' This appeal is directed against the judgment dated 20.9.2006, passed by the learned Special Judge, Anti-Corruption, Dera Ghazi Khan, Camp at Muzaffargarh, whereby in case. FIR No, 01, dated 1.1.2002, registered under Section 161, PPC, read with Section 5(2) of the Prevention of Corruption Act, 1947, at Police Station ACE, Vehari, the appellant was convicted and sentenced as under:--
(1) Under Section 161, PPC, R.I, for one year and fine of Rs, 5,000/-, in default to further undergo R.I.
For two months,
(2) Under Section 5(2)47 PCA, R.I. For one year and fine of Rs, 5000/-, in default to further suffer R.I.
For two months.
' It was directed that both the sentences shall run concurrently and benefit of Section 382-B, Cr.P.C., would also be available to the appellant.
2. The facts as per FIR (Exh.PG) are that Abdul Majeed, PW-2 got entered from the appellant' a mutation of Tamleek regarding 23 acres of agricultural land' belonging to his relatives; the appellant demanded a sum of Rs, 23,000/- from the complainant as government charges; the complainant asked the appellant that as till that time price of cotton was not received, hence demanded time till 31st of December, whereupon the appellant told the complainant that the mutation would be entered on receipt of amount on 1.1.2002, otherwise it would be cancelled; thereafter the complainant came to know that the mutation fee was not of the above mentioned amount demanded by the appellant. Consequently, he informed the Anti- - Corruption Authorities, whereupon a raid was conducted and the appellant was arrested, when the above mentioned amount was recovered from his possession. After registration of the case, the investigation was carried on when the appellant was found to be involved, hence, challaned to the Court.
3. The learned trial Court framed the charge against the appellant on 17.9.2002 to which he pleaded not guilty and claimed trial, hence the prosecution witnesses were summoned and recorded. The prosecution had got examined Muhammad Arshad Ali, Senior Civil Judge/Magistrate as PW-1, Abdul Majeed, complainant as PW-2, Ghulam Dastgeer, SHO as (PW-3) and Mehr Nazar Hussain Circle Officer, ACE as PW-4. Sabir Ali Constable and Abdul Latif, Constable were given up being unnecessary.
4. After examination of the above named witnesses, statement of the appellant as provided under Section 342, Cr.P.C., was recorded, during which, the questions arising out of the prosecution evidence were put to him and he denied almost all such questions, while pleading his innocence and false involvement in the case with mala fide. At that time, he opted to lead evidence in his defence and also made statement under Section 340(2), Cr.P.C., but while got examining Muhammad Bashir as DW-1, he had closed his defence.
5. After completion of all the proceedings, the learned trial Court had pronounced the impugned judgment in the above mentioned terms. Consequently, the appeal in hand.
6. Learned counsel for the appellant has argued that the appellant is innocent and falsely involved in the case with mala fide; during the prosecution evidence, the prosecution case and the charge against the appellant was not at all established and proved, hence he was entitled for acquittal and as such, the impugned judgment being against the norms of natural justice is liable to be set aside.
7. The learned Deputy Prosecutor General has vehemently opposed the appeal while holding the impugned judgment to be well reasoned and call of the day.
8. Arguments of both the sides have been heard and ,record has been perused.
9. Muhammad Arshad Ali, Civil Judge/Magistrate who had supervised raid proceedings, when entered into the witness-box as PW-1, stated the date of his alleged proceedings as 1.12.2002. By deposing so he had rebutted/contradicted the alleged prosecution version that raid proceedings were carried on, on 1.1.2002. The Magistrate further deposed that not only numbers of currency notes in question were noted by him but he also marked currency notes and also obtained photocopies thereof but it has been noticed that the currency notes in question do not contain any mark, made by the PW. This witness further deposed that they stayed at a distance of 100 yards away from the office of the appellant and when the complainant signaled, they entered in the office, searched the appellant and not only currency notes in question but other amount of Rs, 24,000/- was also recovered from the pocket of his shirt. The witness further contended that from the place, where they were available, neither door of the room was visible nor they heard the conversation between the complainant and the appellant or saw passing of the amount in question. Meaning thereby that what conversation between the complainant and the appellant was taken place and the facts and circumstances under which the amount in question came into possession of the appellant, was not known to anyone. Reliance in this respect may be placed upon the cases of Rashid Ahmad versus The State (2001 SCM R 41) and Bashir Ahmad versus The State (2001 SCM R 634). Relevant portion of the case of Bashir Ahmad (Supra) reads as under: "...It is well settled by now that "in such like transactions not only the payment of bribe money to the accused by the complainant is to be seen but also the conversation between the above 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."
' This witness admittedly had not written statement (Exh.PB) of the complainant rather his reader had drafted the same. In this way, it material irregularity was committed by him. In his statement, it came on the record that the spot was a busy place but no independent and impartial person was associated in the proceedings. As per this witness, recovered currency notes were taken into possession by him, through memo. Exh. PC and Exh.PD but the record had negated the said stance because the above said recovery memos. Were prepared by Circle Officer, Anti-Corruption Establishment and not at all by this witness.
10. Abdul Majeed, complainant (PW-2) admitted it correct that the office of the appellant was situated in a Bazar and the appellant was not visible from the place where the raiding party was present. This witness,had contended that the appellant for verification and attestation of Tamleek Nama demanded the above mentioned amount from him and the date of payment was fixed as 1.1.2002 when the raid was conducted but as stated above, the raiding Magistrate had not supported the above said date while deposing that the proceedings were carried on 1.12.2002.
11. Ghulam Dastgeer, SHO, (PW-3) during cross-examination stated that the currency notes was recovered from the appellant and taken into possession vide recovery memos. Exh.PC and Exh.PD which besides him were signed by the Magistrate (PW-1), Abdul Majeed and Sabir Ali. He while not specifying the person who had prepared the said memos. Had tried to conceal the preparation of the memos. By him as by that time he was nobody to take the currency notes into possession, because till then he was not an investigating officer.
12. On one hand, the above mentioned strange and erroneous proceedings have come on the record, whereas on the other hand Muhammad Bashir in whose favour his father, namely, Noor Ahmad had gifted the land had got recorded statement as DW-1, stating therein that they themselves had reported the matter to the appellant being Patwari and deposited the fee in National Bank of Pakistan, Burewala; they never authorized the complainant to deal with the appellant about attestation of the mutation; the appellant never demanded any illegal gratification from them for sanctioning the mutation in question; the complainant had identified him (DW-1) before the Revenue Officer and initiated the proceedings in question at the instance of Raja Riaz. In this way, not only the prosecution case and the charge against the appellant was not proved beyond any doubt but the appellant had also succeeded to disprove/rebut the allegations leveled against him.
13. As a result of what has been discussed above, the appeal in hand is allowed the impugned judgment is set aside and the appellant Maqsood Ahmed is acquitted of the charge, while extending him the benefit of doubt. He by way of suspending of his sentence is on bail; hence his bail bonds are discharged. The disposal of the case property shall be as directed by the learned trial Court.