' The appellant, Muhammad Anwar Bajwa, was convicted and sentenced to R.I. For one year under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, by the learned Special Judge Anti-Corruption, Bahawalpur, on 28-2-1988 for having taken illegal gratification of Rs,14,000 from Iftikhar Hussain' P.W. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant. The appellant challenged his conviction and sentence through this appeal before this Court.
2. The facts, in brief, are that Iftikhar Hussain, complainant, P.W.1 disclosed in the F.I.R. That a criminal case under section 302/307/148/149, P.P.C. Was registered against his brother Sarfraz and relatives Muhammad Sibtain, Liaqat Ali, Sahib Dad and Khadim Hussain. Muhammad Anwar Bajwa was a clerk in the office of the Assistant Advocate-General, Bahawalpur. He lived in Chak No,52/P, District Rahimyar Khan. During the proceedings of the aforesaid case, he came to see his relatives in the Chak. The complainant alongwith Muhammad Ishaque and Muhammad Akram met him in the village. The appellant posed himself as Assistant Advocate-General, Bahawalpur. They discussed their murder case with the appellant. He promised that he would help them in the case. He further disclosed that the learned Judges of the Bahawalpur Bench were known to him and that he would show favour to them. He demanded Rs,14,000 as illegal gratification to enable him to get the accused released on bail. The complainant stated that he did not have the amount with him at that time whereupon the appellant asked the complainant to meet him at Bahawalpur with the bribe-money. In November, 1986, the complainant alongwith Muhammad Ishaque and Muhammad Akram came to Bahawalpur Bench of Lahore High Court. They enquired about the appellant from where it came to light that he was only a Senior Clerk in the office of the Assistant Advocate-General. They asked the appellant as to why he posed himself as such by telling a lie. In reply, he told them that their concern was only to get the accused released on bail. He again demanded the payment of Rs,14,000 as illegal gratification and that he would get the work done from the High Court. The appellant, thereafter went out of the Court premises alongwith the witnesses and reached Chowk Fowara in front of the local office of P.I.A. The bribe money of Rs,14,000 was given to the appellant in presence of Muhammad Ishaque and Muhammad Akram P.Ws. The amount was paid to the appellant after counting it. The money was in the denomination of Rs,100 note each. It was wrapped in a plastic envelope which in turn was kept in an old newspaper. The bail petition was not pressed by the accused and as such it was dismissed by the High Court on 13-12-1986 as withdrawn. The complainant asked the appellant time and again to return the amount to him but he failed to do so. Thus, on the application of the complainant, F.I.R.
(Exh.P.W.5/B) was registered with Anti-Corruption Establishment against the appellant.
3. The prosecution in order to prove its case produced Iftikhar Hussain complainant P.W.1, Muhammad Ishaq P.W.2, Muhammad Akram P.W.3, Mr. Shaheen Masood Rizvi, A.A.-G. P.W.4 and Ch. Rehmat Ullah, Circle Officer, A.C.E. P.W.S. The appellant while making a detailed statement under section 342, Cr.P.C. Denied the allegations levelled against him and took the plea that before registration of the case against him his cousin Muhammad Zafar abducted a woman from the family of Muhammad Sadiq and Muhammad Saddique of Chak No,52/P. A Punchayat was held in the village of Muhammad Zafar for the return of the abductee. Relatives of the abductee knew that the appellant was employed in the office of the Assistant Advocate-General, and that they had acquaintance with the Law Officer. Accordingly, they approached Mr. Shaheen Masood Rizvi, Assistant Advocate-General, for the return of the abductee through him. On this the appellant was asked by the Assistant Advocate-General to get back the abductee from the accused. The appellant stated that he was not connected with the case of abduction. However, he gave an assurance to him that he would make efforts for restoration of the woman to her relatives. The appellant stated that Muhammad Saddique and Muhammad Sadiq had a suspicion that he was in conspiracy with his cousin Muhammad Zafar in the abduction and was instrumental in not returning the abductee. Thus, Muhammad Saddique and Muhammad Sadiq were very much annoyed and bore grudge against him. Similarly, the Assistant Advocate-General was also annoyed with him on account of his alleged part in the case of abduction. The complainant was a neighbour of Muhammad Saddique and Muhammad Sadiq and had friendly relations with them.
The appellant continued to say that he was involved in the case by the complainant at the instigation of Muhammad Sadiq and Muhammad Siddique. An allegation was also levelled against P.W 4 saying that he found a portable Typewriter missing due to which he did nut take over the charge when his predecessor-in-office left the post. The witness insisted and asked the appellant to take over the charge without checking the items of the office which he declined to do. This act on his part further annoyed the witness. He stated that he was arrested on 1-6-1987 at the instance of Assistant Advocate-General. The appellant was also suspended by him on 25-5-1987 without assigning any reasons. The appellant stated that Rehmat Ullah P.W.5 was also a resident of the area of the complainant and the Assistant Advocate-General who had substantial agricultural lands in Rahimyar Khan, The appellant stated that a false case had been registered against him with a view to cause humiliation to him and to destroy his career. He also alleged that the Assistant Advocate-General wanted to remove him from the scene with a view to promote one Yar Muhammad, in his place.
' The learned Special Judge believing the statement of Iftikhar Hussain P.W.1 proceeded to convict and sentence the appellant. The statements of Muhammad Ishaque and Muhammad Akram P.Ws.
Were not relied upon as a whole but were relied upon in part. After discussing the evidence, he came to the conclusion that offence was proved against the appellant.
4. Learned counsel contends with vehemence that there is no evidence at all against the appellant and that Muhammad Ishaque P.W.2 and Muhammad Akram P.W.3 did not support the prosecution version. According to the learned counsel, Iftikhar Hussain P.W.1 did not say in his evidence that bribe money was recovered from the possession of the appellant in his presence. In this view of the matter, learned counsel submits that there was no evidence to connect the appellant with commission of the crime. He argues that F.I.R. Was lodged after considerable delay without giving any plausible explanation in that behalf. Learned counsel argues that evidence of the prosecution coupled with the statement of the appellant would demonstrate beyond doubt that there was no justification with the learned trial Judge to convict and sentence the appellant. The learned Additional Advocate-General and the learned State counsel supported the judgment of the learned trial Court but they did not address any argument in support of the judgment.
5. I have heard the learned counsel for the appellant at length and have read the record with utmost care. Muhammad Ishaque P.W.2 deposed that the appellant visited his Chak once or twice because his relatives Muhammad Saddique and Muhammad Sadiq lived in his Chak. He stated that he did not talk with Iftikhar Hussain P.W. In his presence, nor any amount was paid to him by P.W.1. To the same effect is the statement of Muhammad Akram P.W.2. These two witnesses were declared hostile and were subjected to cross-examination by the learned Prosecutor. In my view, they did not at all support the prosecution version and as such their evidence has to be accepted or discarded as a whole. It is well-settled that evidence of a witness cannot be believed in part. In this view of the matter, evidence of P.W.2 and P.W.3 is hereby rejected as a whole. The remaining evidence in the field is that of Iftikhar Hussain P.W.1. His case before the police was that an amount of Rs,14,000 was paid by him to the appellant in presence of P.W.2 and P.W.3. Rehmat Ullah Investigating Officer P.W.5 deposed in his evidence that recovery of Rs,14,000 was made at the instance of the appellant in presence of P.Ws.1 to 3. From the scrutiny of the statement of Iftikhar Hussain it is clear that he did not support the evidence of the Investigating Officer P.W.5 inasmuch as he stated that he signed the recovery memo. Without witnessing the recovery of money itself. In other words, it can safely be held that P.W.1 is also not a witness of the recovery. Admittedly, he did not see the recovery of the bribe money from the appellant at his instance. In pith and substance, his evidence is that he was told that a sum of Rs,14,000 had been recovered from the appellant and an envelope alongwith a newspaper was shown to him wherein the alleged bribe money was kept by the Investigating Officer. Under no circumstances, this piece of evidence can be made a basis for conviction and sentence of the appellant. There is nothing in the evidence that the plastic envelope was opened and the money contained therein was shown to the witness by the Police Officer. This being so, the prosecution has miserably failed to prove the fact of taking of illegal gratification of Rs,14,000 by the appellant from the complainant, nor there is any evidence on record to prove the fact of recovery of the aforesaid amount from the possession of the appellant or at his instance. The evidence of Rehmat Ullah P.W.5 alone is not sufficient to convict and sentence the appellant. Even otherwise there is nothing on record to show that the alleged money was tainted and that it was the same alleged money which was given by Iftikhar Hussain P.W.1 to the appellant as illegal gratification. Admittedly, the money was never marked and numbers of the currency notes were never noted by the Investigating Officer before it was actually given to the appellant by the complainant. It is again very strange that the money was recovered from the residence of the appellant which was situated close to his office without being witnessed by competent witnesses. The alleged recovery was made during office hours but none from the office of the Assistant Advocate-General was asked to join the recovery proceedings. It is again strange that only two people from a far away area were joined in the recovery proceedings and everybody in the office was ignored for becoming a witness in the case. The fact that the complaint was lodged with the Anti-Corruption Police after considerable delay cannot be ignored in the given circumstances. The plea of the appellant that he was involved in the case falsely on account of Muhammad Sadiq and Muhammad Saddique, his two relatives had a ring of truth. The complainant P.W.1 stated in his evidence that bail petition was not pressed by the accused and it was dismissed as withdrawn. In my view the motive for which the money was paid also failed wholly in the circumstances. The complainant Iftikhar Hussain did not deny the suggestion that a lady from the family of Muhammad Saddique and Muhammad Sadiq was abducted about two/three months earlier to the registration of the case in hand and that his cousin-brother was involved in that case of abduction. It was clearly admitted by the witness that the appellant had strained relations with his relatives Muhammad Saddique and Muhammad Sadiq. Relationship of the appellant with Muhammad Saddique and Muhammad Sadiq was not disputed. Prosecution story even otherwise does not appear to be solid and trustworthy inasmuch as when it dawned on the complainant that the appellant had told a lie to him that he was holding the office of an Assistant Advocate-General in the High Court, then he would not have stuck to the bargain for the payment of bribe money to him in lieu of favour from him because it was natural that the complainant would not have any confidence in the appellant. Thus, the prosecution has wholly failed to bring home the guilt to the accused. This being so, I feel no hesitation in setting aside the conviction and sentence of the appellant. Accordingly he is acquitted. The appeal succeeds and is allowed.