' This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption, Sargodha, whereby he on 1-6-1999 convicted Muhammad Abdullah 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. And a fine of Rs,1000 in default thereof further R.I. For one month. He was granted the benefit of section 382-B, Cr.P.C.
2. The brief facts are that the allegation against the accused is that on 11-10-1992 while he was posted as Medical Technician at B.H.0 Kalari District Mianwali, he demanded and accepted Rs,200 as illegal gratification from the complainant Muhammad Iqbal since murdered, for the treatment of his niece and that Nisar Ali Shah (P.W.3) after registration of case moved application Exh.P.A./1 to the D.C. Mianwali for deputing a Magistrate to supervise the raid, who vide order Exh.P.A. Deputed Shahid Khurshid Magistrate to supervise the raid. He produced the said complaint and order of the D.C. And the complainant of the case, since murdered, before the Magistrate, who recorded his statement which is Exh.P.B. The complainant signed the same in token of its correctness. The complainant also produced to currency notes of the value of Rs,100 each before the raiding Magistrate, who recorded their numbers and returned the same to the complainant and that personal search of the complainant was also made by the raiding Magistrate but nothing was recovered. Thereafter, the raiding party was constituted under the supervision of the Magistrate and it went to the B.H.C. Kalari and that on the pointation of the complainant since murdered, raid was conducted at the accused in the aforesaid Basic Health Unit and he was arrested. From the personal search of the accused tainted money P.1 and P.2 was recovered from the possession of the accused vide memo. Exh.P.C. And this P.W. Attested this memo. And on comparison the tainted currency notes were found similar with the currency notes whose numbers were already noted by the raiding Magistrate and that after raid statement of the accused Exh.P.E. Was recorded and the accused signed the same in token of its correctness. The raiding Magistrate also prepared raid report Exh.P.F. And then handed over the custody of the accused, tainted money P.1 and P.2 and the raid proceedings to,P.W.3 for t furthur investigation and necessary action, who investigated the case and gave details thereof. He recorded statements of the P. Ws. He also arrested the accused and recorded his version. After due investigation he recommended for judicial action against the accused and on receipt of sanction order Exh.P.J. And judicial action order Exh.P.H. He submitted challan in Court against the accused and after submission of challan, a formal charge was framed. But the accused denied the charge and claimed his trial and that the prosecution examined as many as three P.Ws. And tendered in evidence documents Exh.P.A. To Exh.P.J. And then closed the prosecution case.
3. The appellant in his statement under section 342, Cr.P.C. Denied the charge and claimed to be innocent and that he denied to make statement on oath under section 340(2), Cr.P.C. But he produced in defence Ghulam Farid (D.W.1).
4. Learned counsel for the appellant has urged that P.W.1 stated that a raiding party was constituted consisting of three members, namely, Shahid Khurshid Kanwar C.O./A.C., Khurshid Alam Constable and Nisar All Shah while P.W.2 Fazal Dad Constable deposed that he joined the raiding party with the Magistrate, Mehmood Akhtar, Nisar All Shah Inspector and Khurshid Alam Constable and does not mention the name of Shahid Khurshid Kanwar M.I.C. And P.W.3 Syed Nasir Ali Shah C.O. Mianwali does not mention the name of the raiding party and simply says that, thereafter, raiding party was constituted under the supervision of the Magistrate and it went to the B.H.U.
Kalari. He next contended that P.W.1 deposed that the accused was sitting in a room while P.W.2 stated that the accused was seated in the Waranda. He also deposed that the accused was present at about 25 yards away at the time of occurrence while the Magistrate has stated that it was about 8 feet.
5. The contentions of the learned counsel for the appellant are borne out from the record. In a case where none of the witnesses has heard the conversation between the complainant and the appellant to establish that the money was paid as bribe and where even the complainant has not come forward to support his own case the only inference that could be drawn according to the criminal justice would have been that the prosecution has failed to prove its case beyond reasonable doubt and in such circumstances the conviction was not warranted.
6. Resultantly, the appeal merits to be allowed and the same is allowed and the conviction and sentence are set aside. The appellant shall be released forthwith if he is not required in any other criminal case.