JUDGMENT ' Qamar-ul-Islam, a copy Clerk in the office of Dirtrict and Sessions Judge, Muzaffargarh was convicted under section 161, P. P. C. read with gection 5(2) of the Prevention of Corruption Act, 1947. He was sentenced to undergo 6 months' R. I. and to pay a fine of Rs, 100 or in default of payment one month's R. J. Aggrieved by the impugned order the convict has preferred this appeal.
2. Briefly the facts, necessary for the decision of this appeal, are that-bad application of ore Muhammad Luqman was dismissed by the Sessions Judge, Muzaffargarh and Habib Ullah, complainant, P. W. 1 wanted to move a petition, in the High Court, for the grant of bail. On 19.9-1972.
Habib Ullah, complainant applied for a certified copy of the order by which the bail application of Muhammad Luqman was dismissed by the Sessions Judge. In this respect he contacted Qamar- ui-(slam, accused who demanded Rs, 15 to do the needful. As the complainant was reluctant to pay this amount, he contacted Malik Molazim Hussain, S. I. Anti-Corruption Establishment, Barkat All Farooqi, Magistrate, 2nd Class was deputed to supervise the raid. The statement of the complainant was recorded and the serial numbers of the currency notes produced by the complainant were also noted down by the Magistrate. Currency notes were returned to the complainant for passing these on to the accused. The raid party consisting of Habib Ullah, complainant, Saeed Ahmad P. W. 2, Malik Molazim Hussain S. I. and Barkat Ali Farooqi, Supervising Magistrate was organized. Habib Ullah and Saeed Ahmad were sent ahead to contact the accused. After the alleged tainted money was received by the accused, Steed Ahmad P. W., it is stated, made the agreed signal whereupon Barkat Ali Farooqi, Magistrate and Malik Molazim Hussain, S. I. who were standing outside, came to the spot. The Magistrate disclosed his identity and asked the accused to produce the tained currency notes. On search of the accused, the tainted money was not found on his person. The Magistrate inquired from the complainant, as to where the accused had kept the tainted money, who replied that after receiving the money the accused had gone out of his o ce and had come back after some time. The Magistrate immediately proceeded towards the adjacent room which was found locked. The key of this room was not found with the accused, the Circle Officer then gave a twist to the lock and broke open it. On entering this room, the Magistrate and Malik Molazim Hussain found a black coat hanging on a peg. The tainted money was found lying in the pocket of that coat. The Magistrate compared the serial numbers of currency notes, which tallied with the numbers already noted down by him. These were taken into possession vide Memo. Exh. P. W. 1/E. The papers lying on the table of the accused were also taken into possession vide Memo. Exh. P. W. 1/F. The supplementary statement of the complainant was also recorded. On explanation asked by the Magistrate, the accused stated that he bad not accepted the amount and he has been involved in this case by the staff of the District Judge who' are inimical towards him. On completing the raid report, the Magistrate handed over the papers to the Sub-Inspector for completion of the investigation.
3. At the trial, prosecution in support of its allegations produced 6 witnesses, Le. Habib Ullah complainant, Saeed Ahmad who accompanied the complainant at the time of passing of the money, Malik M olazim Hussain, S.I.Barkat All Farocqi, the Raiding Magistrate, P. W. 5 Muhammad Firdous vho partly investigated this case and Syed Muhammad Babera P. W. 6 who after completion of the investigation, submitted the report under section 173, Cr. P. C. Habib UM complainant has supported the prosecu tion version as stated above.
The services of Saeed Ahmed, P. W. to witness this transaction were acquired by Habib Ullah, P. W. It is in evidence that Saeed Ahmad and Habib Ullah, complainant bad studied together in a religious school for a period of 1 year. Mr. Barkat All Farooqi and Malik Molazim Hussain have not witnessed the passing of the tainted money and they had only effected the recovery which was made from the pocket of a Coat Exh. P. 3 lying in the adjoining room and that, too, not at the pointing out of the accused.
3. The appellant when examined under section 342, Cr. P. C. denied the allegations and pleaded innocence. He further explained that he has been falsely implicated on account of the enmity of the staff and especially Rehmat Ali, Peon, against whom he had made a complaint for having accepted bribe in a case pending before the then Sessions Judge, Mazaffargarh. As a result of that complaint he was ultimately removed from service on 29th November 1972. In support of his defence he also produced two witnesses.
5. It is contended by the learned counsel for the appellant that the tainted money was not recovered from the person of the appellant. Recovery of the tainted money, as such is of no corroborative value. It is also not nroved that the Coat P. 3 belongs to the appellant or the adjacent room from where this money was recovered, was under the control or in possession of the appellant. The Magistrate and the Sub-Inspector who had accompanied the complainant at the time of the raid, had not witnessed the transaction and they did not hear what transpired between the complainant and the appellant at the time of the passing of the money. Saeed Ahmad, P. W. has also not stated that at the time of offering of bribe there was any dialogue between the complainant and the accused.
6. From the evidence on record it is not proved that the room from where the tainted money was recovered was under the control of the appellant. On the contrary Jalal Abbas D. W. 2 who is a Nazir in the Court of Sessions Judge has deposed that this room was lying abandoned. It a as used as a store for some old furniture and it was under his charge. Zvi-en under section 114 of the Evidence Act to raise a presumption about -the recovery, the prosecution has to prove the exclusive control of the accused over the premises from where the recovery is affected. In these circumstances the appellant cannot be attributed that the Mined money was recovered from his possession or at his pointing out. The solitary statement of Habib Ullah, complainant, who is a witness partisan cannot - be accepted to form a basis for the conviction of the appellant. The Magistrate and the Sub- Inspector having not seen the transaction, their -evidence is of no material value. No authority is needed for the conclusion which I have reached, but I may refer to Muhmmad Sadique v. The State
(1) and Muhammad Ramzan v. The State (2).
7. The prosecution evidence when put in juxta- position to the defence version does not inspire confidence. The possibility cannot be excluded that some other person had put this amount in the pocket of the coat lying in the adjacent room. It does not stand to reason as to why Mr. Saced Ahmad who was witnessing the transaction played the game of waiting and did not live the agreed signal when this amount was being passed to. {{FOOT NOTE}} (1) 1975 P Cr. L 11286 (2) 1976 P Cr. L J 273 {{FOOT NOTE}} the appellant. Strangely enough he allowed the accused to go out and come back after safe deposits of this money somewhere. The prosecution evidence even taken on its face value is tarred with suspicion and doubt and the appellant is entitled to get that benefit.
8. In view of the discussion made above, conviction and sentence awarded by the Special Judge. Anti-Corruption is set aside. The appellant is acquitted. He is in Jail, he shall he released forthwith, if not required in any other case.