Muhammad Tarig Abbasi, J - This appeal is directed against the judgment dated 12.6.2007, passed by the learned Special Judge Anti-corruption, Multan, whereby in case FIR No. 06, dated 16.3.2005, registered under Section 161 PPC, read with Section 5(2)47 of PCA, 1947, at Police Station ACE, District Khanewal, the appellant was convicted and sentenced as under:- i) Under Section 161 PPC rigorous imprisonment for six months. ii) Under Section 5(2)47 of PCA, 1947 - rigorous imprisonment for six months.
It was directed that both the sentences shall run concurrently and benefit of Section 382-B Cr.PC, shall also be available to the appellant.
2. The facts are that Hakam All complainant (PW-1), informed the Anti-Corruption Authorities that the appellant, who was serving as Naib Qasid in the court of Mr. Haris Ali, learned Civil Judge Kabirwala, District Khanewal had demanded from him Rs.300/- for supply of copy of the plaint of a suit for dissolution of marriage, filed by his wife against him; out of the said amount, he paid Rs.100/- to the appellant and for the balance, the date was fixed as 16.3.2005 and that he did not want to give bribe to the appellant, hence wanted a raid. On the basis of the above said complaint, Sajjad Hussain Circle Officer ACE (PW-2) preferred an application (Ex.PB) before the learned Sessions Judge, Khanewal, who deputed Mr. Sarfraz Ahmad, learned Judicial Magistrate (PW-3) to supervise the proposed raid; a raiding party was constituted and the complainant with tainted currency notes, each of denomination of Rs.100/-, was sent to the appellant and when the complainant signaled, the raiding party reached at the spot, overpowered the appellant and recovered the above mentioned currency notes from him. Consequently, the case through FIR (Ex.PA) was registered. After investigation, the appellant was challaned to the court, where charge against him was framed on 4.6.2005, to which he pleaded not guilty and claimed the trial, hence the prosecution witnesses were summoned and recorded. Hakam Ali complainant (PW-1), Sajjad Hussain, DSP-Patrolling, the then C.O. ACE, Khanewal (PW-2), Sarfraz Ahmad, Special Judicial Magistrate (PW-3) and Munawar Ali, Ahlmad (PW-4) had got recorded the statements, whereafter the prosecution case was got closed and the appellant was examined under Section 342 Cr.PC, during which the questions emerging from 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 malafide. The question "Why this case against you?" was replied by him in the following words:- "The complainant came in the Court of Mr. Haris Ali, Civil Judge, Kabirwala. He was talking with a person in the Court, where I forbade him to talk in the Court, at this there was a quarrel between me, when I pushed him out of the Court, on this he gave me warning that he will take revenge for this insult. I had not given any photo copies of family suit as alleged by the complainant. I am innocent."
In reply to the question "Why the PWs have deposed against you?" he stated as under:- "The PWs have deposed falsely because there was a raid and their intention was that the raid should be successful, therefore, they involved me in this false and baseless case. I have no concern to issue the copy of record."
He opted to lead evidence in his defence but refused to make statement under Section 340(2)
Cr.PC. In defence, he got examined Muhammad Ashraf, Reader of the Court as DW-1 and closed the defence evidence. After completion of all the proceedings, the impugned judgment was pronounced, in the above mentioned terms. Consequently the appeal in hand.
3. Learned counsel for the appellant has argued that the appellant is innocent and falsely involved in the case with malafide; 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.
4. The learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the appeal, while supporting the impugned judgment to be well reasoned and call of the day.
5. I have heard the arguments of learned counsel for both the parties as well as learned Deputy Prosecutor General and have also perused the record.
6. Hakam Ali, complainant (PW-1) contended that when he alongwith raiding party went to the appellant, he was standing at the door of a room, where he gave him the money and made a signal, which resulted into attraction of the raiding party at the spot and recovery of the tainted amount from the appellant. He further stated that the tainted amount was paid by him to the appellant, in presence of many other persons, when the Presiding Officer of the court was also available and that the said amount was recovered from the appellant, from a room adjacent to the court room. Sajjad Hussain, DSP/IO (PW-2) while rebutting the above mentioned contention of the complainant (PW-1), stated that it was Shakeel constable, who made a signal, hence they reached at the spot. This witness further contended that the appellant offered some resistance, hence taken into the adjoining room, when he (PW-2) recovered the amount, from the appellant and that no other person was present there. He further disclosed that another sum of Rs.100/- was also paid by the complainant to the accused on the same day, but no such amount was recovered from him. When Sarfraz Ahmad, Special Judicial Magistrate, who supervised the raid proceedings, entered in the witness box as PW-3, also contended that Shakeel Constable signaled them, hence they entered into the court of Mr. Haris Ali, learned Civil Judge, Kabirwala and that he (PW-2) had made search of the appellant. By deposing so, this witness had contradicted the version of the above named PW-3, whereby he claimed himself to be a maker of the search. The PW-3 further contended that recovery was effected from the room of Ahmad and that he did not remember if the said official was present in the room. Munawar Ali, Ahmad, during his evidence as PW-4 categorically deposed that at the relevant time, he was available in his room and that in his presence, no money was recovered from the appellant and that the complainant did not bring any application for certified copies of any documents.
7. Both the above named PW-2 and PW-3 categorically stated that they did not hear any conversation between the complainant and the appellant or see passing on, the amount in question. In this way, it was not ascertainable that under which circumstances and by what conversation, the amount in question was passed from the complainant to the appellant and the above mentioned lapse was fatal for the prosecution case, in view of the law laid down by the Hon'ble Supreme Court of Pakistan in 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."
Furthermore, it was brought on the record that earlier, an altercation between the complainant and the appellant was taken place, hence it was mandatory that there should be some independent witness of demand and payment of the money, but none was either joined into the investigation or brought before the court, despite the fact that it had come on the record that at the relevant time, the court was functioning and even the learned Civil/Family Judge was also available in his court room. In this regard I am fortified by the dictum laid down in the cases of"Sajid Naveed Versus The State" (1999 M LD 156) and "Muhammad Ashraf Versus The State" (1996 SCM R 181).
8. Not only the above mentioned material contradiction in the statements of the above named prosecution witnesses was brought on the record, but Muhammad Ashraf, Reader to the Court, during his statement as DW-1 had categorically stated that an altercation between the appellant and the complainant was taken place, hence he asked the appellant to send the complainant out of the court room till the case in question was called and that at relevant time, copies of the plaint as per procedure were provided to the complainant.
9. In this case, the complainant could not be treated to be innocent and having clean hands, because his altercation with the appellant was brought on the record, but even then he as per the alleged prosecution story, offered an amount to the appellant and even paid Rs.100/- to him on the same date and for the remaining, he arranged raid. His conduct, whereby firstly he himself facilitated for commission of the offence and then while showing himself to be a victim, got conducted the raid, should be taken with great concern as the complainant was an interested and partisan witness, concerned with success of the trap. Reliance in this respect may also be made to the case of Muhammad Ashraf (Supra).
10. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Prevention of Corruption Act 1947. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of amount as illegal gratification. Hence, the initial burden rests upon the prosecution to prove the charge against accused, by bringing on record, evidence, either direct or circumstantial, to establish with reasonable probability that the money was accepted by him, as bribe. The court is required to consider explanation offered by accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before an accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution.
11. All the above mentioned facts and circumstances, lead to the conclusion that the prosecution case and the charge against the appellant could not be proved and established beyond any doubt. In this way, the charge against the appellant has become doubtful and it is unsafe to maintain his conviction on the basis of such type of evidence because it is bounden duty of the prosecution to prove its case against the accused beyond any shadow of doubt. Resultantly, while following golden principle of law that even a single circumstance, creating reasonable doubt in a prudent mind about guilt of an accused, would make him entitled for such benefit as of right and that it is better to acquit ten guilty, rather to convict one innocent, the appeal in hand is accepted, the impugned judgment is set aside and the appellant namely Rana Muhammad Tariq is acquitted of the charge, while giving him the benefit of doubt. He, by way of suspension of his sentences, is at large and as such his surety is discharged. The disposal of case property shall be as directed by the learned trial court.