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Criminal Appeal No: 723 of 1966, decided on 28th September 1973.

‑‑‑ S. 161 read with Prevention of Corruption Act (II of 1947), S 5(2) ---Illegal gratification‑Benefit of doubt‑'fainted money recovered from accused Government servant while passing through a pre‑arranged place immediately after receipt of money‑Accused at first denying receipt of money but on amount being recovered alleging same to have been paid on account of loan‑Neither Magistrate nor police officer hearing or seeing what passed between parties at place where bribe allegedly paid‑Witness supporting complainant regarding payment of money‑‑A chance witness and interested in complainant and also not giving correct answers‑‑Advocate at whose residence payment made not produced‑Whether accused denied receipt of money or denied its receipt as a bribe‑blot clear from record‑Accused given benefit of doubt and acquitted.

Ijaz Hussain Batalvi for Appellant.

Muhammad Yamin for the State.

Abdul Aziz, Ex‑Patwari of Hota Revenue Circle, Tehsil Pakpattan, bas been sentenced to nine months' rigorous imprisonment under section 161 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. His appeal is before me,

2. Mst. Amiran wife of Muhammad Yar (D. W. 1) eloped with Bashir, a brother of Noor Samand (P. W. 1). She executed a sale deed purporting to sell 36 acres of her land to Noor Samand. The sale was set aside at the instance of Muhammad Yar on the ground of his wife's minority. Mian Noor Muhammad Hotiana, an influential zamindar of Hota village then managed to obtain a sale deed from Mst. Amiran with regard to the same land in his own name, in order to help his Karinda Noor Samand P. W., who had remained in possession of the land even after the sale in his favour was set aside. The mutation in favour of Mian Noor Muhammad was entered by the appellant in the revenue papers, but it was rejected by the Tehsildar, because it contravened Martial Law Regulation No. 64 inasmuch as, the sale deed did not include the entire holding of Mst. Amiran. This deficiency was made good‑ by arranging an oral sale of the remaining area and fresh mutation No. 43 was then entered by the Patwari on 3rd June 1965. On 14th June 1965, Noor Samand approached the appMant along with Mahabali (P. W. 4) in order to get the mutation entered. The appellant demanded a bribe of Rs. 100 for doing so. Under the advice of Mian Ejaz Ahmad, Advocate of Pakpattan, the complainant approached Ch. Nemat Khan, Circle Officer, Anti‑Corrup tion Establishment, Sahiwal (P. W. 2) and complained to him. This officer made arrangements for a raid being conducted by Sahibzada Nasir Bakhsh, Section 30 Magistrate, Pakpattan (P. W. 1). The Magistrate recorded the statement of Noor Samand P. W. Exh. P. B, noted down serial numbers or ten currency notes produced before him and returned them for passing to the appellant. The complainant, Mahabali P. W., the Magistrate and the Circle Officer went together towards the dera of Mian Ejaz Ahmad. Advocate, where the bribe was to be paid. It was arranged that the officers will sit at Police Post No. 1 and the appellant will be brought towards that side after he had received the bribe. The complainant and his companion then went to the appointed place and paid the bribe as arranged. Appellant was then brought towards the Police Post on the pretext of having a drink in the bazaar. As they passed in front of the post, the complainant gave the appointed signal by lifting his turban The Magistrate and the police officer then came out, disclosed their identity and asked the appellant to produce the money which he had received from the complainant. The appellant denied the receipt of the money. The Magistrate then searched the person of the appellant and recovered the currency notes from him. The appellant explained that Noor Samand P. W. had paid the amount to him because he bad obtained it as a loan a few months earlier. The Magistrate recorded his statement Exh. P. G, He also recorded the statement of the complainant and file companion.

3. The appellant was prosecuted after obtaining necessary sanction. He denied guilt, repeated his story of receiving the money as a loan and produced three witnesses in support on it.

4. The case against the appellant is not free from reasonable doubt. Neither the Magistrate nor the police officer heard or saw what passed between the parties at the dera of Mr. Ejaz Ahmad, Advocate; where the' bribe is alleged to have been paid. Mahabali P. W. who supported the complainant about the payment of the money, as a bribe, is admittedly a chance witness. He was so much interested in the complainant that he stayed e at the dera of Mr. Ejaz Ahmad, Advocate on the preceding night of the occurrence. Although he claimed to know the complainant well and to be a visitor of his village he professed ignorance of the elopement of Mst. Amiran with the brother of the complainant. Mr. Ejaz Ahmad, Advocate, who is said to have advised the complainant to report the matter has not been examined as a witness.

5. There is no doubt about the receipt of Rs. 100 by the appellant, from the complainant and its recovery from him by the Magistrate. Accord ing to the complainant, he met the appellant on 14th June 1965, i.e. a day before the raid and asked him to enter the mutation of sale in favour of Noor Ahmad Hotiana for which the appellant is said to have demanded a bribe of Rs. 100. But this allegation is falsified by the fact that according to the relevant revenue papers, the appellant had already entered and the muta tion on 3rd June 1965. As remarked by the learned Special Judge, the com plainant could have developed some grievance against the appellant and it would spot, be safe to rely on his testimony. The defence version was given by the appellant in his statement which was recorded by the Magistrate at the spot. Re is said to have denied the receipt of money before its recovery, but it is not clear whether he denied the receipt of the money or its receipt as a bribe. The matter was put to the raiding Magistrate in cross‑examination and his reply was that he could not say with certainty whether he had asked the appellant to produce the money without saying anything further or he had asked him to produce the money which he received as a bribe.

6. In view of what is stated above, I accept the appeal, give the benefit of doubt to the appellant and acquit him.

Appeal accepted.

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