1985 P Cr (PLP)

Date of hearing: 17th June, 1984. This Criminal Appeal arises from the judgment of learned Special Judge Anti‑Corruption, Bahawalpur whereby he on 2‑6‑1980 convicted Riaz Ahmad appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to one year's R.I. and a fine of Rs. 500 on each count, in default thereof to further R.I. for four months on each count.

2. The appellant was working as Copying Agent. The charge against him is that he demanded and then accepted Rs.10 as illegal gratification. Abdul Jabbar P.W.4 appeared to prove the demand and acceptance of bribe by the appellant from him. Ch. Muhammad Ashraf Magistrate 1st Class and Ch. Mehram Ali S.I., P.W.2, Ghaus Bakhsh Abbasi, P.S.I., P.W.3 and Ch. Saleem Akhtar P.W.4 were produced to prove the recovery of tainted currency note from the appellant. They supported the prosecution case.

3. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He while accepting receipt of tainted currency note and its recovery from him explained: "I was working as Reader with Ashraf Naria, Magistrate prior to the date of raid. He wrote a letter against me and got me transferred and on that account he got a raid conducted against me. Actually Abdul Jabbar complainant had got change from me of Rs.10 Exh. P .1 which was recovered from me. I did not know that this was being done to trap me. I got the chairs of Abdul Sattar, Advocate removed from the office of the Magistrate as I had borrowed his chairs and after my transfer I removed chairs from his Court room and so also the Magistrate was annoyed with me and got me trapped." In defence he produced Abdul Ghani D.W.1 who stated that the relation of Ch. Muhammad Ashraf Magistrate were strained with the appellant.

4. The learned counsel for the appellant contends that the procedure which is normally adopted in raid cases was not followed in the case in hand and that the prosecution witnesses being under the influence of the Magistrate are not reliable. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

5. I have considered the arguments advanced by the learned counsel for the parties with care and have not been able to persuade myself to agree with the learned counsel for the appellant, inasmuch as, Ch. Muhammad Saleem Akhtar, Advocate, Ghaus Bakhsh P.S.1 and Ch. Mehram Ali, S.I. appear to be independent witnesses. They have stood the test of cross‑examination. The learned counsel has failed to point out any material contradiction /discrepancy in the statements of the witnesses. Further Ch. Muhammad Ashraf Magistrate had no serious enmity with the appellant. As for the procedure which is normally adopted in raid cases, to my mind, that being not a statutory provision or statutory requirement, no adverse presumption or inference can be drawn in case the same is not followed. The material and most important question for determination is whether the allegations have been proved in accordance with the test given under section 3 of the Evidence Act or not. In the case in hand, I find that the prosecution leas been able to prove the charge against the appellant through reliable evidence. The evidence of D.W.1 is not strong enough to rebut the prosecution case and its evidence. For all these reasons I am convinced that the trial Court has rightly recorded the conviction.

6. This brings me to the question of sentence. I feel inclined to alter the same, inasmuch as, the appellant has not only lost his service but has also suffered ‑agony of protracted trial. Furthermore, the, allegations are that he accepted Rs.10 only. The sentence awarded to A the appellant is, therefore, altered to a sentence of fine only. He shall pay Rs.1,000 as fine within one month in this Court, failing which warrants for the arrest and detention of the appellant be issued. In default of payment of fine he would undergo R.I., for 6 months. S. G. D.?????????????????????????????????????????????????????????????????????????????????????????????? Sentence altered