NASEER AHMAD Versus THE STATE

This appeal is directed against the judgment, dated 23‑2‑1989 passed by learned Special Judge, Anti‑Corruption, Gujranwala, Lahore whereby he convicted the appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to suffer R.I. for nine months and a fine of Rs.2,000 or in default thereof to suffer further R.I. for three months.

2. The prosecution story in brief as per, the F.I.R. (Exh.P.H.) recorded by Muhammad Anwar, C.O. Anti‑Corruption, Gujranwala (P.W.3) at the instance of Arshad Mehmood complainant (P.W.4) is that three years before the date of F.I.R., the map of the shop of the complainant was got approved from the Town Committee Dhaunkal which was lost. A case in respect of the said shop was pending in the Civil Court, Wazirabad for which he required the map of the shop. Therefore, the complainant made an application Exh.PA. to the said Town Committee for supply of the copy of the map. Naseer Ahmad, the appellant herein, demanded a sum of Rs.300 as bribe from the complainant for the said purpose. At last, the bargain was settled at Rs.250. The complainant then informed the Anti‑Corruption Establishment where his statement Exh.P.C. was recorded and he was produced before a Magistrate who recorded his statement Exh.P.B. He produced 3 G.C. notes of the value of Rs.250 the detail of which was recorded by the Magistrate. The said G.C. notes were returned by the Magistrate to the complainant. A raiding party consisting of a Magistrate, Inspector/C.O. A.C.E. and the complainant was constituted and the raid was conducted in Town Committee, Dhaunkal but the appellant was not found present in his office and was stated to have gone to Wazirabad to attend the Court. The raiding party then reached Wazirabad, but the appellant was not found in the Court premises. It was on their way back to Gujranwala that the accused appellant was found present in a shop of Video Games in the bazar of Wazirabad. The complainant was directed by the Magistrate to hand over the G.C. Notes to the accused‑appellant. Accordingly, the complainant contacted Naseer Ahmad, appellant, handed over the bribe money to him and on his signal, the Magistrate and the Inspector/Circle Officer reached the spot and after introducing themselves to the appellant got the tainted money of Rs.250 recovered from him. The G.C. notes P.1 to P.3 were taken into possession vide memo. Exh.P.D. The appellant was arrested and after due investigation, he was challaned to face his trial.

3. To prove its case, the prosecution produced four witnesses, Mahboob Alam, Secretary, Town Committee, Dhaunkal, appearing as P.W.1 stated that on 29‑i1‑1986, he had produced an application Exh.P.A. of the complainant before the Investigating Officer, who took the same into possession vide memo. Exh.P.A./1. In cross‑examination, he admitted that the concerned clerk received a fee prescribed for a map and Naseer appellant was the clerk concerned. Khalid Majeed Pirzada, Magistrate 1st Class, appeared as P.W.2 and stated about the formalities observed by him prior and during the raid and so also as to the recovery of the tainted amount. He deposed that the appellant was not found in his office and was stated to have gone to Wazirabad to attend the Court. He further deposed that the appellant was found sitting in a shop of Video Games, where the tainted money was handed over to him and its recovery was effected by the raiding party. He further discloses that the statement of the appellant (Exh.P.F.) was recorded by him and according to the said statement, the appellant had admitted to have received the amount from the complainant but with the assertion that it was a fee for the preparation of the plan of the shop of one Rehmat Ullah, the maternal‑uncle of the complainant, who had already applied for it but had not deposited the fee. In cross‑examination, the Magistrate admitted that neither the conversation was heard nor passing over of money was seen.

4. Chaudhry Muhammad Anwar Garha, Circle Officer, appeared as P.W.3 and corroborated the testimony of Khalid Majeed P.W.2 as to the recovery of G.C. notes P.1 to P.3 from the possession of the appellant. It was, however, admitted by him in his cross‑examination that neither the conversation was heard by him nor did he see the passing over of money to the appellant, though he remained with the Magistrate throughout. He also admitted it correct that the appellant had told the Magistrate that the money was paid towards fee of the plan of Rehmat Ullah's shop the maternal‑uncle of the complainant. He also stated that he did not enquire further about this fact during the investigation. Arshad Mahmood, the complainant, appeared as P.W.4, corroborated the. contents of the F.I.R. (Exh.P.H.) and the proceedings before and after the raid. He also admitted in cross‑examination that the Magistrate could neither see the transaction nor could hear the conversation between him and the accused‑appellant as they were across the road at a distance of 110 yards. He also admitted it as correct that Rahmat Ullah was his real maternal‑uncle and he had submitted his plan regarding his shop to the accused‑appellant for getting the sanction of the same and the fee for that plan was still to be deposited which was Rs.250. He also accepted it as correct that the appellant had asked him to deposit the required fee for getting the said plan sanctioned but the said fee was not deposited till the raid was conducted by the Magistrate. He also admitted his enmity with the appellant by stating it as correct that Muhammad Aslam Bhatti & Company had acquired a contract for recovery of parking and octroi fee from the Town Committee, Dhaunkal and he was also a partner of the company. He admitted that the said contract was cancelled on the complaint of the accused‑appellant.

5. The accused‑appellant in his statement under section 342 of the Cr.P.C. denied the allegations of accepting Rs,250 as bribe money but admitted to have received the same from the complainant, which, according to him, was paid to him for sanctioning of the plan of the shop of Rahmat Ullah, his maternal‑uncle, which was not got deposited by him alongwith the application. He further deposed that Arshad Mahmood complainant was inimical to him as he had got cancelled contract of Muhammad Aslam Bhatti & Co. in which the complainant was a partner. He himself appeared under section 340(2) of the Cr.P.C. in disproof of the charges against him, and produced Sarfraz Ahmad Cheema as D.W.1 to substantiate his version. Muhammad Younus was also produced by him in defence as D.W.2, who had brought the original record regarding the plan in respect of the property of Rahmat Ullah. The certified copy of form `B' (Exh.D.B.) and the certified copy of the site plan (Exh.D.C.) were also brought by him.

6. I have heard the learned counsellor the appellant as for the State and have perused the record with their assistance.

7. It has been vehemently argued by the learned counsel for the appellant that neither the Magistrate nor the Circle Officer had heard the conversation between the complainant and the appellant and saw passing over of the tainted money to the appellant; that the prosecution is left only to bank upon the statement of the complainant who is no more than an accomplice and who has admittedly enmity and ill‑will against the appellant due to cancellation of the contract of the firm in which the complainant was a partner. He further asserts that mere recovery of the tainted money in. the circumstances of this case would not be of any consequence and the possibility cannot be ruled out that the appellant had received the amount on account of fee of Rahmat Ullah for the plan of his shop, instead of bribe. He further argued that this plea was raised by the appellant spontaneously immediately after his arrest and was not an afterthought. He has relied upon Mst. Mehrun Nisa v. The Crown 1969 S C M R 574, Muhammad Bashir v. The State 1972 P Cr. L J 836, Maqsud Ahmad v. The State 1973 P Cr. L J 313, Allah Diwaya v. The State 1973 P Cr. L J .1036, Syed Nazakat Raza v. The State 1977 P Cr. L J 694 and Manzoor Hussain Shah v. The State 1978 P Cr. L J 885.

8. On the other hand, the learned State counsel has supported the impugned judgment passed by the learned trial Court by submitting that the tainted money was recovered from the person of the appellant which also stands admitted by him, though it was on some other pretext. According to the learned counsel, the case against the appellant was proved to the hilt by the prosecution.

9. I have considered the above submissions made by the parties with utmost care. I find that the contentions raised by the learned counsel for the appellant carry much weight and would be sufficient in the circumstances of the case to make the case doubtful against the appellant. The complainant in this case is the sole witness to depose regarding the demand of the alleged bribe as well as giving of the same to the appellant. No corroboration whatsoever has come forth from independent P.Ws., as both the Magistrate and the Circle Officer admitted that they had neither' heard the conversation between the complainant and the appellant nor they had seen the passing over of the tainted money. Since no one has heard the conversation between the complainant and the appellant at the time of passing over of the money it would not be safe to presume that it was given or taken as bribe. The complainant being admittedly having ill‑will and enmity against the appellant as the contract of the firm of which he was partner was got cancelled by the appellant; so he can easily be treated as an interested witness, who, in pursuance of the motive, may falsely implicate the appellant. The explanation as given by the appellant in his statement Exh.P.F. immediately after his arrest, if considered in its right perspective, makes us to believe that he had taken the amount in connection with the fee for the plan of the shop, of Rahmat Ullah, the maternal‑uncle of the complainant and not as a bribe. This version of the appellant besides being admitted by the complainant himself was proved documentarily through D.W.2 Muhammad Yunus, who had brought the copies of application (Ex.D.A.) and Form `B' (Exh.D.B.). In these circumstances, the defence version seems to be more probable than that of the prosecution which appears to be highly doubtful. I, therefore, hold that the prosecution has failed to prove its case beyond any shadow of doubt, benefit whereof would, obviously, go to the appellant.

In view of the above discussions, I accept this appeal and acquit the appellant from the charges against him. He is on bail. His bail bond shall stand discharged.

N.H.Q./N‑102/K Appeal accepted.