BASHIR AHMED Versus THE STATE

JAVED IQBAL, J.---- This appeal by leave of the Court is directed against the judgment, dated 13-9-1999 passed by learned Single Bench of Lahore High Court, Lahore, . whereby the appeal preferred on behalf of appellant against the judgment, dated 11-7-1997 passed by learned Special Judge Anti-Corruption, Sargodha, Camp at Jhang has been dismissed whereby the appellant was convicted under section 161, P.P.C. read with section 5(2) of Act, 11, 1947, and was sentenced to two months' R.I. with fine of Rs.100 or in default to further undergo one month's R.I.

2. Precisely stated the facts of the case are that Muhammad Aslam who was a primary school teacher got lodged a complaint alleging therein that the appellant namely, Bashir Ahmad, Junior Clerk/Typist in the District Education Office, Jhang, demanded Rs.100 to get him sanctioned the financial assistance for marriage of his daughter from Government Employees Benevolent Fund. On the basis of said complaint formal F.I.R. was got registered and pursuant thereof a raid was conducted under the supervision of Magistrate and the tainted money was recovered from the appellant his statement was also got recorded immediately after the raid. After completion of investigation the appellant was sent up for trial.

3. In support of the accusation the prosecution produced Rana Muhammad Aslam (P.W.1)/complainant, Abdur Rashid Bhatti (P.W.2)/ASDPO, Daska and Muhammad Usmanuddin Sameen (P. W.3) MFC. The statement .of appellant was got recorded who professed innocence and stated that a false and concocted case was got registered and no illegal gratification whatsoever was received but on the contrary the application moved by the complainant was typed and in lieu thereof an amount of Rs.100 was paid to him. He did not prefer to get his statement recorded on oath and no defence evidence whatsoever was led. On conclusion of trial the learned Special Judge Anti-Corruption, Sargodha, convicted and sentenced the appellant as per details mentioned hereinabove. Leave to appeal was granted with the following reasons which is reproduced hereinbelow for ready reference:--

"Petitioner Bashir Ahmad was tried by Special Judge Anti -Corruption, Sargodha, for an offence under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947, arising out of F.I.R. No.50, dated 30-12-1991, Police Station, A.C., Jhang. The trial Court vide its judgment, dated 11-7-1997 found him guilty and sentenced him to 2 months' R.I. with fine of Rs.100 or in default further R.I. for one month. The convict appealed. A learned Judge in Chambers of Lahore High Court vide his judgment, dated 13-9-1999 dismissed the apps.

(2) The learned counsel for the petitioner has been heard at length. The petitioner in his 342, Cr.P.C. statement has admitted that he received rupees 100 as remuneration for typing an application and affidavit of the first informant. We are inclined to grant leave to consider the effect on the prosecution case when neither the conversation between the complainant and the petitioner was heard, by any of the members of the raiding party nor they saw the money changing hands."

4. We have heard the learned counsel for the appellant and the State at length. We have carefully examined the entire evidence with their assistance. We have also perused the judgment, dated 11-7-1997 passed by learned Special Judge Anti-Corruption, Sargodha, and impugned judgment. A careful scrutiny of the evidence would reveal that prosecution has failed to substantiate the accusation by producing worthy of credence, oral or documentary evidence. It has been admitted in a categoric manner by Abdur Rashid Bahtti (P.W.2)/ASDPO while answering one of the questions during cross-examination that the "place where the raiding party was staying was in such a position that from where neither the complainant nor accused could be seen nor their conversation could be heard". The statement of Muhammad Usmanuddin Sameen (P.W.3)/MFC has been examined with care and caution in whose supervision the raid was conducted and by whom it has been conceded frankly that the "conversation if any between the accused and the complainant at the time of passing the bribe money was neither heard by me nor the members of the raiding party and in the same way we did not witness the passing of the bribe money from the complainant to the accused". A cautious analysis of the evidence of the above material witnesses would reveal that neither the conversation between the complainant and that of accused was heard nor the passing of tainted money from the complainant to accused was seen. In such view of the matter we have no hesitation in straightaway excluding the testimony of Muhammad Usmanuddin Sameen (P.W.3)/MFC and Abdur Rashid Bhatti (P.W.2)/ASDPO for the simple reason that they don't claim to have overheard the conversation which normally should have been heard. The position would have been absolutely changed if the above two witnesses had claimed to have overheard the conversation but their assertion that the deal was done in their presence would altogether inconsistent with logic, reasoning and ordinary course of human conduct. In such view of the matter we don't consider it safe to place reliance on their statements. It is well-settled by now that "in such-like transactions not only the payment of bribe money to the accused by the complainant is to be seen but also the conversation between the above parties has to be heard by the members of the raiding party. This would be necessary to eliminate the chances of involvement of innocent people". (Muhammad Ashraf v. State 1996 SCMR 181 + Arsahd Mirza v. State PLD 1988 Lahore 640 + Abdul Khaliq v. The State 1985 PCr.LJ 86 + Muhammad Mukhtar v. The State 1985 PCr.LJ 87 + Muhammad Yousaf v. The State 1985 PCr.LJ 1439 + Bashir Ahmed and others v. The State 1985 PCr.LJ 2397 + Muhammad Saleem v. The State 1986 PCr.LJ 1615 + Jangsher v. The State 1986 PCr.LJ 473 and Din Muhammad v. The State 1986 PCr.LJ 1973). The dictum laid down in Muhammad Mehdi v. State (2000 SCMR 222) and heavily relied upon by the learned State Counsel cannot be made applicable as in the above-cited case the Magistrate had seen the transaction and passing of tainted currency notes but in this case situation was almost contrary and neither the conversation could be heard nor the passing of tainted money from the complainant to accused could be seen. There is no cavil to the proposition that "mere recovery of the tainted money from the accused's possession is not enough to fix him with the guilt of having received bribe unless, it can be shown to have actually accepted the same with the knowledge that it is illegal gratification and secondly that the agent provocateur passing money to another as bribe is more than an accomplice in the crime, and as such, testimony cannot be accepted, much-less acted upon, without corroboration from some independent source. The solitary statement of a decoy witness is not enough to condemn a public servant in such cases". (1973 PCr.LJ 1036). Besides that what has been stated above it has come on record that the petitioner was performing his duties as typist in the Office of District Education Officer and could hardly render any assistance in getting the amount of benevolent fund sanctioned in favour of the complainant as such grant could only be sanctioned by Deputy Commissioner as has come on record. It is worth mentioning here at this juncture that the application duly recommended by District Education Officer was never recovered which was allegedly handed over to accused alongwith tainted money and thus it could not be proved that it was not got typed by the accused in lieu whereof an amount of Rs.100 was paid to him. No inquiry worth the name was made as to whether such application was ever made by the complainant and recommended by District Education Officer. 1t may not be out of place to mention here that no mention whatsoever regarding the submission of application has been made in the F.I.R. but on the contrary it is alleged that the complainant met the petitioner who demanded an mount of Rs.100 as illegal gratification.

5. In the light of what has been discussed hereinabove it can be inferred safely that the prosecution has failed to substantiate the accusation. We don't feel satisfied with the prosecution evidence and cannot hold that the prosecution has succeeded in bringing home the guilt to the appellant. The appeal is resultantly accepted and the impugned judgment, dated 13-9-1999 as well as the judgment of the trial Court, dated 11-7-1997 are set aside and the appellant is acquitted of the charge.

N.H.Q./B-35/S Appeal accepted.