1. RASHID AZIZ KHANJ.-Faiz Ullah appellant was tried by Special Judge Anti-Corruption Sargodha (Camp at Mianwali) for an offence under section 161 PPC read with section 5(2) of Prevention of Corruption Act, 1947. The trial Court vide its judgment dated 8-9-1988, found him guiIty under section 161 PPC and sentenced him to nine months R.I. And a fine of Rs.l,000/-or in defauIt further R.I.
2. For two months. The convict has appealed against his conviction and sentence.
3. The prosecution story in brief is that one Ata Muhammad wanted to file an appeal in the High Court as his case was decided by the District Judge on lst-9-1986. He approached Muhammad Yousaf Saqi,Clerk of Court, for obtaining certified copy of judgment who asked him to come on 19-9-1986 for the same.
4. Atta Muhammad requested that copy be delivered earlier whereupon said Muhammad Yousaf Saqi.C.O.C. Directed him to pay Rs. 100/- to Faiz Ullah, Clerk Copying Agency to do the needfulAtta Muhammad left the premises on the pretext to bring the money. He came and moved an application before the Anti Corruption Establishment, Sargodha. He was produced before a Magistrate who recorded his statement, Exh.PC/1 and a raiding party was constituted consisting of Mr.Muhammad Amin Khattak, Magistrate First Class and Ch, Muhammad Ashiq, Inspector, CO/ACE.The raiding party went to the office of the appellant along with the first informant.
5. Mr.Muhammad Amin Khattak,MIC and the Inspector waited outside and the first informant went inside. On signalling by the first informant raiding party went inside the room, introduced themselves and recovered tainted currency note of Rs.100/- from the pocket of the appellant. His statement was recorded by the magistrate in which he stated that he was not in a fit state of mind to make a statement.
6. FIR, Exh.PC/1 was lodged by Atta Muhammad, PW-1 which was recorded by Ch.Muhammad Ashiq, Inspector PW-3 on 9-9-1986.
7. The appellant was charged for an offence under section 161 PPC which is to the effect that he as a/Public Servant demanded and accepted Rs.l00/-from the complainant Atta Muhammad as illegal gratification for the preparation and supply of a certified copy of the judgment.
3. In support of the charge, the prosecution has produced 3 witneses in all.PW-1 Atta Muhammad has stated that he wanted a certified copy of the judgment of the District Judge, Mianweli, whereupon Faiz Ullah appellant demanded Rs.l00/-for the same. In cross examination he has stated that he had contacted one Muhammad Yousaf Saqi, Clerk of Court, for the copy of the judgment who had directed him to pay the amount to Faiz Ullah appellant. Prior to that he was not in contact with the appellant. He further admitted that before meeting the clerk of courth appellant had not demanded any bribe from the first informant. He further stated that it was on the asking of the Clerk of Court that he paid the amount which the appellant had never asked for. He had further admitted that on the asking of the Clerk of Court the appellant had accepted the money. He had stated that the money was paid at about 3/4 P.M. PW-2 Mr.Muhammad Amin Khattak, Resident Magistrate, stated that on 9-9-1986, he was M.I.C. Sillanwali when Atta Muhammad was produced before him by CO/ACE. He recorded his statement, Exh.PB who admitted the same as correct and signed it. Thereafter, he noted the number of currency note of Rs.100/- and gave the same to the complainant. He had admitted that he neither heard the conversation nor saw the tainted currency note changing hand. In crossexamination he stated that complainant informed him that Rs.100/- were demanded by Muhammad Yousaf Saqi,COC, and under his instructions the amount was paid to the appellant. He also stated that during the days of occurrence the Court hours were 7.30 A.M. To 2 P.M., while the first informant says that the bribe was paid at about 3/4 P.M. In the Court premises. Ch.Muhammad Ashiq, Inspector/ACE has stated that he produced the coplainant before the Magistrate who recorded his statement on the basis of which a raiding party was constituted. Thereafter, they went to the office of the accused. Muhammad Ashiq and Muhammad Amin Khattak,MIC, stayed outside and the first informant went inside the room. On receiving the signal from the first informant they went inside and recovered Rs.100/- from the posesion, of the appellant. In Kross-eccamination he has stated that he had heard the talk between the appellant and the first informant. He also stated that the Magistrate too heard the talk. A perusal of his statement clearly indicates that he had improved upon his statement as well as has contradicted Muhammad Amin Khattak, MIC. The Magistrate had stated that he neither heard the conversation now saw the money being passed to the appellant.All the witnesses have contradicted each other with regard to the time when the bribery was given to the appellant. The only witness of the acceptance of bribe is Atta Muhammad, He had admitted that the appellent did not ask for the briberyfeut accepted Rs.100/- on the asking of the Clerk- of-Court. In these circumstances, the statement of the Magistrate and Muhammad Ashiq, CO/ACE becomes quite irrelevant because they neither saw the money being passed on nor heard the conversation According to the statement of the first informant, the appellant neither demanded illegal gratification nor accepted the same of his own.
8. The appellant also produced one DW Fateh Muhammad who was Copying Clerk, and, according to him, he (accused) was the head Copyist, c.o.c. Was the incharge of the copying branch. He had also stated that on the asking of the C.O.C. The appellant received the money from the first informant. There is nothing on the record to indicate whether the appellant received the money for himself or for the C.O.C. The prosecution did not lad any evidence whatsoever to this effect. In these circumstances, the statement of the appellant under section 342 Cr.P.C, corroborated by the statement of DW Fateh Muhammad, remains unrabutted.
9. For what has been discussed above, I hold that the prosecution has not been able to prove its case beyond reasonable doubt.Therefore, I accept the appeal and set aside the conviction of the appellant. The appellant is on bail the bail bond shall stand discharged.