This is an appeal from the judgment of learned Special Judge, Anti --Corruption, N.-W.F.P., Peshawar, delivered on 10-4-1995 whereby he convicted Adam Khan, appellant, under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced him to two years' R.I. With a fine of Rs.5,000 (Five Thousand). In case of default in payment of fine he was to further suffer six months' R.I.
2. The brief background of the case is that Mughal Baz, complainant, purchased 3-1/2 Kanals of land from Fateh Gul and Itbar Gul in Mehra Kandar, Tehsil Nowshera for a sum of Rs.15,750 in the year 1991. At the time of entering of mutation the complainant along with Fateh Gul and It bar Gul approached Adam Khan (appellant), Patwari Halqa, who demanded Rs.3,000 as bribe for entering the mutation in his favour. Complainant considered the amount too high but Patwari refused to accept anything less to enter the mutation. He left the appellant's place on the pretext that he intended to arrange the asking amount the following day. Next day, instead he went to the Office of Anti-Corruption Establishment, Peshawar, where he lodged the report (Exh.PA). He alongwith Anti- Corruption Staff came to Nowshera and met the Magistrate who noted the numbers of four notes each of Rs. 500 denomination and all of them proceeded to Patwarkhana' , Nowshera. After passing the bribe money to the appellant he gave a signal to the Magistrate and others who accordingly raided the office. On the search of the appellant by the Magistrate the tainted amount was recovered from the appellant's waist-coat which he was wearing. The Patwari was accordingly arrested and case under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947, was registered by A. C. E., Charsadda on 1-1-1992.
3. The prosecution to prove its case examined as many as 4 witnesses. Mughal Baz was examined as P.W.L He supported the contents of the F.I.R. (Exh. PA) lodged by him. Aminullah Khan, EAC (Rtd.)
(P.W. 2) had supervised the raid. He recorded the statement of complainant (Exh. PS/1). He also noted numbers of four notes each of Rs. 500 denomination (Exhs. P1 to P4) produced by the complainant. Muhammad Halim Khan, S.I. (Rtd.) was a member of the raiding party. In his presence, Aminullah Khan, Magistrate (P.W.2) recovered tainted money from the waistcoat of the appellant vide recovery memo. (Exb.PS/3). Dawa Khan, Circle Officer, Anti-Corruption Establishment (P.W. 4) drafted 'Murasila' (Exh. PA/1) at the instance of the complainant which was incorporated into F.I.R. (Exh. PA). He made an application (Exh. PS) to the District Magistrate for the supervision of the raiding party. He was also member of the raiding party. H the recovery memo.
Exh.PS/3.
4. At the conclusion of the prosecution evidence the appellant was examined under section 342, Cr.P.C. He refuted the entire prosecution version and denied to have received any amount as illegal gratification. He stated thatone month prior to the alleged incident the complainant visited him and asked for entering a mutation in his favour from some lady which was refused. He did not step into the witness-box, however, led his defence. He has produced two witnesses, namely, Ali Khan (D.W. 1) and Mst. Lal Marjan,(D.W. 2). After assessing and appraising the evidence produced by the parties, the learned Special Judge found the appellant guilty of the offence and convicted and sentenced him as above.
5. Arguments of the learned counsel for the parties heard.
The learned counsel for the appellant contended that it is a case of no evidence. The prosecution has badly failed to prove to establish the case against the appellant.
6. The case of the prosecution rests mainly on the solitary statement of bribe-giver (complainant), therefore, it requires to be scanned with great care and caution.
7. According to Mughal Baz, complainant, when he along with Fateh Gul and Itbar Gul, vendors, visited the Patwari (appellate) for entering the mutation, he demanded illegal gratification of Rs.3,000 and refused to enter the mutation unless he is paid the amount. The said two vendors were not produced by the prosecution on the plea that they were won over though they could be produced as C.Ws. In his cross-examination, P.W. 1 stated that all the owners of the land, i.e., Fateh Gul, Itbar Gul and Ali Gul, brothers, and a female co-sharer had gone to the Patwarkhana of the appellant for entering a mutation. Out of the said owners, Ali Khan atid his cousin, Mst. Marjan sister of Fateh Gul and Itbar Gul, appeared as D.W. 1 and D.W. 2, respectively, and they categorically denied to have visited the office of the appellant on the day of occurrence. Complainant has categorically stated that appellant refused to enter the mutation unless he is given Rs.3,000. It is not explained as to how he agreed to accept less amount of Rs.2,000 though in his statement before the Magistrate on 1-1-1992 the complainant tried to cover up the acceptance of Rs.2,000 by the appellant that he had only Rs.2,000 with him to be paid to the appellant as illegal gratification.
It is in the cross-examination of the complainant that the Magistrate had signed the bribe amount in his presence, which he had given to the appellant as illegal gratification, but bribe money produced in the Court did not bear any signature. He further stated that he had paid Rs.500 when he met the appellant at the first instance but it is neither mentioned in the F.I.R. Nor in the statement before the Magistrate. It is also stated by the complainant that illegal gratification was demanded in the presence of Itbar Gul but this witness has been abandoned. Admittedly, the members of the raiding-party including the Magistrate did not personally witness the passing on the tainted amount to the appellant. In A absence of any independent corroboration of the charge of bribe it would not be safe to uphold the conviction of the appellant on the solitary statement of the complainant which is full of contradictions and inconsistencies.
For the foregoing reasons I allow the appeal, set aside the impugned order and acquit the appellant of the charge levelled against him. The appellant 8 is on bail and shall stand discharged from the liability of the bond.