' This appeal arises from the judgment dated 28-6-1990 passed by Sh. Lutfur Rehman, Senior Special Judge, Anti-Corruption, Lahore who sentenced the appellant to 9 months' R.I. And a fine of Rs,3,000 and in case of default in payment of fine to undergo further R.I. For 3 months' under section 161, P.P.C. Read with section 5(2) of P.C.A., 1947.
2. On 14-5-1989 at 8-45 a.m. a case against the appellant was registered by Police Station Anti- Corruption Establishment, Lahore. P.W.4 complained that he had a land dispute with Ismail son of Ahmad Din and he had filed partition suit in the Court of Shehbaz Hussain, Civil Judge, Lahore and stay order was issued by the Court. Ismail etc. Violated the stay order for four times. The said Court issued 4 warrants of arrest of 3 months imprisonment each against Muhammad Ismail, Abdur Rashid, Abdul Hameed, Abdul Majeed and Arif sons of Ismail for violating the stay order and contempt of Court. Warrants were marked to the appellant, the bailiff of the Sessions Court, Lahore.
He demanded illegal gratification in connection with the execution of the warrants. On 11-5-1989 after accepting Rs,700 as illegal gratification in presence of Muhammad Naseer son of Abdul Aziz, resident of Chak No,644 Buchhi-ki, District Faisalabad he arrested Abdul Hameed son of Ismail. The appellant demanded more illegal gratification for the arrest of other accused. On 14-5-1989 the appellant had demanded Rs,400 as illegal gratification for execution of warrants. The complainant alleged that he did not want to give more illegal gratification.
3. The raid was supervised by P.W.3 Muhammad Qasim Wasti, M.I.C., Lahore. Hence the present case.
4. Charge under section 161, P.P.C. Read with section 5(2) of P.CA., 1947 was framed against the accused which he denied. The prosecution examined 6 P.Ws. In all to substantiate this case. P.W.1 Muhammad Nazir Butt, Civil Naazir, had entrusted to the appellant 4 warrants of arrest Exhs.PA., P.B., P.C. And P.D. Issued by the Court of Civil Judge, Lahore. P.W.2 Masud Iqbal, Ahlmad of the Civil Judge, stated that warrants of arrest Exh.P.A. To Exh.P.D. Were issued by Syed Shahbaz Hussain, Civil Judge, Lahore which were sent to the Civil Naazir for compliance P.W3 Muhammad Qasim Wasti, M.I.C. Stated that on 14-5-1989 a raiding party was formed consisting of officials of A.C.E. And the complainant. The complainant was sent ahead to contact the appellant whereas the P.W.3 M.I.C.
Alongwith other members of the raiding party remained present near Aamar Hotel. After some time, the complainant alongwith the appellant reached near the Hotel. P.W.5 gave a signal on which the P.W.3 introduced himself to the appellant who produced the tainted money Exhs.P.1 to P.4 from the left pocket of his shirt. P.W.3 recorded the statement of the appellant Exh.P.I. During cross- examination P.W.3 had stated that after recovery of the tainted money the complainant had stated that his object has been achieved and the complainant had also stated that previously he had got arranged raids and after the raid the tainted money used to be returned to him. The appellant had raised plea that he was falsely involved by the complainant in the bribery case, while actually he had received the recovered amount from the complainant which was borrowed from him by the complainant on 10-5-1989. P.W.3 had neither seen the passing of the tainted money from the complainant to the appellant nor heard any conversation that took place between them. P.W.4 Muhammad Arshad Circle Officer, A.C.E., Lahore was member of the raiding party and stated that on 15-5-1989 the raiding party reached Sessions Court premises and they stayed near Aamir Hotel.
P.W.5 was to pass the tainted money to the appellant. After some time, the complainant and the appellant came out near the Aamar Hotel. P.W.3 then introduced himself to the appellant who took out Rs,400 (Exh.P.1 to Exh.P.4) from the left side front pocket of his shirt and handed those over to the Magistrate. During cross-examination the P.W.4 stated that he had neither heard the conversation nor seen the passing of tainted money between the complainant and the appellant. P.W3 the complainant had narrated the contents of F.I.R. Exh.P.K. During cross-examination P.W.5 had denied the suggestion that the appellant had handed over him Rs,400 for paying the fare of the taxi after getting the same from different persons including one Hamiduddin, Naqsha Navis D.W.2. He also controverted that the appellant had asked to return the borrowed money and also denied that as he was annoyed on the demand of the return of money borrowed, got the appellant raided. He also denied that the money was paid in presence of ZA. Qudusi, Advocate D.W.1 at his `Adda'. He also denied that on the day of raid he had asked the raiding Magistrate P.W.3 to return the recovered money and that he previously got raided many persons but admitted that the appellant had filed a civil suit against P.W.5 for the recovery of Rs,400 after raid. He denied that he made a statement in the Civil Court that he had to return Rs,400 to the appellant and the bribe money was in fact the said money and further denied that he had engaged any counsel. P.W.6 had stated that in his presence the appellant had demanded Rs,1,000 for the service of warrants of arrest and after obtaining Rs,700 from P.W.5 affected the arrest of Abdul Hamid. The appellant when examined under section 342, Cr.P.C. And in answer to a question 'why this case against you', the appellant had replied that due to the grudge of the complainant with whom he had developed strained relations over the question of return of loan and arrest of the remaining three persons against whom the warrants of arrest were issued. The appellant made statement under section 340 on oath. He stated that he arrested Abdul Hamid and the remaining persons could not be arrested.
The police was with him. He had taken Hamid to Police Station Shandara and from there to the District Jail, where he was told to get separate Robkar regarding the arrested person. The complainant was with him and he arranged taxi. They came to the Court concerned and obtained order regarding Abdul Hamid alone from the Duty Judge. The complainant told the appellant that he was short of money and he was to pay Rs,400 as taxi fare. The appellant borrowed Rs,200 from Hamiduddin Chishti D.W.2 and paid Rs,400 to the complainant. On the day of occurrence, the complainant met the appellant at the Adda of Zaheer A. Qudusi, Advocate D.W.1 and returned Rs,400 to the appellant in presence of the said Advocate. The complainant asked the appellant to come to Aamar Hotel to arrest the remaining persons, who were there, where he was met by raiding Magistrate and told the whole truth. D.W.1 Zaheer Ahmad Qudusi, Advocate stated that on 15-5-1989 the complainant who is his client was paid back Rs,400 by the appellant in his presence.
He further stated that he had filed power of attorney Exh.DA. As counsel for Mashooq Ahmad in a civil suit for the recovery of the said Rs,400 filed by the appellant which was decreed ex parte, and subsequently appeared as a counsel of the complainant in execution proceedings, and where he made the statement Exh.D.B. Which was signed by him. D.W.2 made his statement that on 10-5- 1989 the appellant alongwith the complainant came to his Adda where he was told that the complainant was short of money and he was to pay taxi fare, on which he gave Rs,200 to the appellant who handed over the money alongwith Rs,200 more to Mashooq Ahmad complainant.
5. It has been vehemently urged before me that no case is made out against the appellant from the evidence on record and circumstances appearing in the case. There is nothing on record except the statement of P.W.4 about the alleged demand or settled bribe. The Magistrate P.W3 and P.W.4 Circle Officer had neither heard nor seen whatever transpired between the complainant and the appellant at the time when tainted money was passed to him. The complainant had grievance against the appellant for not getting executed warrants of arrest issued against the contemners as well as demand of Rs,400 from him which the appellant had given him as loan. The defence version put forth by the appellant was supported by the defence witnesses D.W.1 and D.W.2. No one had heard any conversation between the appellant and the complainant and the solitary evidence of complainant P.W.4 does not inspire confidence.
6. Pursuant to the above discussion the appeal of the appellant is allowed. He is acquitted of the charge by giving benefit of doubt. The appellant is on bail. His bail bonds are discharged.