Gulab Khan son of Lal Din was sent up for trial by Police Station ACE, Lahore, for an offence under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947. Rao Iqbal Ahmad Khan, Special Judge, Anti-Corruption, Lahore, vide his judgment dated 21-5-1986 convicted and sentenced him under section 161, P.P.C. To three months' R.I. With a fine of Rs.500, and under section 5(2) of Prevention Act, 1947 to three months' R.I. And a fine of Rs.500. In case of default of payment of total fine of Rs.1,000, he was directed to undergo R.I. For two months. It was further directed that the sentences shall run consecutively. The convict has appealed. This judgment shall dispose of the same.
2. The prosecution story, in brief, as disclosed in FIR Exh. PW.1/1 lodged by Inder Masih, was to the effect that he and his were Mst. Hakam Bibi were sweepers employed in the Municipal Corporation, Lahore. Their Sanitary Inspector was Ch. Muhammad Tufail. Salah-ud-Din, Naib-Darogha was the incharge of the area where the first informant used to work, while Naib-Darogha Gulab Khan, the appellant, was the incharge of the area of his were Mst. Hakam Bibi. Both the Naib-Daroghas used to charge Rs.20 each per month from the first informant and hi were. Muhammad Tufail, Sanitary Inspector, used to charge from the first informant and his were Rs.30 each. All the three demanded Rs.70 as illegal gratification from the first informant, which was to be paid on 10-6-1977.
3. Rana Ali Hassan, CO/ACE, (PW-4) recorded formal FIR Exh.PW-1/1 on the statement of Inder Masih, and then moved an application for deputing a Magistrate to supervise the raid. Muhammad Akram Cheema, Magistrate Ist Class was accordingly deputed. He recorded the statement Exh.PW-1/2 of the complainant and noted down the numbers of the currency notes to be passed on to them. A raiding party was constituted and the complainant was sent inside the office, where within his view Rs.50 were paid to the appellant. Rs.20 were paid to Salahuddin, another accused. On receiving the signal, they went inside the room. After introduction, Rs.50 were secured from the possession of the appellant. The Magistrate also recorded the statement Exh.PW-3,/3 of the appellant.
4. The prosecution in support of its case produced four witnesses in all. Inder Masih, PW-1 proved the registration of the case at his instance. He corroborated the version given by him in the F.I.R. He further stated that his were Mst. Hakam Bibi had paid Rs.50 to the appellant. In cross-examination, he was duly confronted about the improvements made, which he could not explain. He further stated that he and his were both of them were sent to the office where illegal gratification was to be paid. He further stated that the S.I. Had taken the money from the appellant while they were still inside the office and the same was produced before the Magistrate who remained standing outside. Jang Bahadur, Sub-Inspector, CO, ACE, Lahore, PW-2 was a member of the raiding party.
According to him, complainant Inder Masih was sent to the sanitary office for paying illegal gratification, which was accordingly done. Muhammad Akram Cheema, Magistrate Ist Class, Lahore, PW-3 proved the proceedings which had been taken by him earlier before raid. He also stated that the complainant alone was sent inside to pay illegal gratification. In cross-examination, he asserted that he could not hear the conversation but saw Inder Masih paying money to the appellant. Rana Ali Hassan, CO/ACE, PW-4 had investigated the case and challaned the appellant.
He remained with the Magistrate throughout. According to him, they were standing at a distance of about 50 yards from the place where the money was paid to the appellant, in contradiction to Magistrate's statement who had stated that they were at a distance of about 10 yards. The appellant, at the conclusion of the prosecution evidence was examined without oath, wherein he refuted the prosecution allegations and pleaded innocence. In answer to a question he stated that he had many complaints against Mst. Hakam Bibi that she was not doing her job properly. On the day of incident he had asked her to bring a certificate from the persons who had complaint against her that she had done the cleaning properly. At the time of raid, she gave him a folded paper telling that it was certificate from the person who had complaint against her, which he put in his pocket without reading. He had also produced three defence witnesses, who deposed about his innocence.
5. Learned counsel for the appellant submitted that no reliance on the prosecution evidence could be placed because, throughout they have contradicted each other. Argued that the prosecution could not even prove if the money was paid by Inder Mash or his were Mst. Hakam Bibi. Argued that the defence taken by the appellant even at the time of raid was more plausible. The contentions were opposed by learned counsel for the State.
6. I have heard the learned counsel and gone through the evidence. I find there is glaring discrepancy between the statement of the first informant and the Magistrate. As far as the passing of illegal gratification to the appellant is concerned, the complainant Inder Masih had stated that the money was passed on to the appellant by his were, whereas the Magistrate stated that within his view the money was given to the appellant by Inder Masih, PW. The appellant, when arrested at the spot, gave a statement that Hakam Bibi, (who has not been produced as a witness being dead) had given him a folded paper on the pretext that it was a certificate from the person who had complaint against her, which he without opening put in his pocket. He was not aware that it contained currency notes as well. There is also discrepancy between the statement of the Magistrate and of the investigating officer about the place from where they witnessed the money being passed on to the appellant.
Keeping all these things in view, I feel the prosecution case is not free from doubt. I accept the appeal, set aside the conviction. The appellant is on bail.
His bail bond shall stand discharged.