Falak Sher son of Ghulam Muhammad was sent up for trial of an offence under section 161 P.P.C.
Read with section 5(2), Prevention of Corruption Act, 1947, by Police Station Anti-Corruption Establishment, Jhang. The learned Special Judge Anti-Corruption, Sargodha, vide his judgment dated 15-12-1987 convicted and sentenced him to two years' R.I. And a fine of Rs.10,000, or in default R.I. For six months, for an offence under section 161 P.P.C. The convict has appealed against his conviction and sentence.
2. The prosecution story, in brief, as disclosed by Muhammad Jaffar is that he owned some land in Village Thatha Glothran which he wanted to sell, therefore, he contacted Falak Sher, Patwari, for obtaining Fard Malkiat. The said Falak Sher demanded Rs.20,000 for doing the needful. Ultimately, Rs.5,000 were paid and it was agreed that the remaining amount of Rs.15,000 would be paid after the sale. Later on, Muhammad Jaffar sold the land, whereupon Falak Sher, PW, started demanding Rs.15,000 as the balance which had been agreed to be paid. Since the first informant did not wish to pay the amount, therefore, he lodged a complaint Exh.PA with Anti-Corruption Department on 29-9-1986, according to which Rs.5,000 were paid to Falak Sher' in the presence of Talib Hussain and Muhammad A.I, PWs. In pursuance of complaint Exs.PA, an inquiry was held wherein the involvement of Falak Sher, accused was proved, therefore, FIR Exh.PA/ 1 was registered against him on 1-2-1987. The case was investigated by Ch. Muhammad Islam, PWA, Circle Officer/ACE Jhang, who challaned the accused.
3. The prosecution in support of its case produced live witnesses in all. PW---1 Talib Hussain, an Advocate, stated that in his presence Rs.5,000 were paid to appellant and it was also promised that Rs.15,000 would be paid after the completion of the sale. Muhammad A.I, PW-2 corroborated the statement of PW-1 as he was accompanying the first informant at the time Rs.5,000 were paid to the appellant. PW-3 Muhammad Jaffar gave a detail of the occurrence by stating that he paid Rs.5,000 to the appellant and promised to pay Rs.15,000 more for giving him Fard Malkiat. He lodged complaint Exh. PA with the Authorities against the appellant. Ch. Shahbaz Khan, PW-4, Assistant Director/ACE conducted the preliminary inquiry on the application Exh. PA of Muhammad Jaffar against Falak Sher appellant. Ch. Muhammad Islam, CO/ACE arrested the appellant and challaned him.
At the conclusion of the prosecution evidence, the, appellant was examined under section 342 Cr.P.C. Wherein he refuted the prosecution allegations and pleaded innocence. He also appeared on oath in his defence. The appellant also produced some defence witnesses. DW-1 Hakim Muhammad Siddique stated that in May, 1987 the appellant and Talib Hussain, PW-1 met him for the settlement of a dispute regarding a plot. Talib Hussain PW told him that if a civil suit filed by a relation of the appellant was withdrawn, he would ask Muhammad Jaffar complainant not to support his complaint. Muzaffar Khan, DW-2 stated that he was cousin of Falk Sher, the appellant; he had filed suit for partition of some land against Talib Hussain, PW, which was still pending.
Bhawala, DW-3 stated that complainant Muhammad Jaffar, P.W. 3 was his grandson. He also owned some land in village Thatha Glothran which he along with Jaffar sold. Both of them approached the appellant for obtaining Fard Malkiat which was accordingly supplied to them without demanding any money for the same. He had further stated that the present case was got registered against the appellant at the instance of Talib Hussain. Bhaoo, DW-4 stated that he was Lambardar and had asked the appellant to issue Fard Malkiat to Muhammad Jaffar, PW, for which the appellant did not demand any money.
4. It is contended by learned counsel for the appellant that the prosecution has completely failed to prove its case against the appellant. Submits that according to the evidence available on the record, the land was sold on 9-3-1986 the complaint was filed on 29-9-1986. Submits that the delay of about six whereas months in filing the complaint has not been accounted for. Contends that the present case was got registered by Talib Hussain, PW, against whom a relation of the appellant had filed a civil suit. Submits that according to Exh.DD the Fard Malkiat had already been issued even before the payment of Rs.5,000 as alleged, to the appellant. The contentions have been opposed by learned counsel for the State.
5. I have heard the learned counsel and perused the record. The prosecution in order to bring home the charge has produced Talib Hussain, Muhammad A.I and Muhammad Jaffar, PWs-1, 2 and 3, respectively. As far as Talib Hussain is concerned, he is not worth reliance at all. He claims himself to be an Advocate, but, in cross-examination he admitted that he had neither applied for licence to practise as an Advocate nor he had passed his LL.B. Examination, yet he was a practising Advocate. Similarly A.I Muhammad, PW-2 was cross-examined at length, who in cross- examination, admitted that Talib Hussain, PW-1 was his relation who was a practising Advocate. He further admitted that when they paid Rs.5,000 to the appellant, they did not complain to this effect to any one. Throughout the period he never disclosed this fact to any one that the appellant had received illegal gratification Muhammad Jaffar, PW, stated that he owned some land which was sold by him on 9-3-1986 after obtaining Fard Malkiat for which he paid Rs.5,000 to the appellant and promised to pay Rs.15,000 after the sale-decd. He made a complaint against the appellant for the payment of Rs.5,000 on 29-9-1986. He also admitted that he had sold his entire land from the village where the appellant was Patwari and had shifted elsewhere.
From the perusal of the statements of the witnesses referred to above, it is clear that Talib Hussain was not a truthful witness. No reliance on his statement can be placed. It has been proved beyond any doubt that lie was not an Advocate, yet was practising as such. Muhammad A.I was a relation of the appellant, therefore, an interested witness. As far as Muhammad Jaffar is concerned. He has not been able to give any satisfactory explanation why he kept quiet for six months before lodging the complaint. He has also not been able to explain what prompted him to file the complaint against the appellant when he (Jaffar) was no more the resident of the village where the appellant was posted. It is also apparent from the record that the civil suit filed by a relation of the appellant against Talib Hussain, PW, was pending and he pact been served fur appearance week before the lodging of the complaint, According to Exh.DD, the appellant had already issued three times Fard Malkiat before he was alleged to have accepted Rs.5000. If the Fard had already been issued without any demand of illegal gratification then I see no reason why such demand should have been made. The prosecution has not given any explanation in this respect.
On the other hand, the defence produced by the appellant is more convincing and all of them have stated that the present case was got manoeuvred by Talib Hussain PW against whom a relation of the appellant had filed a civil suit, especially Bahawala, DW-3. Who was a relation of Muhammad Jaffar, complainant, stated that Talib Hussain prevailed upon Muhammad Jaffar to file the complaint against the appellant, whereafter this witness was also asked to become a witness, but he refused. The prosecution has not even cross-examined him on this point. He has not even been suggested that he was not a truthful witness or he was never contacted by Talib Hussain.
For what has been discussed above, I hold that the prosecution has not been able to prove its case beyond reasonable doubt against the appellant. I Therefore, giving the benefit of doubt I accept the appeal and set aside the conviction of the appellant. The appellant is on bail. His bail bond shall stand discharged.
M.Y.H./F-139/L