WALEED HAIDER Versus ADDITIONAL DISTRICT JUDGE

The appellant was tried for an offence under section 162/163 of the P.P.C. in the Court of Special Judge, Anti-Corruption, Lahore on the allegation of having received a sum of Rs.3,500 by way of bribe in the name of Mazhar-ul-Haq, Magistrate, 1st Class. The trial Court found the appellant guilty on two counts and sentenced him to undergo R.I. for 3 months on each count. He was directed to pay a fine of Rs.3,000 on each count or in default to undergo R.I. for 15 days on each count. The F.I.R. Exh.PA./2 was recorded on the basis of a written complaint Exh.PA. submitted by Salamat Masih in the Court of the Illaqa Magistrate. He stated therein that his real brother Nemat Masih was involved in a case registered against him under Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979 and that the appellant persuaded him to pay a sum of Rs.3,500 as illegal gratification for the Ilaqa Magistrate for getting the accused bailed out. He claimed to have paid the amount in the presence of Matloob Khan (P.W.3) and Chhaman Masih (given up). However, the bail petition of the complainant's brother was rejected. Thereafter, the complainant informed the Magistrate regarding receipt of the amount by the appellant. The Magistrate forwarded the application to the S.H.O., Islampura for legal action, whereupon F.I.R. Exh.PA./2 was recorded.

2. In support of its case the prosecution produced 7 witnesses. Mazhar ul-Haq, Magistrate appeared as P.W.1 and stated that he received the application Exh.PA. from the complainant and forwarded the same to the S.H.O., Police Station Islampura for necessary legal action. Salamat Masih complainant appeared as P.W.2 and stated that the appellant came to him and told him that the Ilaqa Magistrate was known to him and that he would get his brother bailed out. The appellant demanded a sum of Rs.5,000 for the said purpose but he paid a sum of Rs.3,500 to him in the presence of Matloob and Chhaman Masih. He added: "He took us to the Court of Magistrate but the bail could not be procured". He further stated that when the bail was rejected some "Raula" took place, whereupon the Magistrate called them inside the Court and enquired as to what had happened. He told the Magistrate that the appellant had taken a sum of Rs.3,500 from him for obtaining bail order of his brother. Then he got the application Exh.PA. drafted by Ch. Muhammad Siddiq, Advocate which was submitted before the Magistrate and was forwarded to the police for necessary legal action. P.W.3 Matloob Khan merely stated that Salamat Masih P.W. paid a sum of Rs.3,500 to the appellant for release of his brother. Rakha Masih P.W.4 and Afzal Masih P.W.5, the alleged recovery witnesses did not support the prosecution case and were declared hostile. Investigating Officer Muhammad Bashir, S.I., appeared as P.W.6 and stated that he had received complaint Exh.PA. and Exh.P.C. and that he recorded statements of the P.Ws. and took Rs.3,500 in possession vide memo. Exh.P.B. Rustam Ali P.W.7 had recorded the formal F.I.R. Exh.PA./2. Chhaman Masih was given up by the prosecution as having been won over. When examined under section 342 of the Cr.P.C. the appellant denied the allegations made against him. He explained that the case was registered against him at the instance of one Babu Waris, whom he had opposed in the election of councillorship for the Lahore Metropolitan Corporation. The appellant also appeared in his defence and made statement under section 340 of the Cr.P.C. The appellant produced Zahid Hussain, D.W.1 and Malik Riaz Mahmood D.W.2 who stated that the appellant had accompanied Salamat Masih to the office of Sh. Nasar lqbal, Advocate for engaging him as a counsel for filing a bail petition of the brother of the complainant. Salamat Masih P.W. paid a sum of Rs.1,000 to the Advocate.

3. The appellant's learned counsel contends that the prosecution failed to prove its case beyond reasonable doubt. He points out that the claim made by the complainant that after rejection of the bail application of his brother there was some Raula outside the Court, whereupon the Magistrate called him and others and asked them as to what had happened and that he informed the Magistrate that Inam-ud-Din appellant had received a sum of Rs.3,500 as bribe for getting his brother bailed out, was not proved by the statement of the Magistrate who appeared as P.W.1. He further submits that both the recovery witnesses namely Rakha Masih, P.W.4 and Afzal Masih P.W.5 did not support the alleged recovery of Rs.3,500 from the appellant and were declared hostile. Moreover, the currency notes said to have been produced by the appellant were never produced before the trial Court. Further submits that the case against the appellant was registered at the instance of one Babu Waris whom the appellant had opposed in his election for councillorship of the Lahore Metropolitan Corporation. The said Babu Waris was even present in the Court when the statement of Salamat Masih P.W.2 was recorded. The prosecution story was based on the solitary statement of Salamat Masih P.W.2 who was probably acting under the influence of one Babu Waris. P.W.3 never stated that the money was obtained by the appellant in the name of the Magistrate as illegal gratification.

4. The learned State Counsel urged that payment of Rs.3,500 as bribe in the name of Mazhar-ul-Haq, Magistrate First Class was fully proved through the statement of Salamat Masih P.W.2 and Matloob Khan P.W.3. Hence, the conviction and sentence of the appellant be maintained.

5. The prosecution story as narrated by Salamat Masih P.W.2 has-not been corroborated either by the statement of Mazhar-ul-Haq, the Magistrate P.W.1 or Matloob Khan P.W.3. The complainant's assertion that after the rejection of the bail petition there was some hue and cry whereupon the Magistrate called the complainant and others in the Court and enquired them about the matter and that he was informed by the complainant that the appellant had taken a sum of Rs.3,500 for bail of brother of the complainant was not corroborated by any other witness. The Magistrate did not say a single word in this respect. Even a suggestion was not made to him that after rejection of the bail petition he heard "Raula" and called the complainant and the appellant in his Court. The complainant also asserted that the appellant, "took us to the Court of the Magistrate", meaning thereby that Matloob Khan and Chhaman Masih in whose presence the sum of Rs.3,500 was allegedly paid to the appellant had gone with the complainant and the appellant to the Court of the Magistrate. Matloob Khan did not say so in his statement. As regards payment of Rs.3,500 to the appellant by way of bribe, the said allegation has not been corroborated by Matloob Khan P.W.3. He merely stated that Salamat Masih P.W. paid Rs.3,500 to Inam-ud-Din appellant for release of his brother. He did not say that the said amount was obtained by the appellant as bribe for the Magistrate on the assurance of obtaining bail order from him. It is also significant to mention that Chhaman Masih who is related to Salamat Masih did not come forward to support the prosecution story. Thus, payment of Rs.3,500 to the appellant as alleged by the complainant is not proved beyond reasonable doubt. Even the alleged recovery of the said amount from the appellant was not proved. Both the recovery witnesses namely Rakha Masih P.W.4 and Afzal Masih P.W.5 did not support the prosecution version and were declared to be hostile. Even if it is admitted that a sum of A Rs.3,500 was paid to the appellant, the possibility that it was meant to engage a counsel for filing a bail petition of the complainant's brother, cannot be ruled out.

6. For the foregoing discussion, I allow this appeal, set aside .the conviction and sentence of the appellant and acquit him of the charge against him. The appellant is already on bail. His bail bonds shall stand discharged.

N.H.Q./I-98/L Appeal allowed.