' This criminal appeal arises from the judgment dated 12-7-1995, passed by Malik Muhammad Afzal, Special Judge, Anti-Corruption, Gujranwala, in trial No, 111 of 1995, whereby he convicted the appellant under section 161, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to six months R.I. With a fine of Rs,5,000 and in default of payment of fine to undergo further R.I. For two months.
2. The prosecution case is that on 6-11-1994, Waqar Ahmed, complainant filed a written complaint to CO/ACE, Gujrat, wherein he complained that for issuance of Fard of ownership of land of his father, the appellant demanded illegal gratification of Rs,300. On application from CO/. ACE, Gujrat the Deputy Commissioner, Gujrat deputed Gazi Naseer Ahmed, Magistrate 1st Class for raid.
CO/ACE produced the complainant before the Raiding Magistrate who recorded his statement. The complainant produced three currency notes of Rs,100 each before the Raiding Magistrate who after noting the serial numbers, returned the same to the complainant. It is stated that the raiding party went to District Court, Gujraf to the Chamber of Advocate. The complainant went inside the chamber and allegedly paid the tainted money whereupon the raiding party recovered the tainted currency from the front pocket of shirt of the appellant. The appellant was arrested, proceedings were recorded by the Raiding Magistrate and was handed over to CO/ACE. After investigation, and sanction order, the challan was submitted in Court. During trial, prosecution produced Muhammad Rafique Shah, CO/ACE, Gujrat as P.W.1, Ghazi Naseer Ahmed, Magistrate 1st Class, as P.W.2 and Waqar Ahmed, complainant as P.W.3. The statement of the appellant under section 342 of Cr.P.C.
Was recorded who denied the allegation and stated that he was falsely involved in the case. The accused also produced Muhammad Ansar as D.W.1 and Muhammad Usman as D.W.2 in defence.
3. Learned counsel, on behalf of the appellant, argued that the conviction of the appellant is not sustainable, there was no independent evidence, conversation between the complainant and appellant was not heard by the Magistrate and that there was no independent evidence of conversation between the complainant and accused or to prove that money was received by the appellant as illegal gratification and that the case was a result of enmity. On the other hand, learned counsel for the State supported the impugned order and submitted that the tainted money was recovered from the pocket of the accused and that he was rightfully convicted.
4. I have considered the contentions of the learned counsel for the parties and perused record. The case of the prosecution is that the appellant had demanded Rs,300 as illegal gratification for issuance of Fard of ownership of land of father of the complainant. At the instance of the complainant, raid was conducted under the supervision of the Magistrate 1st. Class who appeared as P.W.2. P.W.1, Muhammad Rafique Shah, CO/ACE, Gujrat, before whom the application was made by the complainant and who recorded the F.I.R., and also claimed to have joined the raid, admitted in cross-examination that he did not hear the conversation between the complainant and the accused at the time of payment of money nor he saw the accused accepting the money. He stated that the appellant was sitting in the room of Ghulam Rasool, Advocate, but he did not see Ghulam Rasool, Advocate. He also admitted that after the raid the appellant had taken the plea that the complainant had forcibly put the amount of Rs,300 in his pocket. And that he had demanded only Rs,25 as normal fee for issuance of requisite copy. P.W.2 Qazi Naseer Ahmed, Magistrate also admitted in his cross-examination that he did not hear the conversation between the complainant and accused at the time of payment of money nor he did see the appellant accepting money. He also admitted that the appellant had taken the plea that he had not accepted the amount as illegal gratification but same was put into in his pocket forcibly. The complainant appeared as P.W.3 who admitted in his cross-examination that his father was arrested four months before, in a case under section 420, P.P.0 and was on interim bail. He admitted that he did not produce the copy of the bail before the Investigating Officer to show that he needed the Fard. He also admitted that he was an accused in a case under section 506/447, P.P.0 etc. Which was registered by Maulvi Latif. He also admitted that during investigation of criminal case against him the Investigating Officer called the report of Patwari and accused Sajid Naveed had given a report against him, which report was given by the appellant, a year before the present case. He candidly admitted that his relationship with accused was strained. Furthermore, he admitted that hen he went to obtain the Fard in Chamber of the Advocate, the clerk of the counsel and other persons were also sitting there and Muhammad Ansar Patwari was present with the accused when he met him. He stated that accused gave him Fard when he met him. He further stated that when Fard was demanded from accused, the clerk of the counsel and other persons were present and he paid the money at the time when above named persons including the Patwari Ansar were present.
5. From the above evidence, it is clear that neither P.W.1 nor P.W.2 ever heard conversation between the complainant and appellant. For making conviction, it is necessary to prove that the accused demanded the amount as illegal gratification and there should be an evidence about the conversation between the complainant and accused to this effect. Furthermore there, should be evidence to the effect that the amount was received by the accused as illegal gratification. On prosecution side there is no evidence to this aspect. Simple recovery of tainted money will not be sufficient to warrant the conviction. Reference can be made to "Mirza Fayyaz Baig v. The State " 1994 PCr.LJ 2233, where it was held that mere recovery of tainted money from the person of the accused was not enough to prove the charge against him. In Sultan Mahmood v. The State "1994 PCr.LJ 2356, the conviction was reversed where the Magistrate conducted the raid and had not heard conversation between the complainant and accused nor had observed the passing on of the tainted money to the accused. In "Ali Hussain v. State" 1985 M LD 1347, it was held that passing of tainted currency notes was not sufficient, if the Magistrate and accompanying Police Officer had not heard the talk between accused and complainant, which preceded passing on of the tainted of currency notes. In this case, P.W.1 and P.W.2 admitted that they had neither seen the complainant passing on of the money to I the accused as illegal gratification nor they heard the conversation between them.
6. The statement of the complainant is also not worthy of credence. He admits being an accused in criminal case. Even his father is involved in a criminal case, he further admitted, that he had strained relation with the accused because of adverse report against him given by the appellant during another investigation. In these circumstances, his testimony, which is not corroborated by independent evidence cannot be relied upon.
5. The complainant admitted in his cross-examination that at the time of raid, the clerk of the counsel, Muhammad Ansar Patwari and other persons were also sitting in the Chamber and in their presence the alleged exchange of money and the raid proceedings took place, but none of them was joined in the investigation or included the witnesses of prosecution. The omission to join independent evidence creates considerable doubt as to the truth of the prosecution story. Over and above, Muhammad Ansar, Patwari appeared in defence, as D.W.1 who denied, the appellant having ever demanded any illegal gratification from the complainant. Rather he stated that the amount was forcibly put into the pocket of appellant, and immediately, thereafter, the raiding party jumped in. Muhammad Usman, Revenue Patwari who was also present at the [ time of occurrence did not support the prosecution and proved forcible putting of money in the pocket of appellant.
For the reason above, prosecution has failed to prove its case beyond reasonable doubt. It will be unsafe to uphold the conviction. Giving benefit of doubt, the criminal appeal is allowed, the impugned judgment is set aside and appellant is acquitted from the charges against him. The appellant is on bail, his bail bonds shall stand discharged accordingly.