This criminal appeal is directed against the judgment dated 26.03.2011 passed by the learned Special Judge Anti-Corruption, Dera Ghazi Khan whereby he convicted the appellant Mazhar Ahmad son of Bashir Ahmad u/S. 420, PPC & Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 7 years R.I with fine of Rs, 3,00,000/- on two counts in case FIR No, 06/2008 dated 11.01.2008, under Sections 161/420, PPC, & 5(2), PCA, 1947, P. S. Anti-Corruption, Establishment, Layyah.
Briefly stated the facts relevant for the disposal of the instant appeal are that the complaint Ex.PA was moved against the appellant alleging therein that Imam Bukhsh was owner of land of 700/800 Kanals whereas he was in possession of only 106 Kanals. The appellant contacted the said Imam Bukhsh and in presence of Haji Allah Dad Samtia and PW-2 Bashir Ahmad Sial promised in September, 2002 to get the entire land of the complainant consolidated but for doing this job he demanded illegal gratification of Rs, 18,00,000/-. When the complainant informed him that he could not pay such a huge amount the appellant persuaded him to sell out some of the land which was not in his possession and hand over the sale consideration to the appellant. He took special oath on the holy Quran in presence of Haji Allah Dad Samtia and Bashir Ahmad PWs that all the land of the complainant would be consolidated and no fraud will be committed. Having trapped the complainant, he got a Mutation No, 2177 dated 29.05.2003 attested regarding 50-Kanals of land in the name of Haji Allah Dad Samtia, which was subsequently transferred further and the amount was misappropriated by the appellant. Besides it he also received an amount of Rs, 80,000/- in the name of his high-ups. After conducting an inquiry the FIR was lodged against the appellant. He was tried and convicted by the learned Special Judge Anti-Corruption and sentenced under Section 420, PPC and 5 of Prevention of Corruption Act, 1947 to seven years R.I. and a fine of Rs, 3,00,000/- on two accounts. In default of payment of fine he was further to undergo six months S. I. The benefit of Section 382-B, Cr.P.C. was also extended to him.
Feeling aggrieved of the impugned judgment, the instant appeal has been preferred on the grounds that the learned trial Court has illegally convicted the appellant in spite of the fact that neither the complainant could prove to be owner of 700/800 Kanals of land nor payment of illegal gratification was established. The mutations were got attested by the complainant himself and no sale consideration whatsoever was received by the appellant. The original complainant Imam Bukhsh has not entered into the witness box to support the prosecution story. The trial Court itself concluded that the receipt of Rs, 80,000/- by the appellant was not proved. So the impugned judgment was not sustainable in the eye of law so the appellant prayed for his acquittal.
2. The learned counsel for the appellant contends that as per allegations levelled by the complainant the prosecution had to prove that the complainant was owner of 700/800 kanals of land and that the appellant received the sale consideration of land measuring 50-Kanals, which was alienated by the complainant. He referred to the statement of PW-1 Fida Hussain son of the complainant, who was not able to produce any document regarding the ownership of .700/800 kanals of land. Similarly, the receipt of any illegal gratification or the sale consideration by the appellant was also not proved. The learned counsel goes on to submit that the learned trial Court has disbelieved the version of the complainant to the extent of amount of Rs, 80,000/- having been received as illegal gratification form the complainant. So, the appellant could not be convicted on the basis of same evidence by believing one portion of it and disbelieving the remaining one.
3. While summing up his arguments, the learned counsel for the appellant maintained that neither the complainant was able to prove the ownership of 700/800 kanals of land nor any eye-witness before whom the amount of bribe was taken by the appellant has been produced. The prosecution had miserably failed to prove the charge against the appellant. So, he was liable to be acquitted.
4. The learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the appeal and argued that the appellant had been found guilty during the investigation. All the prosecution witnesses had fully supported the prosecution version. The minor discrepancies in the evidence cannot change the fate of the case. The learned trial Court after proper appraisal of the evidence on record rightly convicted the appellant. So, the appeal is liable to be dismissed.
5. I have considered the arguments advanced from both sides and perused the record. I have also gone through the judgment passed by the learned trial Court.
6. In Para No, 30 of the judgment, the learned trial Court observed that the appellant should have produced in defence the vendees and the witnesses of mutations but he failed to do so. The learned trial Court based his judgment on wrong assumptions. Admittedly, the accused can take more than one pleas and he cannot be convicted merely because he did not produce some evidence in disproof of the allegations against him. It is the legal obligation of the prosecution to prove its case beyond any shadow of doubt and no benefit can be given to the prosecution for any weakness of the defence.
7. Admittedly, the prosecution was bound to prove that the complainant was owner of 700/800 kanals of land; that sale consideration was received by the appellant (if so how much amount was received by him as illegal gratification) and that fraud was committed by the appellant with the complainant. In order to prove their version, the prosecution produced PW-1 Fida Hussain son of the complainant Imam Bukhsh. He admitted in cross-examination that no proof of ownership of 700/800 kanals of land was ever produced by him or his father. The complaint Ex.PA was got drafted by the father of this PW who never appeared during the inquiry or in investigation to prove the same. As regards the receipt of sale consideration this witness was not present when the Mutations No, 2177 and 2180 were entered as he Claimed to be at Islamabad in those days. So there is no evidence on record to prove that Imam Bukhsh was owner of 700/800 kanals of land for consolidation of which he paid some illegal gratification to the appellant. Moreover, Riaz Hussain, brother of the PW-1 was the attesting, witness of Mutation No, 2177. He never appeared before the Inquiry Officer or the Investigating Officer to support the allegations against the appellant. The mutations were attested in the year 2003 whereas PW-1 stated that he came to know about the fraud in the year 2005. No specific amount has been mentioned by the petitioner, which was received as sale consideration by the appellant. The mutations were never challenged before the Civil Court by the father of the PW-1. It is admitted by him that PW-2 Bashir Ahmad was the best friend of his father. The fate of the entire case depends on the testimony of PW-2 Bashir Ahmad who claims to be a witness of Mutation No, 2177 and was aware of all the affairs between the appellant and Imam Bukhsh. He made a short statement that the amount of sale consideration was received by the appellant in respect of Mutation No, 2177. He did not utter a single word as to how much amount was paid to the appellant Mazhar Hussain as illegal gratification. The vendee never appeared before the trial Court or the Investigating Officer to support the allegations of Imam Bukhsh or Fida Hussain. This witness admitted in cross-examination that both the parties to the mutations had answered in affirmative before the consolidation officer when he was asked about the transfer of land and payment of the sale consideration. He admitted that he does not know as to what amount was paid. He is also unaware about the total ownership of land of Imam Bukhsh. He admitted that he had good relations with said Imam Buksh. It was further admitted by him that in another case FIR No, 08/2005 he also appeared as a witness against the appellant. So this witness seems to be a stock witness and he cannot be deemed to be truthful and independent. On his solitary statement, the appellant was convicted by the trial Court because no other witness appeared to prove that any specific amount was received as illegal gratification by the appellant. The attesting witness of the mutation, Riaz Hussain, who happened to be the real brother of PW-1 Fida Hussain was withheld and not produced so inference is to be drawn against the prosecution. PW-3 Faiz-ul-Haq C.O. is a formal witness who carried out some investigation and prepared report under Section 173, Cr.P.C. PW-4 Ch. Faqir Hussain Shah AC (General), Multan was also a formal witness who stated that while posted as A.D. I. Anti-Corruption, Multan he had recorded the statement of witnesses and recommended the judicial action vide his final report Ex.PC. In cross-examination he admitted that complainant Imam Bukhsh had not been produced before him and no proof of ownership of 700/800 kanals of land was produced by the prosecution.
He investigated the case without summoning the revenue officer during investigation. He admitted that Riaz Hussain was one of the witnesses and he happened to be the son of the complainant Imam Bakhsh but he did not summon him. PW-5 Jalil Imran DSP is also another formal witness who recorded the FIR Ex.PD on receipt of complaint Ex.PA. He had prepared the final report Ex.PE and Ex.PF. He claimed to have recorded the statement of Fida Hussain PW-1 as a witness. If it was so then there was not statement of complainant on the record. PW-6 Iftikhar Ahmad Khan Dhandla, Tehsildar conducted an inquiry and his report is Ex.PG/1 & 2. He also admitted in cross-examination that no proof of ownership of 700/800 kanals was produced before him by the complainant.
Similarly no eye-witness stated before him about the receipt of Rs, 80,000/- as bribe by the appellant.
8. Having carefully analysed the evidence on the record this Court is of the view that the prosecution had failed to prove the allegations against the appellant beyond any shadow of doubt. It was not proved that Imam Bukhsh was owner of 700/800 kanals of land. As the foundation of the case was built on this very averment so the superstructure built thereon is bound to collapse if this fact is not proved. There is only one witness Bashir Ahmad (PW-2) who stated that amount of sale consideration was received by the appellant. He also does not know as to how much amount was paid as sale consideration. The vendee was never produced to support this allegation of the complainant. The PW-1, Fida Hussain is not an eye-witness as he was admittedly not present at the time of attestation of both the mutations so his evidence is of no avail to the prosecution. As regards the receipt of Rs, 80,000/- on different occasions the said allegation was not proved and was disbelieved by the trial Court.
9. Keeping in view the facts and circumstances of the case the specific allegations levelled against the appellant were not proved. The evidence of the sole eye-witness Bashir Ahmad is not proved to be confidence inspiring so it was not safe to base the conviction on his solitary and uncorroborated statement. Even otherwise having already appeared against the appellant in another case he seems to be a stock witness whose testimony is neither trustworthy nor confidence inspiring and the conviction cannot be based on his testimony being not an independent witness. In the light of above discussion I am of the view that the learned trial Court has not properly appreciated and appraised the evidence on record. The conviction awarded to the appellant is not sustainable in the eye of law. The appeal is allowed and the conviction awarded vide judgment dated 26.03.2011 passed by the learned Special Judge Anti-Corruption Dera Ghazi Khan, is set-aside and the appellant is hereby acquitted. The appellant and the surety shall stand discharged of their liability.