Umaid Ali had purchased 26 kanals and 14 marlas of land from Asghar Khan in Mauza Gumala for a sum of Rs.1,80,000. Muhammad Iqbal Kausar was posted Patwari Halqa.
Umaid Ali approached him. He advised him to have the land transferred by way of mutation than through the registration as the latter will involve high cost. He informed Umaid Ali that he will have to pay a sum of Rs.18,000 as mutation fee. Umaid Ali paid him the amount. Muhammad Iqbal Kausar entered the Mutation No.1353 (copy exhibited as Exh. D.A.) on 16-3-1986. The mutation was sanctioned. Later, Umaid Ali came to know that actually a sum of Rs.13,500 was payable as fee and only that had been deposited by the Patwari. Thus, he came to know that Muhammad Iqbal Kausar had charged an excess amount of Rs.4,320. He submitted an application to the Deputy Commissioner. An inquiry was ordered. C.O./A.C.E., after conclusion of the inquiry, recommended judicial action. On such conclusion, complaint Exh.P.A. Was sent for registration of the case. Formal F.I.R. Exh. P.C. Was recorded. After completion of necessary investigation, challan was submitted to Court.
2. During trial Muhammad Iqbal Kausar did not deny that Umaid Ali had purchased the land and Mutation No.1353 sanctioned in his favour was entered by him, nor did he deny that mutation was initially entered in the register by him. He, however, denied that he had received any amount for depositing the same as State charges. He also examined in defence two witnesses.
3. Learned Special Judge, Anti-Corruption, Sargodha, who had tried Muhammad Iqbal Kausar under sections 161, P.P.C. And 5(2) of the Prevention of Corruption Act, 1947, found him guilty, convicted him accordingly vide judgment dated 4-1-1990 and sentenced him to undergo R.I. For two years plus to pay a fine of Rs.10,000 in default whereof to undergo R.I. For six months.
The convict has filed appeal.
4. Statements of six P.Ws. Were recorded at the trial.
Umaid Ali appeared as P.W.1 and reiterated that he had paid a sum of Rs.18,000 to the appellant as fee for mutation et c. For transfer of the land in his name which he had purchased from Rana Asghar Ali. He claimed that he had passed on the money in the presence of Zulfiqar (P.W.3), Muhammad Bakhsh (P.W.4) and Dilber (P.W.5). During cross-examination, on confrontation he was not found to have givens that fact in complaint Exh. P.A. In answer to a question during cross- examination, he stated that when he alongwith the above--named witnesses had gone to the Patwari, Asghar was already sitting there. He also disclosed during cross-examination that Asghar Ali vendee had got a suit filed against him about that very land through some other person on the strength of a forged document and that suit was decreed against him (complainant). He denied the suggestion that he had filed the complaint against the appellant as he had refused to help him in that case. During cross-examination, he was not found to have given any explanation in Exh. P.A.
About the tactics having played by the appellant for putting him of for a year for return of the amount.
5. Zulifqar (P.W.3) while corroborating the statement of the complainant about the payment of the amount in his presence and in the presence of Muhammad Bakhsh and Dilber Hussain P.Ws.
Admitted during cross---examination that a case stood registered against him, Umaid Ali and Muhammad Bakhsh P.W. Under section 420, P.P.C. And the same was pending trial. He gave the name of the person who had filed the suit against the complainant about the land purchased by him as Nawaz. He denied the suggestion that as the appellant had refused to help them in the suit filed by Muhammad Nawaz, they had cooked up a false case against him.
6. Muhammad Bakhsh who appeared as P.W.4 did not support the prosecution. He was declared hostile and cross-examined on behalf of the State. However, he did not state anything incriminating against the appellant.
7. Dilber Hussain who had appeared as P.W.5 and had explained that the bargain had been struck between the complainant and Asghar Ali in his presence. He did not state anything about the payment of Rs.18,000 by the complainant to the appellant. He was not, cross-examined even, for that.
8. Ch. Muhammad Islam Inspector who had submitted the challan after completion of the investigation appeared as P.W.6 and gave the details of the investigation.
9. Asghar Ali from whom the complainant had purchased the land appeared as D.W.1. He had stated that the mutation fee as well as the District Council Fee were deposited by the complainant in his presence in the bank and the District Council. During cross-examination, he denied that the accused had received a sum of Rs.18,000 from the complainant as fee. Ghulam Jehan who appeared as D.W.2 also supported the plea of the appellant that no money was paid by the complainant to the appellant.
10. I have considered the contentions raised by the learned counsel for the parties after having gone through the evidence.
11. There is no denying the fact that the complaint was filed after one year and four months.
Although the complainant at the trial explained the delay that occurred but he was not found to have stated anything in that regard while lodging the complaint Exh. P.A. On the basis of which case was registered against the appellant. It is worth noticing that it was during that period that a person set up by the vendee had filed suit against the complainant on the basis of an allegedly forged document. The said suit was decreed as a result of which the complainant had lost the land. Although he denied during trial that he was annoyed with the appellant for having not helped him in that suit but the fact remains that he must have been expecting some help from him as he could have deposed that at the time of sanction of mutation Asghar Ali had not stated anything about the land already having been sold to said Nawaz (plaintiff of that suit).
12. There is no cogent and reliable evidence, even to prove the passage of amount to the appellant.
In that, Muhammad Bakhsh who was also named as one A of the persons in whose presence the amount was paid did not support the prosecution case. He was declared hostile. Nothing could be brought out during cross-examination. Dilber Hussain who also appeared as P.W was not examined at all on that aspect of the case. No doubt, Zulfiqar P.W. Corroborated the statement of the complainant about the passage of money but he is proved to be a partisan of the complainant. In that, he admitted that he was co-accused with the complainant in a case registered against him under section 420, P.P.C. The other important aspect is that the complainant was not found to have stated in Exh. P.A that he had passed on the money in the presence of Zulfiqar and other P.Ws, The mere assertion of the complainant, in the circumstances, about which also, he had made complaint sixteen months later without corroboration, in my view, cannot be relied upon to maintain the conviction of the appellant. This appeal is, therefore, allowed and the appellant is acquitted. He is on bail. The stand discharged sureties shall