' This Criminal Appeal No,888 of 1989 arises from the judgment of learned Special Judge Anti- Corruption, Lahore, whereby he on 12-12-1989 convicted Ahmad Din appellant under section 161, P.P.C. And sentenced him to 6 months' R.I. And a fine of Rs,2,000 or in default thereof 2 months' R.I.'
2. The charge against him was that he demanded illegal gratification and received Rs,4,400 as illegal gratification from Muhammad Siddiq complainant on different dates, which were subsequently recovered from him by the Anti-Corruption Police and the Magistrate. The allegations are that he received Rs,3,900 before raid and Rs,500 on 6-1-1988 just before the raid. He denied the charge and claimed to be tried.
3. To prove its case, prosecution produced 5 witnesses. Muhammad Siddiq complainant appeared as P.W.
4. He stated that Ahmad Din appellant was working as Girdawar Qanungo. He demanded bribe from him in a demarcation matter. Before the date of raid, he received Rs,2,900 from him in the village and Rs,1,000 in Lahore Hotel, Lahore- and Rs,500 at the time of raid, which were recovered from him by the Magistrate. Javed Iqbal P.W. 1 stated that in his presence, the appellant had received Rs,1,000 as illegal gratification in his Office also received Rs,2,900 as illegal gratification from the complainant, before raid. It may be noted that in his statement before the police, copy Ex.D.A., this witness had stated that Rs,1,000 were received by the appellant from the complainant in the premises of District Courts. The witness further stated that during investigation, the appellant had got recovered Rs,3,900 from his house which were taken into possession by the appellant vide memo Ex.P.W. 1/1 attested by him. Liaqat Ali P.W. 3 is witness of the receipt of Rs,3,900 by the appellant from the complainant before raid. He stated that Muhammad Siddiq complainant had paid Rs,2,900 to the appellant in Lahore Hotel, Lahore and 5/6 days thereafter he paid Rs,1,000 to him (appellant) in the premises of District Courts in his presence and that during investigation the appellant got recovered Rs,3,900 from a box lying in his house which were taken into possession vide memo Ex.P.W.1/1 attested by him. Muhammad Ashraf Yousafi Magistrate P.W. 2 and Zulfiqar Ali, D.S.P., P.W.5 were produced to prove raid proceedings, receipt of Rs,500 as illegal gratification by the appellant and subsequent recovery of the tainted currency notes and of Rs,3,900 from the appellant. They supported the prosecution case. They stated that within their view, the appellant had received Rs,500 from Muhammad Siddiq which were recovered from his possession.
4. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. Admitting the receipt of the tainted currency notes of Rs,500 from the complainant and the recovery thereof from him by the Magistrate, he (appellant) explained that Muhammad Siddiq had given him Rs,500 for passing on to Ghulam Rasool whom he owed the same. He produced Hamid Ghaffar D.W. 1, Sher Muhammad D.W. 2 and Ghulam Rasool D.W.
3. He as D.W. 4, gave evidence on Oath in disproof of the charge against him.
5. Believing the prosecution case and disbelieving the defence version, the learned trial Court has convicted and sentenced the appellant as stated above.
6. Learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubts; that the Magistrate and the Inspector had not heard conversation between the appellant and the complainant at the time of raid; that Javed Iqbal P.W. 1 and Liaqat All P.W. 3 are interested witnesses and that the statements made by them suffer from material contradictions and that there is reasonable possibility of the defence version being true.
Conversely, the learned counsel for the State has supported the conviction and sentence of the appellant.
7. I have considered the matter carefully, I feel persuaded to agree with the learned counsel for the appellant. According to the prosecution case, the appellant had received Rs,2,900 as illegal gratification from the complainant before the date of raid in the presence of Javed Iqbal, P.W. 1 and Liaqat Ali P.W.
3. I find that the statements of these witnesses suffer from material contradictions inasmuch as, Javed Iqbal P.W. 1 stated that Rs,2,900 were paid to the appellant in Lahore Hotel, Lahore and Rs,1,000 were paid to him in his Office. Muhammad Siddiq P.W. 4 stated that at the time of the payment of Rs,2,900 to the appellant Javed Iqbal P.W. Was not present, and that Rs,1,000 were paid to the appellant in Lahore Hotel, Lahore. Liaqat Ali P.W. 3 stated that Rs,1,000 were paid to the appellant in the premises of District Courts and Rs,2,900 were paid to him in Lahore Hotel, Lahore.
Muhammad Siddiq complainant stated that Rs,2,900 were paid to the appellant in the village.
Liaqat Ali P.W. 3 is uncle of the complainant. The complainant was tenant of Javed Iqbal P.W.
1. There was no independent/official witness at the time of the payment of Rs,2,900 as illegal gratification by the complainant to the appellant. For these reasons, I feel that the prosecution has failed to prove beyond reasonable doubt the receipt of Rs,2,900 as illegal gratification by the appellant.
8. Adverting to the allegation of the receipt of Rs,500 as illegal gratification by the appellant from the complainant on the day of raid, I find that it is doubtful that the appellant had received the tainted currency notes of Rs,500 as illegal gratification. The reasons are that the Magistrate and the Inspector Police did not hear any conversation between the complainant and the appellant before the money changed hands. The appellant has not denied to have received the tainted money from the complainant at the time of raid. His explanation from time of raid up to the last was that the complainant had given him Rs,500 for giving to Ghulam Rasool and that just after the raid, the Magistrate recorded the statement of the appellant Ex.P.W. 2/3, in which he stated:- {{URDU TEXT}} He stuck to this statement at the time of recording his statement under section 342, Cr.P.C. And his statement on Oath under section 340(2), Cr.P.C. Since the Magistrate and the Inspector had not heard the talk between the complainant and the appellant at the time of raid, therefore, the reasonable possibility that the appellant might not have received the tainted money as illegal gratification and might have received the same for passing on to Ghulam Rasool, cannot be excluded. Furthermore, on the nature of the transaction, the statement of the decoy witness remains in field which, in the circumstances of the case, cannot and should not be acted upon without independent corroboration, which I do not see in the case in hand. So, there being no satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is accepted.
The conviction and sentence of the appellant is set aside. He is on bail. He stands discharged of the bail-bonds.
9. The trial Court had directed that the currency notes Ex. P.1 to P. 20 valuing Rs,4,400 belonged to the complainant and the same be returned, to him. Learned counsel for the appellant has claimed Rs,3,900 on the ground that the appellant having been acquitted of the charge is entitled to the return of the same. Admittedly, the currency notes Ex. P.1 to P.20 (valuing Rs,3,900) were produced before the police by the appellant. There is nothing in evidence to show that these currency notes Ex.P.6 to P.20 were paid by the complainant to the appellant. Furthermore, the allegations of the receipt of Rs,3,900 by the appellant from the complainant before raid date have not found favour with this Court. In these circumstances, I feel that the appellant is entitled to the return of currency notes Ex. P.6 to P.20 to him. So the order of the trial Court to the extent of the direction for payment of Rs,4,400 is modified. It is directed that the tainted currency notes Ex.P.1 to P.5 worth Rs,500 will be returned to the complainant and the remaining currency notes Ex.P.6 to P.20 will be returned to Ahmad Din appellant.