' Anwar Javed (23) appellant, an employee (Junior Clerk) of the Settlement Office, located at Faridkot House, Lahore, was tried by the learned Special Judge, Anti-corruption, Lahore, for offences punishable under sections 161, P.P.0 and 5(2) of the Prevention of Corruption Act, 1947.
2. The learned trial Judge vide his judgment dated 7-12-1981 convicted the appellant under section 161, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to two years' R.I and a fine of Rs,500 or in default six months' further R.I.
3. He has challenged his conviction and sentence through the present appeal.
4. The allegations against the appellant were that he demanded illegal gratification amounting to Rs,200 from Muhammad Munir Bhatti (P.W.5) who had approached him to show favor in connection with the issuance of separate P.T.D. in favour of Muhammad Hussain, husband of his niece. Muhammad Munir Bhatti promised on 23-8-1981 to pay the demanded amount to the appellant on the following day through his servant Roshan Masih (P.W.3).
5. Muhammad Munir Bhatti and Roshan Masih aforesaid, however, approached Anti-Corruption Establishment and informed them about the demand of the appellant. Pirzada Shah Mahmood (P.W.4) the then Inspector in Anti-Corruption Establishment recorded their statements and produced them before Mr. Abdul Matloob Khan, MAX. Lahore (P.W.1). The learned Magistrate recorded statements Exhs.P.B and P.0 of Roshan Masih and Muhammad Munir Bhatti respectively.
He also gave tainted currency notes of Rs,100 denomination and two of Rs,50 denomination each.
Raiding party thereafter went to Farid Kot House. The Magistrate, Shah Mahmood Inspector, another Inspector of Anti-Corruption Establishment and two Constables, waited outside the office room of the appellant. Muhammad Munir Bhatti was also present there. Roshan Masih P.W. went inside the room and passed on the tainted currency notes to the appellant within the sight of the Magistrate. On his signal, the raiding party proceeded to go inside the room but Arif Ali co- accused, who has since been acquitted, shouted that the Magistrate had come. The appellant consequently put the tainted currency notes in his almirah and slipped away from his office room after locking the almirah.
6. The admiral was broke opened in the presence of Mr. Mahmood Ahmad Qureshi, the then Deputy Settlement Commissioner (P.W.2). Tainted currency notes Exh.P.1-3 were recovered from the admiral which were taken into possession vide memo. Exh.P.K. Another amount of Rs,200 was also recovered from the admiral which was handed over to Mr. Mahmood Ahmad Qureshi, who subsequently gave the same to one Mozammal Khan, an employee of his office as the amount belonged to him.
7. Mr.Abdul Matloob Khan, M.I.C. Lahore (P.W .1); Mr. Mahmood Ahmad Qureshi, Deputy Settlement Commissioner (P.W.2), Roshan Masih (P.W.3), Shah Mahmood, Inspector, Anti-Corruption Establishment, Lahore (P.W.4) and Muhammad Munir Bhatti (P.W.5), testified at the trial as prosecution witnesses.
8. The appellant did not plead guilty to the charge. He pleaded that he was falsely involved in the case on account of misunderstanding and departmental conspiracy. He examined Muhammad Zaheer-ud-Din Ahmad, Accountant of the Office of Chief Settlement Commissioner, as D.W.1 and Dr.Abdur Rashid of Mayo Hospital, Lahore as D.W.2.
9. Roshan Masih (P.W.3) did not support the prosecution case. He was declared as hostile witness and cross-examined at length on behalf of the prosecution. He deposed that he was personal servant of Muhammad Munir Bhatti at his shop and that he appeared as witness at his instance.
He stated that he did not identify the appellant as the person to whom he allegedly paid any amount. He could not say as to whether at the time of raid, the appellant was in fact present in that office room or not. According to him, 4/5 persons were present in that room. Muhammad Munir Bhatti stated that he accompanied by his relative Muhammad Hussain approached the appellant in his office when he demanded an illegal gratification and that Muhammad Hussain had promised him to send the demanded amount on the following day through Roshan Muhammad Hussain who allegedly was to obtain separate P.T.D. from the Settlement Office has not been produced by the prosecution to support their case. Muhammad Munir Bhatti admitted that on the day when raid was. conducted he did not personally see the appellant in the Settlement Office at Faridkot House, although when he accompanied by Magistrate entered the office room of the appellant, 3/4 officials were present in that room but the appellant was riot present there. He also admitted that in his presence, the appellant did not demand illegal gratification from Muhammad Hussain.
10. In the above circumstances, Roshan Masih and Muhammad Munir Bhatti who were the important witnesses in this case have not supported the prosecution case at all. Mr. Abdul Matloob Khan, M.I.C., however, has stated that within his sight, Roshan Masih P.W. had paid the amount comprising of the tainted currency notes to the appellant on the day when the raid was conducted. He further stated that when they wanted to enter the room, the appellant ran away as Arif All had shouted that the Magistrate had come. But before slipping away, he placed the tainted currency in the admiral and locked the same. According to the Raiding Magistrate, at the time of raid, none was present inside the room in question besides the appellant and Arif Ali. He deposed that the admiral was searched by Shah Mahmood, inspector and he brought out the tainted currency from to said almirah. He denied that besides. the tainted currency, another sum of Rs,200 was recovered from the almirah. Mr. Mahmood Ahmad Qureshi, Deputy Settlement Commissioner, however, has categorically stated that besides the tainted currency, another amount of Rs,200 was recovered from the almirah which he subsequently paid to Muhammad Mozammal, another 'Junior Clerk, employed in that office. According to Mr. Mahmood Ahmad Qureshi, the almirah in question was used for keeping records by the appellant as well as by Muhammad Mozarnmal Shah Mahmood (P.W.4) contradicted the statement of Mr. Abdul Matloob Khan, M.I.C. and stated that the search in the almirah was conducted by Mr. Abdul Matloob Khan and not Iv Shah Mahmood. He further stated that the tainted currency was brought out from the almirah by the Magistrate.
11. Zaheer-ud-Din Ahmad (D.W.1) disclosed that along with four Junior Clerks, including the appellant, he used to sit in the room in which raid was conducted. He disclosed that on 24-8-1980 i.e, the day on which raid was conducted, the appellant had obtained short leave for two hours at about 9-00 a.m. through application Exh.D.A. from this witness as he developed some stomach trouble. Dr. Abdur Rashid testified that on 24-8-1980 he examined the appellant who was suffering from gastro-enititis, administered medicines to him and issued certificate Exh.D.B. to him.
According to Dr. Abdur Rashid, the appellant had approached him on 24-8-1980 at 9-30 a.m. No file or record relating to the case of Muhammad Husain has been taken into possession by the prosecution to show that actually Muhammad Hussain or Muhammad Munir Bhatti had applied to obtain separate P.T.D. for Muhammad Hussain and that the appellant was the dealing Clerk vis-a- vis his application.
12. It does not sound reasons that the appellant could possibly arrange to put the tainted currency notes in the almirah, lock it, and thereafter to slip away in a short duration in which the Magistrate after witnessing the passing of the tainted currency, notes to him by Roshan Masih entered his office room. Shah Mahmood, Inspector, has stated that he did not witness personally the passing of tainted currency notes by Roshan Masih to the appellant.
13. In Talib Hussain and another v. The State 1981 P Cr. L J 1086, complainant did not support the prosecution case. The Police officials participating as members of the raiding party were not examined by the prosecution. It was held that conviction could not be based on the solitary evidence of the Raiding Magistrate. In that case, the Raiding Magistrate, claimed that he had heard talk between decoy witness and the accused.
14. In the present case, however, it has been admitted that the Magistrate and the other members of the raiding party could not hear the talk between Roshan Masih and the appellant.
15. In view of the short-comings enumerated above, the prosecution has utterly failed to bring home the guilt, to the appellant beyond reasonable doubt.
16. In this view of the matter, the appeal is allowed, the appellant's conviction and sentence is set aside and he is acquitted. He is already on bail. His bail bond stands discharged.