1. ' Muhammad Shaukat, Inspector, Lahore Development Authority was tried under sections 161, P.P.C.
2. And 5(2) of the Prevention of Corruption Act, 1947, by the Senior Special Judge, Anti-Corruption, Punjab, Lahore. The trial Judge, by judgment, dated 5-2-1984, found him guilty under section 5(2) of the Prevention of Corruption Act. He was sentenced to six months' R.I. And a fine of Rs,2,000 or in default of payment of fine to undergo six months' R.I.
3. ' The trial Judge further observed that the sentence was not to be executed until the expiry of period of appeal. The convict was allowed bail as well in the sum of Rs, 5,000 with one surety in the like amount.
4. ' Muhammad Shaukat appealed to this Court. As he was on bail, that was confirmed.
5. ' Muhammad Akhtar is the complainant against the appellant. His version was that the inhabitants of the Abadi had constructed eight shops adjoining the mosque in the village Kacha Kothay. The staff of the L.D.A. Used to come to the village off and on.
6. ' On 30-3-1981, as usual, the L.D.A. Staff came in a truck. They wanted to demolish the shops.
7. Muhammad Akhtar being a member of the Mosque Committee requested them not to do so. The staff insisted to demolish the property. Muhammad Akhtar resisted. According to Muhammad Akhtar he was taken into custody by the L.D.A. Nevertheless, demolition of the shops was postponed. Muhammad Akhtar was asked to sit in the truck of the L.D.A. While the truck was moving he was asked to shift from the rear seat to the front. It was there that the appellant demanded Rs,700 as illegal gratification and assured that thereafter the shops would not be demolished.
8. When this demand was made Ashiq Patwari was also sitting on the front seat and driver was on the wheel. Muhammad Akhtar expressed his inability to meet this demand as he had not the requisite amount with him at that time. He was asked by the appellant to come to his office on the next day. The payment was to be made either to the appellant or to Ashiq Patwari whosoever might be available. After the transaction had been finalised, Muhammad Akhtar was left off.
9. ' Muhammad Akhtar consulted the Mosque Committee about the line of action. They decided to report the matter to the Anti-Corruption Authorities. Muhammad Akhtar went to the Anti- Corruption Establishment Police Station. There he lodged report Exh. P.W.1/A. It was recorded by Ch. Wali Muhammad Inspector.
10. ' Thereafter, Muhammad Akhtar in the company of Ch. Din Muhammad Sub-Inspector and Wali Muhammad Inspector went to the District Courts where they produced him before a Magistrate.
11. The Magistrate recorded his statement (Exh.P.W.1/B). It was signed by him. Muhammad Akhtar showed seven currency notes of the denomination of Rs,100 each. The Magistrate noted their numbers. The currency notes were returned to the complainant to be passed on to the accused.
12. The Magistrate told the complainant about the signal which was to be given after the payment had been made.
13. ' Thereafter the party which consisted of Muhammad Akhtar, Magistrate, Sub-Inspector and Inspector proceeded to the office of Lahore Development Authority situated in the Court Street, Lahore. Muhammad Akhtar and the Magistrate went into the office while the Inspector and the Sub-Inspector remained outside. Akhtar alongwith the Magistrate went into the room of the staff of Estate Officer, L.D.A. Appellant was not present there. Another colleague of his by the name of Sadiq said that he would find out Shaukat and bring him. He then brought Shaukat. Muhammad Akhtar, Shaukat and Sadiq went to a canteen. This canteen is situated outside the L.D.A. Office near -the Courts of Special Judges, A.C.E. The Magistrate remained separate. The appellant ordered for three cups of tea. The Magistrate passed near them and occupied a seat on a bench close to three of them. He (Magistrate) got busy in reading newspaper. Shaukat asked for the money. He was offered Rs,600 instead of Rs,700. He took those six currency notes of Rs,100 each and said that he would not take the remaining one hundred. Shaukat held the money in his hand. The Magistrate stood up. He disclosed his identity. The accused threw the money. He tried to run away. The Inspector and the Sub-Inspector who were standing outside the canteen caught hold of him.
14. ' The Magistrate asked the appellant to pick up the money which he had thrown and hand over the same to him. The accused obeyed this order. Shaukat and Sadiq were then taken by the Magistrate to his Court in the District Courts. There the statement of Muhammad Akhtar was recorded by the Magistrate.
15. ' This is the entire incident connecting the appellant with the offence for which he has been convicted.
16. ' In order to prove this, prosecution examined Muhammad Akhtar, Ch.Din Muhammad Sub- Inspector, the Magistrate who carried out the raid, Muhammad Aslam who was running a shop near Shama Cinema and finally Ch. Wali Muhammad who was then Inspector, A.C.E. But when examined he had been promoted as D.S.P., F.I.A., Lahore.
17. ' The appellant denied all the allegations. He said that the amount was not recovered from him. It was lying on the ground, Muhammad Akhtar tried to offer the same but he refused. He furher said that he was involved because the complainant had raised a dispute in Kachay Kothay with him about the shops of the mosque and he wanted time for obtaining stay order against the demolition of the shops.
18. ' The appellant examined three witnesses in defence. Those are Muhammad Ashiq Patwari, Estate Branch, L.D.A., Muhammad Yaqub Bhatti, Naib-Tehsildar and Mistri Islamuddin, owner of the canteen opposite to the Court of Special Judge, Lahore.
19. ' Statement of Muhammad Akhtar has been mentioned above in detail. There is no need to repeat it.
20. ' Din Muhammad Sub-Inspector said that after the agreed signal had been given and the Magistrate disclosed his identity, Shaukat threw the currency notes and the Magistrate picked up those and counted them. Those were six currency notes. The witness further said that the currency notes were taken into possession vide memo. Exh.P.W.2/A. He deposed that another person sitting next to Shaukat was also examined by the Magistrate but he was released.
21. ' The Magistrate at first deposed about the passing of the currency notes to the complainant. Then he said as to how the raiding party and the accused were sitting. Another person accompanying the appellant was also present.
22. ' According to the Magistrate it was within his hearing that the appellant demanded the bribe from Muhammad Akhtar complainant. Muhammad Akhtar in response to that passed on six currency notes within the sight of the Magistrate but the 7th currency note was not given to the appellant.
23. The appellant was holding the currency notes in his hand when the Magistrate disclosed who he was. He called the police officers. The accused threw the tainted money. The Magistrate picked it up. He found that the currency notes were the same which he had given to the complainant after initialling them.
24. ' Muhammad Aslam said that he was present at the shop near the mosque when the accused alongwith Ashiq Patwari and others came to demolish the shops of the mosque. Muhammad Akhtar requested the accused not to do so. The accused demanded Rs,600 as bribe. Muhammad Akhtar said that he was unable to pay the said amount and requested for some time. The appellant agreed and told Muhammad Akhtar to come to his office. The money was to be paid either to him or to Ashiq Patwari. The accused then alongwith others went to his office.
25. ' In cross-examination, the witness said that when he was examined by the police he mentioned Rs,600 as the demand made by the appellant.
26. ' Ch. Wali Muhammad, D.S.P., F.I.A. Corroborated the statement of the Magistrate and the complainant.
27. ' Muhammad Ashiq Patwari appeared in defence. He said that he had gone to the spot alongwith Naib-Tehsildar and others where he found some encroachment. Some shops of the mosque were under construction and some area of the road was encroached.
28. ' Muhammad Yaqub Bhatti, Naib-Tehsildar (D.W.2) was Girdawar in those days. He formally approved report Exh.D.A/1.
29. ' Mistri Islamud Din (D.W.3) ran a canteen at a short distance from the Court of the Special Judge.
30. The canteen had two portions. The accused was present in the canteen. There were other persons with him. He did not see the appellant receiving any bribe or even throwing the amount on the ground.
31. ' Learnerd counsel who appeared in support of this appeal at first raised a legal objection that the trial Court was not competent to take cognizance of the matter as the appellant was not a public servant as envisaged by section 2 of the Prevention of Corruption Act, 1947. In support of this he relied on the Pakistan Criminal Law Amendment Act, 1958 section 2(b)--Definition of public servant.
32. ' When I asked the learned counsel as to whether this objection was taken before the trial Judge, his answer was in negative. He submitted that this is a law point and can be raised for the first time at this stage as well.
33. ' I don't think the submission is convincing. Even, otherwise, learned counsel has not been able to substantiate his stand by showing me any law or case-law whereby the appellant is not to be treated as a public servant. Therefore, this objection is repelled.
34. ' On merits, learned counsel contended that the case against the appellant was not free from doubt. The prosecution evidence was not consistent. It has not been proved that the money was actually taken by the appellant. According to the learned counsel, even the recovery was doubtful.
35. ' Learned counsel for the State supported the impugned judgment and wanted me to dismiss the appeal and uphold the conviction and sentence.
36. ' I have considered the submissions and have also examined the evidence. There are certain loopholes in the prosecution case. To begin with, the prosecution story was that a demand of Rs,700 was made. Then according to the evidence it came down to Rs,600. It was this amount which was passed on to the complainant. No explanation has been given as to what happened to the 7th currency note of Rs,100 which was initialled by the Magistrate and that was to be passed on to the appellant alongwith the remaining amount.
37. ' According to Muhammad Akhtar when the amount was thrown on the ground the Magistrate asked the appellant to pick up the money. The appellant picked it up and passed it on to the Magistrate. But according to the Magistrate and other police officers it was the Magistrate himself who picked up the money. Then it is in evidence that alongwith the appellant another man Sadiq was also arrested. The Magistrate later on let him off after his statement had been recorded.
38. ' The proceedings conducted by the Magistrate were in a very careless manner. At pages 3 and 5 of his report the time given was 10-30 p.m. And 11.46 p.m. Explanation given for this by the Magistrate was that this was written inadvertently. May be it is so but when an officer is deputed to carry out this type of raid he is not expected to be so careless. The Magistrate also admitted that he did not give the details of the conversation which took place between the appellant and the complainant at the time of raid. He also admitted that the details of the positions taken by other members of the raid-party were not mentioned in his report.
39. ' The proceedings by the Magistrate right from the beginning to the end were conducted in a haphazard manner. This type of evidence cannot form the basis for conviction. Element of doubt comes in. This appeal, therefore, must succeed.
40. ' I, therefore, set aside the conviction and sentence and acquit the appellant.
41. ' The appellant is on bail. He is discharged of his bail bond.
42. Appellant acquitted.