ALLAH DIWAYA vs THE STATE

' Through this appeal Allah Diwaya appellant has challenged the judgment passed by Special Judge, Anti-Corruption, Dera Ghazi Khan on 1-3-1989 whereby he convicted the appellant under section 161, P.P.C. Read with section 5, subsection (2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo R.I. For one year and to pay fine of Rs, 2,000. In default of payment of fine the appellant was to further undergo R.I. For two months.

2. Muhammad Bakhsh, P.W. 1 went to Police Station Anti-Corruption Establishment, Dera Ghazi Khan on 9-3-1987 and stated that Dera Ghazi Khan on 9-3-1987 and stated that he was an agriculturalist and needed a passbook to obtain loan from Agricultural Development Bank and in this view on 8- 3-1987 he alongwith his brother went to Allah Diwaya, Patwari at about 11/12 noon. It is further stated that the appellant demanded Rs,500 for preparation of passbook. As the complainant had only Rs, 50 with him at that time and gave the same to the appellant and promised that he would pay him Rs, 300 on the next date. The remaining amount was to be paid after obtaining of the loan. It was added that as the complainant did not wish to pay bribe he reported this matter to the police vide F.I.R. No,1 of 1987 Exh.P.W./A recorded by Lal Hussain Shah, Circle Officer who appeared as P.W.

4.

3. After registration of F.I.R. P.W.4 moved an application before Deputy Commissioner, Dera Ghazi Khan who deputed Syed Muhammad Mumtaz Shah, EAC P.W. 5 to supervise the raid. P.W.5 recorded the statement of the complainant, noted down the numbers of currency notes and proceeded towards Patwarkhana. After receiving signals Nazir Ahmad, P.W. 2 the raiding party reached the spot where the appellant was, present with two passbooks in his hands. It is further stated that tainted money was recovered from the vest-coat worn by the appellant vide memo.

Exh.P.W. 1/B. P.W. 5 also prepared raiding report and ordered arrest of the appellant on 9-3-1987.

After completion of investigation the case was sent up for trial. The appellant denied the charges and claimed trial. During the trial prosecution produced five witnesses to prove its case.

Muhammad Bakhsh P. W.1 and his brother Wazir Ahmad P.W.2 appeared to support contentions of the Flt. And also about the proceedings during raid. Lal Hussain Shah, P.W. 4 stated about the registration of the case and the investigation thereafter, Syed Muhammad Shah, EAZ appeared as P.W. 5 and stated about the raid proceedings.

4. After the closure of prosecution evidence statement of appellant was recorded under section 342, Cr.P.C. Wherein he pleaded innocence and stated that he was implicated in this case due to his enmity with the Circle Officer, Lal Hussain Shah, P.W. 4 and with the P.Ws. He denied any recovery effected from his person. After producing Khatauni Killa Bandi Exh.D.A, copy of Mutation No, 761 Exh.D.B; copy of record of rights Exh.D.0 and copy of Warabandi Exh.D.D and closed his defence evidence.

5. The learned counsel for the appellant stated that the prosecution has miserably failed to prove its case against the appellant as the evidence of P.Ws Nos.1 and 2 was contradictory of each other and did not inspire confidence. He has also made stress on the point that P.W. 4 Lal Hussain, Circle Officer was inimical to the appellant and had cooked up a false story. He has further stated that P.W. 5, EAC who was entrusted raid proceedings in fact prepared the whole raid report while present at police station and no recovery was effected from the appellant. The learned counsel appearing on behalf of the State on the other hand has supported the conviction arid has stated that sufficient incriminating material was available against the appellant and that P.W. 5 was a responsible public official and he had no reason to involve the appellant falsely.

6. I have heard the learned counsel for the parties and have' also carefully perused the whole record. It has been admitted by P.W.5 that he was standing at a distance of about one furlong from Patwarkhana where the appellant was supposed to be sitting. He also admitted that he did not overhear conversation between the appellant and the complainant at the time of passing of money. P.W. 2 has also admitted that raiding party was standing at a distance of one or two acres from the Patwarkhana and he was sitting in a jeep. He has also admitted that the persons sitting inside the room or standing in the veranda were not visible to the raiding party. He has. Also admitted that conversation was not audible even to the raiding party. P.W. 1 complainant also admitted that the place where tainted money paid to the appellant was not visible from place from where the raiding party was standing. P.W. 5 also admitted that at the time of recovery of tainted money the appellant was present in a room alongwith four/five other persons but he did not know as to whether they were Patwaris or not. He has also admitted that he did not mention the name of anyone of those persons who were present in the room in his raiding report nor he examined them. P.W. 5 also reluctantly admitted that the appellant in his statement has referred to his animosity with the Circle Officer P.W.

4. So far as P.Ws. 1 and 2 are concerned they contradict each other on almost all material points. In the F.I.R. Exh.P.W.1/A P.W. I stated that the appellant demanded Rs, 500 but while making statement he stated that in fact Rs, 700 were demanded from him. On the same point P.W. 2 stated that in fact Rs, 800 were demanded. There is also contradiction in the statements of afore-referred two P.Ws.

Relating to delivery of passbooks.

7. A careful reading of the evidence shows that it has been established during the trial that raiding party had neither heard the conversation between the appellant and the complainant nor saw the passing of money. A perusal of the cross-examination of P.W.4, Lal Hussain Shah, Circle Officer as well as the documents produced by the appellant in defence shows that there is some background of enmity between the appellant and him, therefore, relying on the cases of Muhammad Ashraf v. The State (1996 SCM R 181) and Rasheed Ahmad v. The State (2001 SCM R 41) I am of the opinion that the prosecution has failed to prove its case beyond doubt. Therefore, I extend the benefit of doubt to the appellant and allow this appeal. Accordingly, the conviction and sentence awarded to the appellant is set aside. He is acquitted of all charges.