Mahmood Ahmad Khan, Canal Patwari, was tried for an offence under section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947, by the Special Judge, Anti-Corruption, Multan, Camp Montgomery, who convicted and sentenced him to undergo rigorous imprisonment for a period of three months.
2. The convict appealed.
3. Shortly stated, the facts of the case are that Ghulam Muhammad, who is an allottee of evacuee land in Chak No. 69-5-L had applied for the amendment of the warabandi because in the penal warabandi, no water was provided for his land. The appellant had demanded Rs. 40.00 as bribe earlier for preparing the warabandi and Ghulam Muhammad had paid him the amount. The application of Ghulam Muhammad is Exh. P. L. On the warabandi file and 15-4-1963 was the date fixed for hearing of the warabandi case. The appellant demanded a further sum of Rs. 30.00 as illegal gratification for doing the work for Ghulam Muhammad, who informed Anti-Corruption Police and was produced before Malik Karam Din Magistrate, who recorded his statement Exh. P. B.
Ghulam Muhammad produced three G. C. Notes of the denomination of Rs. 10.00 each and their numbers were noted down by the Magistrate. The G. C. Notes were returned to Ghulam Muhammad and he was directed to contact the appellant to pay him the bribe money. Ghulam Muhammad went to the office of the Executive Engineer, Irrigation, Montgomery, on 15-4-1963 followed by the Magistrate and the S. I. Police, Malik Karam Din Magistrate directed his peon Muhammad Bashir and F. C. Jan Muhammad to go and watch the transaction and give the signal after the passing of the tainted money to the appellant. The Magistrate found the appellant talking to Ghulam Muhammad and Abdur Rahman outside the office in the- lawn. F. C. Jan Muhammad gave the agreed signal after a short while and Malik Karam Din rushed to the spot, disclosed his identity and recovered marked currency notes, whose numbers were noted in the raid-report. The Magistrate recorded the statements of Ghulam Muhammad and Abdur Rehman. He also recorded the statement Exh. P. G. Of the appellant. The warabandi file was taken from the Executive Engineer's Office and the papers were handed over to the police; who registered the case and sent up Mahmood Ahmad Khan for trial which ended in his conviction as stated by me earlier.
4. When the allegation was put .To Mahmud Ahmad Khan, he denied its correctness and offered to show cause. The appellant explained that on the day of the raid, he was present in the office of the Executive Engineer and was taken aside by P. W. Abdur Rehman. He was given & beating by Abdur Rehman and Ghulam Muhammad and that the Magistrate accom--panied by the police reached the spot, but no recovery was effected from him and in fact Abdur Rehman had presented the currency notes before the Magistrate.
5. The prosecution examined as many as seven witnesses in support of their case. The material evidence against the appellant is that of Malik Karam Din Magistrate (P. W. 1), Ch. Abdul Aziz (P. W.
2), Ghulam Muhammad (P. W. 3), Abdur Rehman (P. W. 4), Muhammad Bashir (P. W. 5) and S. I. Ch. Muhammad Siddique, A. C. E. (P. W. 6).
6. The appellant when examined at the close of the prosecution evidence at the trial denied that he demanded or received any illegal gratification from the complainant and maintained that the currency notes Exhs. P. 1 to P. 3 were not recovered from him, but were produced by Abdur Rahman P. W. The appellant admitted that the order Exh. P. O./A. Dated 18-3-1963 was correct. He denied having prepared any warabandi in compliance with this order owing to the dispute raised by the complainant-party. The appellant submitted that the warabandi Exh. P. N. Was prepared by Rehmat Ullah Patwari under the verbal orders of Faiz Muhammad Zilladar. The appellant had signed it on 8-4-1963. The appellant denied having made the statement Exh. P., G. To the Magistrate, though he admitted that the signatures at Exh. P. G/1 was his. When called upon to explain why he had been implicated in the case, the appellant came forward with the statement, which is reproduced below for the. Sake of convenience :- "As the complainant-party wanted me to prepare a warabandi according to their wishes and as I refused to do so, so they picked up a quarrel with me and got me involved in this case."
7. No evidence was produced in defence.
8. There is the statement of Ch. Abdul Aziz, Head Vernacular Clerk, on the file, from which it is amply clear that the new warabandi was prepared by the appellant and that Rehmat Ullah Patwari had checked it. The new warabandi was prepared for the approval of the Executive Engineer.
Undoubtedly, Exh. P. O/1 is the Zilladar's order dated 18-3-1963, whereby the appellant was directed to prepare the amended warabandi before the date fixed, but Ch. Abdul Aziz tells us that the entire warabandi Exh. P. N. Is in the handwriting of Rehmat Ullah Patwari. However, the signatures appearing on the warabandi Exh. P. N. At P. N/2 are of the appellant. In view of the evidence of Malik Karam Din Magistrate, peon Muhammad Bashir and S. I. Ch. Muhammad Siddique, A. C. E., it is affirmatively proved that the three G. C. Notes of the denomina--tion of Rs. 10.00 each were recovered from the appellant. Mere recovery of the money from the possession of the appellant will not be enough to fix him with the guilt as it has to be shown that he actually accepted the amount knowing it to be illegal gratification. See Ansar Ali Mia v. The State (PLD 1961 Dacca 806).
9. We now proceed to examine if there is sufficient evidence to prove that the appellant received the sum of Rs. 30.00 as illegal gratification from the complainant. Ghulam Muhammad fully implicated the appellant in his statement, but his evidence is that of an accomplice and it cannot be accepted much-less acted upon without its corroboration from an independent source. It has been laid down in Maqbool Husain v. The State (PLD 1957 Lah. 903) as under :- "Giving the bribe is just as much offence as taking it. For that reason, the agent provocateur who passes the bribe is an accomplice, and according to the well settled principle of law, he must receive corroboration from some independent source, before he is accepted as a true witness."
In the instant case, Abdur Rahman, who was produced to corroborate the story narrated by the complainant was a party to the warabandi proceedings, which were initiated by the com-- plainant. He also attended the office of the Executive Engineer, Montgomery, to appear in the warabandi case. He stated that Ghulam Muhammad told him that the appellant was demanding Rs. 30.00 from him as bribe. Ghulam Muhammad then took the appellant aside and gave Rs. 30.00 to Abdur Rahman' and he made over the amount to the appellant, who put the money in his pocket. Abdur Rehman admitted that when he and Ghulam Muhammad had offered the money to the appellant, he was sitting near an electric pole and was writing something. Abdur Rehman continued that Ghulam Muhammad gave him the currency notes and he offered the same to the appellant, but the currency notes were still in his hand when he saw the Magistrate coming towards him and the witness threw down the currency notes on the knees of the appellant. Abdur Rehman was con--fronted with his earlier statements Exhs. P. F. And P. O. By the trial Judge, who decided to prefer the same over his statement in Court. Abdur Rehman goes on to state that he was not in a position to say wherefrom actually the G. .C. Notes were picked up by the Magistrate.
Abdur Rahman is proved to be biased against the appellant inasmuch as he admitted that the land of his sister's husband is also situated on the same watercourse on which his land is situate and the appellant being the village Patwari had tried to create trouble between Abdur Rehman and his brother-in-law over the nikal of water. In view of the inconsistent position adopted by Abdur Rehman in his statement at the trial, he was allowed to be cross-examined by the prosecutor in the light of the statements which he had made before the Magistrate and the S. D. O.
Canal earlier, wherein he had stated that he handed over the currency notes to the appellant which were recovered from his pocket, the trial Court preferred to rely on the earlier statements of Abdur Rehman wherein he had said that he handed over the tainted money to the appellant and it was recovered from his pocket. Even the complainant did not say as to wherefrom the currency notes were actually recovered. He was not in a position to affirm whether the same were recovered from the pocket or the hand of Mahmud Ahmad Khan appellant. The witness explained that by the the, the Magistrate and the S. I. Rushed to the spot and apprehended Mahmood Ahmad Khan, the witness was looking towards them and did not see the Magistrate in the at of recovering the currency notes.
I have considered over the evidence of the complainant and his witness Abdur Rehman and feel that there are material inconsistencies which make the same unacceptable. I feel that it is not safe to sustain the conviction of the appellant because if Abdur Rehman, who is a biased witness, could resile from his earlier statement when under examination at the trial, there is no sanctity left about his statement which he made either to the Magistrate conducting the raid or the S. D. O. Canal during the enquiry. It is not understood why the complainant agreed to the payment of bribe to the appellant knowing that the warabandi Exh. P. N. As stated by Ch. Abdul Aziz, was prepared by Rehmat Ullah Patwari and was in his handwriting. If Abdur Rehman was capable of telling a lie in Court, he could as well tell a lie on a recovered point even in his statement before the Magistrate who was present at the the of the raid or the S. D. O. Canal, who recorded his statement during the enquiry. The new warabandi had been prepared on 3-4-1963, and Ch. Abdul Aziz tells us that after the submission of the new warabandi, the Patwari had nothing to do and the rest was to be done by the Executive Engineer. The solitary statement of Abdur Rehman in corroboration of the accomplice evidence, which is discrepant in material particulars, does not inspire con--fidence. It is not possible to hold with judicial certitude that the appellant demanded or received or was actually paid Rs. 30.00 as illegal gratification by the complainant through Abdur Rehman whose testimony has many unsatisfactory features and cannot be safely relied on to maintain conviction.
10. In conclusion, I accept the appeal, set aside the conviction and the sentence passed on Mahmood Ahmad Khan and giving him the benefit of doubt proceed to acquit him. He is on bail and his bail-bond shall stand cancelled.