MUHAMMAD ISLAM BATTI, J.- This Criminal appeal arises from the judgment dated 18.10.1993 passed by Malik Muhammad Afzal learned Special Judge Anti-Corruption Gujranwala whereby in case FIR.
No. 10 registered on 31.1.1993 at Police Station A.C.E. Sialkot under section 161 PPC read with Section 5(2) of the Prevention of Corruption Act 1947, the accused Nazir Ahmed. Appellant herein was after he faced the .Trial, convicted and sentenced to suffer R.1, for a period of nine months and to pay a fine of Rs. 5000/- and in default of the payment of fine, to further undergo R.I > for three months.
2. Briefly put the facts of the case are that Shabbir Ahmad PW-fond of keeping partridges, approached the accused/appellant Nazir Ahmed, a Game inspector on 30.1.1993, in connection with the preparation of the requisite licence but the Game Inspector allegedly demanded an illegal gratification of Rs. 350/- as against the requisite fee of Rs. 50/-.'Since he did not want to pay the illegal gratification he approached the Circle Officer Anti-Corruption Muhammad Riaz Khan (PW-3) who after recording the statement of Shabbir Ahmad complainant Ex.PA made application Ex.PJ to the A.D.C.(G) for deputing a Magistrate to supervise the raid. Syed Sibte Hassan PW-2 was accordingly nominated for the purpose. Muhammad Riaz Khan PW-3, therefore, placed the complaint before the raiding Magistrate who recorded the statement of the complainant. Ex.PB. The complainant then produced three currency notes of Rs. 100/- denomination each Ex.P-1 to P-3 and one currency note of Rs. 50/- Ex.P-4 and after recording their serial numbers the Magistrate returned those notes, ills to the complainant and recorded a note in this behalf Ex.PE. The raiding party then reached National Bank Building Kotly Behram, the office of accused being located at the first floor of the said Bank. The complainant was sent to the office of the accused. The other members of raiding party went upstairs but stayed outside the office the accused. After an interval of to minutes they went inside the office of the accused and introduced themselves. The currency notes were, as per the version of Syed Sibte Hassan recovered from The front pocket of the shirt of the accused. This amount was secured vide memo. Ex.PC. He again recorded Ex.PF pote in this connection and Ex.PD the statement of Shabbir Ahmad. He also recorded Ex.PG The statement of the accused and ordered his arrest vide Ex.PH.
3. Nazir Ahmad accused appellant was charged as such under section 161 PPC read with Section 5(2) of the Prevention of Corruption Act on 21.6.1993. He pleaded not guilty and faced trial. It was then that Shabbir Ahmad complainant PW- 1, Syed Sibte Hassan Magistrate PW-2 and Muhammad Riaz Khan C O./AGE PW- 3 were examined by the Prosecution for establishing the guilt of the accused. Mian Muhammad Ashraf Tahir A.D.(P) tendered in evidence Sanction Ex.PK and closed the prosecution evidence.
4. The accused in his statement under section 342 Cr.P.C, denied all the allegations of the prosecution except that the complainant had contacted him for a licence for keeping partridge and the licence fee was Rs. 50/-. He , however, maintained that he had asked the complainant to bring with him Rs. 350/- and to copies of the Identity Card for obtaining licence because a sum of Rs. 300/- was to be paid by the complainant as posters fee. He denied that amount of Rs. 350 was recovered from his pocket and asserted that this amount was recovered from hiss box lying in another room. He also maintained that Ex.PG is not the correct version/rendering of what he stated and he was forced to sign the same. He also produced Ata-Ullah Junior clerk DW-1 and Arshad Ali Game Wather DW-2 in his defence before making Statement himself on oath as DW-3.
5. To give a resume of the prosecution evidence Muhammad P. Iaz Khan PW-3 after deposing as to how the raiding party was constituted, stated that they reached National Bank Kotli Behram where the accused had his office on the first floor and sent t he complainant to the accused, that the complainant Shabbier Ahmad had in their presence (i.e. Of the members of the raiding party) given a sum of Rs. 350/- to the accused and asked him to prepare the licence. The accused told the complainant that he would prepare the licence, that they heard the talk and searched (the person of the) accused and from the front pocket of his shin were recovered three currency notes of Rs. 300/- and one currency note of Rs. 50/- the serial numbers, of which tallied with the numbers already noted: that this tainted challan be who tanned money was secured vide memo Ex.PC whereafter the statement of the complainant was recorded and the accused was arrested and that it was he who after necessary investigation submitted the challenge.
6. Syed Sibtte Hassan had supervised raid and a brief account of what he has deposed has already been given above. Shabhir Ahmad complainant (PW- l)went to the accused Nazir paid him the money and after he assured that the licence would be issued, he signaled the raiding party after which the person of the accused was searched. It is, however, pertinent to note that according to the complainant nothing was recovered from the person of the accused and the money was in fact found from the box lying in the office of the accused. He was cross- examined by the learned Special Public Prosecutor in which he categorically denied the suggestion that he had stated before the Magistrate that the accused; after receiving the money from him put the same in the pocket of his shirt and the Magistrate and the Inspector after introducing themselves recovered money from the pocket of his shirt. It was however, so recorded in Ex. He denied that he was deliberately making a confessional statement to show favour to the accused and in fact the money was recovered from the front pocket of the shift of the accused. In his cross-examination however to the extent of saying that the box from which the money was recovered was lying in the adjoining room. He also admitted the suggestion as correct that when a licence was issued the posters were also issued to the licence holders. He also could not deny the suggestion that Nazir accused had told him that he would have to purchase 15 posters. He added that he did not know that officially he had to pay the price of 15 posters and. therefore. He thought that the money was being demanded as bribe. He. However, turned 'down the suggestion that he got the case registered due to misunderstanding.
7. Ata Ullah Junior Clerk in the office of the District Wild Life Officer. Sialkot DW-1 produced Photostat copies of the original notification and other letters issued by the Government of Punjab from time to time which are Ex.DA, Ex.DB, Ex.DC. Ex.DD. and Ex. DE. Ex.DE and Ex.DF were the photocopies of the challans. Arshad Ali Game Watcher claimed that-he was also present in the office of the District Wild Life Officer Sialkot on 31.1.1993 where Shabhir PW alongwith another person came to Nazir accused for getting a licence and the accused told him that he would have to compulsorily purchase 15 posters at the rate of Rs. 20/- per poster. Shabhir wanted some concession but the accused told him that he was not empowered to give him any concession. The complainant then sought time to arrange to money and only after one hour the complainant again appeared there with another person. He added that the complainant did not pay any money to the accused but only after seeing the accused present in the office brought the raiding party. No tainted money was recovered from the person of the accused or his Almirah but after some time they were again called and the Inspector recovered the tainted money from the box lying in the third room. In his cross-examination he turned down the suggestion that he was not present at the time of raid and being a colleague he deposed falsely and the tainted money had in fact been recovered from the shirt of the accused. Similar is the version of accused Nazir Ahmad.
8. It was on the basis of this evidence and after hearing the learned counsel for the parties that the learned trial Judge. Found' the accused guilty and convicted him and sentenced him as stated above, thereby obliging the convict to come up in appeal.
9. In substance the evidence against the appellant was that he demanded a sum of Rs. 300/- from the complainant as illegal gratification besides a sum of Rs. 50/- which was the requisite licence fee and all this amount in the shape of tainted money was secured by the raiding Magistrate from the front pocket of the shirt of the accused appellant after a conversation between him and the complainant was over heard by. Him and the Circle Officer PW-3. The learned trial Judge observed by the impugned judgment that it was clear from the deposition of the raiding Magistrate that the accused was not in possession of any posters when the raid was conducted but he did produce Ex.DA and Ex.DF to show the instructions regarding their sale. He was not impressed by the defence- evidence because Araliad Ali DW-2 being a colleague of the accused was interested in saving him.
He. Therefore, felt convinced that the instructions of the Government regarding sale of posters were misused by the accused.
10. After giving my earnest consideration to the facts and circumstance of the case I feel convinced that there are inherent discrepancies and infirmities in the prosecution evidence entitling the appellant to benefit of doubt.
The accused-appellant took the plea at the earliest possible opportunity immediately after he was apprehended, as is evident from his statement recorded by the raiding Magistrate Ex.PG, that he had received a sum of Rs. 350/- from Shabhir Ahmad with the intention to sell 15 posters to the complainant at the rate of Rs. 20/- per poster besides the requisite licence fee of Rs. 50/-. There is nothing in the evidence of Muhammad Riaz Khan C.C/A.C.E. PW-3 that he had carried out the necessary investigation regarding departmental instructions in respect of the price of posters, rather he has deposed in his cross-examination that he did not collect any such instructions nor did he interrogate any higher Officer regarding the plea taken by the accused in his statement Ex.PG. He, however, turned down the suggestion that he did not do so deliberately. A careful and minute perusal of the documents placed on record by the accused-appellant constrains me to hold that there is in fact an in built mechanism/scope for prompting dm low paid staff to indulge illegal practices'. I fail to understand as to how alawe inspector was competent to issue the licence or sell the posters. According to Ex.DA, which is a photo copy of the notification on the subject, the fee of a live bird for the issuance of a licence or was Rs. 50/- and the authority competent for issuing such licence was A.C.F. (P. W), Deputy Game Warden, Assistant Game Warden, District Wiki Life Officer mid Honorary Divisional and District Game Wards. The Game Inspector is obviously not mentioned therein. According to Ex.DB, which is a copy of the letter dated 2.12.1991 from Deputy Game warden Publicity and Research Cell, the Secretary, Forestry, Wildlife, Fisheries and: Tourism Department directed that all the persons approaching for the issuance/renewal of licence should be sold wildlife posters compulsorily, at the rate already intimated. Ex.DC and Ex.DD described the posters and the prices thereof. It has to be noted with concern that as per a had-written endorsement in English and also in Urdu dated 14.12.1991, copies of Ex.DB were sent to all the Game Inspectors District Sialkot and District Narowal for compliance of this letter and the instructions with regard to the sale of wildlife posters compulsorily. It follows that das letter impliedly enabled the Game Inspectors to exercise the powers regarding issuance/renewal of licences and also selling of posters compulsorily. This letter, however, is silent with regard to the number of posters which had to be compulsorily sold to persons seeking licences/perpcits of various categories, in column No. 2 of the table of the notification copy Ex.DA requiring fee ranging from a meagre sum of Rs. 50/- to a large amount of Rs. 25000/- (for netting of falcons). It was also thus left open for the staff to determine the number of poster and to eoerec/elicit from the person applying for a licence to part with the price of the posters. I have not been able to find out any instructions in these notifications/letters as to how the price of the posts proposed to be sold compulsorily was to be received and deposited in the Government Treasury. It follows that this task was also left to the Game Inspector etc., to deal with the money at his discretion and to deposit it through challans etc. In the Government Treasury at his sweet will, as was done as per challan forms copies Ex.DE and Ex.DF respectively pertaining to the month of July, 1992 and a specific date i.e. 16.1.1993. This illegal practice should have been adverted to by the concerned/competent authorities.
11. It may also be noted that the version of the raiding Magistrate and the C.O./A.C.E with regard to the hearing of the conversation between the accused and the complainant also does not inspire confidence. The contents of the conversation have not been elaborated. Shabhir Ahmad complainant PW.-I concerned himself to stading that he went to the accused paid him the money and the latter assured him that the licence would be issued after which he signaled the raiding party to come. Syed Sibte Hassan PW-2 did not claim in his examination- in-chief that any such conversation was over heard by him or that he and the CO. Had gone inside the room/office of the accused on a signal given by the complainant. It was due to mishandling of the defence that he so deposed in the cross-examination that he had heard the conversation between the complainant and the accused before the payment of money but no details of this conversation were given. The version of PW-3 that it was in their presence that Shabhir Ahmad gave a sum of Rs. 350/- to the accused and asked him to prepare the licence on which the accused told him that he would do so is also not worth credence. The principle that the corporation between the accused and the decoy witness/complainant should be over-heard by the raiding Magistrate and other PWS is obviously not a requirement of law but only a rale of prudence and caution but if it is pleaded it must be proved with cogent and convincing evidence. The accused had candidly admitted receipt of money at the very outset and has claimed bom fide which should have been gone into and considered by the Investigating Officer. It was his bounden duty to have collected the instructions and to have joined the senior Officer/competent authority tor issuing the licence in the investigation in order to determine as to how for the accused could be held to be guilty of indulging in this illegal practice and demanding illegal gratification. Nodthing appears to have been done by the investigating Officer on these lines.
12. It is also note-worthy that the complainant made a concessional statement and resiled front his original stand. He stated in so may words dial nothing was recovered from the person of the accused and the money was found from the box lying in the adjoining room of the office of the accused and not in the room the accused was sitting. He added in his cross-examination that to years back no price of posters used to be charged and he did not know whether the price of posters had also to be charged at the rate of Rs. 20/- per poster. He admitted the suggestion as correct that the accused told him that lie would be required to purchase 15 posters and that since he did not know about it he thought that the money was being demanded as bribe. There is no denying the fact that being a, decoy witness the evidence of the-complainant could not be implicitly relied upon but being a PW his version shall have to be considered and the benefit of doubt, if any. Must go to the accused. It has. Therefore, to be held that prosecution in the circumstances failed to prove its case beyond reasonable doubt, particularly so when it was pleaded by the accused right from the beginning that lie received the money, over and above the actual licence fee. For selling the posters which could be a reasonable probability. It was imperative for the prosecution to establish that the money had passed as illegal gratification, which it failed to do.
13. After giving may anxious consideration to all these facts and circumstances of the case I am of the view that benefit of doubt must go to the appellant and he is entitled to acquittal. This appeal is. Dierefore. Accepted.
The convection and sentence of the appellant are set aside and the appellant is acquitted, having been given the benefit of doubt.
14. A copy of this judgment should go to the Secretary. Forestry, Wildlife. Fisheries and Tourism Department for guidance and necessary action in the light of the observations made in this judgment.