FATEH-ALI Versus GHULAM MUHAMMAD
The present criminal appeal has been directed against the judgment, dated 4-2-1991, whereby the learned Special Judge, Anti-Corruption, Lahore, had convicted the appellant under section 161, P.P.C. and sentenced him to R.I. for nine months with a fine of Rs. 5,000 or in default thereof to further R.I. for three months. The appellant was also convicted under section 5(2) of Prevention of Corruption Act, 1947 and was sentenced to R.I. for nine months. Both the sentences were directed to run concurrently.
2. The facts in brief giving rise to the present criminal appeal are that Younas, a private employee of the complainant, was injured by one Mir Gull and the complainant had taken him to Rural Health Dispensary Baraghar to get medico-legal report. Nazir Ahmad accused/appellant, being a waterman in the said Rural Health Dispensary, used to collect illegal gratification for himself and for Dr. Shamim Ahmad. Nazir Ahmad accused/appellant in this case also demanded an illegal gratification of Rs. 2,000 from the complainant to get medico-legal report for an offence under section 325, P.P.C. The complainant paid Rs. 1,000 and promised to pay the balance amount later on. He arranged a raid but the same was postponed because the accused told that the said Medical Officer had gone out of station. Successful raid was then conducted on 21-6-1989 and the tainted money was recovered from the possession of the accused/appellant, and after the completion of the investigation, he was challaned to the Court to face a trial for the offences under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947.
3. At the trial, the prosecution examined as many as four witnesses to prove its case. P.W.1 Bakhsha, being the complainant, had deposed that the accused had demanded Rs.2,000 from him for getting medico-legal report of Younas and he after paying Rs.1,000 lodged the report Exh. P.W.1 / 1 and recorded his statement Exh.P.W.I/2 before the raiding Magistrate. After recording the serial numbers of currency notes P.1 to P.10, all the members of the raiding party went to Dispensary Baraghar, where the complainant called accused Nazir Ahmad and after paying him the tainted money received from him the medico-legal report Exh.P.W.l/6. The tainted money was then recovered by the raiding party from the pocket of the accused. According to this witness, a few days later, the accused had led to the recovery of currency notes P.11 to P.16 vide memo. Exh.P.W.I/5. He had testified his supplementary statement Exh.P.W.l/3, recovery memos. of currency notes Exh.P.W.l/4 and Exh.P.W.l/5 and recovery memo. of medico-legal report Exh.P.W.I/7. P. W.2 Muhammad Younas, corroborated the complainant P. W .1 and stated that he was taken to the said dispensary, where the accused had demanded Rs. 2,000 to get the requisite medico-legal report and that he was paid Rs. 1,000 as first instalment.
4. P.W.3 Maqsood Qadir Shah, Magistrate 1st Class had supervised the raid and recorded the statement of the complainant Exh.P.W.I/2 and also noted down the serial numbers of the currency notes. According to him the raiding party had gone to the place of raid, but due to the absence of the doctor, the raid was postponed. On 21-6-1989 again after recording the statement of the complainant and noting down the serial numbers of the currency notes, the raid was conducted. He had deposed that the accused had given medico-legal report to the complainant and demanded balance amount of Rs. 1,000. The complainant passed on, the tainted money within the sight of the raiding party and the same notes were then recovered from the accused vide memo. Exh.P.W.l/4. Thereafter, he had recorded the supplementary statement of the complainant Exh.P.W.1/2 and statements of the accused and Dr. Shamim Ahmad Exh.P.W.3/2. and Exh.P.W.3/3, He had also recorded the raid proceedings Exh.P.W.3/4 and Exh.P.W.3/5, and had attested the recovery memo. Exh.P.W.l/7, whereby medico-legal report Exh.P.W.l/6 was taken into custody. P.W.4 Muhammad Riaz, Circle Officer had also reiterated the contents of the statement of P.W.3 and had stated that he got sanction order Exh.P.W.4/2 and challaned the accused.
5. In his statement under section 342, Cr.P.C. the appellant had denied the allegations against him, but admitted his statement Exh.P W 3/2 recorded by the raiding Magistrate. In his defence, he had examined D.W.1, Dr. Shamim Ahmad, D.W.2 Muhammad Akmal and D.W.3 Kameer and had also recorded his statement under the provisions of section 340(2), Cr.P.C. P.W.1 Dr. Shamim Ahmad, had deposed that the complainant Bakhsha and P.W. Younas had come to him on 21-6-1989 and he had entrusted the medico legal report Exh.P.W.1/6 to the injured there and then. He had admitted his statement Exh.P.W.3/3 recorded by the raiding Magistrate and that he was named as accused in the F.I.R. D.W.2 Muhammad Akmal and D.W.3 Kameer had claimed to be present at the time of raid and they deposed that the complainant had tried to pay Rs. 1,000 to the accused for transmitting the same to Khalid Dispenser, but he had refused and in the same process the tainted money fell down and that the same were taken from the ground by the raiding party.
6. The learned trial Court after taking into consideration all the facts and circumstances of the case and having gone through the evidence on the record, had convicted and sentenced the appellant as stated above.
7. The learned counsel for the appellant and the State were heard at length anal the record of the case perused with their assistance.
8. As contended on behalf of the appellant, there are material contradictions in the prosecution evidence and as such it-.fails to prove the charge against the appellant. In this respect, it needs to be pointed out that whereas the complainant P.W.1 Bakhsha had stated in his testimony before the trial Court that the earlier amount of Rs. 1,000 paid by him to the appellant was passed on to the Medical Officer in their presence on that very day and time, yet it is the case of the prosecution itself that the said amount of Rs. 1,000 was recovered from the attache-case placed in the house of the accused/appellant on 25-6-1989 on his pointing out. Furthermore, there is nothing m the evidence of the prosecution through the complainant P.W.1 Bakhsha. P.W.3 Maqsood Qadir Shah, M.LC. or P.W.4 Riaz Ahmad, Circle Officer to the effect that the amount recovered at the time of raid had been demanded as illegal gratification, and what has been stated by the said P.Ws. is to the effect that the appellant had inquired if the complainant had brought the money and had accepted it on being offered the amount in question, therefore, the essential ingredients of the offence alleged had not been proved against the appellant. In this respect, it is further taken notice of that whereas the complainant P.W.1 Bakhsha had stated that at the time of the raid the appellant was sitting outside his house, watching T.V. when he inquired if the complainant had brought the money and had accepted Rs. 1,000 offered and had produced the medico-legal report from his pocket, P.W.3 Maqsood Qadir Shah, M.I.C. had stated that the accused was present in open space within the compound of dispensary and thereafter the appellant and the complainant had gone inside the office of doctor from where the appellant had brought the medico-legal report, which materially contradicts the testimony of the complainant P.W.1 stated above: Whereas PWA Muhammad Riaz, Circle Officer, A.C.E. had deposed that after confirming from the complainant that he had brought the money the appellant had gone inside the office and brought the report without stating that the complainant had accompanied him to the doctor's office. Such contradictions in the statements of the P.Ws. create serious doubts about the veracity of the prosecution version. As further argued by the learned counsel for the appellant, the appellant being a water carrier at the dispensary in question was hardly in a position to do any favour to the complainant P.W.1 and that, in any case, the prosecution case, as alleged by P.W.1, is to the effect that the money allegedly demanded and' accepted was for procuring the medico-legal report in respect of the injuries suffered by P.W.2 Younas, so as to make out an offence under the provisions of section 325, P.P.C., but as duly confirmed in their testimony by P.W.3 and P.W.4 the medico-legal report recovered was regarding the injuries that made out an offence under the provisions of section 323, P.P.C., further demolishing the case of the prosecution as set up against the appellant through the charge framed herein. The prosecution case further suffers from the failure of the State to persue the case against Dr. Shamim Ahmad, on whose behalf, it is the case of the prosecution itself, that the money allegedly recovered from the appellant was accepted by him, despite the complainant having explicitly stated so in his complaint Exh.P.W.l/1. In this respect, it has come on the record through the cross-examination of the said Dr. Shamim Ahmad, who had appeared as D.W.1, that he had been made an accused in the instant case, as his name had been mentioned in the F.I.R. lodged by the complainant, but subsequently he was not challaned and the only legal presumption that can be drawn under the circumstances is to the effect that the prosecution had given up its own case to the extent of the illegal gratification having been demanded on behalf of the doctor by the appellant. Further notice has been taken of the fact, emphasised by the learned counsel, that the appellant being a water carrier was not in a position to do the favour, as alleged herein, on his own.
9. Therefore, pursuant to the above discussion, it is hereby held that the prosecution had failed to prove the charge against the appellant beyond reasonable doubt. Resultantly, the present appeal is allowed, the impugned judgment is set aside and the appellant is acquitted of the offences charged. He is on bail, his bail bonds stand discharged accordingly.
N.H.Q./M-1779/L Appeal allowed,