This criminal appeal arises from the judgment of learned Senior Special Judge, Anti-Corruption, Punjab, Lahore, whereby he on 24-1-1990 convicted Dr. Arshad Ali, Abdul Ghani and Muhammad Shabbir, appellants, under various provisions of law and sentenced them as under:--- Dr. Arshad Ali. Appellant: Under sections 161, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947. to nine months' R.I. And a fine of Rs.3,000 or in default thereof three months' R.I.
Abdul Ghani and Muhammad Shabbir, appellants: Under section 162, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947. to nine months' R.I. And a fine of Rs.1,000 each or in default thereof three months' R.I. Each.
2. Dr. Arshad Ali was posted as Medical Officer at D.H.Q. Hospital, Sialkot. Muhammad Shabbir appellant was Dispenser and Abdul Ghani appellant was working as Ward 'Servant, on the eventful day. '
3. The charge against the appellants was/is that Dr. Arshad Ali demanded Rs.3,000 as illegal gratification from Muhammad Riaz P.W.1 for issuing a false medical certificate. At the time of raid, Dr. Arshad Ali received Rs.1,000 and on his (doctor's) direction, the complainant, namely, Muhammad Riaz gave Rs.2,000 to Abdul Ghani, Ward Servant, who further passed on the same to Muhammad Shabbir appellant.
It may be noted here that at the time of raid Rs.1,000 was recovered from underneath the newspaper lying on the table in front of Dr. Arshad Ali in a room of Hospital and Rs.2,000 were recovered from Muhammad Shabbir appellant by the raiding Magistrate, namely, Mian Saeed Akhtar P.W.2.
4. To prove its case, the prosecution produced four witnesses. Muhammad Riaz complainant appeared to prove the demand of illegal gratification and receipt of the tainted currency Notes of Rs.1,000 by Dr. Arshad Ali and of remaining Rs.2,000 by Abdul Ghani from him at the time of raid. He supported the prosecution case. Mian Muhammad Saeed Magistrate (P.W.2) and Mahmood Ahmad Inspector (P.W.4) were produced to prove the raid proceedings and the recovery of the tainted money from the appellants. Mian Muhammad Saeed Magistrate stated that on receiving the signal from the complainant, he recovered Rs.2,000 from Muhammad Shabbir and thereafter recovered Rs.1,000 from underneath the newspaper lying on a table in a room where Dr. Arshad Ali appellant was sitting. Mahmood Ahmad, Inspector A.C.E. (P.W.4) supported him. Muhammad Ilyas P.W3 simply stated that he had accompanied his brother to the Hospital for the purpose of getting medical certificate after causing him injuries with friendly hands.
5. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. Admitting the recovery of the tainted currency Notes from him, Muhammad Shabbir explained that the same were given by Abdul Ghani appellant to him for keeping the same with him. Abdul Ghani denied to have received Rs.2,(00 from the complainant. Similarly, Dr. Arshad Ali denied to have received the tainted money of Rs.1,000 from the complainant before the raid.
They did not produce any witness in defence. However, Dr. Arshad Ali made statement on oath in disproof of the charge against him. The remaining appellants did not give evidence on oath .In disproof of the charge against them.
6. Believing the prosecution evidence and disbelieving the pica raised by the appellants, the trial Court has convicted and sentenced them as stated above.
7. The learned counsel for the appellants submitted that the Magistrate and the Inspector had neither heard any conversation between the appellants and the complainant nor seen the money changing hands at the time of raid; that the money was not recovered from the .Physical possession of Dr. Arshad Ali; that no money was recovered from Abdul Ghani; that admittedly Ghulam Shabbir had neither demanded nor received the tainted currency Notes from the complainant and that the complainant had a motive to involve Dr. Arshad Ali in this case. The learned counsel for the State has supported the judgment of the trial Court.
8. I have considered the matter carefully. I feel persuaded to agree with the learned counsel for the appellants. I rind that the tainted currency Notes were not recovered from the physical possession of Dr. Arshad Ali and Abdua Ghani appellants. According to the statement of Muhammad Riaz complainant, he had not given the tainted currency Notes to Muhammad Shabbir. The Magistrate and the Inspector had not heard any conversation between Dr. Arshad Ali, Abdul Ghani and the complainant. Just after the occurrence, Muhammad Shabbir explained that the tainted currency Notes were given to him by, Abdul Ghani. This statement which does not amount to confession cannot be used as evidence against co-accused Abdul Ghani. Be that as it may, the fact remains that the tainted currency Notes were not recovered from the physical possession of Abdul Ghani.
The complainant had not given these currency notes to Muhammad Shabbir as illegal gratification. This being the position, the statement of the complainant alone with regard to the demand of illegal gratification from him by Dr. Arshad Ali and the receipt of tainted currency Notes from him by Dr. Arshad Ali and Abdul Ghani appellant remains in field. He being a decoy witness, the rule of prudence does require independent corroboration of his statement in all material particulars, which I do not see in the case in hand.
9. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellants, so while giving them the benefit of doubt, they are acquitted of the charge. They are on bail. They stand discharged of their bail bonds.
S.A./A-1426/L