Qurban Muhammad, Secretary and Talib Hussain, Peon, of Union Council No. 31/7, Chak. No. 90/9-L, Tehsil and District Sahiwal, have filed this appeal against the judgment, dated 9-7-1986 of Special Judge, Anti-Corruption, Multan Camp at Sahiwal, whereby he convicted both of them under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947, and sentenced them to six months' R.I. And a fine of Rs.500 each or in default to undergo one month's R.I. Each.
2. Muhammad Aslam a brother of Manzoor Hussain complainant (P.W.3) of Chak No. 90/9-L received a notice Exh.P.H. For paying a sum of Rs.300 as tax in connection with having played music-record on loudspeaker on the occasion of marriage of his brother. Manzoor Hussain complainant contacted both the appellants in their office who demanded Rs.150 for the Secretary and Rs.20 for the peon by way of bribe to hush up the matter, whereupon Manzoor Hussain P.W. On 6-10-1982 complained to Muhammad Ayyaz- (P.W.2) Sub-Circle Inspector Anti-Corruption, who recorded his statement Exh.P.B., on the basis of which formal F.I.R. Exh.P.C. Was drawn by Mukhtar Ahmad Muharrir at P.S. Anti-Corruption Establishment, Sahiwal; Muhammad Ayyaz (P.W.2) then planned a raid for trapping the appellants red-handed and requested Imtiaz Ahmad (P.W.5), Magistrate Section 30, Sahiwal to supervise the raid, who after recording the statement Exh.P.E. Of Manzoor Hussain complainant gave him currency notes of Rs.170 (Exhs.P.1 to P.4) after noting down their numbers and told him to give a signal to the raid party after passing on tainted currency notes to the appellants. The raiding Magistrate and Circle Officer stayed near Union Council Office while Manzoor Hussain complainant went ahead to pass on the money to the appellants. Within their view the complainant contacted Talib Hussain appellant who while talking entered the office.
The complainant after a short while gave the appointed signal, whereupon they entered the office and after introducing themselves recovered the tainted currency notes of Rs.170 (Exhs.P.1 to P.4) as well as the Notice Exh.P.H. From Talib Hussain peon, appellant, which were seized under memo.
Exh.P.F. Qurban Muhammad appellant was, however, not present there Talib Hussain appellant made statement Exh.P.S. Before the raiding Magistrate saying that he had received Rs.170 from Manzoor Hussain complainant as tax. He ordered arrest of Talih Hussain appellant and drew up raid report Exh.P.G. And handed over the papers to Muhammad Ayyaz Sub-Circle Inspector (P.W.2) for further action. The Suh--Circle Officer seized two registers Exh.P.1 and P.2 produced before him by Qurban Muhammad appellant in the presence of Muhammad Yasin (P.W.1) vide memo Exh.PA.
He after usual investigation and obtaining necessary sanction, challaned the appellants to Court.
3. At the trial the prosecution examined five witnesses in support of its case.
4. The appellants when examined under section 342, Cr.P.C. Denied the allegation. Qurban Muhammad appellant explained that Muhammad Yasin Secretary (P.W.1) was his enemy who had got him involved in this case. They produced three witnesses in their defence, namely, Syed Ajmal Hussain Gilant (D.W.1) Project Manager, Sahiwal, who stated that two registers are maintained officially in every Union Council in connection with the imposition of taxes. Peer Muhammad Dogar (D.W.2) the Chairman of Union Council concerned stated that two registers were maintained in the Union Council, one relates to the initial assessments and the other is regarding the receipt of taxes.
He also owned his signature on the Notice Exh.P.H. Issued to Muhammad Aslam a brother of Manzoor Hussain, complainant. Abdul Aziz (D.W.3) supported the plea of Qurban Muhammad appellant.
5. Learned trial Court discarded the defence and believing the prosecution case convicted and sentenced the appellants as indicated above.
6. Muhammad Yasin (P.W.1) admitted that he is accused in case under section 219, P.P.C. Pending in the Court and Qurban Muhammad appellant is a witness against him in that case. He also admitted that he has been challaned in a corruption case as well.
7. I have gone through the evidence with the assistance of the learned counsel for the parties.
Manzoor Hussain (P.W.3) deposed that the appellant demanded from him Rs.170 as bribe for hashing up the tax required to be paid under notice Exh.P.H. And that he paid money to Talib Hussain, appellant. Manzoor Hussain complainant (P.W.3), Muhammad Ayyaz Sub-Circle Officer (P.W.2)and the raiding Magistrate (P.W.5), have proved the recovery of tainted amount (currency notes Exhs.P.1 to P.4) as well as demand notice Exh.P.H. From Talib. They have admitted that at the time of raid Qurban Muhammad, appellant, was not present. It is also admitted that none of them overheard the conversation which took place between Manzoor Hussain (P.W.3) and Talib Hussain appellant before handing over the tainted currency notes (Exh.P.1 to Exh.PA). Manzoor Hussain (P.W.3) was confronted with his previous statement Exh.P.E. Wherein demand of bribe from Manzoor Hussain complainant (P.W.3) for filing the demand notice (Exh.P.H.) issued by the Union Council by Qurban Muhammad A appellant has not been mentioned, therefore, neither demand nor acceptance of bribe has been proved against Qurban Muhammad appellant. As stated earlier he was not present at the time of raid either, therefore, the charge fails against him.
8. As for Talib Hussain, appellant, the fact of handing over the demand notice (Exh.P.H.) and the tainted currency notes to him by Manzoor Hussain P.W. As well as -its recovery from him has been established by the testimony of Muhammad Ayyaz (P.W.2), Manzoor Hussain complainant (P.W.3) and raiding Magistrate (P.W.5). The only question which arises for determination is whether Talib Hussain appellant had accepted Rs.170 (Exhs.P.1 to P.4) as bribe from Manzoor Hussain, complainant or not? On this point, we have solitary statement of Manzoor Hussain complainant. On the other hand, Talib Hussain appellant explained spontaneously before the raiding Magistrate that he had received B Rs.170 (Exhs.P.1 to P.4) as tax from Manzoor Hussain P.W., vide Exh.P.J. Obviously Rs.300 was due from the complainant as reflected in demand notice Exh.P.H. Which is signed by the Chairman Peer Muhammad Dogar (D.W.2). It is true that the appellant did not plead it specifically in his statement under section 342, Cr.P.C. At the trial but at the same time the trial Court has omitted to put it to him if Exh.P.J. Was his statement made before the raiding Magistrate. So the effect of non-pleading by the appellant is, thus, neutralized. In the circumstances there appears to be reasonable possibility that the appellant Talib had received the tainted money as a part payment towards the tax 4ue from the complainant. Again there is some evidence showing enmity between Qurban Muhammad appellant and Muhammad Yasin (P.W.1) who admitted that Qurban Muhammad appellant was a witness against him in a criminal case under section 219, P.P.C.
Pending decision in the days of occurrence. Yasin P.W., therefore, might have chalked out this scheme for roping in Qurban Muhammad appellant but luckily for Qurban Muhammad that he was not available in the office on the day of raid.
9. For what has gone above, I am of the view that, there is no reliable evidence available on record to establish the charge against the appellants beyond reasonable doubt. Consequently, I accept this appeal, set aside conviction and sentence of the appellants and acquit them. They are on bail.
They are discharged of their bail bonds.