ljaz Ahmad Chaudhry J MANZOOR HUSSAIN vs THE STATE

' Through this appeal judgment dated 29-3-1993 passed by the learned Special Judge Anti- Corruption, Multan has been challenged by which he has found the appellant guilty under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced him to imprisonment for 19 days which period he had already undergone, with a fine of Rs,3,000 or in default thereof to further undergo for four months R.I.

2. On the statement of Amjad Hussain P.W.2 case F.I.R. No,6 was registered on 24-4-1986 at Police Station ACE Khanewal under the above-said provisions against the appellant with the allegation that the appellant being posted as Patwari Halqa had demanded an amount of Rs,300 as illegal gratification from the complainant for preparation of Agriculture Pass Book because complainant wanted to obtain loan from the Agriculture Bank. Case was registered by Zaman Abbas P.W.3. An application was moved for the conduct of raid by a Magistrate to D.C. Khanewal on the same day.

P.W.1 Muhammad Ashfaq was directed to conduct the raid. He recorded the statement of P.W.2 (complainant) and also noted down the number of the currency notes. The complainant went inside the Patwar Khana and on the pointation of the complainant, P.W.1 Muhammad Ashfaq and P.W.2 Amjad Hussain alongwith two Constables entered into the room. The appellant was in the other room where he was apprehended. The amount was found near his feet which was taken into possession and he was arrested.

3. After the completion of the investigation report under section 173, Cr.P.C. Was submitted and charge was framed which was denied by the appellant and in order to prove the allegation three P.Ws. Were produced. P.W.1 Muhammad Ashfaq is a Magistrate who conducted the raid. P.W.2 Amjad Hussain is the complainant while P.W.3 Zaman Abbas is the Investigating Officer. In his statement under section 342, Cr.P.C. The appellant denied the allegation and claimed innocence.

He also produced Ghulam Shabbir as D.W.1 in support of his innocence. After hearing arguments of both the parties the impugned judgment has been passed.

4. Learned counsel for the appellant contends that the Magistrate and the Investigating Officer had not seen the passing of money and also had not heard the conversation. It is further contended that the complainant P.W.2 Amjad Hussain had no land in the village. It is further contended that there are contradictions in the statements of P.W.1 and P.W.3. It is further contended that the amount was not recovered from the pocket of the appellant but was picked up from the ground by the Constables who have not been produced as witnesses.

' On the other hand learned State Co nsel opposes this appeal.

6. I have heard the learned counsel for the parties and also perused the evidence on the record. At the very out set, the appellant had made a statement immediately after the conduct of the raid to the effect that Rs,105 were paid by the complainant to him as the balance amount of Abiana but Rs,300 were paid by him with explanation to be told later on and in the meanwhile raid was conducted. He also produced the document showing an amount of Rs,105 outstanding against the father of the complainant and according to him it was paid. In such circumstances when the documentary evidence supports that an amount of Rs,105 payable by the father of the complainant was paid alongwith the tainted notes, the two Constables who according to the Magistrate had apprehended the appellant and picked amount from the ground and produced before him were not examined, materially affects the prosecution story as in the A present case the amount was not recovered from the possession of the appellant by the Magistrate and nobody had seen him throwing the amount on the ground. In the facts and circumstances of the present case, when nobody had seen passing of money by the complainant, to the appellant and heard conversation between them at that time, the statement of the complainant cannot be taken as a gospel truth in the presence of Documentary evidence immediately produced at the time of raid that he had come to pay Rs,105 balance amount of Abiana, outstanding against his father which was included in the amount collected from the ground. Thus the prosecution has not succeeded in bringing home the guilt to the appellant beyond any shadow of doubt.

7. For the foregoing reasons this appeal is accepted, impugned judgment of conviction and sentence passed by the learned Special Judge Anti-Corruption, Khanewal, is set aside and the appellant is acquitted from the charge by giving him benefit of doubt. He shall be discharged from the liability of surety bond.