MUHAMMAD YOUSAF Versus THE STATE
Muhammad Yousaf appellant was tried by the learned Special Judge, Anti-Corruption, Gujranwala at Lahore for an offence under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. The trial Court, vide his judgment dated 27-6-1987, found him guilty under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo R.I. for 3 months and a fine of Rs.2,000 or in default thereof to suffer further R.I. for 3 months. The convict-appellant has challenged his above-said conviction and sentence through the present appeal.
2. The prosecution story in brief, as disclosed in the F;I.R. (Exh.P.F) is that Ghulam Mustafa complainant was a Primary School Teacher at Saroki, District Gujrat. He was transferred to District Gujranwala, without being paid the salary for the month of October, 1984. He approached the office of the A.E.O. Kunjah for getting his pay many a times but with no success. He was, however, asked by Muhammad Yousaf appellant, a Clerk of the said office, that if Rs.100 were paid to him, he would get the pay bill passed. On this the complainant informed Anti-Corruption Establishment. A raiding party was consequently constituted and the tainted money was ultimately recovered from the Almirah of the accused-appellant.
3. To prove its case, the prosecution produced Ghulam Mustafa complainant as P.W.3, who deposed about the non-payment of his salary for the month of October, 1984, and the demand by the appellant of Rs.100 as bribe for getting the job done. He also narrated that he lodged the F.I.R. (Exh.P.F.), appeared before the Magistrate and got recorded his statement Exh.P.B. He produced currency note of Rs.100 before the Magistrate, which was returned to him for onward delivery to the appellant and finally, the delivery of the said amount to the appellant, and its recovery from a register kept in the almirah of the accused.
4. Malik Abdul Rahim, Magistrate appeared as P.W.1, who stated about the formalities observed by him prior and during the raid. As to the recovery, he deposed that the raiding party entered the office of the accused, who was searched, but nothing was recovered from him. It was at their asking that the appellant took out the said G.C. Note from the file kept in almirah and handed it over to him. He also proved the statement Exh.P.D. made by the appellant. He, however, admitted in cross-examination that he did not hear the conversation at the relevant time.
5. Mustajub Hussain Shah, Circle Officer, A.C.E., appeared as P.W.2 and corroborated the testimony of Magistrate Malik Abdul Rahim as to the recovery of G.C. note (P.1) from the register lying in the almirah of the appellant.. He also admitted in the cross-examination that the conversation was not heard and passing over of the money was not seen.
6. The accused in his statement under section 342, Cr.P.C. denied the receipt of tainted money (P.1) and denied all the incriminating evidence put to him. He however, examined one Rashid Ahmad as D.W.1 who corroborated the version given by the appellant in his statement recorded under section 342, Cr.P.C. The appellant did not opt to appear under section 340(2), Cr.P.C. in disproof of the charges against him, as according to him, statement of only decoy witness was not sufficient to prove the case against him.
7. I have heard the learned counsel for the appellant as well as the learned State counsel and have perused the record with care.
8. The contentions of the learned counsel for the appellant mainly are that admittedly, conversation between the accused-appellant and the complainant was not heard over by the Magistrate or the Inspector; that even the passing over of money was not seen as admitted by the Inspector (P.W.2); that admittedly; bribe money was not recovered -from the accused-appellant and it was alleged to have been recovered from an unlocked almirah and there is no evidence op record that the said almirah was in exclusive possession of the appellant.
9. Learned State counsel has, however, supported the judgment of the learned trial Court by submitting that the case stands proved against the appellant beyond any reasonable doubt.
10. I have given my anxious consideration to the abovesaid submission. I am of the view that the prosecution has failed to prove the case against the appellant beyond reasonable doubt. To subscribe to this view, the following points could be referred to: --
(a) that the solitary statement of decoy witness was not sufficient for conviction of the appellant;
(b) that the alleged pay bill was being submitted to the Account Office, and there was no occasion for the appellant to demand the bribe;
(c) that no conversation was heard by the raiding Magistrate and the Circle Officer, A.C.E. The passing over of the money was also not seen; and
(d) that the statements of the P.Ws. were materially discrepant even on important point of passing over of the tainted money to the appellant.
For the foregoing reasons, I accept this appeal and set aside the conviction and sentence of the appellant. He is on bail. The, bail bond shall, stand discharged.
N.H.Q./M-647/L Appeal accepted.