NAZIR HUSSAIN Versus STATE
This criminal appeal has been filed against the judgment of learned Special Judge (Central), Lahore dated 7-9-1989 whereby the appellant was convicted and sentenced under section 161, P.P.C. and section 5(2) 47 of P.CA. to undergo two years' R.I.
2. Briefly the prosecution case is that on 23-11-1981 Muhammad Sharif P.W.1 lodged F.I.R. Exh.PA. which was recorded by Hakim Ali D.S.P. P.W.4 wherein the complainant had alleged that he had applied for electricity connection which had been sanctioned and the case was lying with S.D.O. The appellant demanded Rs.4,000 as illegal gratification for electricity connection and later on he demanded Rs.2,000, Rs.1,000 in advance and Rs.1,000 after start of functioning the tube-well. On 12-11-1981 the appellant had asked the complainant that if he would make payment of Rs.1,000 as illegal gratification he would get sanctioned order from the S.D.O. The complainant had further alleged that he promised to pay Rs.1,000 to the appellant. As he was not willing to pay the illegal gratification he reported the matter to the police whereupon F.I.R. Exh.PA. was recorded by P.W.4. P.W.4 moved an application to the A.D.C.(G), Sialkot for deputing some Magistrate to supervise the raid. P.W.5 Zamurd Khan, M.I.C. was deputed to do the needful, who recorded the statement of the complainant Exh.P.W.l/1 and also marked ten currency notes of denomination Rs.100 each marked P.1 to P.10 and returned to the complainant. Thereafter at about 12 noon the raiding party under the supervision of P.W.4 reached near the office of WAPDA. The complainant entered into the WAPDA office and the other members stayed in front of the same. After some time the Magistrate and the S.I. entered into the WAPDA office. The complainant made the agreed signal whereupon the Magistrate introduced himself and had recovered the tainted money and secured P.1 to P.10. The appellant was Federal employee, resultantly, another F.I.R. Exh.P.W.3/1' was recorded by F.IA. after receipt of the sanction order Exh.P.W.3/3.
3. The appellant was challaned and sent up for trial. Charge under section 161, Cr.P.C. read with section 5(2) 47, P.CA. was framed against the appellant to which he denied and claimed trial.
4. Prosecution examined 5 P.Ws. in all to substantiate its case. P.W.1 the complainant narrated the facts mentioned by him in F.I.R. Exh.PA. P.W.2 Imtiaz Gull, S.D.O., produced the file of case No.440/TW, dated 8-9-1979 which was secured by P.W.4 vide memo. Exh.P.W.2/1. P.W.3 Tasarraf Hussain, S.I. F.IA., registered F.I.R. Exh.P.W3/1 on the basis of case F.I.R. No.23/1981 at Police Station A.C.E., Sialkot. He recorded the statement of P.Ws. and Kafait Hussain, Inspector had'submitted the challan on the receipt of sanctioned order. P.W.4 Hakim Ali, D.S.P. had stated that he recorded the formal F.I.R. Exh.P.A./1 on the statement of P.W.1 and thereafter had moved the A.D.C.(G.) Sialkot who had deputed vide order Exh.P.B. Zamurd Khan, M.I.C. P.W.5 to supervise the raid, P.W 5 Zamurd Khan, M.I.C. had recorded the statement of complainant P.W.1 Exh.P.W.l/1 and had marked the currency notes P.1 to P.10 and proceeded alongwith the complainant P.W.1, and P.W.4 Hakim Ali, D.S.P. to the spot. After signal from the complainant raided the appellant and secured the tainted currency notes P.1 to P.10 from him.
5. The appellant had denied of having accepted the currency notes P.1 to P.10 as illegal gratification.
6. The appellant when examined under section 342, Cr.P.C. denied the prosecution evidence against him and produced 4 D.Ws. including himself. He also opted to make statement as envisaged under section 340(2), Cr.P.C.
7. The learned trial Court had convicted and sentenced the appellant.
8. Heard. Record perused. P.W.4 Hakim Ali, D.S.P. the member of the raiding party has stated that at the time of apprehension of the appellant he offered resistance and case was registered under section 186, P.P.C. He proceeded with P.W.5 to WAPDA office where the tainted money was passed to the appellant by the complainant P.W.1. P.W.5 Zamurd Khan, M.I.C. had stated that P.W.4 was present with him when the complainant informed the passing of tainted money P.1 to P.10 to the appellant. He has stated that he had neither heard the conversation between the complainant and the appellant nor he had viewed the passing of the tainted money. P.W.4 D.S.P. states that he was present with P.W.5 at the relevant time. It is crystal clear from the evidence on record that both of them neither heard the conversation between the appellant and the complainant nor had witnessed the passing of tainted money.
9. Pursuant to the above I am of the considered view that the prosecution had failed to establish its case beyond doubt and giving the benefit of doubt, acquit the appellant of the charge. The appellant is on bail his bail bonds are discharged.
N.H.Q./N-202/L Appeal accepted.