1. Appellant was tried by Special Judge Anti Corruption Sargodha Camp at Mianwali in case FIR No, 2 dated 19.05.03 for the offences under Section 161 PPC read with Section 5(2) of PCA 1947 registered at Police Station ACE Mianwali who vide judgment dated 16.03.2005 convicted and sentenced the appellant as under:- UNDER SECTION 161 PPC.
2. 3 Years R.I with fine of Rs, 3000/- in default whereof to further undergo 3 months S.I.
3. UNDER SECTION 5(2) OF PCA 1947.
4. 7 Years R.I with fine of Rs, 700/- in default whereof to further undergo S.I for 7 months.
5. Both the sentences were directed to run consecutively (i,e, one after the other).
6. Benefit of Section 382-B Cr.P.0 was also extended in favour of appellant.
7. The precise allegation against the appellant is that he in order to get acquittal of Nazir Ahmad son of the complainant of this case namely Muhammad Ibrahim who was involved in case FIR No, 110/2001 dated 03.09.2001 registered at Police Station Pie Khel demanded Rs, 15000/-. Allegedly Rs, 8000/- were paid by the complainant for doing the job but ultimately due to some amendment in the law the son of complainant got the relief from the trial Court. The complainant asked for the return of money but appellant refused, the matter was reported to the police and the present case was registered.
8. The investigating agency after complying with the legal formalities submitted challan before the trial Court where prosecution produced four witnesses including the complainant Muhammad Ibrahim/PW.3 and Amir Abdullah PW.4 before whom allegedly amount was paid to the appellant. Learned trial Court also, examined appellant under Section 342 Cr.P.0 who while answering the question as to why this case is against you states as under:--?
9. This case has been drawn against me by the pointation of one witness of this case Mr. Ameer Abdullah Khan son of Adam Khan, who had previous ill will against me because his son Ikram Ullah Khan Constable Bhakkar was dismissed on the report of my brother Hadyatullah ASI Bhakkar about four years ago, now Ameer Abdullah got an opportunity to take the revenge of that old enmity through the hands of Ibrahim Khan. The record of the same reports can be summoned from Police Station Bhakkar."
10. Appellant neither made statement on Oath as required under Section 340(2) Cr.P.0 nor produced any defence evidence.
11. After hearing learned counsel for the parties and perusing the record I have observed that none of the witnesses namely Muhammad Ibrahim PW.3 and Amir Abdullah PW.4 had deposed that the appellant had ever demanded or received money from the complainant while showing himself as a civil servant/government servant. The crux of the statements of these witnesses is that the amount was demanded by the appellant for doing the job in a private capacity because of his relations with the Judicial Officer. On the other hand the language of Section 161 PPC and that of Section 5(2) of PCA 1947 clearly show that the provisions of this section would be attracted against public servant/government servants.
12. The said lacuna in the prosecution case is sufficient to hold that conviction of the appellant for the charges under Section 161 PPC as well as Section 5(2) 47 PCA could riot be sustained. Accordingly while allowing this appeal conviction and sentence of appellant is set aside and he stands acquitted from the charge. Record of this case reveals that sentence of appellant was suspended by this Court vide order dated 10.01.2008 accordingly surety stands discharged.