Abdur Rashid appellant was a Revenue Patwari of Halqa Berthanwala, District Sialkot, in the year 1984. Muhammad Arshad complainant requested him to prepare Agricultural Pass Book for him.
The appellant for its preparation demanded Rs.300 as bribe from the complainant which he paid.
After a few days when the complainant went to the appellant for collecting the Pass Book, he demanded Rs.100 more from him. The complainant felt annoyed over his additional demand and informed the Anti---Corruption Department, Sialkot. On 11-7-1987 S.I. Muhammad Tufail of Anti--- Corruption Department `recorded the statement of the complainant and produced him before Muhammad Nawaz, a local Magistrate, who recorded his statement and settled a programme for the raid. He noted down the number of the currency note constituting tainted money and accompanied the complainant alongwith staff of Anti-Corruption Department to Tehsil Office, Sialkot. The complainant contacted the appellant in Tehsil Office and brought him out in a small hotel situated in its vicinity, near which the raid party was concealing itself. The complainant passed on the tainted money to the appellant and coming out of the hotel, he gave the agreed signal to the raid party which came in action. Coming to the appellant, who was still present in the hotel, the Magistrate (Muhammad Nawaz), after disclosing his identity to him, recovered the currency note of Rs.100 from his pocket. He wrote the raid report as also the statement of the appellant and, after completing necessary proceedings, he got him arrested by S.I. Muhammad Tufail. The S.I. Completed the investigation and submitted the challan to the Court of, learned Judge, Anti-Corruption (Prov.), Gujranwala, Camp at Lahore.
2. On the commencement of the trial the appellant was charged under section 161, P.P.C. And under section 5(2) of Act II of 1947 and, on his pleading not guilty, the prosecution examined Mr. Muhammad Nawaz, Magistrate Ist Class (P.W.1), Muhammad Arshad complainant (P.W.2) and S.I.
Tufail Hayyat (P.W.3).
3. On the completion of the prosecution evidence, the appellant, in his statement under section 342, Cr.P.C. Denied all the incriminating circumstances figuring against him in the prosecution evidence, including the statement (Exh.P.W.1/5), which he had allegedly made before the raiding Magistrate soon after the raid and was proved by him (Magistrate) during the course of his statement as P.W.1. He volunteered to appear as his own witness under section 340, Cr.P.C. And making his statement as D.W.2, also produced Muhammad Shat (D.W.1) in his defence. In his statement under section 340, Cr.P.C. He stated that he never demanded illegal gratification from the complainant. He alleged that Agricultural Bank, Sialkot, had sent a robkar to the Tehsildar to pass the same on to him for the preparation of a mutation on 11-7-1984 on the basis of which he made relevant entries in the record. According to him, Mutations Nos.184 and 185 were entered in the register of mutations; the certified copies of which are (Exh.D.A. And Exh.D.B.). He stated that the complainant never met him before 11-7-1984 and on this date he met him at 11-00 a.m. And asked to accompany him to the hotel where one Ghulam Haider, the proprietor of the hotel, was also present.
3-A: He stated that the complainant had asked him for `Nashan Dahi' and on his refusal to oblige him, they had exchanged hot words. This occurrence, according to him, had taken place about two months earlier to the raid and he was falsely implicated in this case on that account. He also hinted at an old enmity, alleging that his father had got arrested Karim, the uncle of the complainant, about 15 years ago and his father had also assisted the opponents of the complainant in a murder case. He denied the fact that the tainted currency note was recovered from his pocket. In the cross-examination he, however, admitted that the complainant had come to him for the preparation of Agricultural Pass Book but denied the suggestion that he had received Rs.300 as bribe from him and gave the Pass Book without his signatures. He also denied the suggestion that the complainant had revisited him to obtain his signature on the Pass Book and he had demanded Rs:100 from him as bribe, which was recovered from his possession during the raid.
He also denied having stated to the raiding Magistrate in his statement (Exh.P.W.1/5) that he and the complainant had taken meals in the hotel. He was conf on Fed with the statement wherein he had stated that they were about to take meals. When further confronted with his statement (Exh.P.W.1/5), he admitted that he had stated therein that he did not know as when Arshad had placed G.C. Note of Rs.100 in his pocket and on the introduction of the Magistrate the same was recovered from his pocket and after writing its number, it was taken into possession. He clarified that the complainant did not get any case registered against his father. When shown his signatures under the statement (Exh.P.W.1/5) he admitted the same as his own.
4. Muhammad Shari (D.W.1) deposed that on 11-7-1984, when he was posted as Revenue Patwari, Halqa Jatta, he, after the arrest of the appellant, was directed to take charge of Halqa Berthanwala where the appellant stood posted and Mutations Nos.184 and 185 stood registered in the hand of the appellant on 11-7-1984 and a report in the Roznamcha of the same date stood entered.
5. On the conclusion of the trial the learned trial Judge, vide his judgment, dated 11-4-1988, convicting the appellant under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, sentenced him to nine months' R.I. And a fine of Rs.2,000 or in default to undergo three months' R.I. Aggrieved by it, he came up in appeal to this Court soft
6. It was argued on behalf of the appellant that he (appellant) was acquitted so far-as-the allegation regarding the receipt of Rs.300 as bribe from the complainant was concerned. It was further contended that in fact the land of Ahmad Din and Mubark was pledged with the Agricultural Development Bank, vide Mutation No.184 (Exh.DA.) and Mutation No.185 (Exh.D.B.) and the complainant had nothing to do with these transactions and these two persons were not produced as witnesses to establish some link between him and these persons. It was argued that there was enmity between the complainant and the 'appellant and it was in that background that the complainant got the appellant falsely implicated in this case. In support of his contention the learned counsel referred to certain portions of the statement of the complainant in the cross- examination. It was further asserted that the entire evidence was written by Rao Iqbal Ahmad Khan, the learned Judge, Anti-Corruption, Lahore, despite the fact that he had never remained Special Judge, Anti-Corruption, Gujranwala Division, ever since its establishment w.e.f. 1-7-1982 to which the case pertained territorially. In this connection he referred to a number of notifications issued by the Provincial Government from time to time.
7. After the perusal of the copies of the relevant notifications, I am inclined to agree with the contention of the learned counsel for the appellant that Rao Iqbal Ahmad Khan, Special Judge, Anti-Corruption, Lahore, had no jurisdiction to try the case giving rise to this appeal because it pertained to the territorial jurisdiction of Gujranwala Division and he had never been posted as Special Judge, Anti-Corruption of that Division. Therefore, the portion of the evidence recorded by him in the case was without lawful authority and appellant's conviction based on the evidence recorded by him as illegal.
8. Therefore, the appeal is accepted, the conviction and sentence of the appellant are set aside and the case is remanded to the learned Special Judge, Anti-Corruption (Provincial), Gujranwala Division, for retrial on and, from the stage the illegality crept in. In other words, he shall re-record the evidence recorded by Rao Iqbal Ahmad Khan and decide the case afresh in accordance I with law.
9. The appellant shall file retrial remain on bail but he shall file fresh bail bonds in the sum of Rs.10,000 with one surety in the like amount to the satisfaction of the learned trial Judge within a week.
N.H.Q./A-184/L