Dr. MUHAMMAD TAHIR ATTIQUE CHUGHTAI vs THE STATE

' On 5-6-1999 Ashiq Khokhar complainant filed an application (Exh.P.W.1/A) before the C.O., Anti- Corruption, Jhelum, stating that he is employed as a Sanitary Worker in Municipal Committee, Jhelum and he and his wife have a claim of over time and move over arrears against the said Committee. The bill is to be prepared by the present appellant but he is not preparing the bill and is demanding Rs.2,000. A sum of Rs.1,000 was paid on 2-6-1999 in the presence of N. Naz, Member, Municipal Committee, Jhelum, to the appellant and a promise has been made to pay him Rs.1,000 on the said date. He does not want to give the said bribe and that a raid be conducted. This application was forwarded by Mir Zaman P.W.4 (C.O.) to the Deputy Commissioner. Muhammad Taufeeq, Magistrate was called upon to conduct the raid. The statement of the complainant was recorded by the Magistrate and he was given currency notes of the value of Rs.1,000. Thereafter the raiding party proceeded and stood vigil around the office of the appellant while Ashiq Khokhar was sent to him. After 15 minutes the complainant gave the signal and the raiding party went inside and upon search of the appellant, the marked notes Exhs.P.1 to P.6 were to recovered vide recovery memo. Exh.P.W.1/B. A case under section 161, P.P.C. Read with section 5 of the Anti-Corruption Act, 1947, was registered at Police Station ACE, Jhelum, vide F.I.R. No.4, dated 5-6-1999. The appellant was sent up for trial. He was charged under the said provisions of law and pleaded not guilty.

Evidence of the prosecution was recorded. The statement of the appellant was recorded under section 342, Cr.P.C. He also made a statement under section 340(2), Cr.P.C. Vide judgment dated 1- 10-2002 the learned Special Judge, Anti,-Corruption, Rawalpindi, convicted the appellant under the said provisions of law and sentenced him to two years' R.I. And a fine of Rs.5,000 or upon failure to undergo six months' R.I. Benefit of section 382-B, Cr.P.C. Was given.

2. Learned counsel for the appellant contends that the plea taken by the appellant in the course of the trial was the same as was his first version recorded by the raiding Magistrate. According to the learned counsel, there is no evidence on the record that any bills or case of the complainant or his wife was pending with the appellant. Further contends that there is no evidence as to what transpired between the complainant and the appellant before the signal. Learned counsel for the State, on the other . Hand, supports the impugned conviction and sentence.

3. I have examined the trial Court records, with the assistance of the learned counsel for the parties.

Now I find that the allegation made by the complainant was that since the case/bills of move over pertaining to him and his wife were pending with the appellant, he demanded illegal gratification for signing the said bills. The same was the charge which was denied. Now it was duly suggested to the complainant Ashiq Khokhar P.W.1 that no such case or bills were pending with the appellant. So far as N. Naz P.W.2 is concerned, he admitted that in the matter of his sons and son-in-law, the appellant had appeared as a witness against them in the Labour Court.

' Now Muhammad Taufeeq P.W.3 is the Magistrate who conducted the raid. He stated that he did not take into possession any such pending bill. Mir Zaman P.W.4 is the Investigating Officer he also stated that he did not check the record relating to move over or took into possession any document regarding the same. He then expressed ignorance as to whether any such case was pending or not. He further stated that the complainant did not produce any record about any such move over proceedings relating to him. The appellant specifically stated in reply to Question No.9 under section 342, Cr.P.C. That no such case was pending. In his statement on oath as well, he produced the copies of judicial record pertaining to his deposition in Labour Court against the said relatives of N. Naz P.W.2. He also stated that no case of move over of the complainant and his wife was pending in the office of .M.C. Jhelum, at the time of raid.

4. Now in the said state of evidence on record, the learned trial Court has proceeded to observe that in the matter of the document mark-A produced by the appellant, the prosecution has been deprived of its valuable right of cross-examination due to non-production of the Accounts Officer who had issued the said certificate. The learned Special Judge, however, very conveniently opted to ignore that it was for the prosecution to prove the said allegation made by the complainant that his said case was pending for which he had offered the bribe. In these circumstances, in the absence of any evidence as to what transpired between the complainant and the appellant while the Magistrate with the raiding party was waiting. Outside assumes significance. I, therefore, do held that the impugned conviction and. Sentence could not have been recorded in the said state of evidence on the record. The criminal appeal is allowed. The impugned judgment, conviction and sentence passed by the learned Special Judge, Anti-Corruption, Rawalpindi, on 1-10-2002 are set aside and the appellant is acquitted. He is already on bail vide order dated 17-10-2002 in Criminal Miscellaneous No.1207-B of 2002, the sureties are discharged.