' Ghulam Ahmad accused, who was convicted on 22-12-1986 by Rao Iqbal Ahmad Khan, Special Judge Anti-Corruption, Lahore (Camping at Sialkot), under section 161, P.P.C. And section 5(2), P.C.A., 1947, and sentenced on each count to six months' R.I. And a fine of Rs,1,000, has come up in appeal to this Court, assailing his conviction, on a number of grounds and pleading absolute innocence.
2. At the relevant time, Ghulam Ahmad was Revenue Patwari of village Burj Arain, Tehsil Daska, District Sialkot, and had allegedly made a demand for illegal gratification from Muhammad Yousaf to meet his request of being supplied copy of a Jamabandi. In the raid conducted under supervision of Mr. Iftikhar Handal, M.I.C., Sialkot, by the Anti-Corruption Inspector, Mr. Tufail Hayat, tainted money (two currency notes of Rs,100 each ) was claimed to have been recovered, the same having been paid to the Patwari by Muhammad Yousaf complainant, on 23-10-1984, shortly before the raid. The accused was arrested and he was prosecuted, after sanction in that regard was given by the competent authority. Although the complainant turned hostile, the learned Special Judge relied on the statements of the other P.Ws., namely Haji Muhammad Rafiq, the Magistrate and the Police Inspector, and came to the conclusion that the accused had demanded and accepted the money as illegal gratification from the complainant and the charge stood proved.
3. Learned State representative however concedes that when there is no complainant, there is no case. Muhammad Yousaf complainant has been examined as P.W.2, and he has been declared hostile. According to him, he had paid Rs,205 as fee for getting copies of Jamabandis and Khasra Girdawaris, in the morning, on the same day, and when he approached him again for getting a copy of another Jamabandi, he was accompanied by Haji Muhammad Rafiq, who asked him (Muhammad Yousaf) to give Rs,200 to the Patwari. Although he (Muhammad Yousaf) wanted to pass on Rs,200 to the Patwari, the latter declined to accept the same. Haji Rafiq made a similar effort, and when the Patwari refused to accept the money, the currency notes were thrown in front of him by Rafiq, and the officers picked up the same from the floor. It is admitted position that the tainted notes were lying on the ground and from there the same were taken into possession by the raiding party. The other P.Ws. However, have deposed that within their view and in their presence the Patwari had thrown away the currency notes and immediately before that he was holding the same in his left hand.
4. It is in evidence that Patwari had actually demanded Rs,400 as illegal gratification. The prosecution claim is that before undertaking the exercise, the complainant had made over to the Magistrate two currency notes of Rs,100 each. It is indeed not understandable as to how could everybody involved be sure about the Patwari's inclination or readiness to accept Rs 200 only, when his demand was for Rs,400. It is submitted by the learned counsel for the appellant that actually a trap had been laid and a false recovery of Rs,200 had been planted on the accused.
There is no doubt that the Magistrate and the Police Inspector were not expected to have become a party to the affair for involving the accused in a false case. But here it would be important to discuss the role of Haji Muhammad Rafiq P.W.3. Documents Exhs.D.A. To D.H. Indicate that a day prior to the raid Muhammad Rafiq, with his brother Muhammad Siddiq, on 24-4-1984, had made an application for action against the Patwari, alleging that he was demanding from them an amount of Rs,2,000 as bribe, and on their failure to part with the money, had entered in the Khasra Girdawari names of Aman Ullah and Inayat Ullah as persons in cultivating possession of the land, against facts. Actually, about a week before, on 18-4-1984, one Nawab had also filed a pre-emption suit against Haji Muhammad Rafiq and Haji Muhammad Siddiq, who had purchased 20 Kanals and 15 Marlas of land, from one Hidayat Ullah, vide sale-deed dated 20-4-1983. It is pointed out that in order to defeat the pre-emption suit the defendants-vendees were keen that they be recorded as tenants, as in those days a tenant had a prior and preferential right of pre-emption as against anyone else. As is shown by the application dated 24-4-1984, Exh.P.B., the Patwari had entered the names of Aman Ullah and Inayat Ullah instead, as tenants, which entry, according to Haji Rafiq and Haji Siddiq, was illegal and contrary to the actual position. Subsequently, on 26-4-1984, through application Exh.D.C., addressed to the Deputy Commissioner, Sialkot, Haji Muhammad Rafiq and Haji Muhammad Siddiq had made a prayer for correction of entries in the Khasra Girdawari. When, after the raid, Ghulam Ahmad Patwari was suspended, and he was replaced by another Patwari, a criminal case (Exh.D.E.) was got registered by one Haji Inayat Ullah against Hidayat Ullah, who in collusion with the Patwari, and with the assistance and for the benefit of Muhammad Rafiq and Muhammad Siddiq got incorrect entries made in the Revenue Record. Haji Muhammad Rafiq and Haji Muhammad Siddiq had purchased the land on 20-4-1983 from Hidayat Ullah son of Siraj Din, vide deed Exh.D.F. (copy thereof). They wanted to preserve this piece of property, but the same was pre-empted by one Nawab son of Nabi Bakhsh, copy of the plaint being Exh.D.G.
5. These documents would leave little doubt about the fact that Haji Muhammad Rafiq was inimically disposed towards Ghulam Ahmad Patwari. It is he who had provided his car to the raiding party and had earlier given company to Muhammad Yousaf, in the same car; in having access to the Anti-Corruption Establishment. He is not a rustic or an illiterate villager but is a clever person who has been having links with the authorities at different levels and is well-off, as he is maintaining a car. He does not deny the developments aforesaid, as demonstrated by the documents Exhs.DA. To D.H., and also concedes that he had earlier also been instrumental in conducting similar raids made on WAPDA employees and police officials, though he denies that he is a complainant by nature, and has been involving public servants in similar cases, if they are not inclined to help him or act at his beck and call. I am convinced that most active in the background of this case was Muhammad Rafiq, who had no good relations with Ghulam Ahmad Patwari, whom he had planneu to trap.
6. Exh.P.W.4/2 is the site plan of the place where the raid was made. The bus-stand, where the Magistrate and the Inspector remained sitting, surprisingly for two hours, was at a sufficient distance from the premises, where the accused had his office (Patwarkhana) and it had an enclosure wall. The interior of the room was not visible to a person at the Lorry Adda. It is not understandable as to why the members of the raiding party had to wait for two hours, when it was a pre-arranged affair and the Patwari was expecting to get the money from Muhammad Yousaf complainant on delivering to him the requisite document, and why did the Patwari hold the currency notes in his hand and did not care to insert the same into his pocket, over that long span.
Muhammad Rafiq, as is claimed, had given the specific signal, whereupon the Magistrate and the Inspector had left the Lorry-Adda and gone over to Patwarkhana and the same must have taken quite a few minutes. The entire exercise thus does not seem to be free from doubt and sounds pretty unnatural.
7. Obviously the conversation between the concerned persons could not be overheard and the transaction of. The money exchanging hands could not be seen by the outsiders, including the Magistrate and the Inspector; and without that essential element being in existence, it could not necessarily be inferred that the money lying on the ground had been passed on to the Patwari as illegal gratification and it was he who had thrown it away on the floor, on seeing the raiding party entering the interior. The learned State representative, once again, is in a mood to concede that involvement of the accused in the affair seemed to be suspicious and the entire exercise to be truly dubious.
8. The poor Patwari who had allegedly demanded and been paid a petty amount of Rs,200 as bribe has been through the rigors of trial, and having faced untold insult and mental agony, besides having undergone the humiliation of suspension from service, over a little less than nine years, deserves a humane and considerate treatment; although by observing so, I do not mean that those civil servants indulging in bribery should be shown a soft corner. They must be dealt with sternly; but since the prosecution case against the appellant is indeed not free from doubt, I world accept the appeal and set aside the conviction and sentence, by extending to the appellant benefit of doubt. He shall be relieved of the surety bonds.