' MUHAMMAD AHSAN BHOON, J.---This appeal is directed against the judgment, dated 18-1-2007 passed by the learned Special Judge Anti-Corruption, Sargodha whereby the appellant was convicted under section 161, P.P.C. And sentenced to two years' R.I. With a fine of Rs.5,000 or in default to further, undergo six months' S.I. The appellant was also convicted under section 5(2) of Prevention of Corruption Act, 1947 and sentence to five years' R.I. With a fine of Rs.10,000 or in default to further undergo one years' S.I. However, the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.O. The co-accused Tariq Mehmood, Sub-Divisional Canal Officer, Bhakkar and Muhammad Saleem Ziladar Canal were acquitted by the learned trial Court at the inception of trial on their application under section 249-A, Cr.P.0 read with section 265-K of the same Code vide order, dated 6-4-2006.
2. Briefly the facts of the case are that Muhammad Ibrahim complainant P.W.1. Made a written complaint Exh.PA which is the basis of formal F.I.R. Exh, P.A. Before the Circle Officer EAC, Bhakkar with the allegation that he made an application before the XEN Irrigation, Bhakkar seeking amendment in the disputed Varabandi;, that Ghulam Rasool (appellant) Canal Patwari met him there in the presence of P.W. Ahmad Sher (not produced) and P.W. Arran Ullah (given up) having been won over by the accused; that Ghulam Rasool accused demanded Rs.5,000 for a favourable decision of the above said application made before the XEN Irrigation; that the accused (appellant) agreed to receive Rs.3,000 and he (complainant) was not willing to pay illegal gratification to the accused. On the basis of said complaint formal F.I.R. Was got registered bearing No.3, dated 16-8-2005 Police Station ACE, Bhakkar and pursuant thereof a raid was conducted under the supervision of a Magistrate and tainted money of Rs.3,000 was recovered from the appellant. His statement was also got recorded immediately after the raid. After completion of investigation the appellant was sent up for trial.
3. In support of the accusation the prosecution produced P.W.1 Muhammad Ibrahim (complainant) who was declared hostile by the prosecution, P.W.2 Aman Ullah Moharrar, P.W.3 Mehar Hakam Khan Judicial Magistrate Bhakkar and P.W.4 Khalid Hussain Tarar Investigating Officer. The statement of the accused (appellant) was got recorded who denied all the allegations levelled against him and stated that a false and concocted case was got registered against him under the influence of Muhammad Ibrahim and Aman Ullah P.Ws. Because he had refused to accommodate Aman Ullah for the allocation of time of water meant for State land; he neither demanded any illegal gratification nor he received the same and in fact he was taken to Police Station ACE, Bhakkar from his office on the pretext that a complaint had been made against him and at Police Station Aman Ullah P.W. (not produced) and a Magistrate were already present and the Circle Officer obtained his signatures and thumb-impression on blank papers and then arrested him. He did not prefer to get his statement recorded on Oath and only tendered in evidence a copy of Varabandi Exh.DA and a copy of new Varabandi Exh.DB and a copy of previous/old Varabandi Exh.DC and closed his defence. On the conclusion of the trial the learned Special Judge, Anti-Corruption, Sargodha convicted and sentenced the appellant as per detail mentioned hereinabove.
3A. Learned counsel for the appellant contends that the star witness of the prosecution who is complainant of the case appeared as P.W.1 and he did not support the prosecution case and he was declared hostile. Similarly the other prosecution witness namely Aman Ullah was given up being won over and Ahmad Sher P.W. Was also not examined; that no one had seen the passing of tainted money and had not heard conversation regarding raid allegedly conducted against the accused. The prosecution withheld the best evidence available, so the presumption would go against the prosecution; that if they had been produced then they would have not supported the prosecution case.
4. Learned D.P.G. For the State supported the judgment of the learned trial Court and argued that the appellant was caught red-handed tainted money was recovered from him. P.W.3. Magistrate supervised the raid and if the complainant had connived with the accused that is not fatal to the prosecution case.
5. I have heard the learned counsel for the appellant and the learned D.P.G. At length. I have carefully examined the entire evidence with their assistance. A careful scrutiny of the evidence would reveal that the prosecution has failed to substantiate accusation by producing worthy of credence oral or documentary evidence. Muhammad Ibrahim complainant (P.W.1) has admitted that he handed over the said currency notes to Aman Ullah son of Muhammad Nawaz and he did not hand over the currency notes to Magistrate. He has also admitted that he was taken to the office of Raiding Magistrate by Circle Officer, ACE and his signatures were taken on memo. Exh.P.C.
He has also admitted that he was not present when the accused demanded illegal gratification from Aman Ullah. He admitted that application Exh.P.A. Was drawn up in the Police Station ACE, Bhakkar and he did not remember as to who drafted the complaint. Aman Ullah P.W. (not produced) had discussed the matter with C.O., ACE and then he obtained the thumb impression and the signatures on the complaint Exh.PA. Amanullah Moharrar Police Station ACE, Bhakkar has been examined with care and caution who is witness of recovery of three currency notes, each of Rs.1,000 denomination Exh. P.1, P2 and P3 before the Raiding Magistrate Mehar Hakam Khan. He admitted in his cross-examination that the members of raiding party including the Raiding Magistrate, did not overhear conversation between the accused and the complainant. Mehar Hakam Khan Judicial Magistrate (P.W.3) stated that the complainant had not told the serial numbers of currency notes to him. It is very strange that when the notes were allegedly marked by P.W.3 prior to raid then there was no requirement for telling of numbers by the complainant.
Similarly he stated that "the complainant did not tell the serial numbers of the currency notes to myself. It is correct that in the statement of the complainant Exh.PB or in my note Exh. PD/2. I did not mention Nos. Of the currency notes in question. It is correct that I gave serial numbers of the currency notes for the first time after their recovery. In my judicial service it was my first raid case."
In answer to a question he had stated that only one person was present with the accused at the time of apprehension and that person was Aman Ullah P.W. The said P.W. Has not been produced by the prosecution having been won over. Similarly he admitted this fact that sealed parcel of currency notes had not been prepared in his presence. Khalid Hussain Tarar P.W.4 stated in his examination-in-chief that he was a member of the raiding party headed by the Magistrate accompanied by the complainant and awaited at the outer gate of Canal Colony, Bhakkar. The complainant went inside to pass on tainted money to the accused and the other members of raiding party awaited signal from him. After a little while, he received a call on mobile phone from the complainant and in response thereto the Raiding Magistrate took them to Canal Office and conducted the raid. He deposed about the other formalities of proceedings which were conducted.
5A. A careful analysis of the evidence of above material witnesses reveal that the conversation, if any, between the accused and the complainant at the time of passing of bribe money was neither heard by any member of the raiding party nor they witnessed the passing of bribe money from the complainant to the accused. The prosecution case was that a deal was done in the presence of complainant P.W.1 Muhammad Ibrahim, P.W. Aman Ullah and P.W. Ahmad Sher, P.W.1. Complainant Muhammad Ibrahim was declared hostile whereas rest of the two witnesses have not been produced. So I am of the considered view that this is a case of no evidence. In such view of the matter, I do not consider it safe to place reliance on the statements of the prosecution witnesses. It is well settled law by now that in such like transactions not only payment of bribe money to the accused by the complainant is to be seen but also the conversation between the above said parties has to be heard by the members of the raiding party. This would be necessary to eliminate the chances of involvement of innocent people. There is no cavil to the proposition that mere recovery of tainted money from the possession of the accused is not enough to saddle him with the guilt of having received bribe unless he can be shown to have actually accepted the same with the knowledge that it is an illegal gratification and secondly that the agent provocateur passing money to another as a bribe is more than an accomplice in the crime and as such testimony cannot be accepted much less acted upon without corroboration from some independent source.
Besides what has been stated above, it is a matter of record that the appellant has been performing his duties as a Patwari in the office of Sub-Divisional Canal Officer, Bhakkar and he could hardly render any favour to the complainant because the grant of Varabandi could only be sanctioned by Divisional Canal Officer.
6. In the light of what has been discussed hereinabove, it can be inferred safely that the prosecution has failed to bring home the charge against the accused. I do not feel satisfied with the prosecution evidence and cannot hold that the prosecution has sufficiently discharged its onus. Resultantly the appeal is accepted and the impugned judgment, dated 18-1-2007 passed by the learned trial Court is set aside and the appellant is acquitted of the charge. The appellant shall be released forthwith if he is not required in any other criminal case.