1993 P Cr (PLP)

Shahnawaz Khan for the State. Date of hearing: 13th October, 1992. Maqbool Ahmad has preferred the present appeal against his conviction under section 161, P.P.C. read with section 5, Prevention of Corruption Act (II of 1947), having been sentenced to two years' R.I. and a fine of Rs.2,000, and in default of payment of fine to R.I. for further six months vide judgment, dated 29‑10‑1983, passed by Mr. Zaheer Ahmad Khan Yousafi, Special Judge (Central), Rawalpindi. The case had been registered against him at Police Station F.I.A., Faisalabad, on 13‑1‑1980, vide F.I.R. No.14.

2. One Muhammad Shafi, resident of Chak No.736/G.B., Tehsil and District Toba Tek Singh, had applied for an electricity connection for his tube -well, in January, 1979. It was sanctioned. Necessary electricity material had to be supplied from a WAPDA store. Maqbool Ahmad, who was Line Superintendent, made a demand for an amount of Rs.10,000 for the purpose. He then curtailed it to Rs.2,

000. Muhammad Shafi's son Ghulam Sarwar paid to Maqbool Ahmad Rs.1,000 with a promise that he would make payment of the remainder afterwards. He went to Faisalabad and lodged a complaint with the F.I.A. there. Muhammad Waris, Inspector F.I.A., after observing the requisite formalities, approached Ch. Talib Hussain, Resident Magistrate, Kamalia, a town near Toba Tek Singh; and on 13‑1‑1980 a raiding party was constituted, the Magistrate and the Inspector aforesaid, besides H.C. Ghulam Rasool and F.Cs. Muhammad Aslam and Muhammad Siddique Akbar, being its members. Ghulam Sarwar complainant, of course, was also coopted, alongwith another private person, Muhammad Riaz. The Magistrate recorded his statement Exh.PA. He tendered 10 currency notes of value of Rs.100 each. Exhs.P.1 to P.10. Serial numbers of the same were noted down and the currency notes were marked and returned to the complainant by the Magistrate. The party raided the WAPDA office at about 2 p.m. Complainant, alongwith Muhammad Riaz and Ghulam Rasool, Head Constable, entered the interior of the office, and the other members of the party kept standing outside. After a short while, the complainant and the accused came out of the office; and, within the view of the remaining members of the raiding party, the complainant passed on the tainted money to the accused, who put nine currency notes into a pocket of his coat and returned one to the complainant, on whose signal the raiding party, headed by the Magistrate, rushed to the spot and the Magistrate on disclosing his identity asked the Inspector to search the person of the accused and took out from his pocket nine currency notes, Exhs.PA to P.9, which were secured through memo.1 Exh.P.B. The complainant also presented another currency note of the donomination of, Rs.100, Exh.P.10 that was seized vide memo. Exh.P.C. Supplementary statements of the complainant and Muhammad Riaz P.W. were recorded, the same being Exh.PA/2 and Exh.P.B./2. The accused refused to give a statement, although he was asked by the Magistrate to make one The accused was arrested at the spot. Magistrate recorded his report Exh.P.E. an the basis whereof F.I.R. P.E./1 was drawn up. Investigation was undertaken by Muhammad Waris Khan, Inspector, who on conclusion of the exercise challaned the accused.

3. On trial the learned Special Judge found the accused to be guilty of the offence he was made to face and passed an order of conviction against him. Learned counsel for the convict has questioned the soundness of the verdict of the learned trial Court, by making a number of submissions, the main being that the basis of the conviction is the solitary statement of Ghulam Sarwar complainant, who had a grudge against WAPDA officials, for not making available to him the requisite material promptly, and thus delaying the installation and operation of the tube‑well. Independent corroboration of the complainant's version must have been insisted upon by the trial Court, even though the accused did not deny having received from the complainant an amount of one thousand rupees, it is urged, adding that the amount had not been accepted as illegal gratification, as Rs.100 had been returned, furnishing an indication of the fact that the money had been passed by the complainant to the accused for some other purpose and not necessarily by way of bribery. Ghulam Rasool, H.C., who was with the complainant, at the crucial moment, inside the office, has been given up and the only private person Muhammad Riaz, examined as P.W.2, has not supported the complainant and has bean declared hostile by the prosecution. It is also submitted that at the relevant time the Magistrate and the Police Inspector were at a sufficient distance, about 1‑1/2 acres, and they could not overhear the conversation between the complainant and the accused; and they do not claim to have heard what the complainant had said and what the accused had spoken in response, when the money was being passed.

4. I have carefully gone through the judgment of the trial Court and the evidence on record. It is true that Muhammad Riaz P.W.2 had lent no support to the prosecution case, but it is not uncommon that a witness may opt to turn hostile, on being approached by the accused, but‑that incidence alone will not serve to show that the prosecution case is false. The learned trial Judge has rightly observed that no plausible explanation has been furnished by the witness (on confrontation) for his statement under section 161, Cr.P.C. Exh.P.B./2, being in support of the version of the complainant. He is a literate person and he admits his signatures on Exh.P.B./2. Other members of the party, including Ghulam Rasool above‑mentioned, were police officials and they were supposed to have seconded the police version, if examined, and were given up as being unnecessary. It is only an omission of no considerable consequence that while making his statement on 21‑2‑1982 the learned prosecuting Inspector did not mention his name and made mention of the other two, namely Muhammad Siddique Akbar and Muhammad Aslam, Constables.

5. Ghulam Sarwar, who has made his statement as P.W.1, did not appear to have any previous enmity with the appellant, although Noor Muhammad, a witness examined in defence by Maqbool Ahmad accused, has ventured to hint at some cause of bitterness between the two. According to him, Maqbool Ahmad accused had purchased from Ghulam Sarwar complainant a buffalo for Rs.5,

000. The buffalo being of no good breed, the accused returned the same and made a demand for refund of the price, he had paid to Ghulam Sarwar, who paid back Rs.4,000, but deferred payment of the remaining price (Rs.1,000). It may pertinently be pointed out here that Maqbool Ahmad accused, while making his, statement under section 342, Cr.P.C., had himself made no such insinuation. His version was that he had handed over to Ghulam Sarwar Rs.900 only for purchasing a buffalo, and as Ghulam Sarwar made payment of Rs.1,000, he (the accused) returned Rs.100, while retaining Rs.900. It is to be noted that price of a buffalo in 1982 even could not be that small an amount (Rs.1,000) and, may be, Maqbool Ahmad had returned Rs.100 to the complainant, by way of magnanimity. The accused and the only D.W. had made largely discrepant statements on that score and thus the plea taken up by the accused with regard to payment having been made as price of a buffalo is not only an afterthought, but is also absolutely incredible and the learned trial Judge has correctly arrived at that conclusion. It may be emphasised that the accused had admitted having received the tainted money alright and the onus to establish that he had not received it as illegal gratification lay very heavily upon him; and he had miserably failed to discharge it. He had not taken up that plea before the Magistrate, immediately at the time of the raid, when) he had refused to make any statement at all.

6. Why should the Magistrate and the Police Inspector, who had supervised the raid, be disbelieved? They were not supposed to have had any ill‑will against the accused, or to have been interested in entrapping him, without his being at fault. The learned trial Court has rightly treated them as independent, disinterested and reliable witnesses and was justified to place conclusive reliance on their testimony, supporting that of the complainant, in all material particulars.

7. Noor Muhammad D.W. was neither present at the time of the raid, nor had he appeared before the Investigating Agency, to depose about innocence of the accused, and seems to be friendly with the accused. His testimony is without any worth and is of no avail to the appellant accused. The prosecution evidence, on the contrary, barring the hostile witness, Muhammad Riaz P.W.2, is absolutely consistent, cogent and convincing, as also confidence inspiring. The trial Court had found it difficult to brush it aside; and the learned counsel for the appellant has not at all been able to convince this Court as to how order of conviction could be called as not well‑reasoned and how could the prosecution evidence be treated as infirm and worthy of no reliance. Finding no force in appeal, the same is hereby dismissed. The conviction is sustained, but the appellant shall be entitled to the benefit under section 382‑B, Cr.P.C. The brief period of detention he had suffered at the pre trial stage shall be deducted from the term of sentence he has to undergo on conviction. Shortly after his conviction recorded on 20‑10‑1983 he had been admitted to bail by this Court vide order dated 4‑12‑1983. Thus, he had been in jail for hardly six weeks, following his conviction, and this period too shall be adjusted. He shall be committed to prison, so that he serves the sentence, the main sentence having been ordered by the trial Court to run concurrently with the `subsidiary' sentence, he will have to undergo by reason of default in payment of fine Rs.2,

000. The tainted money, as the same belonged to the complainant, shall be restored to him. N.H.Q./M‑1132/L Appeal dismissed.