' The appellants were convicted under section 5(2) of the Prevention of Corruption Act, 1947, read with section 34, P.P.C. And sentenced to undergo two years' R.I. Each and also to pay a fine of Rs,10,000 each or in default to undergo further R.I. For six months each by Malik Muhammad Afzal, Special Judge, Anti-Corruption, Gujranwala, vide his judgment, dated 22-9-1994.
2. The brief facts leading to the conviction of the appellants are that the complainant Imtiaz Baig (P.W.1) along with a friend Muhammad Sarwar (P.W.4) was travelling from Lahore to Rawalpindi for paying homage to Imam Bari. The complainant was also accompanied by his wife, sister-in-law and a child. At about 1-00 a.m. They stopped at Chowk Gondianwala near G.T.S. Stand, Gujranwala in order to take light refreshments. In the meantime, a police mobile occupied by a driver, two constables and a man without uniform claiming to be an A.S.-I. Stopped in front of their car. The man without uniform asked the complainant that he was drunk and that the women present in the car were strangers to him and demanded Nikah-deed from them. They were taken to the Model Town Police Station. After parking the vehicle outside the aforesaid police station, the A.S.-I.
Demanded illegal gratification of Rs,40,000, but when he was told that they did not have that much money, the police searched the person of the complainant and found Rs,5,100, out of which they retained Rs,5,000 as an illegal gratification whereas Rs,100 were returned to them.
3. The occurrence was reported by the complainant to the Police Station Kotwali, Gujranwala. A departmental Inquiry was held by Ch. Muhammad Yousaf Bajwa (P.W.6), the then S.P., C.I.A.
Gujranwala, who found that the appellants were present in the aforesaid police mobile and had committed the occurrence. However, the fourth person who claimed to be an A.S.-I., could not be traced. The aforesaid Superintendent of Police appeared at the trial as P.W.6 to depose that the Inquiry Report Exh.P.K. Was correct and was signed by him. The present case was accordingly registered after the aforesaid inquiry against the appellants, who also led to the recovery of Rs,1,000 each, the amount which they had allegedly received from the complainant out of Rs,5,100 aforesaid. Likewise, the statement of Shaukat Ali, H.C. (P.W.7) was also recorded to show that the appellants were involved in the occurrence. As, according to the police record, they were on patrol duty in the police mobile.
4. In addition to the aforesaid circumstantial evidence, the star-witnesses i,e, the complainant Imtiaz Beg and Muhammad Sarwar were 'examined as P.W.1 and P.W.4 respectively. Both of them did not support the prosecution case by stating that the appellants were not the persons who were present in the police mobile nor their identification was established through any identification parade. It is, thus, clear that both the star-witnesses including the complainant had exonerated all the three appellants/accused having not been able to identify them to be the same persons who were occupying the police mobile. They were cross-examined by the Public Prosecutor but without any tangible effect. The mere fact that Rs,1,000 each was recovered from the appellants would in no way link them with the occurrence because the identity of the aforesaid currency could not be established that it was the same money which was received by them from the complainant.
Though, the departmental inquiry was held but the main culprit i,e, A.S.-I., who had played the main role according to the F.I.R. By harassing the complainant and also negotiating for the bribe, was never apprehended nor brought to book by the Investigating Agency. As such, the case remains highly doubtful against the appellants particularly when the occurrence reportedly took place at Chowk Gondlanwala; whereas the police mobile was deputed for patrol duty in the area of Chand Da Qila Sandoki, which are two different places. A suspicion about the guilt of a person, howsoever strong, cannot be substituted for a proof which is required to be brought on record to establish an offence against the offender which undoubtedly is the duty of the prosecution to establish beyond any reasonable doubt; In this case, the prosecution has failed to discharge its duty to prove the case against the appellants beyond any shadow of doubt. Hence .The appeal is accepted. The convictions and sentences passed upon the appellants are set aside and they are acquitted after giving them the benefit of doubt. They are on bails and shall stand discharged of the bail bonds.
5. Since the currency notes of Rs,3,000 have not been claimed by any of the appellants, therefore, those shall stand confiscated to the State. The fine, if recovered from the appellants in pursuance of the impugned judgment, would be refunded to them.