NASIR-UD-DIN Versus SURREYA BEGUM

Muhammad Rafique son of Muhammad Din was convicted and sentenced to two months' R.I. plus a fine of Rs.2,000 or in default thereof to undergo R.I. for one month under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 by the learned Special Judge, Anti Corruption, Gujranwala on 6-11-1986. The convict has challenged his conviction and sentence by filing this appeal before this Court which shall be decided through this judgment.

2. The facts are that the appellant was caught red-handed while accepting a sum of Rs.300 as bribe money from the complainant Abdul Khaliq. According to the prosecution, there was a compromise having been entered into between Muhammad Iqbal brother of the complainant and the other party in respect of trial of a civil suit. The appellant happened to be the reader of the learned Civil Judge, Wazirabad where the parties entered into a compromise. The appellant told the complainant party that he would not send the case to the office until and unless Rs.300 are paid to him as illegal gratification. The information was given by the complainant to the police and as such a raiding party consisting of Babar Shall, Magistrate 1st Class, Gujranwala, Mian Muhammad Siddique, Inspector, Anti-Corruption, Establishment and Abdul Khaliq complainant was constituted in order to raid. The raid was conducted and consequently the appellant was apprehended at the spot. The recovery of tainted money was also effected from him.

3. The appellant denied the allegations of taking illegal gratification and took the plea that he had been implicated in the case on account of enmity.

4. It is contended by the learned counsel that the conversation between Muhammad Rafique and Abdul Khaliq was not heard nor the passing of the currency notes to the appellant was seen by the members of the raiding party. Attention of the Court has been drawn to the prosecution evidence in this behalf. He, therefore, argues that the conviction of the appellant is not sustainable. In support of his plea, learned counsel relies upon Hafiz Aziz Ahmad Khan v. The State 1985 S C M R 1943, Muhammad Asghar v. The State P L D 1991 Lah. 310, The State v. Bashir 1991 P Cr. L J 1871, Sabir Ali v. The State 1991 P Cr. L J 1914, Muhammad Ramzan and another v. The State 1990 P Cr. L J 633, Noor Ahmad v. The State 1991 P Cr. L J 1015, Muhammad Ramzan v. The State 1991 P Cr. L J 1076, Safdar Hussain v. The State 1991 P Cr. L J 1385, Muhammad Niamet Ufah Patwari v. The State 1985 P Cr. L J 904, Joseph v. The State 1992 P Cr. L J 1108 and Dr. Arshad Ali and others v. The State 1992 P Cr. L J 1666. Learned Assistant Advocate-General and the learned State counsel do not dispute the contention of the learned counsel.

5. The admitted position, therefore, is that the learned Magistrate and the Circle Officer P.Ws. did not hear the conversation between the bribe-giver and the bribe-taker. They also did not see when the money was passed on to the accused by the complainant. P.W.1 Babar Shari, M.I.C. in his cross examination deposed that he did not hear the conversation between the appellant and the complainant at the relevant time. However, he denied the suggestion that he was not present at the spot. Similarly P.W.3 Mian Muhammad Siddique, Circle Officer, A.C.E. admitted that he did not hear the conversation between the complainant and the appellant. He further stated that he did not at all see when bribe money was given to the appellant. This being so the evidence of P.W.1 and P.W.3 cannot be made the basis for convicting the appellant. The only statement which remained in the field is that 8 of the complainant. He is after all a decoy witness. His evidence is not sufficient to convict the appellant, unless it is corroborated by evidence of unimpeachable character. No such evidence was produced by the prosecution in this case. The case reported as Hafiz Aziz Ahmad Khan v. The State 1985 S C M R 1943 is also referred. This being so the statement of the complainant shall be excluded from the consideration.

6. The result of the above discussion is that the prosecution has failed to prove its case against the appellant. The appeal is, therefore, accepted. The conviction and sentence of the appellant are accordingly set aside and he is acquitted honourably of the charge.

N.H.Q./M-921/L Appeal accepted.