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Criminal Appeal No. 542 of 1974, decided oil 17th April, 19134.

Penal Code (XLV of 1860)--

---S. 161--Prevention of Corruption Act (II of 1947), S. 5(2)--Raiding Magistrate not examined--'Occurrence taking; place about twenty years ago arid appeal coming up for disposal after ten years--Not proper to re-open whole issue--Tainted money not recovered from accused but from prosecution witness--Evidence of prosecution witness clearly contradicting prosecution case--Three different persons giving illegal gratification to accused at time of raid and it was not clear from evidence as to what were various numbers of currency notes given by three persons or whether currency notes recovered were same which were given by one bribe giver or were given by other two persons--Case against accused. held, not free from doubt--Accused given benefit of doubt and acquitted.

Ghulam Hussain Qureshi for Appellant.

Malik Rehmat Awan for the State.

Date of hearing: 25th March, 1984.

Muhammad Nazir appellant was convicted by Mr. Mumtaz Muhammad Khan, Special Judge, Anti-Corruption, Lahore, by his judgment, date 3--9-1974, under section 161, P.P.C. read with section 5(2) Prevention of Corruption Act and sentenced to three months' R.I. and a fine of 85.50 or in default one month's R.I.

2. Muhammad Nazir appellant in the year 1964 was working its Dispenser, Civil Hospital, Daska where Dr. Asghar Hameed was also working as Medical Officer. It is stated by Nazir Ahmad P.W. 4 that Dr. Asghar Hameed was an Eye Specialist but he would charge Rs.5 per patient through Muhammad Nazir appellant, which was not a legal charge. Nazir Ahmad P.W. reported the matter to Muhammad Amin Bajwa inspector P.W.5 who made art application Exh. P.C. and arranged a raid. In the first raid, on 12-12-1964, Syed Hameed Ahmad Magistrate P.W.3 was associated but lie declined to join the raiding party on the plea that Dr. Hameed Asghar was his personal friend. thereafter, on 15-12-1964, another raid was organised in which Mr. Junaid Ahmad Magistrate was associated. This raid did not succeed. The third raid was organised on 21-12-1964. It is stated by Nazir Ahmad P.W. 4 that he alongwith Ghulam Qadir etc. contacted Muhammad Nazir appellant dispenser incharge of the outdoor Register and asked him that he should arrange his consultation with Dr. Hameed Asghar. The appellant Muhammad Nazir issued chit Exh. P.G. and asked tire complainant to pay two annas as charge of the chit. The complainant insisted that he wanted to consult Dr. Hameed Asghar. Al this tile accused allegedly asked the complainant to pay Rs.6 as charges of consultation with the said doctor. The said amount was consequently paid to the accused. It is stated by Nazir Ahmad P.W. 4 that at the time of payment of Rs.6 to the accused, the Magistrate and Muhammad Siddiq were standing close to him. The accused put tire amount in his pocket and told the complainant to wait for the doctor. On his turn, the complainant was seal in for examination by Dr. Asghar Hameed who inquired as to whether he (complainant) had paid the fee to the accused or not. The doctor examined the complainant and wrote down something on the chit Exh. P.G. Thereafter, the complainant came out of the room and signaled the, raiding party who came there and recovered Rs.6 from the accused. The Magistrate Mr. Junaid Ahmad wrote down, the proceedings whereafter the present case was registered against the appellant. Ire was challaned, tried and convicted as stated above.

3. During the trial, the prosecution examined six witnesses in all. Muhammad Iqbal P.W.1 is a shopkeeper. He stated that tire Ward Coolie had brought five rupee note to hint for change. He accordingly gave five one rupee notes to the Ward Coolie in exchange to five rupee note. Subsequently, the said five rupee note. P.1 was recovered by Muhammad Amin, Inspector P.W.5. At that time the Magistrate Mr. Junaid Ahmad was also present who recorded the statement of this witness Exh.P.A. Ikram Ali Ansari P.W. is a formal witness. Syed Hameed Ahmad P.W.3 had jointed the first raid on 12-12-1964 but declined to accompany the raiding party. Nazir Ahmad P.W. supported the prosecution case, as stated above. Muhammad Amin Bajwa P.W.5 had organised the raiding party. He conducted the investigation. Ch. Muhammad Sadiq, D.S.P. P.W.6 obtained sanction for prosecution of the accused and challaned him. The accused when examined under section 342, Cr.P.C. denied the charge. It was stated by him that five rupee tainted currency note was not recovered from him. It was given to him by Nazir Ahmad P.W. 4 ,but as he had to receive two annas only, so he sent the said note through Ghulam Masih D.W. for bringing change so that he could return the balance to Nazir Ahmad. He attributed this case to the enmity of Dr. Sultan Ahmad Cheema. He examined two witnesses in defence. Muhammad Latif, Dispenser D.W. 1 supported the version of the accused in his statement under section 342, Cr.P.C. Ghulam Masih, Ward Coolie D.W.2 stated that he was given five rupee currency note by the accused. He took the same to Muhammad Iqbal P.W.l and brought the change from him. He further stated that he was going to another shop to get change of Re. l also when the raiding party confronted him.

4. It is contended by the learned counsel that Mr. Junaid Ahmad Magistrate who had joined the raiding party was not examined in Court as witness. It is, therefore, submitted that no sanctity to the raiding proceedings can be attached which also have not been formally proved. It is next contended that the tainted five rupee note was not recovered from the present appellant and the defence version that the amount of Rs.5 was paid by Nazir Ahmad P.W.4 was not by way of illegal gratification but as a payment of two Annas, the fee which was collected for issuing the Chit Exh.P.G.

5. I have considered the above arguments. In this case Mr. Junaid Ahmad, Magistrate has not been examined. He was a material witness. He should have been examined by the prosecution or by the Court itself as a Court witness. This omission has materially prejudiced the defence of the case. The present case could have been remanded but the occurrence took place about twenty years ago and the present appeal is coming up for disposal after about ten years. It is, therefore, not proper to re-open the whole issue at this stage. It is the prosecution's own case that the tainted five rupee note was recovered not from the appellant but from Muhammad Iqbal P.W.1. The evidence A of Muhammad Iqbal P.W. clearly contradicts the prosecution case.- He has stated that a Ward Coolie had brought five rupee note to him for change. It is submitted by the learned counsel for the State that on 21-12-1964, at the time of raid, three different persons had paid illegal gratification to Muhammad Nazir accused and the five rupee note recovered from Muhammad Iqbal was not the note given by Nazir Ahmad P.W.4 to the accused. It is not clear from the evidence as to what were various number of currency notes given by the three persons to Muhammad Nazir accused. It is also not clear from the evidence as to whether the note recovered from Muhammad Iqbal P.W.1 was the same as paid by Nazir Ahmad P.W.4 or it was a note given by the other two persons. The Magistrate Mr. Junaid Ahmad was not examined who could have clarified these points.

6. In this view of the matter, the case against Muhammad Nazir appellant is not free from doubt. The accused is given the benefit of doubt and acquitted. The appellant shall stand discharged of his bail bonds.

M. Y. H.

Appeal accepted.

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