' IJAZ-UL-HASSAN KHAN, J.---Appellant Muhammad Abbas, Ex-Patwari Halqa Hattar, District Haripur was tried by learned Additional Special Judge, Anti-Corruption, N.-W.F.-P., Camp Abbottabad on the charge of having received Rs,200 as illegal gratification from one Ibrar Hussain Shah for preparing Fard Jamabandi of his landed property and at the conclusion of trial vide judgment dated 13-5-2004 the appellant was convicted under section 161, P.P.C. And section 5(2), P.C. Act and sentenced to imprisonment already undergone by him under each section with a fine of Rs,5,000 under each section or in default of payment one month S.I.
2. The appellant feeling aggrieved has filed the instant Criminal Appeal No,75 of 2005 to challenge his conviction and sentence.
3. The facts of the case in brief are that one Ibrar Hussain Shah addressed an application to Army Monitoring Cell, Police Station Anti-Corruption Establishment, Haripur wherein he alleged that Muhammad Abbas Patwari Halqa, Hattar, had received an amount of Rs,500 from him for preparing copy of Fard Jamabandi. Thereafter the Patwari demanded Rs,500 from him for rectifying the date. Out of the said amount he paid Rs,200 to Patwari and for balance amount of Rs,300 he decided to become a trap agent. Pursuant to this application a raiding party consisting of Miss Kaneez Sughran Executive Magistrate, Haripur and Army personnel was constituted. The numbers of the currency notes valuing Rs,300 were noted by the Magistrate and the party along with the complainant proceeded to the office of Patwari at Mochi Bazar Haripur. The complainant alone went there and after paying the tainted money informed the raiding party which tainted money was later on recovered from the possession of the appellant by the raiding party.
4. After completion of the investigation the case was sent to the Court of Special Judge, Anti- Corruption, N.-W.F.P. Camp at Abbottabad where the accused was charge-sheeted.
5. At the trial, the prosecution in order to prove its case produced four witnesses namely Miss Kaneez Sughran, Executive Magistrate (P.W.1), Ibrar Hussain Shah P.W.2, Muhammad Khurshid Traffice Inspector P.W.3 and Liaqat Ali F.C. P.W.4. The accused in his statement recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged.
In answer to a question as to why the P.Ws. Have deposed against you, he gave the following reply:-- "No disinterested P.Ws. Have been produced by the prosecution. The star witnesses of the raid have been abandoned by the prosecution due to reasons best known to the prosecution."
' In answer to another question as to what is your statement and why are you charged, he gave the following reply:-- "I am innocent and have been falsely charged by the complainant due to the reasons that I had appeared as a witness in a partition case which was pending between Hassan Shah and Mehmood Shah wherein the present complainant was arrayed as respondent No,20, in that partition suit the plaint was decided against the complainant and when the mode of partition was carried out I was pressurized by the complainant to give him a better plot situated near abadi. I did not fulfill the requirement of complainant, hence the present case was concocted by the complainant against me with mala fide intention."
6. It may be pertinently mentioned here that initially accused was convicted under section 161, P.P.C.
And sentenced to six months R.I. With a fine of Rs,10,000 or in default of payment of fine three months S.I. He was further convicted under section 5(2) P.C. Act and sentenced to three months R.I.
With a fine of Rs,5,000 or in default of payment two months S.I. Both the sentences were directed to run concurrently with benefit of section 382-B, Cr.P.C. An appeal was preferred there-against before this Court which was accepted and the impugned conviction was set aside through judgment dated 2-6-2003. After remand accused produced Dil Nawaz Patwari who appeared as D.W.1 and produced copy of Register and relevant receipts to show that the money so received by the accused was entered as agricultural tax.
7. Upon consideration of the material placed before him the learned trial Judge convicted and sentenced the appellant as mentioned above by holding that 'not only because the prosecution has successfully established its case regarding the guilt of the accused but also because the accused has failed to provide convincing and cogent evidence in support of his plea.
8. Mr. Sher Afzal Khan Jadoon Advocate for the appellant contended that the judgment and order of learned trial Court is contrary to the evidence brought on record by the prosecution against the appellant and the procedure adopted in the case was illegal for the reasons that the Army Monitoring Cell was not competent to initiate any proceedings against the appellant and the application submitted by respondent No,2 should have been treated as complaint before the Magistrate who by then was bound to follow the procedure laid down under Chapter XVI of Criminal Procedure Code, 1898 and the Magistrate was incompetent to investigate the case as provided under section 4 (L) of Cr.P.C. The learned counsel also contended that the prosecution has failed to produce witnesses of recovery of Rs,200 from the possession of the appellant and the impugned judgment has been recorded in a mechanical manner without application of independent mind. Learned counsel further submitted that in fact the appellant had received Rs,200 from the complainant as agricultural tax and not as illegal gratification. It was also contended that the defence evidence produced by the appellant was not taken into consideration and put at shelf without any justifiable reason which has resulted in complete failure of justice.
Concluding the arguments learned counsel urged that there is no sanction for registration of the case against the appellant from the competent authority and this fact alone is sufficient to demolish the prosecution story. To substantiate the contentions he placed reliance on 1999 PCr.LJ 1357, 2001 PCr.LJ 250, 1974 SCMR 199, 1996 PCr.LJ 1047, 1996 PCr.LJ 303, 1996 PCr.LJ 683 and PLD 1992 Karachi 39.
9. Qari Abdur Rashid learned D.A.-G. On the other hand, opposed the arguments of the learned counsel for the appellant and argued that the case against the appellant has been proved by the prosecution through solid evidence and the appellant converted the illegal gratification by showing it to be a agricultural tax which is not proved on the record.
10. Having considered the arguments of learned counsel for the parties in the light of the material on file I find that pursuant to the application addressed to the Army Monitoring Cell by complainant Ibrar Hussain Shah, a raiding party headed by Miss Kaneez Sughran Executive Magistrate, Haripur conducted raid at the office of the appellant and recovered the tainted money from the possession of the appellant. The appellant stated that the amount was received by him as agricultural tax but he could not produce any proof to this effect and the explanation offered by him was not found satisfactory. Miss Kaneez Sughran Executive Magistrate directed the appellant to appear in her Court the next day to furnish proof in support of his defence. It is in the statement of the Magistrate that the complainant had told her that he was going to pay money to the accused on his demand and at that time the Magistrate asked him to show her the notes so that she could note the numbers of the currency notes. Thus it is proved on record that the notes recovered from the possession of the appellant were the same which were marked by the Magistrate. The plea taken by the appellant that the amount received by him was that of Agricultural tax is not found proved because the appellant could not bring on record any proof to his effect which could be taken into consideration by this Court. It is an accepted principle of law that when an accused at a criminal trial takes a specific plea the onus invariably shifts on him and he is required to produce his evidence and to prove his plea or at least his plea should be supported by the circumstances and it should not be unfounded altogether. In the instant case learned trial Judge had valid reasons to disbelieve the statement of Patwari Dil Nawaz D.W. And ignore the plea taken by the appellant and I see no reason to disagree with him.
11. Again the fact that the Magistrate did not hear the conversation between the accused and the complainant before payment of tainted money is also not helpful to the accused because the accused did not deny the recovery of tainted money from his possession. The only thing he had to establish Was that it was received in connection with agricultural tax which he miserably failed to prove. Another plea taken by the accused-appellant that the registration of case against him was the result of mala fide and false implication is unsustainable because the appellant in his defence has not proved through any tangible evidence that there existed any mala fide on the part of the complainant or false implication by the prosecution. Similarly, there is nothing on the record to show that raiding Magistrate was biased against the appellant and had any mala fide against him because the Magistrate had to act under the District Monitoring Team which was exercising powers of Deputy Commissioner and thus there is no illegality in the proceedings conducted by the Magistrate nor any irregularity exists in this regard. I am not oblivious of the proposition that benefit of doubt has to be extended to accused but benefit of doubt can be extended which it really spells out of the evidence and the same is not just imaginary and artificial.
12. In view of the above facts and circumstances of the case, finding no illegality in the impugned judgment dated 13-5-2004 the same is maintained and the appeal is dismissed.