1. ' Faiz Ullah appellant was tried by Special Judge Anti-Corruption, Sargodha (Camp at Mianwali) for an offence under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947. The trial Court vide his judgment dated 8-9-1988, found him guilty under section 161, P.P.C. And sentenced him to nine months' R.I. And a fine of Rs,1,000 or in default further R.I. For two months. The convict has appealed against his conviction and sentence.
2. ' The prosecution story in brief is that one Atta Muhammad wanted to file an appeal in the High Court as his case was decided by the District Judge on 1-91986. 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. 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 needful. Atta 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.P.C./1 and a raiding party was constituted consisting of Mr. Muhammad Amin Khattak, Magistrate First Class and Ch. Muhammad Ashiq, Inspector, C.O./A.C.E. The raiding party went to the office of the appellant alongwith the first informant. Mr. Muhammad Amin Khattak, M.I.C. 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.
3. ' F.I.R. Exh.P.C./1 was lodged by Atta Muhammad, P.W.1 which was recorded by Muhammad Ashiq, Inspector P.W.3 on 9-9-1986.
4. ' The appellant was charged for an offence under section 161, P.P.C. Which is to the effect that he as a public servant demanded and accepted Rs,100 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 witnesses in all.
5. ' P.W.1. Atta Muhammad has stated that he wanted a certified copy of the judgment of the District Judge, Mianwali, whereupon Faiz Ullah appellat demanded Rs,100 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 Court the 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. P.W.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 C.O./A.C.E. He recorded his statement, Exh.P.B.
6. 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 hands. In cross-examination he stated that complainant informed him that Rs,100 were demanded by Muhammad Yousaf Saqi, C.O.C.
7. 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/A.C.E. Has stated that he produced the complainant 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, M.I.C. 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 possession of the appellant. In cross-examination, 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, M.I.C. The Magistrate has stated that he neither heard the conversation nor saw the money being passed to the appellant.
8. 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 appellant did not ask for the bribery but accepted Rs,100 on the asking of the Clerk of Court. In these circumstances, the statement of the Magistrate and Muhammad Ashiq, C.O./A.C.E.
9. 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.
10. ' The appellant also produced one D.W. 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 C.O.C. The appellant received the money from the first informant.
11. 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 lead 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 D.W. Fateh Muhammad, remains unrebutted.
12. ' 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.