MUHAMMAD ANWAR SHAH Versus SPECIAL JUDGE, ANTI-CORRUPTION, SARGODHA

Muhammad Anwar Shah was tried by Special Judge, Anti‑Corruption, Sargodha, for offences under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. The trial Court vide its judgment dated 2‑5‑1988, convicted him under section 5(2) of Act 1947 to 3 years' R.I., and a fine of Rs. 15,000 or in default to undergo further R.I for six months. It was further ordered that the fine if realised, Rs.13,000 shall be paid to the complainant as compensation. The said Muhammad Anwar Shah has filed this appeal challenging his conviction and sentence.

2. The prosecution story in brief as given in Exh. PF, an application filed by Muhammad Asghar on 3‑9‑1985 is to the effect that Muhammad Yousaf had purchased some land from Imam Din and Khuda flakhsh for a consideration of Rs. 1,05,000. The appellant at that time was Patwari in Chak No. 31 Jannobi, where the transaction had taken place. Muhammad Asghar son of the vendor Muhammad Yousaf approached the appellant for the registration of sale. The appellant is alleged to have demanded Rs.13,000 from the first informant and volunteered to enter the mutation of exchange instead of sale. The amount of Rs.13,000 was paid to the appellant who subsequently entered the mutation of exchange with regard to the same land but the said mutation was not accepted and was rejected by the Tehsildar. Muhammad Asghar son of the vendor moved an application before Assistant Commissioner Sargodha, who ordered the investigation. After preliminary inquiry, the allegations against the appellant were round correct, therefore, an F.I.R. Exh. PF/1 was registered against the appellant on 4‑2‑1986.

3. The prosecution in support of its case has produced seven witnesses in all. P.W. 1 Muhammad Yousaf has stated that he had purchased 27 Kanals of land from Imam Din and Khuda Bakhsh at the rate of Rs.35,000 per acre. He has further stated that he approached the appellant for the entry of mutation whereupon the appellant demanded Rs.13,000 from him for doing the needful, which was accordingly paid to him. In cross‑examination, he has admitted that the mutation in his name was entered by the appellant in his presence and the same was rejected after 5/7 months by the Tehsildar. He has further admitted that two months after the rejection of the mutation an application to the Assistant Commissioner against the appellant was moved. This PW had further stated that he paid 1103,000 to the appellant in his own house and at that time the appellant was alone.

Muhammad Asghar P.W. 2 has skated that his father Muhammad Yousaf has purchased 27 Kanals of land at the rate of Rs.35,000 per acre. He has further stated that the appellant demanded Rs.13,000 for entering the mutation in their names which accordingly was paid to the appellant but the appellant instead of showing sale entered the, mutation as gift which was rejected by the Tehsildar. In cross‑examination he has stated that the appellant received Rs.13,000 from his father, though in his application, Exh. PF he has stated that the money was demanded from him. Dilawar Khan, P.W. 3 has stated that he had gone to the house of Muhammad Yousaf in order to see the appellant where in his presence Rs.13,000 were paid to him. In cross‑examination, he has stated that it was about 2.30 p.m., when the money was paid to the appellant. He has further stated that there were number of other persons present when the money was paid to him. Muhammad Yasin P.W. 4 has stated that in his presence the appellant had received Rs.13,000 from Muhammad Yousaf P.W. as illegal gratification. In cross‑examination, he has stated that the appellant had received money on a thoroughfare in the presence of 4/5 persons. He has further stated that in his presence the appellant had received Rs.6,300 from Muhammad Yousaf P.W. Ch. Muhammad Yaseen, P.W. 5 Tehsildar had held an inquiry on the basis of which the present case was registered against the appellant. Malik Tala Muhammad P.W. 6 was CO/Assistant Commissioner, Sargodha who recorded the F.I.R., Exh. PF/1 on the written application Exh. PF of Muhammad Asghar. He had investigated the case and then challaned the appellant. Ghulam Rasool P.W. 7, Patwart produced certain documents.

4. The appellant at the conclusion of the prosecution case, was examined under section 342, Cr.P.C., without oath wherein he refuted the prosecution evidence and pleaded innocence. He also appeared in his defence on oath and stated that he did not receive Rs.13,000 from the complainant as illegal gratification.

It is contended by learned counsel for the appellant that the case against the appellant is extremely doubtful. Submits that money was allegedly paid to the appellant 5/7 months before the registration of case. In these circumstances no reliance on the F.I.R. can be placed. Urges that the application against the appellant was moved by the complainant admittedly two months after the mutation in question had been rejected. Submits that the witnesses have contradicted each other with regard to the place where the money was passed over to the appellant. Submissions made by learned counsel for the appellant have been controverted by learned counsel for the State.

I have heard the learned counsel at length and gone through the evidence with their assistance. Muhammad Yousaf P.W. has stated that he had paid the money in his own house when nobody else was present. This fact has teen contradicted by the other witness, namely, Dilawar Khan, who has stated that he was present at the Dera of Muhammad Yousaf P.W. when in the presence of 5/6 persons, money was given to the appellant. This fact is clearly in contradiction with the statement of Muhammad Yousaf P.W. Similarly Muhammad Yasin P.W. 4 has stated that the money in question was passed over to the appellant at a thoroughfare. This is also in conflict with the statement of the first informant. Muhammad Asghar son of Muhammad Yousaf had moved an application Exh. PF on the basis of which inquiry commenced and later on the case was registered. He had stated in the said application that the appellant had asked him for illegal gratification of Rs.13,000 which was accordingly paid to him but in Court he had taken totally a different stance by saying that the money was paid by himself and his father. ?

6. For what has been discussed above, it is clear that the prosecution I witnesses are neither unanimous about the place where the money was paid nor they are clear about the actual amount. There is no explanation whatsoever with regard to the inactivity on the part of the complainant specially for about two months when admittedly the mutation had been rejected by the Tehsildar. In such circumstances, I hold that the case against the appellant is extremely doubtful. Relying on Niaz Muhammad v. The State (1987 P Cr. L J 282), I0 give the benefit of doubt to the appellant and set aside his conviction. The appellant shall be released forthwith if not required in any other case.

S.A./M‑862/L ????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.