Shamshad Ahmad and Noor Ullah were tried by the Special Judge, Anti-Corruption, Lahore, under section 420/467/46$, P. P. C. And section 5(2) of the Prevention of Corruption Act, 1947, for abusing their position as public servants and cheating and fraudulently obtaining large amounts from Muhammad Saleem, Muhammad Ajmal and Khair Din P. Ws. The learned trial Judge, by his judgment dated 1-.8-1978, convicted both the accused under section 420, P. P. C. And section 5(2) of the Prevention of Corruption Act, 1947. They were accordingly sentenced to suffer rigorous imprisonment for five years each and to pay a fine of Rupees Fifty Thou--sand (Rs. 50,000) each, in default of payment of fine they were ordered to undergo rigorous imprisonment for one year and nine months. A sum of Rs. 5,000 produced by Khair Din P. W. During investigation of the case to the appellants, was ordered to be returned to him. The joint appeal of the convicts is now before me for disposal.
2. The brief facts of the case are that in the month of July, 1976, one day Ata Muhammad P. W. 8, a Sub-Inspector of the Crimes Branch, Lahore, went to Yaseen Hotel, Old Anarkali, Lahore. He had a headache and wanted to take Aspro. On a table close-by, Noorullah and Shamshad Ahmad accused were sitting along with three other persons. Ata Muhammad P. W. 8 overheard one of the three persons saying to the accused that he and his companions had paid Rs. 39,000 for the allotment of the land to the accused, but they had not received any order as yet. The accused Noor Ullah and Shamshad Ahmad told them that they would get the order soon and such an order would be sent to the D. C., Bahawalpur, from where they had applied to the Board of Revenue. One of those three persons, whose name later on was known to be Muhammad Ajmal P: W. 5, told the accused that he too wanted the allotment of ten squares of land and the accused told him that he would have to give them Rs. 10,000 for such an order. Ch. Ahmad Hasan P. W. 11, who was then Inspector of the Crimes Branch, was investigating a case of this type, therefore, Ata Muhammad S.
1. P. W. 8 became suspicious and he introduced himself to the persons sitting. He enquired from the persons the nature of the case, who gave him the details. Accused Noorullah managed to slip away on the pretext that he had to produce an important document before the Chief Minister of the Punjab. However, the other persons were taken to the Crimes Branch where Muhammad Saleem P. W. 4 made statement P. D. He deposed that he belongs to Ahmadpur Sharqia and was a cultivator. About 1 J years back it was given out that the Government was allotting half a square of land to each non-owner cultivator in the Bahawalpur District. The land was to be allotted by the Board of Revenue. Noorullah accused, who was an employee of the Board of Revenue, happened to visit Bahawalpur in some official connection. Muhammad Saleem P. W. 4 contacted Noor Ullah accused. The accused Noorullah told him that he should collect money from about 150 persons for the allotment of one village and then a consolidated application should be made to the Board of Revenue. He promised to get the land allotted to each person after getting Rs. 300 from each person. Muhammad Saleem P. W. 4 then contacted his relatives and friends and a list of 150 persons was prepared. He along with Khair Din P. W. 6 then came to Lahore. He contacted Noor Ullah accused, who told him to secure lodging in Delhi Muslim Hotel, Anarkali, Lahore, where he would see them along with his companion Shamshad Ahmad. Noorullah and Shamshad Ahmad accused came to Delhi Muslim Hotel as promised, where an amount of Rs. 13,000 was paidto the accused. The accused told him that within that week, land of Chak No. 25/DN would be allotted to them. Muhammad Saleem P. W. 4 and his companions were further informed that they should arrange for the balance also. After a few days, Muhammad Saleem P. W. 4, along with Khair Din P.
W. 6, Noor Ahmad and Haji Khuda Bakhsh came to Lahore and paid Rs. 26,000 to the accused in Khan Hotel situated in Old Anarkali. On the query why allotment order had not been issued so far, Noor Ullah accused told that he had done his level best, but the Member, Board of Revenue, was not available, therefore, allotment order could not be issued. The matter lingered on for six months, but on the express demand of Muhammad Saleem and his companions, a photostat copy of the order purporting to be of the Board of Revenue was given to Muhammad Saleem and others. This photo copy of the order was said to have been issued by Zakaullah Naik, Deputy Secretary, to the Deputy Commissioner, Bahawalpur and direction was given in it that the Deputy Commissioner should start allotment to the persons shown in the enclosed statement, under the terms of Abadkari Scheme. Later on, during the investigation of the case, Khair Din P. W. Produced Rs.5,000 on 10-7-1976 before the Investigating Officer claiming that this amount had been given back by Noorullah accused, who has also promised that he would return the remaining amount if the case was dropped against the accused.
3. The statement Exh. P. D. Of Muhammad Saleem P. W. 4 was recorded by Ch. Ahmad Hassan Inspector P. W. 11 at the Crimes Branch, Lahore. On the basis of the said statement, formal F. I. R. Exh.
P. D/1 was recorded at Police Station, Old Anarkali, Lahore. Relevant files and papers were taken into possession by the Investigating Officer. After completing the investigation, a challan against the petitioners was filed. At the trial, the prosecution produced Muhammad Saleem P. W. 4, Muhammad Ajmal P. W. 5, Khair Din P. W. 6 and Noor Ahmad P. W. 7 in support of the ocular testimony, Dilawar Ali P. W. 1 and Maqbool Ahmad P. W. 2 to prove the delivery of relevant files connected with the case to the Police. M. Zakaullah P. W. 3 in support of the forgery of his signatures on the letter Exh. P. A/1 and the remaining witnesses in respect of the investiga--tion conducted in the case. Both the accused denied the accusations levelled against them and imputed their involvement to party-faction. They produced three persons in their defence.
4. The learned trial Judge, relying upon the ocular account and the documentary evidence, convicted and sentenced the two accused, as stated in para. 1 above.
5. I have beard the arguments of the learned counsel for the appellants and the State and have also perused the record. The basic case of the prosecution is that the prosecution witnesses who were residents in the Bahawalpur Division were interested in securing land in the Cholistan area on Abadkari terms. Mushtaq Hussain, Muhammad Saleem P. W. 4 and Khair Din P. W. 6 and others had submitted application to the Deputy Commissioner, Bahawalpur, in the said respect. On 26-10-1974 the Deputy Commissioner, Bahawalpur had submitted a proposal Exh. P. A/3 to the Board of Revenue for sale of State land in two Chaks of Tehsil Bahawalpur to the said applicants. In November, 1974, the said proposal was dealt with in the Colonies Department, as is apparent from notes Exhs. P. A/4 and P. A./5, where it was observed that the question of outright sale on Abadkari conditions could not be permitted as the said Scheme had been abandoned since long. However, on 5-3-1975 a forged letter Exh. P. A/1 pur--porting to be signed by Mr. Zaka Ullah Naik, Secretary (Colonies), Board of Revenue, found its way to the office of the Deputy Commissioner, Bahawalpur, wherein it was stated that the Board of Revenue had approved the proposal of the Deputy Commissioner as contained in his letter dated 26-10-1974 with regard to the application of Mushtaq Hussain, Muhammad Saleem P. W. 4, Khair Din P. W. 6, etc. And that the Deputy Commissioner could start allotments to the persons shown in the enclosed statement, under the terms of the Abadkari Scheme. On 23-4-1975 the Deputy Commissioner, Bahawalpur wrote a letter Exh. P. A./6 to the Secretary (Colonies), Board of Revenue, requesting him to confirm if the letter Exh.
P. A./1 dated 5-3-1975 had actually been issued by his office. In June, 1975, the Secretary (Colonies) wrote to the Deputy Commissioner, Bahawalpur regarding the earlier letter dated 26-10-1974 and observed that as the Abadkari Scheme had already been abandoned in 1963, no allotments under the said defunct Scheme could be made to the applicants, namely, Mushtaq Hussain, etc. And that they should be informed that they could obtain the land on temporary cultivation leases from the Local Authorities concerned. As regards the Deputy Commissioner's letter Exh. P. A./6 dated 23-4- 1975, the Board of Revenue directed the Deputy Commissioner, Bahawalpur, to lodge a case against Mushtaq Hussain, Muhammad Saleem P. W. 4, Khair Din P. W. 6, etc., in respect of the forged letter, as these persons were the applicants who were to be benefited by the said letter and may be aware of the forgery. Accordingly, a case was registered by the Assistant Commissioner, Bahawalpur, against the said persons. It is the prosecution case that in their attempt to secure land on Abadkari term, the prosecu--tion witnesses happened to meet Noor Ullah Noor, appellant, first in Bahawalpur, -who promised to assist provided that 150 persons were got together to secure the allotment of a Chak and Rs. 300 each was paid to a person in Lahore who would assist in the matter in the Board of Revenue. Thereafter it appears the witnesses came to Lahore on a number of times and on one occasion paid Rs. 13,000 to the appellant and on another Rs. 26,000 to the appellants and finding their work not done, they came a number of times to receive satisfaction, when on 2-7-1976, whilst sitting at Yasin Hotel, Old Anarkali, with the appellants, they were approached by Atta Muhammad S. I. P. W. 8, who had overheard their conversation, whilst sitting at the adjacent table, and who took them to the Police Station, where the underhand game of the appellants came to the know--ledge of the Police. Apparently the prosecution witnesses are neither related to each other nor inimical to any of the appellants nor have any motive to falsely implicate them. Unfortunately, no amount was paid by an of the prosecution witnesses to any of the appellants before any Magistrate. A In the absence of any trap raid, the evidence of the appellants that the passed such huge amounts to the appellants, who were not working in the Colonies Department, will have to be appraised with some care and caution. According to the statement Exh. P. D. Made by Muhammad Saleem P. W. 4 on 2-7-1976, he had come to Lahore 1 J years prior to the said date with Khair Din P. W. 6 and paid Rs. 13,000 to the appellants. A week thereafter, which would be about 9-1-1975, he again came to Lahore with Khair Din P. W. 6 and paid Rs. 26,000 to the appellants. Six months thereafter, which would roughly be 9-7-1975, he came to Lahore and obtained' the photo copy Exh. P. C. Of the forged letter Exh. P. A/1 from the appellants. At the trial, when he gave evidence on 26-10-1977, he stated that about two years before the said date, i.e. on or about 26-10-1975, he had met Noor Ullah appellant in Bahawalpur, where he was informed how to secure the lands and what payments be would have to make. Six months thereafter, which would be about 26-4-1976, he came to Lahore for the first time and 10/15 days later, which would be about 10-5-1976, he again came to Lahore with Khair Din P. W. 6 and I -id Rs 13,000 to the two appellants. According to his statement, he again came to Lahore after 10/15 days and then again came after another 10/15 days with Khair Din P. W. 6 and Noor Dm P. W. 7 which, would be about 9-6-1976, when he paid Rs. 26,000 to the two appellants. And then after another 20125 days, which would be about 2-7-1976, be came to Lahore with Ajmal P. W. 5 and Noor Ahmad P. W. 7 and obtained the photo copy Exh. P. C. Of the forged allotment order Exh. P. A/1. Muhammad Ajmal P. W. 5 who gave evidence at the trial on 13-11-1977 stated that 1 I years prior to his giving evidence, which would be about 13-8-1976, he came to Lahore with Muhammad Saleem P. W. 4 and Noor Ahmad P. W. 7 and paid Rs. 39,000 to both . The appellants at Yasin Hotel, when all of a sudden Rana Atta Muhammad S. I. Crimes Branch P. W. 8 came up to them, introduced himself and apprehended them. He also stated that he again visited Lahore on 10-7-1976, when Noor Ullah appellant returned Rs. 5,000 to Khair Din P. W. 6 and promised to return some more money later. He further stated that Khair Din produced this money before the Inspector, Crimes Branch, who took it into possession, vide recovery memo Exh. P. F. Khair Din P. W. 6 who gave his evidence at the trial on 13-11-1977 stated in cross-examination that he met Nazir Ahmad clerk of the D. C. Office in Bahawalpur about 1f years before the registration of the case, where he and Muhammad Saleem P.
W. 4 met Noor Ullah appellant, who told them the method of securing the allotment of land, subject to the payment of Rs. 300 per person to him. According to his cross-examination, fifteen days thereafter, which would roughly be on 17-4-1975, he and his companion paid Rs. 13,000 to the appellants. According to his cross-examination, fifteen days there--after, which would be 2-5-1975, they again came to Lahore when Rs. 26,000 were paid to the appellants. After six months thereafter, they came to Lahore and received photo copy Exh. P. C. Of the forged allotment letter Exb. P. A/1. He also stated that they again came to Lahore when Rs. 5,000 were returned by Noor Ullah appellant.
In cross-examination he also stated that the F.
1. R. In the present case was registered after six months of the payment of Rs. 26,000. If according to his earlier statement Rs. 26,000 was paid on or about 2-5-1975, the F. I. R. Should stand registered on 2-11-1975, whereas it was registered on 2-7- 1976. Noor Ahmad P. W. 7 who gave evidence at the trial on 11-12-1.977 stated that he came to know about the scheme of allotment 7/8 months prior to his appearing in Court, which would place the time round about 11-4-1977. He did not give the specific dates when the two amounts were paid to the appellants. From the cumulative testimony of these witnesses, it is clear that they are poles apart as regards the time when the two large amounts of Rs. 13,000 and Rs. 26,000 were paid to the appellants. Muhammad Ajmal P. W. 5 B on the contrary submits that Rs. 39,000 were actually paid to the two appellants about a year and a quarter before the date he gave evidence, which would be about 13-8-1976, when they all were taken to the police station by the Police. One appellant was apprehended by the Police on 2-7-1976. It cannot be forgotten that after the forged letter Exh. P. A./1 was issued in March, 1975, and its forgery discovered a month later and the Board of Revenue also turned down the petitioner's application for securing land on Abadkari Scheme in June, 1975 (See Exh. P. A/7) there C appears to be no occasion why any of the prosecution witnesses should have thereafter come to Lahore to bribe the appellants with' such large sums of money, knowing full well that they were not going to get the land on outright sale under the Abadkari Scheme. The letter Exh.
P. A./7 from the Secretary (Colonies), Board of Revenue, to the Deputy Commissioner, Bahawalpur, which stated that the Doputy Commis--sioner's proposal with regard to the applications of Mushtaq Hussain, Muhammad Saleem P. W. 4, Khair Din P. W. 6 etc., regarding purchase of land on Abadkari Scheme could not be made to them and that the Deputy Commissioner was requested to inform the applicants that the could apply to the Local Authorities concerned for obtaining land on temporary cultivation leases, I would assume that the applicants were apprised of this situation by the Deputy Commissioner and I doubt therefore, that they would have made any such large payments after June or July, 1975. Since the evidence of the prosecution witnesses is so discrepant about the number and nature of their visits to Lahore and the dates of payment of the two large amounts to the appellants, I do not consider their testimony reliable or inviting confidence. The fact that when Noor Ullah, appellant, wanted to return some money to the witnesses, they received the same without informing the Investigating Officer or arranging a trap-raid, shows that at least this part of the story is incorrect. It cannot be for--gotten that when the Board of Revenue called upon the Deputy Commissioner, Bahawalpur, some time in May, 1975, to take legal action agains'
Mushtaq Hussain, Muhammad Saleem P. W. 4, Khair Din P. W. 6 etc., that the petitioners may also have got wind of the case and in their desire to rid themselves of any prosecution, they agreed to subscribe to any story at the instance of the Police, cannot be totally excluded. For all these reasons, I cannot safely accept the testimony of these witnesses to convict the appellants. May be the appellants are the true persons who set the ball rolling, duped unwary villagers and made some money out of them and also perhaps directly or indirectly responsible to set in motion the forged letter Exh. P. A/1, but the eye-witnesses not having come forward at an early date to complain against their misdeeds, but only when an inquiry was initiated to trace out the culprits who had caused the forged letter Exh. P. A/1 to issue and legal action was initiated against then, makes it very difficult for me to accept their testimony without some reservation. In these circumstances, the appellants are entitled to the benefit of doubt.
6. For the foregoing reasons, the conviction and sentences of the appellants are set aside. The appellants are on bail. Their bail bonds shall stand discharged. Fines, if any recovered from them, shall be refunded to them.