' MANZOOR AHMAD MALIK, J.---This single judgment shall dispose of Criminal Appeal No,10 of 2007 titled "Nasir Mahmood v. The State" filed by Nasir Mahmood appellant against his conviction and sentence and Criminal Revision No,90 of 2007 titled "Sheraz Adnan ul Razzaq v. Nasir Mehmood and others" filed by the complainant for enhancement of sentence awarded to Nasir Memood respondent as both these matters have arisen out of the same judgment dated 3-2-2007 passed by the learned Special Judge Anti Corruption Rawalpindi in case F.I.R. No,18 of 2004 dated 20-9- 2004 offence under sections 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 registered at Police Station Anti Corruption Establishment Rawalpindi.
2. Nasir Mehmood appellant has filed Criminal Appeal No,10 of 2007 against his conviction and sentence awarded to him by the learned Special Judge Anti Corruption Rawalpindi vide judgment dated 3-2-2007 whereby the appellant was convicted under section 5(2) of the Prevention of Corruption Act. 1947 read with section 161, P.P.C. And sentenced to undergo rigorous imprisonment for one year and fine of Rs,5,000 or in case of default in payment of fine the appellant was to further undergo rigorous imprisonment for two months. The appellant was, however, extended benefit of section 382-B, Code of Criminal Procedure.
3. Brief facts of the case are that the law was set in motion on the complaint of Sheraz Adnan Al- Razzaq (P.W.1) moved to the Additional Director Anti Corruption Establishment Rawalpindi Region on 20-9-2004 alleging therein that he had got entered Mutation No,748 Mouza Chichi Noor Halq Patwar Ramah with regard to the purchase of land measuring two Kanals five Marlas from one Gulab Khan (P.W.3) and had paid a sum of Rs,500 to the appellant for the entry of mutation. The appellant had demanded further a sum of Rs,3,000 for the attestation of the mutation whereas the official fee etc. Had already been deposited. The complainant therefore, prayed tthat legal proceedings may be taken against the appellant. Additional Director Anti Corruption Establishment directed Aqeel Ahmad Khan AD(I)/ACE (P.W.4) to conduct the raid who moved an application to the learned District and Sessions Judge Rawalpindi and obtained order that Rana Nasir Javed Civil Judge/ Magistrate Section 30 (P.W.5) shall supervise the raid. The learned Magistrate recorded numbers of the three currency notes of the denomination of Rs, 1,000 each and handed them over to the complainant, which he delivered to the appellant. The said tainted currency notes were recovered from the appellant in his office on raid.
4. After fulfilling procedural formalities the appellant was challaned to face the trial of case F.I.R.
No,18 of 2004 dated 20-9-2004 offence under sections 161, P.P.C. Read with section 5(2) of the Prevention of Corruption. Act, 1947 registered at Police Station Anti Corruption Establishment Rawalpindi. Copies were distributed to the appellant as required under section 241-A, Code or Criminal Procedure vide order dated 3-1-2005. Charge was framed against him on 31-1-2005 to which he pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution produced as many as five witnesses. The prosecution evidence was concluded on 5-12-2006 whereas the appellant was examined under section 342, Code of Criminal Procedure on 23-12-2006. He did not opt to depose on oath as required under section 340(2), Code of Criminal Procedure. After conclusion of the trial, learned trial Court convicted and sentenced the appellant as detailed above.
6. Learned counsel for the appellant, in support of this appeal, contends that it was a raid case and it is on the record that the raiding party neither saw the complainant while passing on the tainted money to the appellant nor heard their conversion and this fact has categorically been admitted by Manzoor Khan S.I (P.W.2) who was member of the raiding party; that it was. For the prosecution to prove that the money was received by the appellant as an illegal gratification but there is no evidence to this effect; that case of the prosecution is that land was to be alienated in favour of the complainant by Gulab Khan (P.W.3) and the complainant had paid Rs,500 for entering the mutation whereas for attestation of the said mutation the appellant had demanded Rs,3,000; that attestation of the mutation is the exclusive job of the Tehsildar and even no revenue record has been produced by the prosecution to substantiate this allegation; that it was incumbent upon the prosecution to prove demand and receipt of the illegal gratification and mere recovery of tainted amount does not prove the case of the prosecution; that the prosecution witnesses have admitted that the appellant, had got a criminal case registered against brother of the complainant. In support of his submissions learned counsel for the appellant has relied upon "Rashid Ahmad v. The State" (2001 SCMR 41), "Bashir Ahmad v. The State" (2001 SCMR 634), "Khurshid Ahmad Zaidi v. The State" (PLD 1983 Lahore 514), "Muhammad Shafqat v. The State" (1970 SCMR 713), "Muhammad Ashraf v. The State" (1996 SCMR 181), "Muhammad Ishaq v. The State" (1978 PCr.LJ 257) and "Manzoor Hussain Shah v.The State" (1978 PCr.LJ 885). .
7. Learned Deputy Prosecutor General assisted by learned counsel for the complainant, on the other hand, opposes this appeal on the grounds that factum of the appellant being Halqa Patwari at the relevant has not been denied by the defence; that in the complaint it is mentioned that the Parwari demanded Rs,3,000 (rupees three thousand only) for attestation of mutation No,748 and the said land was to be purchased by the complainant from Gulab Khan who appeared as P.W.3 and duly supported the case of the complainant; that the tainted currency notes were recovered from the pocket of the appellant; that at the time of raid the appellant took the plea before the raiding party that the amount recovered from him was in fact return of loan which had been taken from him by the brother of the complainant but when the appellant was examined under section 342, Code of Criminal Procedure he did not say so and denied the factum of recovery of tainted currency notes from his pocket; that when the tainted currency notes have been recovered from the appellant the onus shifted on him to explain as to why he had received the amount and for this he had to produce his evidence but no defence evidence was produced in this case by the appellant, therefore, circumstances clearly suggest that the amount recovered from the pocket of the appellant was illegal gratification, therefore, there is no merit in this appeal.
8. I have heard learned counsel for the appellant, learned Deputy Prosecutor-General as well as the learned counsel for the complainant and examined the relevant record with,their able assistance.
9. In this case, the allegation on the basis of which, the F.I.R. Was registered against the appellant was that the appellant while posted as Halqa Patwari received Rs,500 (rupees five hundred) for entering mutation No,748 and demanded Rs,3,000 (rupees three thousand only) from the complainant for attestation of the said mutation. On the application of the complainant a raiding party was constituted who conducted raid. Proceedings of the raid are Exh.P.W.5/A. The most important point is whetlr the prosecution has produced any evidence to prove that the illegal gratification was demanded, in this respect the record is silent. There is no revenue record on the file to show that any mutation was entered by the appellant though it is case of the complainant that mutation No,748 was entered by the appellant. The second important point is whether the raiding party heard the conversation and saw the passing of illegal, gratification. In this respect statement of P.W.2 namely Manzoor Khan S.I. Is relevant cross-examination whereof is reproduced below:-- "I am posted in ACE for the last about 4/5 years. We were standing at the distance of 20/25 yards when the complainant went in the office of the Patwari. Neither they were visible nor their conversation were heard by me. When we entered in his office there were 3 persons present including Patwari. It is incorrect to suggest that I am deposing falsely."
10. In the judgment reported as "Rashid Ahmad v. The State" (2001 SCMR 41) it has been held by the Hon'ble Supreme Court of Pakistan that it is for the prosecution to prove that the appellant had demanded the illegal gratification and the same was actually received by him. Mere recovery of the tainted amount does not establish that the amount was demanded and received as illegal gratification, therefore, the prosecution case is not free from doubt and the appellant is entitled to the benefit of doubts not as matter of grace but as a matter of right in view of the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Akram v. The State" (2009 SCMR 230). Therefore, this appeal is allowed and conviction and sentence awarded to the appellant by the learned Special Judge, Anti Corruption Rawalpindi is hereby set aside. The appellant is acquitted from the charges. He is on bail. His surety bonds are discharged.
11. Since the appellant has been acquitted of the charges leveled against him, therefore, there is no question of enhancement of his sentence, resultantly Criminal Revision No,90 of 2007 stands dismissed.