' This is an appeal by Manzoor Hussain Shah appellant against the judgment of the Special Judge, Anti-Corruption, Lahore-I, dated 16-6-76 convicting the appellant under section 161, P. P. C. And section 5(2) of the Prevention of Corruption Act, 1947, and sentencing him to a fine of Rs. 500 and imprisonment till the rising of the Court and in default of payment of fine to undergo R.
1. For six months.
2. Brief facts of the prosecution case as alleged by Muhammad Iqbal P. W. 1 are as follows : The appellant Manzoor Hussain Shah was appointed as Food Inspector, Sheikhupura approximately in March, 1974. After some time, on the report of the appellant, the ration depot of Muhammad Iqbal P. W. 1 was cancelled by the Deputy Commissioner, Sheikhupura. It is alleged by the first informant that Manzoor Hussain Shah appellant while abusing his official position used to secure Rs. 100 monthly as bribe from the first informant and some other depotholders and that on 1-9-1974 he demanded that in future he should be paid Rs. 200 per month instead of Rs. 100 as gratification other than legal remuneration as an illegal retainer. On 2-9-74 Muhammad Iqbal P. W.
1, reported this to Mian Muhammad Akram, P. W.
5. Inspector A. C. E. Lahore and had his statement Exh. P. A. Recorded. Mian Muhammad Akram P. W.
5, Inspector, made an application to the Commissioner, Lahore, Exh. P. C. For a Magistrate from Lahore to be deputed to conduct the raid. The Commissioner, by his order Exh. P. C. 1 directed Malik Najeeb Ullah, M. I. C. P. W. 4 to conduct the raid. Accordingly, Malik Najeeb Ullah recorded the statement Exh. P. B. Of Muhammad Iqbal P. W.
1. The person of Muhammad lqbal was also searched and two G. C. Notes of the value of Rs. 100 each were delivered to him after their numbers were noted for passing the same to the appellant.
The raid party comprising of a Magistrate, the Inspector Anti-Corruption, the first informant and a few constables proceeded to Sheikhupura. The raid party ultimately went to the Government wheat godowns where the A. F. C.'s office room was situate. Muhammad Iqbal P. W. 1 entered the A.
F. C.'s office followed by Malik Najeeb Ullah M. I. C. P. W.
4. The Magistrate posed himself as an Advocate and requested the appellant to issue him a ration card, which ration card Exh. P. E. Was issued to him on payment of Re.
0.50. Then Manzoor Hussain Shah appellant and Muhammad Iqbal P. W. 1 went out of the room and the Magistrate followed them. The complainant offered the G. C. Notes to the appellant who accepted it and put them into his pocket. Both the Magistrate and the Inspector A. C. E.
Apprehended the appellant at the spot. The Magistrate introduced himself to the appellant and recovered the two G. C. Notes of Rs. 100 each from the pocket of the pant of the appellant whose numbers tallied with the numbers recorded in Exh. P. D. On the Magistrate's request, the appellant gave his statement Exh. P. F. Wherein he stated that on his report the depot of the complainant was cancelled, that the complainant's appeal before the Commissioner was pending, that the next date of hearing before the Commissioner was 17-9.1974, that the complainant had approached him to suggest the name of a competent lawyer knowing the Food Laws whom he could engage, that he told the complainant to engage one Mushtaq Khan, Advocate whom he had engaged before and that the complainant threw two notes at him which he later found to be of Rs. 100 each.
The Magistrate having prepared the raid report handed over the case to Mian Muhammad Akram (P. W. 5) Inspector Anti-Corruption for taking over the necessary investigation. The investigation having been completed and the sanction having been secured, the appellant was sent up for trial before the Special Judge, Anti-Corruption, Lahore-I.
3. The prosecution produced Muhammad Iqbal (P. W. 1), complainant, Malik Najeeb Ullah, M. I. C. (P.
W. 4) and Mian Muhammad Akram (P. W. 5) in support of its case regarding the passing of the tainted money. At the end of the trial, the appellant in his statement stated that as he had the complainant's depot cancelled, the complainant had become his enemy and that by fraudulently saying that he wanted to engage an Advocate for appeal, the complainant had thrusted the tainted G. C. Notes on him and had thus got him involved in the case.
4. After reviewing the prosecution evidence, the learned Special Judge found that the complainant was a depot-holder, that his depot had been cancelled at the instance of the appellant and that the tainted G. C. Notes were accepted by the appellant and were recovered from his possession.
The learned Special Judge, therefore, held that the only question that remained to be decided was whether the prosecution case or the defence story was correct. In this connection the learned Special Judge held that the defence version did not fit in with the circumstances of the case and held the appellant to be guilty of receiving the illegal gratification and accordingly convicted and sentenced the appellant as stated earlier.
5. The appellant has now come up in appeal against his conviction and sentence. It has been urged by the learned counsel for the appellant that in view of the fact that the complainant's ration depot was cancelled at the instance of the appellant, the complainant was inimical towards the appellant and his evidence required strong corroboration. It has also been submitted that though the complainant had entered the room of the A. F. C. Where the Magistrate was sitting and the appellant was working, yet the bribe money was not paid in the room before the Magistrate but the appellant was beckoned out of the room and then the tainted money was passed outside in a verandah. Lastly, it has been urged that the learned Magistrate did not hear the conversation between the complainant and the appellant when the tainted money was passed.
6. I have given my anxious consideration to the contentions raised by the learned counsel for the appellant. I have also gone through the record of the case with the assistance of the learned counsel. The complainant in his evidence submits that the raid party went to the grain godowns at Sheikhupura where the appellant met him ; that the other members of the raiding party stood outside the godowns and he was sent to give the bribe money; that he went inside the godowns; that he handed over the bribe G. C. Notes Exh. P. 1 and Exh. P. 2 to the appellant; that the rest of the raiding party followed him and the tainted money was recovered from the appellant by the Magistrate. In cross-examination, the complainant stated that he had gone 40 to 50 Karams inside the godown from the place where the rest of the raiding party took their position when he first met the appellant. The complainant also stated in cross-examination that he did not go inside any room to contact the appellant or to bring him oat, As against this, Malik Najeeb Ullah, M. I. C. (P. W.
4) stated that the complainant first entered the office of the A. F. C., Sheikhupura, whereafter they followed him after ten minutes and he posed himself as an Advocate and got the ration card made with the assistance of the appellant, that the complainant and the appellant went out and he followed them soon after, that the appellant and the complainant stopped at some distance where the complainant in his view offered the tainted G. C. Notes to the appellant who accepted and put them in his pocket, where after he with the Inspector, A. C. E., apprehended the appellant and recovered the tainted notes from the pocket of the pant worn by the appellant. According to the complainant, it seems that he passed the tainted money to the appellant inside the go down when the other members of the raiding party stood outside the godown, whereas from the evidence of the Magistrate it appears that the tainted money was passed outside the godown which they also saw. Apart from this strong conflict in evidence, one thing is not understood that if, as has been stated by the Magistrate, that he was sitting in the room with the appellant when the complainant entered, why the tainted money was not passed by the complainant to the appellant in his presence in the room. The action of the complainant throws a strong veil of doubt on his intentions.
' The conflict in evidence, as stated above, apart from being resolved, has been further accentuated by the evidence of Muhammad Akram (P. W. 5) Inspector A. C. E., who has neither disclosed where the tainted notes were passed to the appellant, nor where the raiding party was then positioned, nor whether the raiding party saw the passing of the money or heard the conversation between the complainant and the appellant at that time. His total silence has damaged the prosecution case seriously. For these reasons, the evidence cannot be safely relied upon for the purpose of proving the charge against the appellant. Apart from the disquieting features stated, above; there is no evidence that the Magistrate overheard the conversation between the complainant and the appellant when the complainant passed the tainted money to the appellant. According to the complainant, the members of the raiding party were about 10-15 karams away when he passed the money to the appellant. The Magistrate also admits in cross- examination that he did not hear any talk between the complainant and the appellant when the tainted money was offered to the appellant. The absence of this important evidence makes the case of the prosecution more weak.
8. Lastly, the appellant's defence plea that the complainant had thrust the currency notes on him after the complainant had struck up a conversation with him that he should recommend the name of a competent lawyer well conversant with Food Laws to prosecute the complainant's appeal, the same is not entirely uncorroborated from the prosecution evidence. Muhammad Iqbal (P. W. 1) admitted in cross-examination that in the appeal before the Addl. Commissioner, he had engaged two lawyers, one of whom was Mr. Mushtaq Khan of Sheikhupura and that 10-15 days earlier to the raid he had asked the appellant to recommend a lawyer well conversant with the rule of the Food Department to prosecute his appeal. The fact that the complaint ant may have struck up the same conversation as an excuse for passin the tainted money to the appellant, cannot be entirely excluded. Considerin that this was the very explanation which the appellant gave to the Magistrat after the raid and further considering the fact that the complainant did no pass the tainted money to the appellant in the presence of the Magistrat when the Magistrate was sitting with the appellant in his office, but took the appellant outside the room and passed the money to him there where his conversation could not be heard by the Magistrate, the conduct of the complainant is open to serious challenge.
9. For the foregoing reasons, I am of the opinion that the evidence of the eye-witnesses is discrepant on material points and also contradictory and, therefore, giving the benefit of doubt to the appellant, I accept the appeal and set aside the conviction and sentence passed on the appellant. Fine, if realized, shall be refunded to the appellant.