' Appellant Islam Parvez was tried by the learned Special Judge, Anti-Corruption N.-W.F.P. (Camp at Mardan) on the charge under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act and was sentenced to 6 months' R.I. With a fine of Rs,10,000.
2. The relevant facts of the case are that on 12-6-1999, complainant Sardar Hussain, made a report to A.C.E. Mardan, wherein he stated that the appellant who was posted as Patwari in their Halqa was demanding Rs,2,000 as illegal gratification for demarcation of their land. It may be mentioned that the complainant had also informed the members of "Khidmat Committee", namely, Muhammad Ishaq, Ahmad Ali and Abdul Wahid. At the time of making report he had also given Rs,2,000 to the C.O. A.C.E. Thus, a case, vide F.I.R. Exh.P.W.1/1 was registered against the appellant.
The currency notes were stated to have been initialled by the Magistrate. A raiding party was arranged and proceeded towards the office of the appellant.
3. The record speaks that on reaching the office of the appellant, the complainant was sent inside the office whereas the members of the raiding party stayed at some distance. The tainted money was passed over to the appellant, whereafter on a signal given by the complainant, the raiding party rushed towards the appellant and recovered the said money from his possession.
4. Durira the trial apart from other P.Ws. The prosecution examined complainant Sardar Hussain as P.W.2, Alamzeb Khan, Deputy District Officer (Judicial), Mardan as P.W.5, who was supervising the raid proceedings and had recorded the statement of complainant prior to the raid and had put his initials on the currency notes that were meant for passing over to the appellants. Similarly P.W.6 Parvez, Inspector was examined as marginal witness to the recovery memo. Exh.P.W.1/2 vide which the C.O.A.C.E. Took into possession the shirt of the appellant Exh.P.W.5 and the receipt Exh.P.2, which was produced by the complainant. Statement of the appellant was recorded under section 342, Cr.P.C. As a final phase of the trial. The appellant in his statement explained that there is no property in the name of the complainant in the village but was in the name of his father. However, he categorically denied the approaching of the complainant to him for the purpose of partition of any land. Moreover, the partition was the job of Girdawar Circle and not of the appellant. The appellant has accepted the receiving of Rs,2,000 from the complainant but this amount was received as agricultural tax which was outstanding in the name of the father of the complainant.
The answer that he gave to question No,5 is reproduced below:-- "The said amount was delivered to me by the complainant as Agriculture tax. The total tax outstanding against the father of complainant namely Shamsuddin in the year 1997-98, 1998-99 at Serial No,13 was Rs,3,300. Out of which he paid Rs,300 to my predecessor Patwari and Rs,1,000 earlier. Thus, at the time of raid Rs,2,000 was outstanding against him and complainant awakened me for the delivery of Rs,2,000 as outstanding agriculture tax against his father, in the presence of Farman and other old man namely Sardar Hussain. The list of agriculture tax showing outstanding amount for the year 1997-98 and 1998-99 is Exh . D. X . (two sheets).
5. The learned counsel for the appellant has vehemently argued that the amount recovered by the raiding party from the possession of the appellant is not denied but it was never received as bribe/illegal gratification. The same was in fact the recovery of the public money in the form of agricultural tax due from Shamsuddin, the father of the complainant. He contended that in order to prove the counter-version of the appellant, two defence witnesses i,e, Farman Ali son of Hashim Khan and Sardar Hussain son of Sikandar Shah were examined in the trial Court. Apart from this the appellant had also recorded his statement on oath in terms of section 340(2), Cr.P.C. Both the defence witnesses were combingly cross-examined but the credence of their testimony could not be shattered. Moreover, the statements of both the D. Ws. And of the appellant find strong support from the record as the list of the owners of Mauza Daulat Zai, pertaining to the year 1997-98 and 1998-99 was produced by the appellant, wherein the name of the father of the complainant was appearing at S.No,13. It indicates the amount of agricultural tax outstanding against his name. It was further contended that the prosecution was legally bound to prove the purpose/object for which the illegal gratification was allegedly demanded by the appellant. On this score the prosecution totally failed as neither any application nor other credible evidence was produced. The learned counsel explained that the partition proceedings are chiefly concerned with the Girdawar Circle who also was not produced. The learned counsel emphatically submitted that no conversation was heard between the complainant and the appellant at the time of passing over the tainted money and merely recovery of the tainted amount cannot fix the guilt of the appellant.
Moreoso, when according to the appellant this money was received from the complainant as agricultural tax. Reliance was placed on Muhammad Ashraf v. The State 1996 SCM R 181 and Allah Diwaya v. The State 1973 PCr.LJ 1036.
6. On the contrary, the learned counsel appearing on behalf of the State has made an endeavour to defend the impugned judgment arguing that the tainted money was recovered from the possession of the appellant and the marginal witnesses to the recovery were examined. He urged that the plea raised by the appellant about receiving the tainted money as agricultural tax is a post event device which does not find support from the record.
7. I have heard and anxiously considered the rival contentions of the learned counsel for the parties. This is obviously a case of two versions and both the versions have to be weighed and evaluated on the basis of evidence of the parties. The result would be determined on the consideration as to which version is more congruous and in harmony with the natural probabilities.
Obviously the appellant has not denied the receiving of the amount recovered from him. The case of the prosecution rests upon the allegations of the complainant who claimed a direct link with the appellant for the stated purpose of getting demarcation of their land. There is no other evidence on this point. The other circumstance on which the prosecution case is grounded is the passing over of the money and recovery thereof by the raiding party. As against this the appellant produced two defence witnesses mentioned above. Both of them claimed their presence on the spot at the time of passing over the money from complainant to appellant and the ensuing recovery by the raiding party. Both the witnesses are meticulously consistent in their depositions that this money was given to the appellant by the complainant as agricultural tax. It is also a part of their evidence that the appellant was looking for a piece of paper to execute the receipt for the money he received but before doing so the raiding party overpowered him and the money was recovered from hi possession. At that moment the appellant had told the raiding party that the money was received as agricultural tax but the officials said that he had received the bribe money. It is extremely significant to note that P.W.5 Alamzeb Khan in his statement had admitted the presence of the two persons with the Patwari when he alongwith the raiding party entered the office of the appellant.
The relevant segment of his statement appearing in the cross-examination is in the following diction:-- "When I alongwith my party entered into the office of accused, two persons were present with the Patwari accused but I do not know who were they."
' This admission establishes the presence of the D.Ws. At the time of recovery of the money from the appellant.
8. The appellant while recording his statement under section 342, Cr.P.C. Had produced the list of the persons containing the names of those against whom the agricultural tax was outstanding. The said list is Exh.D.X. Consisting of two sheets. In both the sheets the name of Shamsuddin, who is the father of the complainant is appearing at S.No,13. Thereafter the appellant got himself examined on oath but astonishingly the prosecution did not put any question to him with regard to the list Exh.D.X. If not at the time of retording the statement of the appellant under section 342, Cr.P.C., the prosecution had ample opportunity of cross-examining the appellant when he appeared as his own witness in terms of section 340(2), Cr.P.C. The appellant had eloquently explained that au amount of Rs,3,300 for the years 1997-98 and 1998-99 was outstanding against the father of the complainant out of which Rs,300 were received by his predecessor Patwari namely Sher Ali and Rs,1,000 were recovered by him from the complainant prior to the present occurrence, for which he had already given a receipt to the complainant. Thus, the remaining amount of Rs,2,000 was received on the said date, which was coloured as bribe money. The earlier executed receipt was produced by the prosecution itself. When the learned counsel for the State was confronted with Exh.D.X. And was queried as to whether in any manner the said document was questioned by the prosecution, he felt himself in a hard situation to give any explanation and ultimately his answer was in the negative.
9. It is held in the cited judgment that the mere recovery of the tainted money would not be sufficient to establish the guilt of an accused person on the charge of receiving illegal gratification.
The hearing of conversation between the accused and the person who would pass the money was considered to be essential. Admittedly in the instant case no such conversation was heard by the members of the raiding party. I am of the considered view that in the instant case hearing of conversation between the appellant and complainant was all the more essential because B the appellant had taken the stance which radically runs counter to the charge of receiving illegal gratification, The stand of the appellant stood proved by the testimony of D.Ws.1 and 2 whose presence can safely be believed in view of the admission of P.W.S. The list Exh.D.X. Also bears the name of Shamsuddin for his liability to pay the agricultural tax. The validity of the list had gone totally unquestioned and, therefore, it has to be believed. In the circumstances I believe that the defence version is more congruous and in harmony to the natural probabilities in the attending circumstances of the case and bears great weight vis-a-vis the prosecution evidence. Thus, the net result of the above discussion is that the prosecution could not prove its case against the appellant on the charge of receiving illegal gratification. Consequently, this appeal is allowed, the conviction and sentence of the appellant is, therefore, set aside.
' These are the reasons for my short order, dated 23-4-2004.