Rashid Aziz Khan, J.-Muhammad Walayat, Patwari was tried by Special Judge Anti-Corruption, Sargodha, for an' offence under section 161 PPC read with section 5(2) of Prevention of Corruption Act, 1947. The learned trial Court, vide its judgment dated 2.10.1988, convicted and sentenced him to 18^ months R.I. And a fine of Rs.5,000/-, or in defauIt further R.I. For three months. It was further directed that the fine, if recovered, out of it Rs.500/- shall be paid to Kamil Din, complainant. The accused has appealed against his conviction and sentence.
2. The prosecution story, in brief, as given in the FIR Exh.PA is to the effect that Kamil Din, the first informant, owned some land in Cha Ramdas. He used to cuItivate the land of Central Government for the 1a a 16/17 years. Some litigation with regard to the said land was going on, which was uItimately decided in favour of the first informant, therefore, he gave an application for the correction of revenue record. Muhammad Walayat was Halqa Patwari and he demanded Rs.500/- as illegal gratification for himself, Rs.500/- for Naib Tehsildar and Rs.100/- for Girdawar, for doing the needful. He agreed to pay the amount and reported the matter to Malik Ghulam Muhammad, CO/ACE who recorded the FIR Exh.PA on the statement of Kamil Din and produced him before a Magistrate with a request to constitute a raiding-party. Abdul Qadir Jasra, MIC was appointed to supervise the raid, who recorded the statement Exh. PG of Kamil Din and also noted down the numbers of six currency notes of the denomination of Rs.100/- each on 13.10.1987. He constituted a raiding-party and went to the appointed place where the money was to be paid to the accused.
They accordingly went to the residence of Muhammad Hasnain, Girdawar. The raiding-party stayed outside the house whereas Kamil Din went inside. On receiving a signal form the complainant, they went inside the chaubara and introduced themselves. At that time Muhammad Walayat, Patwari alone was there. Five currency notes were recovered from the left pocket of the Salooka of Muhammad Walayat, which were secured vide memo Exh.PC. Thereafter the statement of the accused Ex.PL was also recorded.
3. The prosecution in support of its case has produced three witnesses in all. PW-1 Malik Ghulam Muhammad CO/ACE has stated that on 13.10.1987, Kamil Din came to him and informed that the appellant was demanding illegal gratification, therefore, he made an application to the D.C. For appointing some Magistrate to supervise the raid. Abdul Qadir Jasra, MIC was deputed for the needful.
He produced Kamil Din before the said Magistrate, who recorded his statement and thereafter also noted the numbers of the currency notes to be passed on to the accused. They went to the residence of Muhammad Hasnain, Girdawar and waited outside. On the signal received, they raided the place and from the Salooka of Muhammad Walayat accused they recovered five courrency notes and secured the same vide memo Exh.PC. In cross-examination, he has stated that he did not join said Muhammad Hasnain, Girdawar, in the investigation. He has admitted that he did not hear the talk between the complainant and the accused nor he saw the money changing hands. He has further admitted that the accused had already submitted his report Exh.PD before the receipt of the illegal gratification. Abdul Qadir Jasra, MIC,PW-2 has corroborated the statement of Malik Ghulam Muhammad in all respects. In cross-examination, he has also admitted that he did not hear the conversation or saw the money being passed on to Muhammad Walayat accused. He has admitted that the accused in his statement at the spot stated that he had not received the illegal gratification, but Kamil Din, first informant, had paid him Rs.500/- which were loaned to him earlier. Kamil Din PW-3 has also corroborated his statement made earlier before the investigating officer as well as the MIC. In cross-examination he has stated that the accused had already given a report Exh.PD/2 on 15.9.1987 regarding which he had asked for illegal gratification. However, he has stated that another report made by the accused on 13.10.1987 was against him.
At the conclusion of the prosecution evidence the accused made a statement without oath wherein he refuted the entire prosecution evidence and stated that he had not received any illegal gratification but the complainant had paid him the money which he had loaned to him. The accused also appeared on oath in his defence and stated that he had already given his report for which he is alleged to have asked for illegal gratification. He has further stated that the report was in accordance with the facts, of the case.
4. It is argued by learned counsel for the appellant that the prosecution has not been able to prove its case against the appellant at all. Submits that the statement of the I.O. And that of the Magistrate cannot be of much help to the prosectuion because both of them neither heard the conversation nor saw the money changing hands. Contends that the allegation that the appellant had asked for illegal gratification with regard to do something which had already been done a month earlier clearly indicates that the prosecution story is nothing but a concoction. The contentions of the learned counsel for the appellant have been controverted by the learned counsel for the State.
5. I have heard the learned counsel at length and gone through the evidence with their assistance.
The prosecution in support of its case has produced three witnesses in all. PW-1 and PW-2, the Investigating Officer and the Magistrate, respectively, have corroborated the prosecution story to the extent that Kamil Din, complainant came to them and alleged that Muhammad Walayat was demanding illegal gratification. They have also proved the factum of constituting of a raiding party and recovering of the tainted currency notes from the possession of the appellant. So far as the question that what transpired between the complainant and the appellant and how the money was passed on to him is concerned, they neither saw it nor heard the conversation, therefore, their statement with regard to this aspect of the case is of no use. The only witness who has alleged the demand of illegal gratification and acceptance of the same by the appellant is Kamil Din PW. He has asserted that the appellant had demanded illegal gratification for making a reprot which was asked for by the higher Revenue Authorities. He has further stated that the appellant had demanded the illegal gratification for submitting the report. I have carefully gone through the statement of this witness and hold that it does not inspire confidence. This witness has stated that the demand for illegal gratification was made for submitting a report by the appellant. It has already come in the evidence that Exh.PD/1, the report by the Patwari had already been submitted at least a month before the conducting of the raid. In these circumstances, I fail to undrstand what was the occasion for the appellant to demand illegal gratification for a thing which had already been done. In this view of the matter, the assertion of the complainant that the money was demanded to submit the report is contradicted by documentary evidence. On the other hand, the statement of the appellant made before the raiding Magistrate that he had received Rs.500/- from the complainant as a re-payment of the loan which was advanced to him earlier, stands unrebutted from the prosecution evidence. In these circumstances, I hold that it will not be safe to rely upon the uncorroborated testimory of kamil Din, especially when he has been contradicted by documentary evidence. The prosecution story, if kept in juxta position with the defence of the appellant, I hold the defence version appears to be more plausible.
6. 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. Therefore, giving him the benefit of doubt I accept the appeal, set aside the conviction of the appellant and direct that he be released from custody forthwith, if not required in any other case.