Nazar Hussain son of Ali Muhammad, appellant, was sent upon to face trial in case F.I.R. No-26 registered at Police Station Anti-Corruption Establishment, Muzaffargarh, on 29-10-1997, for offence under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, at the instance of Murid Hussain P.W.2.
2. The learned trial Court vide judgment, dated 21-9-2000 convicted the appellant under section 161, P.P.C. And sentenced him to undergo simple imprisonment for one year. A fine of Rs.5,000 was also imposed and in default thereof he was to undergo further simple imprisonment for one month.
Feeling aggrieved, the appellant challenged his conviction and sentence by filing the present appeal.
3. According to F.I.R. Exh.P.W.2/A, Murid Hussain P.W.2 appeared at the Police Station Anti-Corruption Establishment, Muzaffargarh, and stated that he was a shopkeeper, his father owned a small piece of agricultural land and the complainant needed a tractor for the purpose of cultivation. He approached Nazar Hussain (appellant), Manager, Punjab Provincial Cooperative Bank, who informed him that if Rs.2,000 were paid to him, he . Would ensure the sanction of a tractor. It was further stated that the complainant paid Rs.1,500 there and then, and when met him again, Nazar Hussain demanded Rs.500 and 2 Kg. Desi Ghee. Since the complainant was not willing to pay further bribe, he reported the matter. His statement was recorded by Muhammad Javed Iqbal, Circle Officer, P.W.3.
4. After registration of the case, on the application of P.W.3 on 29-10-1997 Muhammad Aslam, Magistrate, P.W.1 was deputed to conduct raid. The learned Magistrate recorded the statement of the complainant Murid Hussain P.W.2, who reiterated his statement made before P.W.3 However, he did not mention the demand of 2 Kg. Desi Ghee in his statement before the Magistrate Exh.P.W.1/C.
Thereafter the learned Magistrate alongwith raiding party reached Qinwan Chowk near the Punjab Provincial Cooperative Bank. Murid Hussain complainant accompanied by Ghulam Rasool, Constable, Anti-Corruption went inside the Bank and after about 10 minutes Ghulam Rasool, Constable, came out of the Bank and informed P.W.1 that bribe money has been received by the appellant. On receipt of this information P.W.1 alongwith P.W.3 went inside the Bank, searched the appellant and recovered Rs.500 alongwith Rs.20 from the front pocket of the shirt of the appellant.
The note of the denomination of Rs.500 was the same which was marked by the Magistrate.
5. Statement of the appellant was also recorded after the recovery of tainted note. The appellant stated before the Magistrate that Murid Hussain-complainant came to him at about 12-00 noon and stated that Bahar Hussain, brother of the appellant, who was working as District Manager, Punjab Provincial Cooperative Bank, Multan, had given him Rs.800 and asked him to purchase Ghee and delivered it to the appellant. The appellant further stated that Murid Hussain informed him that he could procure only 2 Kg Desi Ghee, which he was brought and he also gave the remaining amount i.e. Rs.520-to the appellant.
6. It was after the statement of the appellant Exh.P.W.1/E that P.W.1 took into possession tin of Ghee and hended-over the same to Javed Iqbal P.W.3 alongwith the tainted note and the same was also taken into possession vide memo Exh.P.W.1/D.
7. During trial, the prosecution produced three P.Ws. In support of its case. P.W.1 Muhammad Aslam, Magistrate, stated about the raid and the recording of the statements. P.W.2 Murid Hussain- complainant stated about the complaint and subsequent proceedings. P.W.3 Muhammad Javed Iqbal, Circle Officer, stated about the recording of complaint and proceedings thereafter.
8. After the conclusion of trial, statement of the appellant was recorded under section 342, Cr. P. C.
And in answer to Question No.3, he stated as under:--- "In fact, the complainant had come to me with a tin of Desi Ghee and told that your elder brother Bahar Hussain who was District Manager, Punjab Provincial Cooperative Bank, Multan, had given to him Rs.800 to supply him Desi Ghee and had further requested him to hand-over the same to me.
The complainant further told that only 2 Kg. Of Desi Ghee could be available, hence he handed- over to me a tin containing 2 Kg. Of Desi Ghee and also gave me the remaining sum of Rs.520 which I had produced before the raiding party on- their demand without any hesitation."
He further stated that during the days of occurrence ban was imposed on entertainment of the applications for sanction of loan for tractors and produced the relevant letter. He added that Jam Iqbal, President of Sub-Inspectors Welfare Association, Punjab, was inimical towards him and involved him in this case falsely. The appellant did not appear in his defence under section 340(2), Cr.P.C. And section 7 of the Prevention of Corruption Act, 1947. However, Iqbal Hussain, Manager, Punjab Provincial Cooperative Bank, Muzaffargrah, appeared as P.W.1 and stated that in fact there was a ban on the entertainment of applications for sanction of loan for tractors. He also produced documents Exh.D-1 to D-4 before the Court, which were made part of the record.
9. The learned counsel for the appellant has argued that the case was not free from doubt; that the appellant was roped in this case due to enmity and that the case was not judicially proved against the appellant.
10. On the other hand, the learned counsel appearing on behalf of the State has argued that neither Muhammad Aslam, Magistrate, P.W.1 nor Muhammad Javed Iqbal, Circle Officer, P.W.3 had any enmity or background of bitterness with the appellant and they were rightly believed by the trial Court.
11. I have heard the learned counsel for the parties and gone through the record minutely. No doubt, although Muhammad Adam, Magistrate, P.W.1 and P.W.3 Muhammad Javed Iqbal, Circle Officer, had no background of bitterness or enmity with the appellant yet their evidence relates only to the recovery. Murid Hussain P.W.2 had reported the matter to P.W.3 and thereafter P.W.3 and P.W.1 alongwith other members of the raiding party initiated proceedings. P.W.1 and P.W.3 did not know any background of the occurrence and their evidence only relates to the points that note of the denomination of Rs.500 given by Murid Hussain P.W.2 was marked by P.W.1 and thereafter the same was recovered from the pocket of the appellant. These two witnesses remained outside the Bank, when Murid Hussain passed the marked note to the appellant. Admittedly, these two P.Ws neither saw the passing of the note P-1 to the appellant nor they had heard any conversation, before passing of the note, between the complainant and the appellant. Immediately after the recovery of note P-1, the appellant got his statement recorded, which has already been referred to earlier.
Murid Hussain while making statement before the Magistrate did not mention about the demand of 2 Kg. Desi Ghee. According to report Exh.P.W.1/G a note of Rs.500 P-1 alongwith two other note of the denomination of Rs.10 were recovered from the front pocket of the appellant. It was after the statement of the appellant, wherein the appellant mentioned that the complainant has given him 2 Kg. Desi Ghee alongwith Rs.520, the Magistrate noticed about the tin of Ghee and handed-over the same to P.W.3. A note of Rs.500 P-1 and a tin of Desi Ghee P-2 were taken into possession vide memos. Exh.P.W.1/D and Exh.P.W.1/F respectively, while Rs.20 were returned to the appellant.
12. Ghulam Rasool, Constable, who admittedly had accompanied the complainant, when the latter had handed-over the bribe money to the appellant, was not produced during the trial. He was the only independent witness, who could state about the conversation between the appellant and the complainant, made prior to passing of money. No one from the Bank was associated during the recovery and raid proceedings. P. W.1 did not record the statement of any employee of the Bank. In other words it is a statement of the complainant versus the statement of ,the appellant. The appellant at the very outset has stated before the Magistrate that he was given Rs.520 and the tin of Desi Ghee by Murid Hussain P.W.2 on the pretext that the same was sent to him by Bahar Hussain, brother of the appellant. It is also on the record that P.W.2 complainant was not a member of the Cooperative Society and sanction of loan for tractor could not be made in his favour. In fact, it was the complainant's father, who was member of the Cooperative Society. Nothing has been brought on record to show that any application for sanction of loan was made by the complainant.
It has been proved through the documents placed on the record by D.W.1 that ban indeed had been imposed on the sanction of loan for tractors and the appellant was not in a position to help the complainant.
13. The prosecution case revolves around the statement of only one P.W.1 i.e. The complainant- Murid Hussain. The allegation made by P.W.2 at the very first instance had been explained and rebutted by the appellant when his statement Was recorded by the Magistrate. The statement of the complainant to the extent that he wanted the loan sanctioned in his favour and Rs.2,000 were demanded from him by the appellant, is not supported by any other evidence, oral or documentary. The evidence of P.W.2 and P.W.3 is relevant to the extent that a marked note was recovered from the appellant but the appellant has come out with the explanation, so these are his, words, against the words of complainant. The only witness, who could perhaps state about the conversation, which took place between P.W.2 and the appellant, was Ghulam Rasool, who was not produced, as already mentioned that his statement was also not recorded by P.W.1 Muhammad Aslam Magistrate.
14. Considering all the above mentioned circumstances, I hold that the case of the prosecution is not free from doubt and white extending the benefit of doubt to the appellant, I allow this appeal, set aside the impugned judgment and acquit the appellant. Who has already served out his sentence of all the charges.