1. Muhammad Sardar and Noor Muhammad appellants were tried by Special Judge Anti-Corruption Sahiwal who vide his order dated 31-5-1980 convicted both the accused under section 161 P.P.C.
2. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced Sardar Muhammad accused to R.I. For one year with a fine of Rs.3,000/- or in default to undergo further R.I. For 4 months and Noor Muhammad to two years R.I. With a fine of Rs.5,000 or in default to undergo further R.I. For six months.
3. The facts according to the prosecution are that P.W.4 Noor Muhammad complainant and his brother Ramzan had got land in Chak No.432 T.D.A. Irrigated by Moga No.66460. An application was submitted by co-sharers of the said Moga to S.D.O. Canal Department for Warabandi under section 68 of Canal and Drainage Act. The complainant along with Zulfiqar Khan and Khan Muhammad PWs went to Noor Muhammad accused and requested him for favour in preparation of the proposal for Warabandi. The accused demanded Rs.200 as illegal gratification and ultimately settled on Rs.150. The complainant promised to pay the amount to the accused the next day in the afternoon at his house near Rehmatabad Adda. Thereafter on 29-3-1977 the complainant contacted Anti-Corruption authorities, Muzaffargarh to get recorded his formal F.I.R. Exh.PA. Then the complainant was produced before the Magistrate at Anti-corruption Establishment Office, Muzaffargarh who after recording his statement Exh.PG noted down 3 currency notes of Rs.50 each Exh.PI to P 3 and formed a raiding party.
4. The complainant along with Ghulam Farid was sent to pass on the tainted money to the accused and the remaining members of the raiding party remained standing at distance of 3/4 acres from the Adda. The complainant passed on the tainted money to the appellant who passed the same to Sardar accused. Ghulam Farid (not produced) gave a signal to the raiding party, whereupon the tainted money was recovered by them vide recovery memo Exh.P/G. Noor Muhammad Patwari slipped away by giving the same to Muhammad Sardar. The raiding Magistrate after recovery recorded the statement of Muhammad Sardar Exh.P/H, who according to the prosecution confessed that Noor Muhammad had given him the tainted-money and himself had fled away.
5. The investigation was carried on by Maratab Hussain Shah S.I. A.C.E. Noor Muhammad was arrested on 14-4-1977 and after investigation challan was submitted against both the accused. The prosecution examined 6 witnesses to establish its case.
6. P.W.1 Syed Maratab Hussain Shah stated that complainant Noor Muhammad came to P.S. A.C.E.
7. Muzaffargarh and his statement was recorded as Exh. PA. He stated about the formation of the raiding party and subsequent raid on the accused which led to the recovery of the tainted' money.
8. It is also in evidence that Muhammad Sardar accused produced Warabandi file which was taken into possession by the Magistrate. Search of co-accused was made but all in vain and he was ultimately arrested on 14-4-1977.
9. P.W.3 Syed Muhammad Hussain Naib Tehsildar also confirmed the prosecution evidence and stated that Noor Muhammad accused after handing over the tainted currency notes to Sardar fled away. He also confirmed that Muhammad Sardar accused produced before him the tainted money.
10. The complainant appeared as P.W.4 and supported the prosecution case in all its material particulars.
11. Zulfiqar P.W.5 and Khan Muhammad P.W.6 had stated about the story of the prosecution to the extent that both of them met Noor Muhammad and accompanied him to accused who had demanded Rs.200 as illegal gratification for helping them in Warabandi. They further stated that it was agreed that Rs.150 would be paid by the complainant the next day.
12. Both the accused were examined under section 342 Cr.P.C. They pleaded not guilty. `Noor Muhammad Patwari appellant stated that the complainant wanted extra canal water.
13. Muhammad Sardar accused stated that he was asked to give a clue of Noor Muhammad accused on which he refused and was falsely involved in the case. He further stated that he was only a guest in the house of Noor Muhammad. Both the accused produced two defence witnesses.
14. Muhammad Amin DW-1 stated that according to Exh.DA Noor Muhammad and Muhammad Ramzan sons of Pir Bakhsh are un-authorised occupants of T.D.A. Land. There was a report against them.
15. Learned counsel for the appellants contended that none of the members of the raiding party saw the passing of money or heard anything which transpired between the complainant and the accused. It is evidence of P.W.3 that there was no house between the road and house of the accused. The place where the accused was sitting was visible lo the raiding party who was taking shelter behind the bushes. However, the raiding Magistrate has also admitted that the money was not passed within his view nor he heard any conversation between the complainant and the accused nor did he see anybody slipping away from the lace of occurrence. It is strange that the raiding party did not notice that place Muhammad appellant had fled away from the place of occurrence while they were sitting behind the bushes watching everything from there. On the other hand the Magistrate had admitted that he did not see passing of money to the accused.
16. Furthermore, the involvement of Muhammad Sardar accused is not free from doubt. It is on the record that he was a guest in the house of Noor Muhammad accused. It is surprising that the learned Special Judge in his judgment time and again had stated him as brother of accused Noor Muhammad.
17. Learned counsel for the appellant has also argued that Noor Muhammad has been involved in this case because of animosity as he reported against the unauthorised possession of the complainant.
18. There is only a solitary evidence of Noor Muhammad against the accused. Apart from this the raiding party did not see the occurrence nor heard anything: They could not even notice that accused Noor Muhammad had slipped away from the spot. Taking all these factors into consideration, I am of the opinion that the prosecution has not succeeded in establishing its case beyond reasonable doubt. This being the position, I accept the appeal and acquit the accused of the charge. They are on bail. Their bail bonds shall stand discharged.