JUDGMENTRASHID AZIZ KHAN, J.-- Amjad Parvaiz was tried by Special Judge, Anti- Corrruption Sargodha, for an offence under section 161 PPC read with, section 5(2) of Prevention of Corruption Act, 1947. The trial court vide its judgment dated 12.1.1991 convicted and sentenced him to nine months R.I with a fine of Rs.5000/-, or in default three months R.I. Under section 161' PPC read with section 5(2) of PCA. The convict has appealed. This judgment shall dispose of the same.
2. The prosecution story in brief, as disclosed in FIR Exh. PA lodged by Muhammad Ashraf on 16.8.1989, was to the effect that one Muhammad Rafique had constructed a wall in the lane of his house blocking the way. The first informant with other people of the Mohalla gave an application to the Illaqa Magistrate. The said Magistrate held an inquiry through police. On receipt of the report, he sent the same to the Assistant Commissioner for further action. The file was pending with Amjad Parvaiz, appellant, a Clerk in the office of A.C., JaranWala, who did not put up the file. The first informant contacted him, whereupon Amjad Parvaiz demanded Rs.300/- as illegal gratification for putting a favourable note before the Assistant Commissioner .Since the first informant did not wish to pay illegal gratification, therefore, he reported the matter.
3. Rana Muhammad Tufail, PW-3, Regional Inspector ACE, Faisalabad Region, after recording FIR Exh.PA gave an application requesting that a Magistrate be deputed for supervising the raid. Mr. Saeed Ahmad Ashraf, MIC, was accordingly deputed, who noted down the numbers of currency notes and recorded the statement of Muhammad Ashraf, complainant. Thereafter, a raiding party was constituted, which went towards the office of the appellant. TheAnyad Parvaiz V. The State(Rashid Aziz Khan, J)complainant was sent to Amjad Parvaiz with a direction to give signal after Amjad Parvaiz had received the illegal gratification. On receipt of the signal, learned Magistrate went there and recovered the tainted currency notes from the pocket of the appellant.
Learned Magistrate once again recorded the statement of Muhammad Ashraf and thereafter recorded statement Exh. PG of Amjad Parvez as well. Affer usual investigation challan against the appellant was submitted.
4 The prosecution in support of its case produced three witnesses in all. PW-1 Muhammad Ashraf stated that when he contacted the appellant in his office, he demanded Rs. 300/- as illegal gratification for putting up a favourable note. He reported the matter and the raiding party apprehended the appellant and recovered illegal gralification as well. In cross- examination, he admited that a brother of the accused was an Advocate. He further admitted that a few days before the raid he had gone to Javed Iqbal, Advocate, brother of the appellant for engaging him for filing a complaint. He, however, denied the suggestion that a few days before the raid, he had engaged him as counsel. Saeed Ahmad Ashraf, MIC and Rana Muhammad Tufail, Inspector, PWs-2 and 3, respectively, corroborated the prosecution version. Both of them in cross-examination, however, admitted that they neither heard the conversation nor saw the money changing hands.
Both of them admitted that the tainted currency notes of Rs. 300/- were recovered from the pocket of the appellant. They also admitted that at the time of raid, statement of the appellant was recorded wherein he accepted having received Rs. 300/- but gave an explanation that the same was received for being passed on to his brother who had been engaged by the complainant and at that time he was not available.At the conclusion of the prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. He again stated that he had not received any illegal gratification but the complainant had given him Rs.
300/- on the pretext that the same may be given to his brothber who was an Advocate, as his fee, since he was not available in his office on the said date. He also produced two defence witnesses .
DW-1 Qazi Majid Iqbal, Advocate stated that in August, 1989, he was sitting in the office of Javed Iqbal, Advocate, brother of the appellant when Ashraf complainamt came and engaged Javed Iqbal for filing a complaint. Javed Iqbal, Advocate, demanded Rs.300/- as legal fee, whereupon Muhammad Ashraf left by saying that he would bring the fee. DW-2 Javed Iqbal, Advocate, stated that the appellant was his real brother. Ashraf, PW had engaged him to file a complaint against his brother. Fee was settled at Rs.300/-whcreupon Muhammad Ashraf, PW promised to pay the same on the next day. Both the DWs were cross-examined as well.
5. It was contended by learned counsel for the appellant that the case against the appellant has not been proved at all. Submitted that the appellant at the time of raid made a statement which has been duly corroborated by two practising Advocates, and the samechould be given more weight. Learned counsel for the state, on the other hand, contended that the prosecution has been able to prove its case beyond doubt, therefore, the conviction may be upheld.
6. I have heard the learned counsel and gone through the evidence with his assistance. As far as the recovery of tainted currency notes from the possession of the appellant is concerned, it is accepted by both the sides. The only question which remains to be resolved, is whether the appellant had accepted Rs.300/- as illegal gratification or as legal fee for his brother. In this respect the prosecution has produced Muhammad Ashraf only. As far as the learned Magistrate and the investigating officer arc concerned , they are not of any help to the prosecution because they only witnessed the recovery of money from the appellant. Muhammad Ashraf, PW, when cross-examined, had to admit that the appellant was not head clerk in the office of Assistant Commissioner, and it was the head clerk who had to put up a note before A.C. He also admitted that one Javed Iqbal, real brother of the appellant was a practising Advocate, though he denied the suggestion that he ever kengaged him. On the other hand, the appellant at the very out set came up with the defence that the complainant had given him R.s. 300/- to be passed on to his brother as his legal fee. This statement finds corroboration from the statements of two independent practising Advocates, Both of them had stated that the complainant had come to the office kof Javed Iqbal. Advocate, and engaged him, and the legal fee was settled at Rs.300/-i haw noticed that prosecution has not even cross-examined Javed Iqbal, Advocate, DW- 1, on this aspect of the case. He was put only one question which was to the effect that he was brother of the appellant. It is well settled that if a witness is not cross- examined on a point, it means the other side is not disputing the same. Even otherwise, if the prosecution story is put in juxtaposition with the defence version, the defence version appears to be more plausible. The statements of the defence witnesses are further corroborated by Exh. DA and Exh. DB which indate that the appellant was injured and remained in hospital as well.This corroborates the defence version, according to which the first informant wanted to file a complaint against his brother under section 509 PPC.
For what has been discussed above, I feel the prosecution has not been able to prove its case beyond reasonable doubt .Therefore, giving the benefit of doubt I accept the appeal and set aside the conviction.