The appellant who was the Patwari of circle Gulab Ali in Tehsil Bahawalnagar, was convicted by Mahar Sher Muhammad Sial, Special Judge Anti-Corruption, Multan under section 161 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. He was sentenced to a fine of Rs. 250 and in default of payment of fine was directed to undergo rigorous imprisonment for four months.
2. The facts on which his conviction is grounded are these: Mst. Mahfoozan, the mother of Muhammad Afzal (P. W. 5) had been allotted some land in the Border Area. It was cancelled and was proposed for allotment to one Isa. Muhammad Afzal complainant who also happens to be the Mukhtar of his mother, filed an application which is Exh. P. 1 on this record. The Revenue Assistant marked it to the Tehsildar and the Tehsildar in his turn passed it on to the Girdawar. The Girdawar made an endorsement on 17th of August 1964, asking the Patwari to make an enquiry and re-allot the land if the allegations made in the application were correct.
3. Muhammad Afzal P. YV. contacted Abdul Majid P. W. 6 an S. I. of the Anti-Corruption Department on 23rd of September 1964, and complained to him that the appellant was demanding illegal gratification for making a report. The Sub-Inspector approached the Additional District Magistrate who deputed Mr. Fateh Muhammad (P. W. 2) the Treasury Officer and a Magistrate of 2nd Class, Bahawalnagar to proceed with the matter. Muhammad Afzal appeared before Mr. Fateh Muhammad and stated that the Patwari was demanding a sum of Rs. 40 as bribe and that he had paid him Rs. 25 on 6th of July 1964, in the presence of Muhammad Shafi and that when he approached the Patwari that morning, he insisted on the payment of the balance. Muhammad Afzal produced two currency notes before the Magistrate one of the denomination of Rs. 10 and the other of the denomination of Rs.
5. The Magistrate took down their numbers and returned the notes to Muhammad Afzal for passing them on to the Patwari.
4. The raid party consisted of Muhammad Afzal complainant, Mr. Fateh Muhammad (P. W. 2), Muhammad Shafi (P. W. 3) and Ch. Abdul Majid S. I. (P. W. 6). They proceeded towards the house of the appellant in Bahawalnagar. The Magistrate and the S. I. waited in the house of the Excise Inspector which is opposite to the house of the appellant. Muhammad Afzal went into the house and passed on the bribe while Muhammad Shafi stood out. After passing on the money to the appellant, Muhammad Afzal signalled to Muhammad Shafi who was standing outside. Muhammad Shafi informed the raid party. The Magistrate came to the house of the appellant, disclosed his identity and enquired whether he had received Rs. 15 as bribe from Muhammad Afzal. The appellant denied the receipt of bribe but maintained that he had received Rs.15 in lieu of the copying fje of Khasra Girdawari and R. L. II issued about seven or eight months earlier. When questioned by the Magistrate as to where were the roznamcha waqiati and the register relating to the issuance of the copies, the appellant stated that they were in his circle i. e., at village Gulab Ali.
The Magistrate, however, took hold of roznamcha waqiati, roznamcha Karguzari and register regarding issuance of copies. The last entry in the register of copies was 27-6-63 and the verification of the register by the wasilbaqi navis was dated 28-11-1963. The last entry in the roznamcha waqiati was dated 12-6-1964 and the last entry in the roznamcha karguzari was dated 10-8-1964. The complainant denied that he had received any copies from the Patwari for which he owed Rs. 15 to him. He produced before the Magistrate a copy of khasra girdawari retating to Mauza Udepur which was dated 18-11-1963, and the cost of which was noted as Rs. 2.25. He further stated that he had paid Rs. 25 for that and that he had not received any copy of R. L. II etc.
5. At the trial, the appellant changed his position with regard to the time of issuance of the copies in lieu of which he had received a sum of Rs.
15. He stated that the copies had actually been issued on 5-9-1964 and produced Nur Muhammad Patwari (D. W. 2) in his defence. The said Patwari produced a roznamcha which started from 31-8-1964 and contained an entry dated 5-9-64 regarding the delivery of copies of khasra girdawari and R. L II etc., to Muhammad Afzal. The appellant also produced defence to show that Muhammad Afzal was associated with the case of one Khan Muhammad which was pending before the Border Committee in which the Border Committee had issued notice to Khan Muhammad to show cause why he should not be proceeded against for filing a false application. Ghulain Nabi (D. W. 3) appeared to show that the appellant had made a report that the sum of Rs. 15.13 was owing from Muhammad Afzal on account of copies but the said amount was with the Sub-Inspector. This note had apparently been made after the occurrence and the Girdawar endorsed it to the Tehsildar on 4-6-1965. In my view this is of no avail to the appellant. The learned Special Judge was of the opinion that the entry dated 5-9-64 regarding issuance of copies on the roznamcha was a fabrication and had been made after the occurrence.
6. At the trial, the factum of recovery of the notes was sought to be proved by the evidence of Mr. Fateh Muhammad (P. W. 2), Muhammad Shaft (P. W. 3), Muhammad Afzal (P. W. 5) and Abdul Majid S. I. (P. W. 6).
7. Ch. Farzand Ali, the learned counsel for the appellant, argued that the story told by the complainant is not consistent with the theory that the bribe was being demanded and was paid in connection with the application hied by his mother for re- allotment of land. He in this connection referred to the statement of the complainant made before the Magistrate that he had paid a sum of Rs. 25 in connection with that application to the appellant on 6-7-1964, The learned counsel pointed out that according to Exh. P. K. which is the application filed by the complainant on behalf of his mother, the endorsement by the Girdawar is dated 17-8-1964, and there was no occasion for the complainant to pay Rs. 25 to the Patwari before this application had heen marked to him. The learned counsel also pointed out that immediately after his arrest, the appellant had made a statement before the Magistrate that he had received the sum of Rs. 15 in lieu of copies which had been issued to the complainant seven or eight months earlier. The Magistrate did take possession of the register of copies as well as the roznamcha waqiati and roznamcha karguzari. The last entry in the register of copies was dated 27-6-1963 which is a date about fifteen months earlier than the date of the occurrence. The learned counsel argues that since the appellant had maintained that the register relating to the issuance of copies was in the Halqa, the learned Magistrate should not have been content to take possession of the registers which were available in the house of the appellant but should have gone further in the matter and asked the appellant to produce the register in which the issuance of these copies had been shown. It is further submitted that Muhammad Afzal appears to have some feeling of hostility against the appellant on account of Khan Muhammad on whose behalf he had drafted an application to the Border Committee and on the basis of which the Committee hacl ordered action against Khan Muhammad. It is further pointed out that Muhammad Afzal had filed an application against Ir. Abdur Rashid, a Revenue Assistant for the receipt of bribe nd Muhammad Shaft P. W. was one of the witnesses on his ehalf. It is further urged on the basis of these facts that the corroborated testimony of Muhammad \fzal regarding the passing of bribe should not have been accepted by the learned Special Judge.
8. Whether or not the entry dated 5-9-1964 in the register of karguzari is a fabrication, cannot be positively determined. Suffice it to say that the appellant at the first moment took the stand that he had issued the copies to the complainant and the entries regarding these copies were contained in the register which was lying in his circle. This matter was not enquired into by the Magistrate and in view of this omission on his part, the benefit of doubt is to go to the appellant. It is also true that there is no I corroboration of the circumstances under which, the money was I actually passed on to the appellant. The claim of the complainant that he had paid Rs. 25 to the appellant on 6-7-1964 in connection with the same matter, does not fit in with the probabilities of the case because the endorsement made by the Girdawar was on 17-8-1964 and there was no occasion for him to approach the Patwari earlier and to pay the money in connection with an order which had not yet been passed. The matter is, therefore, not free from doubt. I allow this appeal and set aside the conviction and the sentence of the appellant. The fine, if realised, shall be refunded to him. ,