Muhammad Jamil, Patwari was tried by Summary Military Court No. 9, Faisalabad for an offence under M. L. O. 7 read with M. L. R.
14. It is alleged that being a public servant and while functioning as Patwari Revenue, Faisalabad, he obtained illegal gratification of Rs. 2,000 front Ghulam Shabbir by using his official position in order to record mutation of land in respect of his land. The petitioner was convicted by the said Summary Military Court No. 9 vide its order dated 22nd of March, 1979, and sentenced to one year R. I.
The petitioner has assailed his conviction and sentence by meant of this writ petition. This judgment will dispose of the same.
2. Formal F. I. R. Exh. `R' dated 14th February, 1979 was regis--tered against the petitioner at Anti- Corruption Establishment, Faisalabad, at the instance of Ghulam Shabbir, complainant.
3. Ghulam Shabbir, P. W. 1 complainant stated that they were three brothers. Each of them inherited 4-- killas/acres of land from their grandfather. He wanted to get his share of land mutated in his name and approached Muhammad Jamil, petitioner who assured him that the same would be done but asked Rs. 100 as a bribe. He paid him Rs. 100 but he failed to do the needful and demanded more money for some official documents. Even then the same was paid to him but he further demanded another Rs. 200 on 12th February, 1979. This witness brought this matter to the notice of one school master, Abdul Sattar P. W. 2 of his village and asked him to accompany him to the office of Anti-Corruption, Establishment on 14th February, 1979 where Syed Arshad Ali Shah, Inspector recorded the statement. He produced currency notes worth Rs. 200. The serial numbers of the currency notes were duly noted and the tainted money was entrusted to him to pass it on to the petitioner. Thereafter he went to the "baithak" of the petitioner. He sat in the baithak of his house. He handed over Rs. 200 to the petitioner. After taking the money, he was about to enter back into the baithak when school master Abdul Sattar P. W. 2 came out following the pre--fixed signal to the Raiding Party which consisted of Syed Arshad Ali Shah, Inspector, Ch. Abdul Haq, Magistrate and Muhammad Azam Constable. The Raiding Party entered the baithak. The money was picked up from the floor by Syed Arshad Ali Shah P. W. And the peti--tioner was arrested. This witness admitted during cross-examination that he did not know the place where the Raiding Party got lodged itself. Thus the story that he gave signal to the Raiding Party is belied. He further stated that Abdul Sattar P. W. 2 knew where the raiding party was sitting and it was he who gave signal to the raiding party.
Abdul Sattar P. W. 2 who was accompanied by Ghulam Shabbir complainant stated that under instructions of the Magistrate he went to see the transaction. He reached- the baithak of the petitioner and saw him sitting with the complainant, Ghulam Shabbir P. W.
1. After a little while the complainant and the petitioner came out of the baithak in the verandah. He followed them and he saw the petitioner counting the currency notes. Thereafter the complainant gave a signal to hint and he in turn gave a signal to the Raiding Party who rushed to the spot. On seeing the Raiding Party, the petitioner threw the tainted money on the floor which was picked up by Syed Arshad Ali Shah P. W.
3. In cross-examination he admitted that he had paid Rs. 200 as the fare of the Taxi which was hired by Ghulam Shabbir for the conduct of this raid. He further added that he had encroached upon the Government land. He, however, denied that it was the petitioner who had complained against this encroachment. He further added that he did not know whether he told the complainant about the place where the Raiding Party was lodged. He stated that door of the baithak opened towards West and the raiding party was lodged towards North side. Thus the signal, if given from the West would not be visible outside the baithak.
Syed Arshad Ali Shah, Inspector P. W. 3 admitted that he picked the money from the floor. He stated that the door of the baithak was not visible from the place where the raiding party was lodged. He also stated that the petitioner had told them at the time of raid that he had been involved due to previous enmity of one Muhammad Akram, who was a first cousin of Ghulam Shabbir P. W.
Ch. Abdul Haq, Magistrate First Class. P. W. 4 had accompanied the Raiding Party. He admitted in cross-examination that he did not see himself money being passed by the complainant to the petitioner. He also stated that he did not see the petitioner throwing the money on the floor. He also added that door of the baithak was not visible from the place where the Raiding Party was sitting.
He also added that Abdul Sattar P. W. 2 has assured him that as he belonged to the same village and he was friendly with .The petitioner and that if he visited him, he would not be suspected as a member of the Raiding Party.
Muhammad Azam, Constable P. W. 5 was also accompanying the Raiding Party. He is reported to have seen the passing of the tainted money to the petitioner. He also admitted during cross- examination that the door of the baithak was not visible from the place where the Raiding Party was lodged.
4. The petitioner denied the allegation against him. He stated that he had been involved in this case by Ghulam Shabbir as he had reported against Muhammad Akram, a first cousin of Ghulam Shabbir for illegally cultivating the Government land and that Muhammad Akram was fined Rs.
629.25 by the Revenue Authorities. He further stated that Abdul Sattar P. W. 2 was also inimical towards him as he was directed by the Authorities to remove encroachment on Government land which had been erected by him. He however did not lead any evidence in defence.
5. Record of the case has been produced by the learned A. A.-G. And the same has been perused with the help of learned counsel for the parties and arguments heard.
6. The allegation against the petitioner is that he accepted bribe from Ghulam Shabbir complainant in order to effect mutation about the partition of his holding. According to Ghulam Shabbir P. W. 1 he had three brothers and that they jointly owned 13-- acres of land which they inherited from their grandfather. This laud, I e. 13-- acres could not be partitioned as it was contrary to the provisions of paragraph 22 of M. L. R.
115. The said regulation lays down that a joint holding cannot be partitioned unless each shareholder individually gets an area not less than of a subsistence holding. Subsistence holding has been defined in paragraph 2 sub-para (12) of the said Regulation. It means 12-- acres of land in the Province of Punjab. Thus an area of 13-- killas of land could not be partitioned as being contrary to para--graph 22 of M. L. R.
115. In other words, the petitioner even if wanted to help the complainant could not do so. Thus there were no reasons for accepting the bribe in the present case by the petitioner.
Moreover almost all the witnesses of the prosecution have stated that the baithak was not visible from the place where the Raiding Party was lodged. Thus the signal which was meant to be given by the complainant could not have been given at all. The tainted money was recovered from the floor. We have the testimony of Ch. Abdul Haq, Magistrate who had categorically stated that he did not himself see the tainted money being passed by the complainant to the petitioner. He did not even see the accused throwing the tainted money on the floor. It is also on the record that the Magistrate was assured by Abdul Sattar P. W. That he was friendly with the petitioner and that if he went to the baithak of the petitioner, he would not be suspected as being member of the raiding party. It has been held by this Court in a number of authorities that where tainted money is not passed on to the accused in the presence of a Magistrate and the Magistrate does not hear conversation between the parties before the raid, the possibility that the complainant may have talked on some other point as an excuse for passing the tainted money to the petitioner/accused cannot be ruled out specially as in the present case when the Magistrate even did not see the throwing of the tainted money by the petitioner on the floor as alleged by the prosecution. Reliance in this regard is placed on t Muhammad Bashir v. State (1972 P Cr. L J 836) and Manzoor Hussain Shah v. State (1978 P Cr. L J 885). Morever, Ghulam Shabbir and Abdul Sattar P. Ws. Are inimical toward the petitioner.
7. In view of the above discussion I hold that the prosecution has failed to establish its case against the petitioner. The conviction and sentence of the petitioner are set aside. He is set at liberty forthwith unless he is wanted in some other case.
This writ petition i3 accepted. There would be no order as to costs.