ZULFIQAR ALI Versus THE STATE
The brief facts of the instant appeal are that the convict Zulfiqar Ali was an Overseer Canal. On seeing a breach in the Rajbah, he informed the concerned police station and also the Department and when the police agitated the matter, the complainant Imtiaz-ul-Haq met the convict who told that if he pays Rs.4,000 to him as illegal gratification of the breach caused in the Rajbah he will withdraw from the prosecution of the said breach. The matte, according to the prosecution story was agreed upto Rs.2,000. The complainant informed the Police Station A.C.E., Gujranwala and got recorded F.I.R. (Exh.P.E.) stating therein that there is a demand of illegal gratification of Rs.2,000 by the appellant and as he does not want to pay the same to him he be raided and taken to task. The C.O./A.C.E. after recording of the F.I.R. deputed a Magistrate to supervise the raid. The raid was performed under the supervision of Sh. Iftikhar Ali, M.I.C. (P.W.1). Four currency notes which were formerly given by the complainant to the Magistrate of the denomination of Rs.500 each P.1 to P.4) were signed by the Magistrate and their serial numbers were noted by him. The raid was conducted at Mianwali Rest House in the courtyard of the house of the convict and the raiding party witnessed the same. The raiding party recovered the four currency notes of Rs.500 each from the side pocket of the shirt of the convict and serial numbers were tallied with the serial numbers already noted. The tainted money was taken into possession vide memo. Exh.P.C. The appellant was arrested and the proceedings recorded by the raiding Magistrate were handed over to C.O./A.C.E.
2. The accused-convict was challaned and during the trial Sh. Iftikhar Ali (P.W.1), Imtiaz-ul-Haq (P.W.2), Shaukat Ali (P.W.3) Riaz Ahmad Cheema, D.S.P. (P.W.4) were examined by the prosecution. The appellant denied the allegations and submitted in his defence that he had already reported the matter to the Department against the installation of 9". pipe against the sanctioned pipe of 8" for the Rajbah and the Department had taken the proceedings against the complainant. He had not demanded any amount for illegal gratification. It was the complainant who in order to take revenge himself secretly and without his knowledge put the amount in his pocket.
3. Learned counsel for the appellant submits that the raid was got arranged due to the previous reporting of the matter of installation of 9" pipe as against the sanctioned pipe of 8" by the complainant to irrigate his land. There was no demand or acceptance for the illegal gratification: the money was secretly shifted by the complainant in the pocket of the appellant without his knowledge and that the appellant had produced sufficient evidence in his defence and the Special Judge, Anti-Corruption. Gujranwala did not accept the defence version and as such the judgment of the learned trial Court is patently against law and facts and the evidence produced by the prosecution did not show that the appellant had any motive to demand or accept the illegal gratification as he had not got registered a case with the police and there was no question of its withdrawal. He had earlier reported the matter to the higher officers and this matter could not be withdrawn by him. The reasoning given by the learned trial Court is only the supposition that the police could visit the complainant even without registration of a case. In view of the previous enmity existing between the complainant and the appellant the solitary evidence of the complainant about the demand or acceptance by the convict could not be relied upon without corroboration of independent evidence as envisaged under the provisions of section 5(2) of the Prevention of Corruption Act, 1947. He further argued that the prosecution evidence has admitted that the complainant took the appellant in his embrace in a position that he could put the money secretly without the knowledge of the appellant and could involve him illegally in the said commission of offence. He further deposed that the evidence of the prosecution does not disclose that the statements were recorded immediately after the raid. It shows that the whole of the proceedings were recorded at Gujranwala arid the sanctity of such evidence looses weight especially when the complainant had admitted in his statement before the, learned trial Court that the raiding party without recording his statement and without knowing the numbers of the tainted money took him to Mianwali Rest House where the raid was conducted and then the whole proceedings were recorded at Gujranwala.
4. Learned State counsel has stated that the appellant was rightly convicted by the learned trial Court but he has also admitted that in view of the enmity existing between the parties prior to the registration of the F.I.R. in question the testimony of the complainant must be corroborated by the independent evidence.
5. I have heard the arguments of the learned counsel for the parties. The F.I.R. in question was registered on 8-10-1989 on the statement of Imtiaz-ul- Haq complainant under section 161, P.P.C. and section 5(2) of P.CA., 1947 but prior to the registration of F.I.R. the convict had initiated proceedings for the breach of the canal in his Department and some penalty was also levied by the Department upon the complainant. Admittedly there was some grudge harboured by the complainant. The second material aspect of the case is that the prosecution story shows that some information was given to the police by the convict and the police had started calling the complainant and the convict demanded Rs.4,000 as illegal gratification to hand over the money to the police which, later on according to the prosecution story, was agreed to be paid as Rs.2,000. The prosecution has miserably failed to prove that there was any F.I.R. registered with the Police in respect of the breach of canal. It also does not seem plausible that the complainant should give money for something which did not exist. D.W.4 (Taqi Raza) Head Constable, Police Station Wando brought the Roznamcha Register for the year 1989 and there existed no report or F.I.R. in respect of the breach of the canal. Then what was the reasons which compelled the complainant to pay the illegal gratification to the convict- appellant.
P.W.2 (Imtiaz-ul-Haq) complainant has admitted in cross-examination that he was annoyed with the accused because he complained to the police regarding the flow of water in his land. He has also admitted in his evidence that the accused did report but he did not know whether any case was registered or not. He was, however, called by the police. If he was called by the police why the complainant was to give money to the convict-appellant and why not the police which had the motive or reward for doing some favour to the complainant. The appellant had sent telegram for illicit irrigation on 5-6-1989 while the raid took place on 9-10-1989 and definitely the complainant was hurt from the appellant-convicts' conduct. He was also harbouring some grudge prior to raid. Since the motive for the payment of bribe is not established as there was non-existence of any information or withdrawal of the case from the police, there was a strong responsibility put upon the prosecution to produce independent evidence to corroborate the statement of the complainant who is an inimical witness. No doubt the tainted money was admitted to be recovered from the pocket of the convict-appellant but the circumstances where it is proved on record that enmity did exist between the complainant and the appellant it must be corroborated by an independent source of evidence and it is not sufficient or safe to rely on the solitary statement of the inimical witness. I have also read the evidence of Sh. Iftikhar Ali (P.W.1), Ch. Shaukat Ali C.O./A,C.E., Gujranwala (P.W.3) and Ch. Riaz Ahmad Cheema, D.S.P. (P.W.4). Sh. Iftikhar Ali (P.W.1) in his statement has admitted that he did not note the serial numbers of the currency notes in his statement Exh.P.A., and he did not record any note at Gujranwala relating to serial numbers of the currency notes produced before him and he could not tell the specific signal which the complainant was to give after the payment of the money and he did not record the statement of the complainant after the raid and also could not assign any reason for not recording the statement of the complainant after the raid:
6. The learned Special Judge, Anti-Corruption, Gujranwala has wrongly held that there was no enmity existing between the complainant and the appellant. It was vice versa the complainant was penalised by the Department and there was also recommendation by the Department to register a case against the complainant but the case did not stand registered so there was no motive for reward for the appellant. Moreover, it is established through the defence D.Ws. that there was another witness D.W.3 present at the time of raid. This witness seems to be an honest witness but neither the learned Magistrate who conducted the raid nor Ch. Riaz Ahmad Cheema, D.S.P. (P.W.4) has mentioned presence of this witness at the scene of occurrence. It is the duty of the prosecution to bring guilt to the accused beyond any shadow of doubt. I have gone through the complete evidence. Under section 5(2), P.C.A., 1947, the solitary statement of a witness unless corroborated by independent witness is not sufficient to establish the prosecution case beyond the reasonable doubt. In the present case the enmity between the parties did exist before the registration of the F.I.R. The complainant has admitted harbouring a grudge against the appellant. It was the bounden duty of the prosecution to have independent evidence. I am afraid the prosecution has failed to bring guilt to the accused. Under such circumstances the recovery of tainted money unless corroborated by independent evidence is not sufficient evidence to convict the, present appellant.
7. For the foregoing reasons, while giving benefit of doubt to the I appellant, I accept this appeal, set aside the sentence and fine ordered by the 1 B learned Special Judge, Anti-Corruption, Gujranwala vide the impugned judgment and acquit the appellant.
N.H.Q./Z-144/L Appeal accepted.