1991 PCr (PLP)

A.H. Masood for A.A: G. for the State. Date of hearing: 19th December, 1990. Abdul Hameed son of Fazal Din, caste Gujjar, resident of Chak No.336, Police Station Chowk Azam, District Leiah, has been convicted by Special Judge, Anti-Corruption, Sargodha and Faisalabad Divisions at Sargodha, under section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to pay a fine of Rs.3,000 or in default of payment thereof to suffer R.I. for 1-1/2 months, vide his judgment dated 31-3-1986. The convict has appealed.

2. The prosecution case briefly is as follows:-- Muhammad Akbar (complainant) had installed a wheat-grinding machine at Mallowana More Jhang. In his absence, Labour Inspector, Jhang, in the company of his peon Abdul Hameed (appellant) visited his wheat grinding machine on 25-10-1984 and told his brother, Muhammad Iqbal, that their weights -and measures were substandard, therefore, they would be challaned otherwise they should pay a sum of Rs.1,000 by way of bribe. The complainant visited the office of the said Labour Inspector on 27-10-1984 and 'at, his asking struck a bargain with his driver that he would pay Rs.300 by way of bribe. Next day he reported the matter vide F.I.R. (Exh. P.J.) to Ch. Muhammad Sadiq, S.C.O./A.C.E. to proceed against the accused. The S.I. made an application Exh. PA. to A.C., Jhang for deputing a Magistrate to supervise the raid being arranged for apprehending the accused red-handed. The Assistant Commissioner, Jhang, vide his order Exh.P.A./1 deputed Ch. Abdul Qayyum, Magistrate 1st Class (P.W.1) for the purpose. The Magistrate took down the statement of the complainant, Exh. P.B. He also noted down the numbers of three currency notes of the value of Rs.100 each and returned the same to the complainant for handing them over to the accused. The raiding party comprising the Magistrate, Ch. Abdul Qayyum (P.W.1), the complainant Muhammad Akbar (P.W.2), Ch. Muhammad Sadiq, S.C.O./A.C.E. (P.W.3) and Bashir Ahmad, a Razakar (P.W.4) went to the Office of Labour Inspector. The complainant Muhammad Akbar and Bashir Ahmad were sent ahead for paying the amount to the accused while the others waited outside the office. Having received the signal of the complainant the raiding party was about to enter the office of Labour Inspector when a person named Abdul Hameed (appellant) was seen running, chased by Muhammad Akbar, complainant (P.W.2) and Bashir Ahmad (P.W.4). They succeeded in getting hold of him at some distance. In the meanwhile the Raiding Magistrate and the Sub-Circle Officer also reached and recovered 3 tainted currency notes (Exh.P.1), the other two currency notes were not exhibited at the trial, and secured them under memo. Exh. P.O. The Raiding Magistrate then recorded the statements of the witnesses. He also recorded statement of the appellant, Exh. P.G., arrested him and prepared the final report, Exh. P.H. Since there was an allegation that Aziz Abbas, Labour Inspector, had demanded the bribe, therefore, the Raiding Magistrate got hold of him for interrogation, who with permission of the Raiding Magistrate went for urinating and then slipped away. After completing the investigation and obtaining sanction for prosecution of appellant alone sent the challan to Court. The trial was held by Special Judge, Anti-Corruption. Abdul Hameed was charged for having obtained Rs.300 on 28-10-1984 from Muhammad Akbar by misusing his official position and by misrepresenting that the complainant's weights and measures were substandard, and thus committed criminal misconduct. The appellant pleaded not guilty to the charge. In support of its case the prosecution examined 4 witnesses namely, Ch. Abdul Qayyum, Raiding Magistrate (P.W.1), Muhammad Akbar, complainant (P.W.2), Ch. Muhammad Sadiq, S.C.O./A.C.E. (P.W.3) and Bashir Ahmad (P.W.4). Muhammad Akbar, P.W.2, is the complainant who was declared hostile and was cross-examined by the prosecutor. He stated that on 28-10-1984 the Labour Inspector whose name he did not know came to his Chakki (wheat grinding machine) alongwith his peon and demanded bribe from him. He paid the same to the Labour Inspector on the day of raid. After a short while the appellant entered that room and the Labour Inspector gave the bribe money to him who went out but was chased, and caught and the tainted money was recovered from him. The witness clearly stated that the appellant neither demanded bribe from him nor did he strike such bargain with him. He further stated that he had not paid the bribe money to the appellant at all. However, he admitted to have lodged F.I.R. (Exh. P.J.) with the Anti-Corruption Police but denied to have named Abdul Hameed therein as accused. Bashir Ahmad, Razakar (P.W.4) stated that the complainant had paid the bribe amount to Abdul Hameed, appellant. The appellant on seeing the raiding party started running but he was chased and caught by them. Ch. Abdul Qayyum, Raiding Magistrate (P.W.1) and Ch. Muhammad Sadiq, Sub-Circle Officer (P.W.3) stated that they saw the appellant running, who was chased and caught by the witnesses and that they had recovered the tainted currency notes from the hands of the appellant. They however, conceded that they had not overheard any talk, which took place between the appellant and the complainant. They further admitted that they had not seen the complainant passing on the tainted money to the appellant.

3. The appellant when examined under section 342, Cr.P.C. denied the allegations of having demanded or accepted Rs.300 from the complainant as bribe, and further denied to have made statement (Exh. P.G.) to the Raiding Magistrate at the time of raid, but admitted recovery of currency notes from him. He explained that the same was given to by the Aziz Abbas, Inspector, saying that it should be delivered to Kiryana Merchant. But in his statement under section 340(2), Cr.P.C. he stated that the complainant gave him an envelope saying that it be passed on to Labour Inspector but in the meantime the Raiding Magistrate came and recovered from him the amount in question.

4. Learned trial Court on consideration of the material on record observed that although Muhammad Akbar, complainant, has resiled but the prosecution case remains unaffected as the same is supported by two independent witnesses, namely, Ch. Abdul Qayyum, M.I.C. (P.W.1) and Ch. Muhammad Sadiq S.C.O./A.C.E. (P.W.3). However, the testimony of Bashir Ahmad (P.W.4) was ruled out of consideration by the trial Court as a measure of caution since the witness admittedly was a police Razakar who had appeared in 150 police cases. The appellant was ultimately found guilty and sentenced to pay Rs.300 as fine, hence this appeal.

5. I have heard learned counsel for the appellant as well as for the State and also perused the record with their assistance.

6. At the outset I would say that the learned trial Court rightly kept the evidence of Bashir Ahmad, Razakar (P.W.4) out of consideration who on his own showing belongs to the stock of the police. In the evidence of the remaining witnesses there is absolutely no allegation against the appellant that he had demanded or obtained the bribe from the appellant. It is true that in F.I.R. Exh. P.J. the complainant stated that on 25-10-1984 bargain to pay Rs.300 as bribe was struck with Abdul Hameed, peon. But this assertion in F.I.R. is inconsequential, firstly for the reason that on that day complainant (P.W.2) was not present, rather his brother Iqbal was present, but he has not appeared. Secondly the F.I.R. is not substantive piece of evidence. It can be used for corroborating the maker alone. Here the maker has resiled. Therefore, the A statement in the F.I.R. cannot be used against the appellant. According to Muhammad Akbar; complainant (P.W.2) he had delivered the tainted currency notes by way of bribe to Labour inspector, when the appellant was not present E and that the Inspector gave that amount to the appellant who entered the room after some time. The complainant (P.W.2), Raiding Magistrate (P.W.1) and Ch. Muhammad Sadiq (P.W.3) are unanimous that the three tainted currency notes (only one currency note, P.1, was produced at the trial) were recovered from the appellant. This fact is also admitted by the appellant. Thus, the question arises whether the recovery of tainted currency notes from the appellant is enough to raise a presumption against him that he had accepted the same by way of bribe? As mentioned earlier, the Raiding Magistrate (P.W.1) and Ch. Muhammad Sadiq, S.C.O. (P.W.3) neither saw the passing of money to the appellant nor they overheard any talk between him and the complainant. The appellant has given its two explanations; one in his statement under section 342, Cr.P.C. and the other under section 340(2), Cr.P.C. In his former statement he said that the Labour Inspector had given that amount to him saying that it should be given to the Kiryana merchant and in the latter statement he stated that the complainant gave him an envelope for passing it on to the Labour Inspector. The complainant (P.W.2) also says that he gave money to the Labour Inspector who further gave it to the appellant. But at the same time he said that the appellant entered the room later. So it cannot be presumed that the appellant gained possession of the tainted amount knowing it to be the bribe money. The necessary mens rea thus being absent, no presumption of guilt can be raised against the appellant. Consequently I am constrained to hold that the learned trial Court, in these circumstances, was not right in finding the appellant guilty of criminal misconduct under section 5(2) of the Prevention of Corruption Act, 1947. Resultantly I would allow this appeal and acquit the appellant. He is on bail. He is discharged of the bail bonds.

7. Before parting with the judgment I am tempted to observe that there appears to be a deliberate attempt on the part of the Raiding Magistrate and also the Investigating Agency to save Aziz Abbas, Labour Inspector from being prosecuted on charge of corruption. In any case, if the charge was considered to be not fit for a judicial trial it was certainly fit for proceeding against him departmentally. The complainant in the circumstances seems to have gone lukewarm because the main person in the case had been let off. Copy of this judgment be sent to the Head of the Labour Department for proper action. N.H.Q./A-1255/L??????????????????????????????????????????????????????????????????????????????? Appeal accepted.