' The appellant was convicted under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to three years' R.I. With a fine of Rs,10,000 and in case of default in payment of fine to further undergo R.I. For 9 months, by the learned Special Judge Anti- Corruption, Rawalpindi Division, vide judgment dated 31-10-1997.
2. Brief facts of the prosecution case are that complainant Muhammad Rizwan lodged a complaint before Ch. Abdul Ghaffar, Circle Officer, Anti-Corruption Establishment Rawalpindi, wherein he alleged that he is resident of Mauza Kori Daulal and works abroad and has come on vacation to Pakistan. He struck a bargain with one Fazal Hussain for purchase of 10 Marlas of land from him. On 5-6-1996, he along with Fazal Hussain and Muhammad Zaman resident of the said Village went to the appellant Muhammad Mansha, Halqa Patwari and requested him to enter mutation of the said sale. He, in presence of companions of the complainant demanded an amount of Rs,8,000 as illegal gratification for doing the needful. The complainant said to the appellant that he had only Rs,2,000 with him and he gave the said amount to him with the request to enter the mutation. He entered Mutation No,295 and asked him to bring the balance amount on the following day. As the complainant did not want to pay the illegal gratification by considering it a sin, he reported the matter to the Circle Officer, A.C.E. With the request to constitute a raiding party for proceeding against the appellant.
2. On receipt of the said complaint (Exh.P.W.4/A) the Circle Officer (C.0) recorded F.I.R. No,5 dated 6- 6-1996 (Exh.P.W.4/B) and moved an ' application Exh.P.W.4/C before the District Magistrate for deputing a Magistrate to supervise the raid. The District Magistrate Rawalpindi vide order Exh.P.W.2/A ordered Resident Magistrate Gujar Khan to conduct the raid. Ch. Abdul Ghaffar C.O.
Alongwith the complainant and officials of the Anti-Corruption Establishment went to the office of Abdul Rasheed Razi R.M./M.I.C. Gujjar Khan. He recorded the statement of the complainant Exh.P.W.2/B. The complainant produced before him six currency notes of denomination of Rs,1000 each, who after noting down their numbers returned the same to him for onward delivery to the accused. The R.M. Constituted a raiding party consisting of himself, complainant, Muhammad Naseer, Karamat Shah, Constables and Ch. Abdul Ghaffar C.O. And proceeded to the office of the accused. The complainant along with Muhammad Naseer Constable went towards the room of the accused while other members of the raiding party stayed in front of the building. After a short while the complainant gave the signal and the Magistrate along with other companions raided the office of the accused. He was present in his office along with one Muhammad Zaman (P.W.1). The Magistrate introduced himself and groped the accused and recovered from his pocket a sum of Rs,13,100, one photo copy of identity card and a pocket diary. The six tainted currency notes were also included in the aforesaid amount which was recovered as their numbers matched with the numbers already noted down by the Magistrate. The Magistrate secured the currency notes, photo copy of N.I.C. And pocket diary through recovery memo Exh.P.W.2./C which was attested by Abdul Ghaffar C.O. And the complainant. The Magistrate also took into possession mutation register which was lying on the table of the appellant vide recovery memo Exh.P.W.2/D. Three copies of challan forms duly filled in Exhs.P.W.2/E, F and G were produced by the complainant which were also taken into possession by the Magistrate vide recovety memo Exh.P.W.2/H. He thereafter recorded the statements of the complainant Exh.P.W.2/I, Muhammad Zaman Exh.P.W. I/B, Constable Muhammad Naseer Exh.P.W.2/J and Ch. Abdul Ghaffar C.O. Exh.P.W.2/K as well as that of the accused Exh.P.W.2/L. He took into custody the accused and handed over him to the Circle Officer alongwith his raid report, recovery memos and the suit property.
4. Ch. Abdul Ghaffar C.O. (P.W.4) investigated the case, recorded the statements of the P.Ws. And submitted the challan of the accused for trial.
5. The prosecution in order to prove its cases produced P.W.1 Muhammad Zaman, P.W.2 Abdul Rasheed Razi, Raiding Magistrate, P.W.3 Muhammad Naseer Constable and P.W.4 Ch. Abdul Ghaffar C.O. However it did not produce Muhammad Rizwan complainant as having been gone abroad and Fazal Hussain P.W. Was given up as having been won over by the accused. The said P.Ws.
Supported the prosecution case.
6. The appellant while making his statement under section 342, Cr.P.C. Denied the allegations and pleaded his innocence. In answer to question No,7 as to whether a sum of Rs,6,000 was received by him from the complainant as illegal gratification, he replied: "It is incorrect. The amount of Rs,6,000 Exhs.P.1 to P.6 was placed by the complainant on my table alongwith challan forms which was recovered by the raiding party from the table. The remaining amount of Rs,7,100, I.D. Card and pocket diary were recovered from my possession. A sum of Rs,4,812 as mutation fee and Rs,4,000 District Council fee was to be deposited in the bank through challan forms by me at the request of the complainant as he was unaware about the legal process. The complainant had promised to pay the remaining amount of Rs,2,812 later on in the office of District Council. I do not know about the recovery memo. Exh.P.W.2/C.
' He admitted that entry of Mutation No,295 recorded in the register of mutation bearing volume No,6 was made in his hand writing. In answer to question No,11 why this case was against him, he answered:-- "I have got enmity with P.W. Muhammad Zaman, he wanted to me show his possession in the revenue record regarding some Shamlat land which was not in his possession and I had refused to oblige him. The complainant is a relative of aforesaid Muhammad Zaman and on his behest the complainant has falsely involved me in this case. My office is located in a building owned by Muhammad Nawaz who is a political person and has got political rivalry with Muhammad Zaman. I was, therefore, made a scapegoat. The rest of the P.Ws. Are government officials and they have deposed against me to show their efficiency and to advance the prosecution case. The complainant as well as eyewitness of the alleged occurrence have not been produced by the prosecution.
' He did not make a statement under section 340(2) Cr.P.C. Nor he produced any evidence in defence.
6. Learned trial Judge believed the prosecution evidence, convicted and sentenced the appellant as mentioned above.
7. Learned counsel for the appellant contends that the prosecution did not produce the complainant and Fazal Hussain eye-witness of the alleged bribe's demand in support of its case.
P.W.1 Muhammad Zaman is hostile towards the appellant and is interested witness, thus his evidence is not reliable. The Magistrate and Circle Officer P.W.2 and P.W.4 did not over-hear the conversation between the accused and the complainant nor they witnessed the passing of the tainted money to him. He further submits that the explanation furnished by the accused that the amount in question was placed by the complainant on the table for depositing in the Bank as fee of the mutation is plausible. In these circumstances the prosecution has miserably failed to prove its case against the accused beyond reasonable doubt, and the appellant is entitled to acquittal.
In support of his plea learned counsel has relied upon Mirza Fayyaz Baig v. The State 1994 PCr.LJ 2233, Sultan Mahmood v. The State 1994 PCr.LJ. 2356 and Ghulam Rasool v. The State 1996 PCr.LJ 303.
8. Learned State counsel has supported the impugned judgment by adopting the reasons given by the learned Trial Judge therein.
9. I have heard the learned counsel for the parties and gone through the record with their assistance. Admittedly the prosecution did not produce complainant Muhammad Rizwan and Fazal Hussain vendor eye-witness of the alleged demand of the bribe by the accused, at the time of trial in support of its case. The complainant was the star witness of the prosecution. Similarly, Fazal Hussain was an eye-witness of the earlier meeting between the complainant and the appellant wherein he allegedly demanded Rs,8,000 from the complainant for entering the mutation in his favour. Non-production of both the witnesses at the time of trial by the prosecution has proved fatal to it. The appellant has pleaded his enmity with Muhammad Zaman P.W.1 while making his statement under section 342, Cr.P.C. Therefore, it is not safe to believe his statement without any other independent corroboration. There is force in the contention of the learned counsel that P.W.2 Abdul Rasheed Razi, Resident Magistrate, Gujar Khan and P.W.4 Abdul Ghaffar, Circle Officer did not witness the passing on of the tainted money to the appellant by the complainant nor did they hear the conversation between them. P.W.2 raiding Magistrate in his statement has nowhere stated that he viewed the payment of money to the appellant by the complainant or he heard the conversation between them. In his evidence he stated that he, alongwith Circle Officer, remained in Suzuki across the road and the complainant alongwith Constable Muhammad Naseer were advised to go upstairs in the office of the accused. The moment the complainant stood up and put his hand at his head indicating that he had presented the bribery amount to the official, he, alongwith Circle Officer (P.W.4), rushed upstairs and conducted the raid and effected recoveries of sum of Rs,13,100 and register of mutation etc. To the same effect is the statement of Ch. Abdul Ghaffar Inspector (P.W.4). It is, therefore, clear that there is no evidence on the record to show that any one of the said P.Ws. Had witnessed the passing on of the recovered tainted money to the appellant by the complainant. Mere recovery of the tainted money from the accused was not enough to prove the charge under section 161, P. P.C. Read with section 5(2) of Prevention of Corruption Act, 1947. Scrutiny of evidence shows that the raiding Magistrate and the Circle Officer did not hear the conversation between the complainant and the accused nor they viewed the payment of money to him.
10. The plea of the accused that the amount of Rs,6,000 Exhs.P.l to P.6 was placed by the complainant on his table along with challan forms which was recovered by the raiding party therefrom, the remaining amount of Rs,7,100 was recovered from his possession, a sum of Rs,4,812 and Rs,4,000 were to be deposited in the bank as mutation fee and District Council fee on behalf of the complainant as he was unaware about the legal process, appears to be plausible. At the time of raid P.W.2 also recovered three challan forms duly filled in Exhs.P.W.2/E to G on behalf of the complainant for deposit of Rs,4,812 in the National Bank of Pakistan as mutation fee. P.W.2 in his cross-examination has stated that it is correct that the accused took plea that he was given money for the purpose of its deposit in treasury and Zila tax/fee. He further stated that as the Patwari is directly concerned with the villagers and thus among them some sought of trust and relation are developed and people often hand over money etc to them for its onward deposit in treasury etc. For their convenience. Thus. When the defence version is put in juxtaposition with the prosecution version, the prosecution version is smashed.
11. The above referred authorities apply to the facts of the present case. It has been held in Ghulam Rasool v. The State 1996 PCr.LJ 303 that:-- "Raiding Magistrate had neither seen the passing of the tainted money to the accused nor heard the conversation between the complainant and the accused. Tainted amount recovered from the accused was not shown to prosecution witnesses at the time of their examination in Court--Plea taken by the accused of having received the said amount towards payment of land revenue had even been accepted by the prosecution witnesses-accused were acquitted."
12. The upshot of the above discussion is that the prosecution has miserably failed to establish its case beyond reasonable doubts against the appellant. Accordingly, his conviction and sentence is set aside. He is acquitted of the charge. He shall be released forth-with from the jail, if not needed in any other criminal case.