' The appellant Hazrat Bilal was Revenue Patwari of Gaddar Circle, Tehsil and District Mardan. He was convicted under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act (II of 1947) and sentenced to undergo rigorous imprisonment for two years. In addition, the sentence of fine of Rs,10,000 was also imposed on him or in default thereof he was directed to undergo rigorous imprisonment for a further period of six months.
2. The case of the prosecution is that Muzammil Shah (P.W.1) wanted the appellant to enter a mutation with regard to the sale of land made by Arshullah (D.W.1) in favor of the former's wife. The appellant is alleged to have demanded a sum of Rs,2,000 Muzammil Shah was not willing to pay the bribe, therefore, he approached Inayatur Rehman, Circle Officer, Anti-Corruption, Mardan, on 28-3-1994 at 9-15 hours and told him that the appellant was demanding bribe from him.
Thereupon the Circle Officer recorded the F.I.R. Copy Exh.P.A. At the instance of the complainant. He was produced before Mr. Ehsanullah Khan, Magistrate of the First Class, Mardan (P.W.2) who recorded the statement of the complainant Exh.P.A./2 wherein he stated that the appellant had agreed to accept a sum of Rs,2,000 for entering the mutation in the name of his wife. The learned Magistrate took from the complainant vide recovery memo. Exh.P.B. One currency note of Rs,1,000 denomination and two currency notes of Rs,500 denomination each and besides noting their numbers were also initialed by him. The raiding party comprising of the learned Magistrate, the Circle Officer, the complainant and Arshullah (D.W.1) proceeded to the Patwarkhana in a car. The raiding Magistrate and the Circle Officer stood outside the Patwarkhana while the complainant and Arshullah vendor proceeded to the Patwarkhana where the appellant was present. The complainant passed on the money. Arshullah gave the specified signal. The learned Magistrate and the Circle Officer entered the Patwarkhana and the former showed his identity and took into possession vide recovery memo. Exh.P.C. The tainted money from the right side pocket of the waist coat of the appellant. Mutation No,72. Exh.P.5, dated 27-3-1994 on behalf of Arshullah in favor of Mst.
Tabbassum wife of the complainant was also secured vide recovery memo. Exh.P.D. Which was not placed on the judicial file during the trial for unknown reason.
3. During the raid the appellant had made a statement Exh.P.E. In writing to the effect that the complainant had approached him for entering mutation in favor of his wife; that the appellant entered Mutation No,72, dated 27-3-1994 and summoned Muzammil Shah for 28-3-1994 for attestation; that Muhammad Israr, Tehsildar had attested the mutation; that the appellant had neither demanded any money from Muzammil Shah nor he had received any such money.
4. At the trial, the prosecution case based on the evidence of the learned Magistrate and the Circle Officer P.Ws.2 and 3. The complainant during the course of examination was declared hostile and was cross-examined by the Public Prosecutor. Arshullah vendor and a member of the raiding party was abandoned by the prosecution for having been won over. He was produced later on and examined as D.W.1 by the appellant. The plea of the appellant at the trial was that Muzammil Shah (D.W.1) had deposed against him because he had refused to enter a mutation in the name of his wife as the vendor Arshullah had not appeared before him in support of the alleged sale. Mr. Ehsanullah Khan, Magistrate and the Circle Officer were stated to have deposed against him because they were official witnesses in order to bolster up the case against him.
5. The appellant appeared as his own witness in his defence and was examined on oath. Besides reiterating his stance that the complainant was annoyed over his refusal to enter the mutation unless the vendor was produced and details of the land sold were furnished to him. According to the appellant, on 20-3-104 Arshullah appeared before him where after he entered the mutation in the name of the wife of the complainant. The appellant also stated that he issued a receipt to the complainant for depositing the capital value tax on the sale price amounting to Rs,60,000. The appellant went on to state that on 28-3-1994 the mutation went on to state that on 28-3-1994 the mutation was attested by the Revenue Officer concerned in the Jalsa-e-Aam in the presence of Arshullah and Muzammil Shah. The latter took the receipt for capital value tax etc. And went away.
The appellant lastly stated that a Magistrate approached the Tehsildar and inquired about the mutation in favor of the wife of the complainant and also inquired about the complainant; that the Tehsildar delivered the original mutation to the said Magistrate who later on visited Patwarkhana but had not recovered any amount from his person. He categorically denied to have taken bribe.
' The appellant had also produced in his defence Arshullah initially cited as a P.W. He testified to have sold one Kanal of land in favour of the wife of Muzammil Shah for a sum of Rs,60,000; that he had visited the appellant on 20-3-1994 in his office; that he along with Muzammil Shah reached the Jalsa-eAam, where the mutation was to be attested; that he thumb-impressed the mutation in the presence of the Revenue Officer; that nothing had happened in his presence nor his statement had been recorded by any one.
6. The learned Special Judge, as stated earlier, believed the evidence of Mr. Ehsanullah Khan, Magistrate and that of Inayatur Rehman, Circle Officer and, as stated above, convicted and sentenced the appellant.
7. Mr. Abdul Sattar Khan, learned counsel for the petitioner, in support of this appeal, had raised the following contentions:--
(i) That there was no evidence to show as to under what circumstances the money was passed on to the appellants;
(ii) that the learned Magistrate and the Circle Officer were not in a position to see the appellant and the complainant when the money was passed on;
(iii) that it is also not alleged by the aforesaid two P.Ws. That they had heard the conversation between the complainant and the appellant;
(iv) that the complainant had not supported the prosecution case was declared hostile;
(v) that his evidence would neither help the prosecution nor would it support. The defence; and
(vi) that the allegation that the tainted money was passed on to the appellant in the presence of Arshullah P.W. Through the complainant is not established.
8. Mr. Khalid Khan, learned counsel for the State, has supported the judgment under appeal.
9. In similar circumstances in Abdul Hameed v. The State 1991 PCr.LJ 1117 a learned Single Judge of Lahore High Court was not pursuaded to hold the appellant therein guilty. It was inter alia, observed:-- "But this assertion in F.I.R. Is in consequential, firstly for the reason that on that day complainant (P.W.2) was not present, rather his brother Iqbal was present, secondly the F.I.R. Is not substantive piece of evidence. It can be used for corroborating maker alone. Here the maker has resiled.
Therefore, the statement in the F.I.R. Cannot be used against the appellant."
' Again the following excerpt from the same page is relevant:-- "As mentioned earlier the Raiding Magistrate (P.W.1) and Ch. Muhammad Sadiq S.C.O. (P.W.3) neither saw the passing of money to the appellant nor they overhead any talk between him and the complainant."
There is yet another aspect of the case. The prosecution has neither brought on the record the original Mutation No,72, dated 27-3-1994 (P.5) which had been taken into possession vide recovery memo. Exh.P.D. Nor had produced the tainted money which was alleged to have been recovered vide recovery memo. Exh.P.C. These two significant omissions certainly create doubt on the credibility of the prosecution allegations. Mere omission to place currency notes in an envelop was held to be fatal to the integrity of the prosecution case in Hafiz Aziz Ahmad Khan v. The state 1985 SCM R 1943. The crucial piece of evidence, namely, the mutation and the tainted currency notes had not been produced. The presumption that if the same had been produced it would have supported the appellant is unavoidable.
8. The result, therefore, is that this appeal is allowed, the conviction and sentence of the appellant are set aside and he is acquitted. He shall be set at liberty forthwith if not required in any other case.
9. For the reasons to be recorded a short order to this effect was passed by me on 16-1-1995. The present judgment provides the reasons for the same. \