1. ' Appellant, Ahmed Bakhsh, was sent up by Police Station A.C.E. Bhakkar, for an offence under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947, Special Judge, Anti- Corruption, Sargodha, vide his judgment, dated 21-9-1989, convicted and sentenced him under section 161, P.P.C. To one year's R.I. With a fine of Rs,5,000 or in default three months' R.I. Appellant has appealed. This judgment shall dispose of the appeal.
2. ' Prosecution story in brief as disclosed in the F.I.R. Exh.P.L., lodged by Muhammad Saleem was to the effect that he contacted the appellant Ahmed Bakhsh, who was Halqa Patwari. During Kharif 1987 the complainant asked the appellant to enter his name as a tenant in respect of land where he had sown Gowara under the lessee Muhammad Saeed, in rectangle Nos.2 and 3. On 27-12-1987 when the first informant got in touch with the appellant he demanded Rs,1,000. The matter was settled at Rs,800. Since the appellant did not wish to pay illegal gratification therefore, he reported the matter.
3. ' Nazar Hussain, Inspector, P.W.3 after recording F.I.R. Exh.P.L., on 27-12-1987, made an application Exh.P.M. To District Magistrate for deputing a Magistrate to supervise raid. Malik Abdul Rashid, M.I.C.
4. P.W.1 was accordingly nominated. He recorded the statement Exh.P.A. Of the complainant and also noted down the numbers of the currency notes of Rs,300, which the complainant was to pay. The raiding party went to Mankera but the appellant was not available, therefore, the raiding party went to Haiderabad in search of the appellant where they learnt that he had gone back to Mankera, therefore, the raiding party also came back. At Mankera they learnt that the appellant was sitting in a hotel, therefore, the complainant was sent to the appellant and the raiding party waited elsewhere. On signal of the complainant raiding party approached the appellant who had by then boarded a bus. On demand the accused threw the tainted currency notes and a chit outside through the window of the bus. Chit and currency notes were secured from the ground. On comparison, currency notes were found the same, therefore, taken into possession vide memo.
5. Exh.P.D. The Magistrate recorded the statement of the complainant Exh.P.F. And of the accused Exh.P.L. Wherein he refuted the allegations.
6. ' Prosecution in support of its case produced 4 witnesses in all. P.W.1, Malik Abdul Rashid, Magistrate First Class supervised the raid. He had noted the numbers of the currency notes and recorded the statement of the complainant as well as of the appellant after raid. In cross-examination he admitted that he has not signed the currency notes but had noted their serial numbers only. He also admitted that he neither heard the conversation nor saw the money changing hand. He also admitted that the bus stopped at some distance from the hotel. He admitted that when he reached the hotel the appellant had already boarded a bus but he had not seen him boarding the bus. He also admitted that he had not seen the complainant writing chit Exh.P.C. Muhammad Saleem complainant appeared as P.W.2. He supported the prosecution allegations. He simply stated that he had paid Rs,300 to the appellant but the witness does not say a word about chit Exh.P.C. Which allegedly was written by him. He later on however admitted that chit P.C. Was recovered which was in the handwriting of the witness. In cross-examination he admitted that he was a teacher in Government School at the time of raid. He also admitted that he gave money to the appellant as well the folded chit. He further admitted that at the time of paying illegal gratification, no conversation took place between them. Nazir Hussain, Inspector, P.W.3 supported the prosecution allegations and gave a detailed account of the occurrence and the investigation.
7. P.W.4 had seen the appellant throwing money from the window of the bus.
8. ' At the conclusion of the prosecution evidence appellant was examined without oath wherein he refuted the prosecution allegations and pleaded innocence. In answer to a question he stated that he had enmity with one Ghulam Hussain who had set up the present case. He also produced two witnesses in his defence. D.W.1, Abdul Aziz, Patwari, produced Khasra Girdawari Exh.D.A. And Fard Taqseem, Exh.D.B. Muhammad Amir, D.W.2, stated that Muhammad Saeed was his real brother and lot No, 2 was allotted to him. He further stated that he cultivated his land as well as the land of his brother. The land of his brother Muhammad Saeed was not given to the complainant for cultivation. He further stated that he knew the complainant who was not their tenant.
9. ' It was contended by learned counsel for the appellant that the case against the appellant was not proved at all. Submitted that the case suffers from many infirmities as neither the conversation nor the payment of tainted currency notes were witnessed by the Magistrate or the Inspector.
10. Argued that there are serious contradictions between the statements of the Magistrate and the complainant. Argued that the statement of D.W.2 clearly belies the entire prosecution case.
11. ' I have heard the learned counsel and gone through the file. Chit Exh.P.C. Allegedly written by the complainant was recovered alongwith the currency notes. The complainant did not say a word where he had written the chit. The Magistrate did not even know That such a chit was prepared and passed on to the appellant. The Magistrate and the Inspector neither saw the money changing hands nor heard the conversation. Their evidence does not inspire confidence because they saw the signal of the complainant indicating that illegal gratification had been paid yet failed to notice how and when appellant left the hotel and boarded a bus. Magistrate and the Inspector did not enter the bus themselves instead two constables were sent, therefore, they did not see themselves who threw the money from the bus. The motive for giving illegal gratification was that complainant was tenant of one Muhammad Saeed. He wanted his name to be entered in the relevant record as a tenant. D.W.2, Muhammad Amir, real brother of said Muhammad Saeed appeared and stated that he used to cultivate the land of his brother and it was never given to the complainant. In view of this statement the motive is not proved at all, therefore, the accepting of illegal gratification would become highly doubtful.
12. 'For what has been discussed above, I hold that prosecution has not been able to prove its case beyond doubt. Appeal is accepted. Conviction and sentence of the appellant is set aside.
13. Appellant is on bail. His bail bonds shall stand discharged.