was not justified while believing such-like evidence and passing the impugned conviction and sentence of the appellant. Consequently, the appeal is accepted and the impugned conviction and sentence passed by the learned Trial Court is hereby set aside and the appellant is acquitted of the charge framed against him by giving him benefit of doubt.