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Criminal Appeal No. 647 of 1986, heard on 17th December,1986.

---S. 163--Evidence, misreading of--Complainant alleging payment of bribe money in presence of two witnesses--One witness, related to complainant, denying presence of any other witness--Both witnesses giving different place of payment--Denomination of currency notes also different--Second witness named by complainant, denying his presence at time of payment of bribe money--Nothing in his statement suggesting admission of guilt by accused or indicating offer of accused to get house vacated for complainant or return money--Inordinate delay of one year in lodging report--Discrepancies in statements of witnesses, held, could not be lightly ignored and observation of trial Judge about extra-judicial confession was without any basis--Prosecution failed to prove its case beyond reasonable doubt--Accused was acquitted in circumstances.

Ch. Muhammad Ashraf for Appellant.

Ch. M. Idrees for the State.

Date of hearing: 17th December, 1986.

Niaz Muhammad aged (50), son of Bagu, caste Arain, resident of Chak No. 157/G.B., Police Station Sadar Gojra, has been convicted under section 163, P.P.C. and sentenced to imprisonment till rising of the Court and a fine of Rs.5,000 vide judgment, dated 22-9-1986 of the learned Special Judge, Anti-Corruption, Sargodha and Faisalabad Divisions, at Sargodha. He has filed this appeal to challenge his conviction and sentence.

2. The prosecution version is that there was a dispute between Salamat Ali complainant and his brother Muhammad Tufail with regard to the possession of a house. About one year prior to 16-10-1984 the appellant obtained Rs.1,800 as illegal gratification from Salamat Ali complainant as a motive or reward for inducing by the exercise of his personal influence, the police officials of P. S. Gojra to register a criminal case against Muhammad Tufail in respect of the said house and to restore its possession to Salamat Ali complainant. The bribe money was paid to the appellant in the presence of Haji Malik Natha and Rustam Ali P.Ws. The appellant did not get any case registered nor paid back the money to the complainant, upon which he reported the matter to police, on 16-10-1984. A case under section 162/163, P.P.C. was registered against the appellant and after the investigation he was sent up to face his trial.

3. At the trial the prosecution examined four witnesses in all, namely, Salamat Ali, Rustam Ali, Haji Malik Natha and Muhammad Siddiq Sub-Inspector, P.S. Sadar Gujrat.

4. The appellant pleaded not guilty to the' charge and denied the prosecution allegations against him. He maintained that he had been falsely implicated due to party faction. He appeared as a defence witness and also examined Khushi Muhammad and Muhammad Rafiq in his defence.

5. After examining the evidence on the record, the learned trial Judge observed that the statements of Salamat Ali complainant and Rustam Ali P.W. about the payment of money to the appellant were consistent. It was further observed that Natha Khan P.W. was a witness to the extra-judicial confession as the appellant had admitted before him that he was liable to pay and this acknowledgement also served as a corroborative piece of evidence. Relying on the testimony of the aforesaid three P.Ws., he convicted and sentenced the appellant as mentioned above.

6. Learned counsel for the appellant contends that the statements of Salamat Ali complainant and Rustam Ali P.W. are at variance on material points and the appellant never made any confession before Natha Khan P.W., therefore, the observations made by the learned trial Judge are based on misreading of evidence. He submits that the F.I.R. was lodged about one year after the alleged occurrence, for which no reasonable explanation has been offered and the evidence on the record is not at all sufficient to warrant the conviction. The learned State counsel has not been able 'to controvert the submissions made by the learned counsel for the appellant.

7. Salamat Ali complainant stated that the bribe money was paid near the house of Niaz accused on a Thara just outside the house of the accused in the presence of Rustam Ali and Natha Khan P.Ws., in the form of currency notes of the denomination of Rs.100 and Rs.50. The complainant's brother-in-law Rustam Ali P.W., on the other hand, stated that the money was paid "in the Dera of the accused just near the door of the Dera towards inside" and except himself, Salamat Ali P.W. and Niaz accused none else was there. According to him, there was no currency note of the denomination of Rs.50 in the bribe money. These discrepancies cannot be lightly ignored. Haji Malik Natha who according to the complainant, was present at the time of the passing of the bribe money stated that he was not present when the money was paid to the accused. There is also nothing in his statement to suggest that the appellant admitted his guilt before him. The observation of the learned trial Judge that he is a witness to the extra-judicial confession, is without any basis. He stated that in his presence "Niaz accused offered to Salamat complainant that he shall get make some solution or get the house vacated for the benefit of Salamat Ali complainant". He further stated that about 6 or 12 months later, Salamat Ali P.W. demanded his money from the accused and he (the accused) "admitted that he is liable to pay and promised to pay the money later on". There is nothing in the statement of this witness to indicate that the accused ever offered to get the house vacated through police or had admitted that he will return the amount which he had obtained as the motive or reward for exercise of personal influence with the police.

The delay of one year in reporting the matter to the police is yet another circumstance going to the root of the prosecution case. The explanation offered by the complainant was that he had been demanding the money and the appellant had been putting him off. The delay is so inordinate that this explanation does not fit in with it.

For the foregoing reasons, I feel inclined to the view that the prosecution has not been able to prove its case beyond all reasonable doubt and the appellant is entitled to acquittal. I, therefore, allow this appeal set aside the conviction and sentence of the appellant and acquit him of the charge.

S.A. Appeal accepted.

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