2002 PLP 32 (SCMR)

Dil Muhammad Tarar, Advocate Supreme Court for A.‑G., Punjab for the State. Date of hearing: 28th May, 2001. ABDUR RAHMAN KHAN, J.‑‑‑The learned Special Judge, Central, Faisalabad, by judgment dated 10‑1‑1994, convicted and sentenced the appellant as under:‑‑ "Tariq Mahmood accused is, therefore, sentenced to undergo R.I., for three months and also pay a fine of Rs.5,000 (Rupees five thousand) under each section 161, P.P.C. and section 5(2)47 of P.C.A. In default of the payment thereof, he shall further undergo R.I. for one month under each section. Jamil Ahmed accused is sentenced to undergo R.I. for three months under section 163, P.P.C: He shall also pay a fin;, of Rs.2,000 (Rupees two thousand). In default of the payment thereof he shall further suffer R.I. for one month. The substantive sentences awarded to Tariq Mahmood shall run concurrently. Both the accused shall be entitled to the benefit of section 382‑B, Cr. P. C. "

2. A learned Judge in the High Court dismissed the appeal filed by the appellants against their conviction and sentence and maintained the judgment of the learned trial Judge through the impugned judgment passed on 28‑3‑2001.

3. Leave to appeal was granted to consider; whether, the evidence on record is sufficient to hold the petitioner guilty.

4. Abdul Sattar, complainant (P. W .1) met Muhammad Riaz S.I. F.I.A. (P.W.4) and complained to him that he had been visiting office of the identity Cards for the last six months in order to get his I.D. Card prepared and that he had deposited his application form for this purpose on 12‑2‑1989. A month back a Clerk (Tariq Mahmood) appellant No.l, who issues I.D. Cards, returned him the application and another person (Jamil Ahmed) appellant No.2, working in the same office contacted him and asked him to pay Rs.300 and the application form in connection with issuance of I.D. Card. Therefore, he gave him the application form who promised that he would get the I.D. Card prepared on payment of Rs.300. As the complainant did not want to pay illegal gratification, therefore, reported the matter for initiating action. '

5. A raiding party under a Local Magistrate (P.W.5) and consisting of Abdul Sattar complainant (P.W.1), Salah Ud Din Constable (P.W.2) and Muhammad Riaz S.I. (P.W.4), went to the Office of the Identity Cards. There Abdul Sattar (P.W.1) signaled the raiding party and the Magistrate when searched Jamil Ahmed accused recovered from him the tainted amount which had been handed over to P.W.1 to give it to the accused.

6. At the trial Abdul Sattar complainant did not support the prosecution case but Constable Salah Ud Din (P.W.3), Muhammad Riaz S.I. (P.W.4) and the Magistrate (P.W.5) supported the prosecution and deposed to the recovery of the tainted amount from Jamil Ahmed appellant which was to be paid to Tariq Mehmood appellant.

7. The main point raised by the learned counsel for acquittal of the appellants was that none of the members of the raiding party heard the conversation which took place between the complainant (bribe giver) and Jamil accused (the bribe receiver) and so their conviction cannot be sustained on the strength of the rule laid down in "Bashir Ahmed v. The State" (2001 SCMR 634) and "Muhammad Ashraf v. The State" (1996 SCMR 181). This argument would not prevail as it is by now settled position that a rule laid down in a certain criminal case cannot be applied unversally as every case proceeds on its own facts and circumstances which would hardly resemble with the diverse facts of the precedent case in which the dictum is laid down. Moreover, some foundation must be laid down in the case for the application of the dictum in the earlier decided case. The above criteria fully applies to this case as neither factual background of the two cited cases is similar to the facts of this case nor any foundation has been laid down in the cross-?examination of the witnesses so as to justify the application of the rule enunciated in the cited cases. The defence‑in this case has not cross‑examined any of the prosecution witnesses on the line of the defence plea that the tainted amount recovered from Jamil Ahmed, appellant No.2, was the one which was paid as installment of sale price of the cycle which was payable by the complainant to Jamil Ahmed appellant. The recovery of the tainted money from the appellant stands admitted by Jamil Ahmed in his statement under section 342, Cr.P.C. and so in order to prove his plea he was required to have asked the prosecution witnesses that at the time of passing the amount the complainant had told that the disputed amount was being paid as instalment due from him on account of the purchase of the Cycle, but that has not been done. Moreover, it could not even remotely be suggested to any prosecution witness that any of the Government officials of the raiding party was prompted/motivated for ulterior motive or some ill‑feelings to involve the‑appellants out of the lot in such a serious case. Under section 4 of the Prevention of Corruption Act, 1947 if in the trial under section 161 or section 165, P.P.C. it is proved that an accused person had accepted or obtained any gratification it shall be presumed, unless on the contrary it is proved that it was accepted or obtained as a reward for showing favour in exercise of his official function. This has been admitted by Jamil Ahmed appellant in his statement under section 342, Cr.P.C. that he received Rs.300 from the complainant as instalment of the price of the Cycle and not as illegal gratification. However, there is no reliable evidence in support of this plea to dispel the presumption placed on the accused under the said section. Once it was proved to the satisfaction of the Court that the tainted money recovered from the accused had been passed on to him then the burden would be on the accused to displace presumption arising under section 4 of the said Act. Neither the complainant nor any of the members of the raiding party had been attributed any motive for false charge. Thus, in the circumstances the factum of hearing the conversation by the raiding party in between the complainant and the accused loses its significance particularly when it is in the evidence of Salah Ud Din (P.W.3):‑‑ The same has been stated by Muhammad Riaz (P.W.4):‑‑ The rule laid down in 2001 SCMR 634, is not applicable as in that case the passing of the tainted amount had not been witnessed by any of the members of the raiding party. On the other hand the following dictum laid down in "Mehdi v. The State" (2000 SCMR 222) would apply "the passing of the tainted currency notes was noted by the Magistrate, who saw the transaction while standing in the Verandah outside the Court. In this view of the matter, nothing turns upon the absence of hearing of conversation". In the cited judgment of 2001 SCMR 634 it was observed:‑‑ "The dictum laid down in Muhammad Mehdi v. The State (2000 SCMR 222) and heavily relied on by the learned State counsel cannot be made applicable as in the above cited case the Magistrate had seen the transaction and passing of tainted currency notes but in this case situation was almost contrary and neither the conversation could be heard nor the passing of tainted money from the complainant to the accused could be seen." Similarly, the dictum in 1996 SCMR 181, is also distinguishable on account of its diverse facts, the existence of motive for false charge and the conflict noticed in the evidence. On the other hand the principles enunciated in the above referred judgment reported as 2040 SCMR 222 are applicable to this case. It is also judicially noticeable fact that every effort is made to conceal such a shameful and condemnable transaction from public notice and, therefore, this fact that the conversation between the complainant and the accused were not heard, would not nullify the entire proceedings resulting in raid and the evidence recorded in Court about the raid. If the prosecution has been able to prove the passing of the amount and the accused was not in a position to rebut the presumption against him under section 4 of the Prevention of Corruption Act and the Court from overall background of the case comes to the conclusion that the guilt has been established then mere non‑hearing of the conversation by the raiding party at the time of giving and accepting the tainted currency, would not adversely affect the prosecution case. The point that the complainant did not support the prosecution case was also agitated. However, this aspect of the case has been elaborately dealt with in the impugned judgment and the statement of Abdul Sattar, who has been declared hostile, would not render, the other evidence in the case ineffective which can legally be made basis for conviction. Consequently, this appeal is dismissed. The appellants had been allowed bail, therefore, the trial Court should issue non‑bailable warrants against them and should send them to jail to serve out sentence imposed on them if they have not already undergone it. Compliance of the order should be reported to the Registrar of this Court. N.H.Q./T‑19/S ?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.