' Abdul Sattar Patvari appellant was challaned and was arraigned for trial before Syed Ejaz Hussain Rizvi, Special Judge, Anti-Corruption, Lahore, who after recording the evidence found him guilty of the charge under section 161, P.P.C. And section 5(2), P.C.A., 1947. He was sentenced to six months'
R.I. And to pay a fine of Rs,2,000 and in case of default to further undergo R.I. For 2 months vide judgment dated 7-9-1994.
2.The appellant feeling aggrieved preferred this appeal challenging his conviction and sentence.
3.Muhammad Tufail complainant (P.W.4) on 16-5-1993 got recorded his statement at police station A.C.E. District Kasur at 8-30 a.m. Which is Exh.PW2/1. It was recorded by Sultan Mahmood (P.W.2) who was posted as C.O./A.C.E., Kasur. Later on he was produced before Mian Muhammad Aslam, Magistrate, Kasur (P,W.1) where his statement Exh.PWI/3 was recorded the same day at 11-00 a.m, and the five currency notes of the value of Rs,100 each Exh.P1 to Exh.P5 were noted and signed by the learned Magistrate and then proceeded to conduct the raid on the accused.
4.Briefly, the facts of the case are that the complainant owns land in Mauza Roday, Tehsil Pattoke, District Kasur. The appellant served as Patwari in the complainant's village about a year before the incident. The complainant wanted to get agricultural loan for which he purchased two blank Agricultural Pass Books and delivered the same to the appellant for their completion. After completion of Pass Books, the green one was received by the complainant on 14-4-1992 while the red one was deposited in the Office of the Consolidation Officer. The green Pass Book is Exh.PW1/4.
Khasra Girdawari was not in the name of the complainant, therefore, he approached the appellant in February 1993 for correction of the 1Chasra Girdawari. The complainant gave green copy of the Pass Book (Exh.PW1/4) to the appellant for the said purpose. The appellant promised to correct the record in the next Girdawari which was to be done in March, 1993 but he did not do the needful and finally the complainant approached the appellant on 12-5-1993, when he returned the green copy Exh.PW1/4, On perusal the complainant found that there was cutting of Khasra numbers at pages 14 and 15 of the said Pass Book. He asked the accused to correct the entries because loan could not be advanced on such cuttings. The appellant demanded Rs,1,000 was illegal gratification, out of which Rs,500 were paid and the complainant promised to pay the remaining amount later on.
Since the complainant did not want to pay the bribe he lodged report Exh.PW2/1. He handed over copy of Exh,PW1/4 to the Magistrate who retained its photo copy Exh,PW1/10 and returned the original to him. Raiding party proceeded to Chunian. The complainant went to the office of the appellant but there was strike of Patwaris and his office was locked. The strikers' camp was located at about two furlongs. Raiding party remained near the National Bank while the complainant proceeded to the strikers' camp. The appellant met him there and he brought him back to his office. The appellant corrected the original copy of Exh.PW1/4 and received Rs,500 from him. After correction of the relevant pages the appellant allegedly returned the original copy to the complainant. Thereafter, the complainant returned from appellant's office and gave the fixed signal where after the raiding party went upstairs in the office of the appellant. The Magistrate (P,W,1) introduced himself to the appellant and he directed the appellant to produce Rs,500 received by him from the complainant, ' The appellant accordingly produced currency notes Exh.P1 to Exh.P5 from his front pocket.
Statement of the complainant was recorded at the spot by the Magistrate and copy of Exh.PW1/4 was taken into possession vide recovery memo. Exh.PW1/12, which was also attested by the complainant.
5. To prove the prosecution case Mian Muhammad Aslam, M.I.C., who conducted the raid and recovered the tainted money and the Pass Book Exh.PW1/10, appeared as P.W.1. He also proved his report regarding the raid conducted by him. Sultan Muhammad, Inspector appeared as P.W.2. He stated that he had recorded the F.I.R. (Exh.PW2/1) on the statement of Muhammad Tufail correctly and was member of the raiding party. Ghulam Muhammad appeared as P.W.3 and stated that he was working as Reader/Ahlmad in the Court of Consolidation Officer, Chunian in May, 1993. During investigation of the case he produced Pass Book (Exh.PW2/2) before the Investigating Officer and attested the recovery memo. (Exh.PW2/3). Muhammad Tufail complainant appeared as P,W.4 and he supported his F.I.R. Ghulam Mustafa P.W. Was given up as unnecessary. The prosecution evidence was closed and the accused was examined under section 342, Cr.P.C.
6. The accused in answer to question No,8 has deposed as follows:-- "The complainant suspected that I managed production of a false person before the A.D.C.(G) in appeal in relation to the 31 Kanals of land of the complainant. He was also annoyed with me for the reason that his matter of preparation/correction of Pass Book Exh.PW1/4 was delayed. Hence in order to satisfy his vengeance he involved me falsely in this case."
' He opted to produce defence evidence as well to appear as his own witness in defence. Naseer Din (D.W.1) has supported the defence of the accused that the amount of Rs,500 had been paid by the complainant to the accused as cost of some copies desired to be obtained by the complainant. Abdul Sattar appellant appeared as his own witness and stated on oath as D.W.2 and supported his case.
7.Believing the prosecution evidence the learned trial Court taking a lenient view as the accused appellant had since been retired from service and was of old-age, convicted and sentenced him as stated above.
8.Learned counsel for the appellant and the learned counsel for the State have assisted me in going through the record and the evidence adduced on record which has been thoroughly perused and considered.
9.Learned counsel for the appellant has at the very outset of this case taken a preliminary objection and has placed reliance on Muhammad Riaz and 2 others v. State 1996 PCr.LJ 1007 decided on 1-10-1995 wherein it was held that the appointment of Syed ljaz Hussain Razvi,'Special Judge, Anti-Corruption, Lahore being illegal all proceedings conducted by him in criminal cases pending before him were without jurisdiction and thus it was a case where trial stood vitiated and a de novo trial was the requirement of law. However, keeping in view the rigours of a fresh trial and the old-age of the appellant learned counsel opted to proceed with the case on merits and argued the same at length. He has urged that essential ingredient in trap cases is that the conversation between the accused and the complainant before passing of the tainted money or transfer and passing of the tainted money from the complainant to the accused is a must for the raiding party to hear and see but in the present case the prosecution has not proved this factum beyond shadow of doubt. He has further argued that the statement of the complainant is uncorroborated and that mere recovery of the tainted amount would not connect the appellant with the offence and that the defence version and the evidence adduced to prove it is plausible and is also supported from the prosecution evidence. On the other had the learned counsel for the State has vehemently opposed the arguments of learned counsel for the appellant and has supported the judgment and prayed for upholding of the conviction and has further stated that under the Criminal Law Amendment Act, 1958 the accused had to explain the possession of the tainted money.
10. Learned counsel for the parties have been heard at length and I have carefully gone through the record of the case. The present case was decided on 7-9-1994 While Criminal Revision Petition No,215 of 1995 reported as Muhammad Riaz and 2 others v. The State 1996 PCr.LJ 1007 was decided much later in time on 1-10-1995 and through this petition the appointment of Syed Ijaz Hussain Rizvi, Special Judge, Anti-Corruption, Lahore suffered disqualification as given in section 3(2)(b) of the Pakistan Criminal Law Amendment Act, 1958 and it was further held therein that all proceedings conducted by him and criminal cases pending before him are without lawful jurisdiction. Thus, I am of the view that since the case in hand was decided much earlier to the decision of Criminal Revision Petition No,215 hence all judicial acts performed by him before the judgment dated 1-10- 1995 are protected by law. My view is further strengthened by the judgment recorded by Naimuddin, J. In case Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sindh PLD 1984 Karachi 462 wherein his Lordship has pleased to hold that orders, judgments and decrees were saved by de facto doctrine. Further explanation to this doctrine is as recorded in para. 19 of the said judgment at page 468, which reads as under:-- "In any case the orders, judgments and decrees passed by Mr. Qureshi are saved by de facto doctrine. This doctrine gives validity to acts of Judges de facto whatever defects there may be in the legality of their appointment. The doctrine is founded upon considerations of public policy and necessity, for the protection of the public and individuals whose interests may be effected thereby and to prevent needless contusion and endless mischief."
11. Be that as it may, the learned counsel has added that the appellant has admittedly retired from service and is an old man and if he were to face a re-trial there is, likelihood that he may not survive hazards of a second trial and may go to his grave with a stigma with him which is not desirable. I agree with the learned counsel that the case should be decided on merits whatever the fate may be.
12. The argument advanced by learned counsel that none of the members of the raiding party heard the conversation between the accused and the complainant nor did any of them witness the passing of the tainted money. Learned counsel has placed reliance on Muhammad Ashraf v.
The State 1996 SCMR 181 wherein it was held that in such-like transactions not only the payment of bribe money to the accused by the complainant is to be seen but also conversation between them has also to be heard by the members of the raiding party. This argument is supported by the dictum of the Supreme Court and it carries weight.
11. The version of the accused was recorded by the raiding Magistrate as Exh,PW1/7 wherein the appellant stated that the complainant had paid him fees for obtaining copies of Aks Shajra and Khasra Girdawari of his land and that it was pointed out by the learned counsel that Muhammad Tufail, complainant, (P.W.4) has admitted in his cross-examination that he had demanded some copies of Aks Shajra and Khasra Girdawari from the accused. This admission of the complainant further strengthens the case of the appellant and his first version. Moreover, it has also been admitted by the complainant that a person impersonating him appeared on his behalf before the A.D.C.(G) in an appeal filed by the complainant and he believed that the accused had got this mischief done and that he made a written complaint to the A.D.C.(G) who ordered registration of the case, Learned State Counsel was unable to rebut the arguments. Keeping in view the admission of the complainant and the corroboration to defence spelled out from the prosecution evidence there is much weight in the version of the accused.
The above discussion leads me to the irresistible conclusion that the prosecution has failed to prove its case beyond reasonable doubt and the defence version which the appellant adopted at the very initial stage stood established and supported from the prosecution evidence. The recovery of tainted money has also been plausibly explained by the accused and thus has justified the onus trusted by the law on his shoulders. The appeal is accepted and the appellant is acquitted of the charge against him. He is on bail and is discharged of his bail bonds.