1983 P Cr (PLP)

By this appeal the appellant Abdul Aziz has called in question the judgment dated 11th March, 1982 whereby the learned Special Judge (Central) convicted him under sections 161, P. P. C. read with 5 (2) of the Act 11 of 1947 and sentenced him to R. I. for six months.

2. The prosecution case as disclosed in the F. I. R. is that in the first week of October, 1979, when Ghulam Ahmed Qureshi Meter Reader went to the house of complainant Saleemuddin to take the meter reading, he declared the meter defective, as the same had ceased operating. The comp lainant thereupon made an application to the S. D. O:, WAPDA of the area for checking of the meter, who endorsed the application on 15th October, 1979 to the Line Superintendent Shah Nawaz for necessary action. On 16th October, 19.79 the Superintendent accompanied by the lineman appellant Abbul Aziz visited the complainant's house and removed the meter for the purpose of checking. The receipt to this effect was issued to the complainant. Both the Line Superintendent and the lineman are stated to have demanded illegal gratification of Rs. 100 for replacement of the defective meter by a new one. They indicated that they would accept the money in their office. On the following day the complainant instead of meeting their demand lodged F. I. R. with the F. I. A. Police.

3. Ali Ahmed F. I. A. Inspector who registered the F. I. R. took steps to arrange a trap. He secured the service of the Special Magistrate Mr. Moula Bux Mangrio and called Mashir Muhammad Ahmed. In their presence he took personal search of the complainant who was thereafter handed two currency notes of Rs. 50 each to be passed on to the official who had demanded the same as illegal gratification. The Inspector pre pared Mashirnama (Exh. 8), mentioning therein the numbers of the tainted currency notes. The complainant and Mashir went in advance to pay the tainted money while the other members of raiding party including the Magistrate and the Inspector who followed them waited at some distance from the office of the S. D. O., WAPDA. However, the complainant and the Mashir returned with information that the accused/appellant was not available in the office. Accordingly the tainted money was taken back from the complainant. Again on the next day, the same process was repeated with the same persons excepting that the Magistrate who super vised the trap operation this time was Mr. Nazir Ahmed Assistant Mukhtiarkar Ubauro. After the tainted currency notes were handed over to the accused/appellant, the Mashir gave signal to the waiting Magistrate and the F. I. A. Inspector. They rushed into the accused/ appellant's office and secured the tained money which was voluntarily produced by the accused/appellant. The Inspector prepared Mashirnama (Exh. 10) and put the accused under arrest. He then examined the com plainant. Mashir Muhammad Ahmad, S. D. O. Arshad Alam, Ali Hasan father of the complainant, Naseeruddin brother of the complainant and Shaffat Hussain. Then he wrote for sanction for prosecution and on receipt thereof he challaned the accused/appellant.

4. The defence set up by the accused/appellant is complete denial of the prosecution allegations. According to him the witnesses have deposed against him at the instance of police.

5. It goes without saying that accused/appellant was holding the assignment of lineman in the office of S. D. O., WAPDA Sukkur at the relevant time. However, the material point to be determined is whether he accepted the illegal gratification in his official capacity. To prove this point the prosecution have placed reliance on the evidence of complainant Salimuddin (Exh. 3), his father Ali Hasan (Exh. 11), Mashir Muhammad Ahmed (Exh: 7), Mr. Nazir Ahmed, Assistant Mukhtiarkar and Magistrate (Exh. 12) and F. I. A. Inspector Ali Ahmed (Exh. 15). The evidence of the complainant Salimuddin shows that as the electric meter installed in his house was not working properly, he made an application to the S. D. O., WAPDA for correcting the defect. The S. D. O. marked his application to the Line Superintendent Shah Nawaz for doing the needful. According to him, the said Superintendent accompanied by the accused /appellant Abdul Aziz who was then working as lineman visited his house. They removed the meter and issued a receipt therefore which he has produced (Exh. 5). It is also in his evidence that the accused told him that he would have to pay illegal gratification of Rs. 100 for bringing the meter in order. As the complainant expressed his concern over the demand of exorbitant amount, the Line Superintendent picked up the meter and threw it on the ground. Then both the accused/appellant and the Line Superintendent went away. However, the complainant held out assurance to them that he would make the payment in their office. It appears from the com plainant's evidence that all this transpired in presence of his father Ali Hasan. He is corroborated by his father Ali Hasan who has stated in his evi dence that on application given by the complainant to the S.D.O., WAPDA, the accused/appellant alongwith Shah Nawaz had come to their house and had removed meter therefrom. He has also testified that for replace ment .of the meter demand for illegal gratification of Rs. 100 was made from them.

6. At this stage I may refer to .the contention raised by learned counsel for the accused /appellant that there is conflict in evidence of the complainant and his father on the demand of illegal gratification. He submitted that in view of the inconsistency prosecution have failed to prove that accused/appellant had demanded illegal gratification. No doubt the complainant has stated that the demand was made by the accused/ appellant Abdul Aziz whereas according to his father the Line Superinten dent Shah Nawaz had demanded the illegal gratification. However, in cross‑examination the complainant has clarified the inconsistency by saying that the illegal gratification was first demanded by Shah Nawaz and the accused/appellant made the demand subsequently. In any case both Shah Nawaz and the accused/appellant were together when the demand was raised. Thus both were party to the demand. This is confirmed from the F. I. R. that both of them had made the demand. Even otherwise unless it was their joint demand, neither of them would have demanded the bribe in presence of the other. Therefore the argument of the learned Counsel in this regard has no force.

7. On acceptance of the tainted money by accused/appellant the prosecution have relied upon the testimony of the complainant Salimuddin and Mashir Muhammad Ahmed. The evidence of the complainant in this regard is as follows: ‑ I and Mashir Muhammad Ahmed ‑again went inside the office of the S. D. O. while the magistrate and the police party waited outside. When 1 went inside the office I found present accused Aziz sitting there while Shah Nawaz was not there. I told the accused that I had brought the money demanded by him and the accused told me to give the amount to him. I then gave the tainted money to the accused and he kept the same in the pocket of the waistcoat which he was wearing under his shirt."

8. The Mashir Muhammad Ahmed has supported this part of the complainant's evidence almost in same words.

9. The learned counsel for the accused /appellant pointed out that their statements are contradictory inasmuch as that according to the complainant the accused put the money in the pocket of his waistcoat he was wearing under his shirt while the Mashir has stated that he kept the tainted money in his shirt pocket. This contradiction is not so material as to be taken to affect the credibility of the witnesses. As rightly pointed out by the learned trial Judge that due to long time having elapsed between the acceptance of the money by the accused/appellant and the recording of their evidence it was but natural that they have forgotten such details. No undue importance can therefore, be attached to the said contradiction.

10. It was next submitted by the learned counsel for the accused appellant that the witnesses are also at variance as to the manner of recovery of the tainted money and consequently their evidence does not inspire confidence for the purpose of conviction. It would appear that the Magistrate Mr. Nazir Ahmed (Exh. 12) and F. I. A. Inspector (Exh. 15) have stated that on receiving signal from the Mashir, they went inside the office where accused/appellant was sitting and on disclosing their identity to him, he voluntarily took out the tainted money from his shirt pocket and produced the same before them. However, the evidence of the complainant in this respect is that on seeing the Magistrate and the Inspector coming towards him, the accused/appellant after taking out the money from the pocket of his waistcoat tried to throw it on the ground but his efforts in this connection were frustrated by timely intervention of the Magistrate who successfully stopped him from doing so and thus the money was secured from his hand. But the Mashir Muhammad Ahmed does not speak of the accused/appellant's endeavour to throw the money down on the ground. According to him after the Magistrate and the Inspector disclosed their identity to the accused/appellant, they secured the tainted money from his person. Thus despite the slight variations in their state ments, all the witnesses have testified that the money was recovered from the accused/appellant's possession. The learned trial Judge has chosen to ignore the above discrepancies as being minor in nature with no adverse effect on the evidence of the said witness. I fully endorse his line of reasoning in this regard.

11. The accused/appellant has attributed no motive to any of the witnesses falsely implicating him in the Case. All that he has said in his statement is that the witnesses have given evidence against him at the instance of police. The question is why the police should have turned hostile to the poor lineman. According to the learned counsel for the accused; appellant one Sharafat whose name has transpired in the evidence being unfriendly to the WAPDA Staff has inspired the complainant and other witnesses to falsely implicate the accused/appellant. For one thing no such imputation has been made by the accused appellant in his state ment under section 342, Cr. P. C. There is no doubt that Sharafat is a neighbour of the complainant and has even rendered him some assistance in pursuing the case. That by itself is no reason to hold that the whole case was engineered by Sharafat particularly when there is no indication on the record that any enmity or illwill exists between him and the WAPDA Staff. Furthermore it does not appeal to reason that poor line man would be made scapegoat of Sharafat's wrath against WAPDA people. I have therefore, no doubt that it is proved from the evidence given by 8 the witnesses that accused appellant had not only demanded the illegal gratification of Rs. 100 but he also accepted it and further the same was also secured from his possession.

12. The learned counsel for accused appellant further argued that accused appellant having no power to replace the meter, he could not show undue favour to the complainant and therefore mere passing of the tainted money to him would not render him liable for the offence of corruption. In this connection he has referred to two authorities namely Abdul Kuddus Akanda v. The State (1970 P Cr. L J 520) and Muhammad Ishaq v. The State (1978 P Cr. L J 257).

13. In the first case observations made by the learned Single Judge of the Dacca High Court were as under :‑‑ "The mere fact of recovery of tainted money from the possession of the accused does not prove a charge of bribery under section 161, P. P. C. Before it can be said that the money was offered as motive or reward for any of the purposes mentioned in section 161, P.P.C., a connection must be established between the performance of the official act and the demand or payment of money."

14. In the second case, the accused was employed as a Bill Distribu tor having absolutely no connection with office work nor in a position to do some favour to complainant. The conviction and sentence against him were set aside.

15. In the instant case as stated above the accused /appellant was admittedly performing the duties of a lineman both at the time of demand and acceptance of the illegal gratification. It is established from the evidence discussed above that when the complainant Salimuddin made application to the S. D. O., WAPDA bringing it to his notice that the meter of his house had gone wrong and it be set right, his application was endorsed to the Line Superintendent Shah Nawaz obviously for necessary action and thereupon said Shah Nawaz accompanied by the accused appellant Abdul Aziz visited the complainant's house and removed the meter for checking etc. This shows that it was a part of their duty t to attend to the defects in the electric meters and take necessary steps to have them set in order. There is nothing to show that the complainant had asked for replacement of his meter by new one. Therefore, it is not relevant to argue that the accused/appellant had no power to sanction installation of new meter. Assuming for the sake of argument that the replacement of the meter was unavoidable, there is no doubt the new meter was to be sanctioned on recommendation of the concerned lineman namely accused/appellant, duly endorsed by the Line Superintendent. Thus the accused/appellant had say in the matter. His recommendations made in favour of the change in the matter may or may not be endorsed or finally accepted by officers above him, but if he had made the recommenda tions or was in a position to do so he would still be held to have shown favour as a public servant. Therefore, I am convinced that the accused/ appellant was in a position to show favour as a public servant for accept ing illegal gratification. Accordingly the above authorities are of no avail to him.

16. The learned trial Judge has rightly relied upon authority reported as Akhtar Hassan Khan v. The State (1974 S C M R 457) wherein the view taken was that though accused was not capable of demolishing structure in question yet' he was an official of Municipal Corporation charged with duty of like authority, and acceptance of illegal gratification by such official on assuring complainant of his capability was sufficient to constitute offence and vesting of real power in accused to render such service was not necessary.

17. For above reasons I have come to the conclusion that the accused/appellant has been rightly convicted. However if the accused/ appellant had succeeded in pocketing the illegal money, his share would not have exceeded Rs.

50. Thus for a gain of such a paltry sum, he would have to suffer in two ways. On one hand he would lose his job and on the other hand suffer sentence of imprisonment. Keeping this in view I would reduce the sentence to imprisonment till rising of the court. Subject to the modification in the sentence the appeal is dismissed. Appeal dismissed.