' Muhammad Azam and Muhammad Ashraf, who later appeared at the trial as P.W. I and P.W.2, moved a complaint Exh.P.A. To Additional Director, Anti-Corruption Establishment, Rawalpindi, alleging therein that Muhammad Inayat, Consolidation Patwari had obtained a sum of Rs,1.05.000 from them on the pretext of allotment of State land to ' them but had neither done the needful nor had returned the amount to them. According to complainant, the village Dhunni Kalan was under consolidation and land measuring 87 Kanals, 16 Marlas which was being used as 'Chiragah'
(Pasture) land owned by the Provincial Government was offered by the accused to be allotted to them. It was alleged by the complainant that the accused informed them that he could transfer the land in their favour provided price of land amounting. To Rs,1,50,000 was paid by them. The accused had statingly informed the complainant that an amount of Rs,75,000 was to be paid in advance for depositing, in The Government treasury and balance was to be paid The Patwari also demanded a sum of Rs,30.000 for himself and for the Consolidation Officer. The complainant met the acct.Sed at Mandi Baha-ud-Din and thereafter they went to Azam Cloth House which was situated near the Office of Consolidation Officer. The amount was paid to Muhammad Inayat, Consolidation Officer in presence of Malik Ghulam Rasool P.W.5 and Raja Safdar Ali (not produced).
It was further alleged by the complainant that after about 10 days, the accused informed them about his inability to get the land allotted and when called upon to return the amount received from the P.Ws. He declined to oblige the complainant. Muhammad Ashraf and Muhammad Azam thereafter, submitted application Exh. P.A. To the Anti-Corruption Establishment.
2. Muhammad Irfan C.O./Anti Corruption Establishment, Rawalpindi who subsequently' appeared as P.W.3, held an inquiry and found the Consolidation Patwari as guilty and on his recommendation F.I.R. Exh.P.C. Was registered. After routine investigation the accused was challaned to Court.
3. Muhammad Azam P.W.1, Muhammad Ashraf P.W.2, Muhammad Irfan CO/ACE P.W.3, Muhammad Rafique Shah, Investigating Officer P.W.4, and Malik Ghulam Rasool P.W.5 were examined by the prosecution who supported the allegation contained in complaint/F.I.R. Exh. P.C.
4. The accused in his statement under section 342, Cr.P.C. Claimed that Nazeer Ahmad Patwari was the Consolidation Patwari while he simply assisted him and he was given additional charge of village Dhunni Kalan on 29-9-1991. The accused also took the stand that Muhammad Azam P.W.1 and Muhammad Ashraf P.W.2 were in possession of 106 Kanals and 59 Kanals, 6 Marlas of Chiragah land and Board of Revenue by order 7-3-1988 had directed that this land be given to co-sharers and later writ, petition was also dismissed by Lahore High Court and since he had refused to' show that State land was in actual 'Physical possession of the complainant party, they made a false complaint against him. The accused also examined Muhammad Azam as D.W.1 in his defence.
Muhammad Azam originally was a prosecution witness but instead had appeared as defence witness.
5. The trial Court believed the prosecution case against Muhammad Inayat Patwari and convicted him for offence under section 5 of Prevention of Corruption Act, 1947 and sentenced him to rigorous imprisonment for 3 years and a fine of Rs,1,20,000 and in case of default in payment of fine, the accused was further sentenced to rigorous imprisonment for one year. The amount of fine in case of recovery was to be paid to the complainants namely Muhammad Azam and Muhammad Ashraf.
6. Muhammad Inayat appealed. Learned counsel for the appellant as well as State have been heard.
7. Learned counsel for the appellant contended that there was no State. Land to be . Allotted to the complainants, P.W.1 and P.W.2, and as a matter of fact the Board of Revenue had directed on 7-3- 1988 that entire State land which was being utilized as pasture land by the co-sharers should be allotted to all the land owners of the village and subsequently Writ Petition No,4955 of 1987 which was filed by the number of co-sharers including Muhammad Ashraf, complainant, was rejected on 2-2-1988 and there was no land which could have been given to any of the land owners including the prosecution witnesses. It was submitted that since no land was available, the Consolidation Patwari was hardly in any position to have got allotted the land to them and the entire case was fabricated against the appellant when the appellant declined to meet to the unlawful demand of P.W.1 and P.W.2 whereby they had claimed that they should be shown to be in actual physical possession of the laud excluding rest of the landowners so that they could claim ownership of the land or allotment of the same in their favour in the course of consolidation proceedings. It was submitted that case against the appellant was result of annoyance only and no independent evidence was led at the trial which could have proved demand or acceptance of illegal gratification on the basis of appellant. It was submitted that Muhammad Aiam, Muhammad Ashraf and Ghulam Rasool were closely related to one another and their claim that money was paid in their presence lacked corroboration from independent sources and prosecution had failed miserably to prove its case against the appellant and he deserved acquittal from the case. It was argued that necessary ingredients for commission of offence under section 5 of Prevention of Corruption Act, 1947 were nowhere established and as such there was absolutely no justification for conviction of the appellant. Pryer was made for acquittal of the accused from the case. Learned counsel for State the other hand submitted that an application. Was moved by P.W.1 and P.W.2 against Muhammad Inayat, Patwari, and in the course of inquiry held for the purpose even Muhammad Azam who subsequently appeared as D.W.1 had supported the case of the complainant and Muhammad Inayat was found' guilty and thereafter criminal case was registered against him. It was submitted that in case the appellant had not taken any illegal gratification from P.W.1 and P.W.2 they would not have moved the Anti- Establishment or to have pursued criminal case against him with diligence .As was done by 'them and this was a factor which should, not be lost sight of. It was also argued that none of the witnesses had any enmity or malice to falsely testify against the appellant. It was submitted that appellant was rightly convicted by the trial Coin.
8. Land holdings of village Dhuni Kalan were going to I consolidated and Muhammad Inayat vas posted as Consolidation Patwari in the village. Muhammad Azam and Muhammad Ashraf P.W 1 and P.W.2 were in possession of State land or "Chiragah" This position is ad flitted on record. The persons who were in actual physical possession of State land wanted that land under their physical possession should be given to them to the exclusion of other land owners. The Board if Revenue, however, declined the request of land owners including Muhammad Ashraf and Muhammad Azam. Writ petition filed by the interested landowners was " rejected. The consolidation of holdings was in progress when it is clairlied by Muhammad Azam and Muhammad Ashraf that Muhammad Inayat offered to get the State land transferred in their favour in the process of consolidation of holdings and de-nanded a sum of Rs,1,05,000 from them. The amount of money was paid to Muhammad Inayat in presence of Ghulam Rasool P.W.S. Claim of Muhammad Azam and Ashraf P.Ws. Is that the accused failed to get the land allotted to them and also declined to return the money received from them as price of land and also for services to be rendered by him. Defence of the accused is that there was no State land to be allotted as the Board of Revenue had declined request of landowners in this context. His claim was that the accused wanted that they should be shown to be in actual physical possession c f the 'and and on having declined to tem, hey moved the application again Lim. Muhammad Azam P.W.1 was in possession of 59 Kanals, 6 Marlas of 'Chiragah' land while Muhammad Ashraf P.W.2 was in possession of 106 Kanals of said land even according to accused himself. Therefore, his claim.That accused were annoyed with him on account of his refusal to show Muhammad Azam and Muhammad Ashraf to be in actual physical possession of the land, therefore, is belied by the material on record. However, there is another aspect of the matter as would presently be seen.
9. Bribes are paid clandestinely and not in open. In this case the mainstay of defence was that no independent evidence was led in the course of inquiry or at the trial which could have proved demand or acceptance of Rs,1,05,000 by the accused. Statement of Muhammad Azam D.W.1 made at the trial was also pressed into service in support of plea raised on behalf of the accused-convict.
Muhammad Azam, it appears, subsequently changed heart and did not support the prosecution case though initially he had gone with the complainant party when they were trying to get the case registered against the accused. The perusal of record shows that Muhammad Azam and Muhammad Ashraf and Ghulam Rasool P.Ws. Only, had testified against Muhammad Inayat Patwari. They were closely related witnesses and naturally were interested witnesses in certain respects. Payment of money statingly was made in presence of Ghulam Rasool and Safdar Ali (not produced). The matter, however, was not reported to Anti-Corruption Establishment by the complainant party. Demand for return of money was also not made in presence of any person in authority or an independent person. That was done, of course, for the reason the complainant party was trying to get an unlawful and illegal act done by the accused. It was not the case of the complainant that the accused had made demand or had received illegal gratification for doing something which he was required by law to, do. The facts of this case show that complainant party itself. Was in pari delicto. They wanted illegal gain from the transaction themselves. They had not demanded from Muhammad Inayat to do something lawful or which he could have done as a matter of routine. Demand of complainant party was unlawful and that is why they kept the entire matter secret. Where the complainant party itself is the delinquent in the matter, they could not have sought conviction of the Patwari in the matter. Considering that complainant party itself had not approached Patwari with clean hands nor had good intention in the matter, I think benefit of that ought to be given to the convict in the matter of conviction. Keeping in view the background in which the money was offered or was paid to Muhammad Inayat, I am inclined to extend the benefit of that and as a consequence quash his conviction.
10. Appeal submitted by Muhammad Inayat is allowed and he is acquitted of the charge.
11. After perusal of record it was found that in the course of inquiry conducted for the purpose, Inayat accused, was found guilty. The complainant party could not have moved application against the accused without any basis. They had pursued the case for quite some time against him and the allegations levelled by complainant party against the Patwari did not appear to be wholly unfounded. Though the appellant is being acquitted on account of mala fides of the complainant party, yet the Revenue Department shall be at liberty to proceed against Muhammad Inayat Patwari on administrative side, if so advised, on the strength of inquiry conducted by Muhammad Irfan P.W.
Appeal allowed/