MUHAMMAD AMIR Versus MUHAMMAD AMIN
The captioned criminal appeal has been filed to challenge legality and propriety of the judgment, dated 31-1-1.991 passed by Sh. Lutfur Rehman, Senior Special Judge, Anti-Corruption, Punjab, Lahore, whereby he convicted Abdul flamid alias Hamid Ahmad accused/appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced him to nine months' R.I. and a line of Rs.3,000 or in default thereof to undergo further imprisonment for three months.
2. The brief facts of the prosecution case, as disclosed in the F.I.R. Exh.P.W./1 are that Muhammad Ghafoor complainant alongwith his brothers etc. owned one Kanal of land in Mauza Khokharke Mallian in the District of Sheikhupura. He contacted Abdul Hamid (accused), Patwari Consolidation, for the demarcation of the said land, who demanded bribe and finally the bargain was settled at Rs.300. The complainant then got the F.I.R. recorded. A raiding party was formed, which finally recovered the tainted money from the accused.
3. At the trial the prosecution examined as many as six witnesses in support of its case. P.W.1, Muhammad Ghafoor complainant deposed about his joint land in Village Khokharke Mallian, where the accused was posted as Patwari. He contacted the accused on 1-1-1985 for the demarcation of his land who demanded bribe. On his request, the accused agreed to accept Rs.300. He lodged the F.1:R. Exh.P.W./1. He was produced before the Magistrate, who recorded his statement Exh.P.W.l/2. He produced the currency notes of Rs.300 before the Magistrate, who returned the same to him after taking down their numbers. The raiding party was formed, which reached the house of Aslam, where the bribe money was to be paid to the accused. The members of the raiding party stayed in the Courtyard of the house, while he left to bring the accused from Sheikhupura. He alongwith the accused went to Village Khokharke Mallian where demarcation was to be done. After demarcation, he alongwith the accused came to the house of Aslam, fie informed the raiding party that the accused had come. He was asked to hand over the tainted money to the accused within the sight of the raiding party. He requested the raiding party to go inside the room. He brought the accused inside the house and they sat in the courtyard. He deposed that the Magistrate could see through the window and also could hear the conversation. He then paid Rs.300, the bribe money to the accused and told him that it was his bribe money. The accused told him that he was also to pay the Government fee. The complainant replied that the fee would be paid later on. Then he gave the special signal and the Magistrate alongwith the raiding party came there. The Magistrate introduced himself to the accused and recovered the bribe money of Rs.3,000 from the left hand of the accused alongwith Khatooni and Uks Shajra. Then his statement Exh.P.W.l/3 was recorded. The statement of the accused was also recorded.
4. P.W.2, Zafar Ali, Taxi Driver had deposed as follows:-- "that about three years back his taxi was hired by one Ghafoor. He took him to Chauburji where from some police people in plain clothes that is ' Inspector, Head Constable and a Constable, sat in the taxi and then we went to Sheikhupura. At Sheikhupura Courts the Magistrate was deputed for raid. Thereafter they took me to Canal bridge by the name of Pull Rajan where the police went in a house and Ghafoor alongwith him went to another village where we did not go inside the village and remained in the fields where demarcation was done. There was another person having beard but he did not know his name. We again came to Rajan bridge. Ghafoor and he went to the house where earlier police men had gone for taking tea. There we sat on the chairs. The accused was also sitting on the chair. There he had a map also on which Ghafoor placed Rs.300 but the accused refused to take that". He was declared hostile. P.W.3 Muhammad Rafiq deposed that he did not know anything about the occurrence, and that he was not present at the time of the raid. He was also declared hostile. P.W.4, Mr. Dawood Ali Khan, D.S.P. deposed that on 2-1-1985 he was working as Circle Officer, Anti-Corruption, Sheikhupura. On receipt of writing Exh.P.W./1, he wrote F.I.R. Exh.P.W.4/1.
5. P.W.5, Mr. Imtiaz Ahmad, City Magistrate, Sheikhupura, stated that on 2-1-1985, he was posted as Magistrate, Sheikhupura. On that day Zulfiqar Ali, Inspector produced application Exh.P.W.5/1 before him, duly marked by District Magistrate, Sheikhupura. The complainant Ghafoor was present. He recorded his statement Exh.P.W.l/2. It was read over to him and he signed his statement in token of its correctness. He searched the person of the complainant, he was not in possession of any currency notes, except three notes of Rs.100 denomination each, which are P.1 to P.3. He noted down the numbers of notes and delivered the same to the complainant. Raiding party was arranged. Further deposed as follows "All of us accompanied the complainant to a house. I prepared such note Exh.P.W.5/2. The complainant went and brought accused Hameed Ahmad Patwari. We concealed ourself in a room while the accused was brought by the complainant in the adjoining courtyard. A signal was previously determined. The complainant gave the requisite signal on wh.ch we went in the Courtyard. He introduced himself to the accused, who was holding some revenue papers in his left hand. He was also holding R s.300 in the same hand. The accused tried to pass over the same to a driver, but he held him with the notes. The notes were the same which were previously numbered by us and they were P.1 to P.3. His such proceedings were recorded as Exh.P.W.5/3." He examined the complainant again as Exh.P.W.l/3. He also examined P.W. Zafar Ali. His statement is Exh.P.W.4. He prepared such recovery memo. Exh.P.W.2/1. Khatooni Pamaish Exh.P.4 and Aks Shajra P.5 were also recovered from the accused through the same memo. We brought the accused to the Court where the accused was given time for relaxation and then he recorded his statement Exh.P.W.5/5, with his report Exh.P.W.6.
6. P.W.6, Mr. Zulfiqar Ali, D.S.P. Punjab Constabulary Farooa .Abad, District Sheikhupura testified that on 2-1-1985, was posted as Inspector, Anti-Corruption Establishment. Lahore. On that day the complainant Muhammad Ghafoor came to him. He recorded his statement Exh.P.W.l/1. He gave signatures in token of correctness of his statement. The matter was put before the Deputy Commissioner. Sheikhupura, who deputed a Magistrate vide order Exh.P.W.6/1. The Magistrate held necessary proceedings, including recording of statements. Currency notes were checked and noted down. Then we proceeded to a village near Qaimpur bridge. The complainant went and brought Patwari and informed that the Patwari was sitting in a motor car. Raiding party including the Magistrate went inside a room. The Patwari, accused present in the Court was brought in the courtyard of the same house. The complainant after delivery of the said currency notes loudly said that the currency notes may be retained by him and that the official fee will be paid later. On this hearing the raiding party came out and apprehended the accused. The currency notes were recovered from the accused. The raiding party introduced them to the accused. Such statements and proceedings were recorded by the Magistrate. He prepared memo. Exh.P.W.2/1 regarding recovery of notes P.1 to P.3 and Parcha Aks Shajra and Khatooni. He prepared rough sketch of the place of recovery Exh.P.W.6/2. The accused was arrested and his statement was recorded by the Magistrate. Sanction order Exh.P.W.6/3 was received later. After completion of the investigation the challan was submitted to Court.
7. The accused when examined under section 342, Cr.P.C. denied the allegation and alleged that the raiding Magistrate did not record his statement at the spot or in the District Courts, Sheikhupura. However, his signatures were obtained by the Magistrate, but the statement was not read over to him. He maintained that the case had been made up against him by Muhammad Ghafoor complainant in collusion with the Anti-Corruption Officers. He stated that the complainant was prosecuted for giving false evidence by Rao Iqbal Ahmad Khan, Special Judge Anti-Corruption, Lahore and he was also facing trial in the Court of A.C. (City), Lahore for perjury. He denied the recovery of tainted money and Revenue papers from him. He maintained that he was falsely involved by the raiding party to show their Karvai after collusion with the complainant. However, he declined to make a statement on oath under section 340(2), Cr.P.C.
8. The learned Senior Special Judge, Anti-Corruption, Lahore, after taking all the facts and circumstances, highlighted above, into consideration, convicted and sentenced the appellant, as stated above.
9. The learned counsel for the appellant and the State were heard at length in respect of their respective briefs and the record of the case perused with their assistance.
10. A perusal of the prosecution evidence has highlighted the fact that none of the prosecution witnesses had specifically stated that the accused/appellant had demanded illegal gratification. In this respect, it may be pointed out that the complainant, P.W.1 Muhammad Ghafoor had deposed in his cross-examination that he did not remember having said in his statement at the time of the raid that the money was handed over to the accused/appellant as bribe money but on being confronted it was established that the word "bribe" was not recorded in the said statement and that the said P.W.1 was confronted time and again in his statements Exh.P.W.l/1 and P.W.3 that he had not stated before the police as to the place where the money was to be accepted, or that the accused/appellant had insisted the money being paid outside the house. The said P.W. had further conceded that the accused had not demanded the bribe money in Khokharke Mallian at the time of the demarcation or after demarcation. Further notice has been taken of his having admitted of being a complainant or witness in a number of cases registered 8 under the Prevention of Corruption Act, 1947. In addition thereto, P.W.2, Zafar Ali and P.W.3, Muhammad Rafique had not supported the case of the prosecution and that despite the said two P.Ws. having been declared hostile and subjected to cross-examination, the prosecution failed to elicit anything in favour of its case. Furthermore, P.W., Imtiaz Ahmad, City Magistrate, who had conducted the raid had conceded in his cross-examination that the conversation which he heard between the accused and the complainant did not include the word "bribe" or "illegal gratification", and that although they were only at a distance of 7/8 feet from the accused and the complainant but the intervening window was shut and had further stated that the accused had not demanded illegal gratification within his hearing. Further notice has been taken of the testimony of P.W.6, Zulfiqar Ali, D.S.P. Punjab Constabulary to the effect that it has not been stated in the said testimony specifically that the accused had demanded bribe money or that the money was paid to him as illegal gratification. Therefore, it is hereby held that legal infirmities in the prosecution evidence render the instant case against the accused/appellant of doubtful veracity and as such the prosecution has failed to prove its case against the accused/appellant beyond reasonable doubt.
11. Pursuant to the above discussions, the present criminal appeal is allowed and the impugned judgment, dated 31-1-1991 is hereby set aside. Resultantly, the appellant stands acquitted of the offences charged. He is on bail, his bail bonds stand discharged accordingly.
N.H.Q./H-131/L Appeal accepted.