197 3 (PLP)

(c) Prevention of Corruption Act (II of 1947), Ss. 5 (2) & 4 Bribe, acceptance of-Presumption-Complainant shown to have parsed on tainted currency notes to accused-Presumption of guilt arises under S. 4-Onus shifts on accused to prove otherwise- Accused satisfactorily discharging onus by giving plausible explanation supported by two defence witnesses whose presence near spot at time of passing of money admitted even by prosecution witnesses-Accused also found to have spontaneously given same explanation to raiding Magistrate immediately after recovery-Charge against accused, held, not established beyond reasonable doubt-Accused acquitted. Ch. A. Waheed Saleem for Appellant. Faiyaz Hussain Shah for A.-G. for the State. Date of hearing: 19th February 1973. Allah Diwaya son of Mahmood Dakhsh, a Canal Patwari posted at Ahmedpur Lamina, District Rahimyar Khan, was tried by Special Judge, Anti-Corruption, Multan of an offence under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act. He was found guilty of the said offences on two counts and was sentenced to four months' R. I. and a fine of Rs. 150. (In default of payment of fine he was ordered to undergo another two months' R. I. one on each count), by the learned trial Judge by his order dated 6-5-1972. He has filed the present appeal against his conviction and sentences.

2. The facts of the case briefly stated are that Abdul Sattar complainant P.W. 2 had taken 40 acres of land on lease from one Kanwar Sher Ali Khan and was responsible for paying abiana for the same. The abiana was demanded from him vide Parcha Kasht P. 4 which was signed by the appellant. Abdul Sattar complainant noticed that 20 to 22 killas belonging to some other person were included in the aforementioned Parcha Kasht. As a result of which he was required to pay more abiana than was due from him. He therefore, contacted the appellant in the company of Ashiq Ali P.W. 4 and requested for the correction of the Parcha Kasht P.

4. The appellant demanded Rs. 100 as bribe for doing this work for him. But ultimately agreed to receive Rs. 60 only. Abdul Sattar complainant gave him Rs. 30, there and then in the presence of Ashiq Ali P. W. 4, and promised to pay a balance of Rs 30 on the next day. Afterwards however, the complainant straightaway contacted Ch. Muhammad Shafi, Circle Officer (Anti-Corruption Establishment), Rahimyar Khan and reported the matter to him on the same day. The latter recorded his statement Exh. P. H. The Circle Officer then told him to see him at Ahmadpur Lamma on the following day (i.e. 27-11-1969) in the Eidgah. In the meanwhile the Circle Officer arranged for a raid to be conducted by Mr. Masood Ahmad, M. I. C., Rahimyar Khan and on the next day he (the Circle Officer) and the Magistrate, accompanied by a Foot Constable, went to Ahmadpur Lamma. Abdul Sattar complainant (P. W. 2) and his brother Abdul Jabbar P. W. 3, met them there. The Magistrate recorded the complainant's statement Exh. P. B. The complainant signed it and thereafter produced three currency notes (Exh. P. 1-3) of Rs. 10 each and the 'Parcha Kasht' P. 4 before the Magistrate. The latter noted down the serial numbers of the notes and having searched the person of the complainant, returned the currency notes and 'Parcha Kasht" to him vide memo. Exh. P. C. Abdul Sattar and Abdul Jabbar P. Ws. thereafter left in order to pass on the money to the appellant. They contacted him in the verandah of the office of the Ziledar. Abdul Sattar P. W. gave him the three tainted currency notes and the 'Parcha Kasht', which the appellant put in his pocket. Abdul Jabbar P. W. thereupon gave the appointed signal on which the Magistrate, accompanied by the Circle Officer and the Foot Constable, arrived on the spot, disclosed his identity and asked the appellant to hand over the money to him. The accused denied having received any bribe. The Magistrate searched his person and recovered the tainted currency notes alongwith the Parcha Kasht, which were taken into possession ride memo. Exh. P. D. Thereafter the Magistrate recorded the statement of the accused Patwari (i.e. the appellant), which is Exh. P. E. and also prepared the raid report Exh. P. F. He then handed over the papers to the Circle Officer. The latter conducted the investigation and challaned the appellant, the result whereof has already been mentioned above.

3. In support of its case the prosecution produced five witnesses. Mr. Masood Ahmed Shah P. W. 1, is the Magistrate who conducted the raid. Abdul Sattar P. W. 2, is the complainant who lodged the report and passed on the money. Abdul Jabbar P. W. 3., is the complainant's brother who was present at the time of the passing of the money. P. W. 4 is Ashiq Ali who was supposed to have been present at the time of the passing of the first instalment of Rs. 30, but did not support the prosecution case. Ch. Muhammad Shafi P. W. 5, is the Circle officer who investigated the case. The accused when examined at the trial admitted that he was given Rs. 30 by Abdul Sattar complainant which were then recovered from him by the Magistrate but he stated that he had not received the money as bribe He explained that in fact the complainant had taken the money as loan from him some days earlier and had merely returned the same on the day of occurrence. He however, denied either having prepared or signed Parcha Kasht P. 4 and also denied that the same had been given to him by the complainant along with the money and had been recovered from him by the Magistrate. He stated that he had been implicated due to enmity with the complainant and explained the enmity by saying that the complainant used to utilize the canal water for irrigating his land in excess of his entitlements. The other Zamindars of the village got a warabandi sanctioned from the relevant authorities but the complainant came to believe that the appellant, who is a canal Patwari, was infect responsible for the loss sustained by him on account of warabardi. It would be recalled that immediately after the recovery of the tainted money, Mr. Masood Ahmad, M. I. C. had asked him to explain the same and recorded the explanation given by the latter, which is Exh. P. E. It is significant that even at that time the appellant had given the same explanation. He produced two witnesses in support of his defence, who are Din Muhammad D. W. 1 and Muhammad Ramzan D, W, 2.

4. I have heard the learned counsel for the appellant and the learned State counsel. I have also gone through the entire record. Abdul Sattar P. W. 2 has stated that he had given the first instalment of Rs. 30:00 to the appellant in the presence of Ashiq Ali P. W.

4. But the latter has not supported the prosecu tion case, nor was that money recovered from the appellant. That part of the charge cannot therefore be said to have been proved. Nor has Ashiq Ali supported the complainant with respect to the allegation of demand of money by the appellant. What remains therefore to be considered is whether the allegation of receipt of bribe of Rs. 30.00 recovered from the appellant, has been proved against him. All the prosecution witnesses relating to this part of the story have supported the prosecution version. But in view of the fact that the appellant has admitted the receipt of the three tainted currency notes as well as their recovery from him by the Magistrate during the raid, renders most of the evidence redundant. Abdul Sattar P. W. 2 and Abdul Jabbar P. W. 3, had stated that the three currency note were given to the appellant. Both of them as well as the Magis trate and the Circle Officer stated that the money was recovered from the appellant shortly afterwards. But the appellant also admits all these facts. He has however given an explanation for the same. The sole, question left to be determined in as to whether his explanation is plausible, i.e,, whether the money was received by him in good faith as the repayment of a loan or was passed on to him as bribe, as alleged by Abdul Sattar complainant. Neither the Magistrate nor the Circle Officer are in a position to say anything about this, as they were not present at the time of the alleged demand of bribe, nor were they present near, or even within the bearing range, of the appellant at the time of the passing of the tainted money. Abdul Jabbar, P. W. 3 is the only person who is said to have been present at the time of passing of the tainted money. He has simply stated that Abdul 5attar P. W. 2 delivered the tainted currency notes to Allah Diwaya appellant who placed the same in his shirt. He does not mention then utterance of any words either by Abdul Sattar P. W. 2 or by the appellant which could go to show that the money was being passed as bribe. I am therefore, left only with the statement of Abdul Sattar P.W. 2 (the complainant who has deposed both with regard to the demand for the bribe and the payment of the three tainted currency notes as illegal gratification of the appellant. There is thus the solitary statement of the complainant as against the statement of the appellant, it has been held time and again that mere recovery of the tainted money from the accused's possession is not enough to fix him with the guilt of having received bribe unless it can be shown to have actually accepted the same with the knowledge that it is illegal gratification and secondly that the agent provocateur passing money to another as bribe is no more than an accomplice in the crime and, as such, his testimony cannot be accepted, machless acted upon; without corroboration from some independent source. The solitary statement of a decoy witness is not enough to condemn a public servant in such cases. Reference in this connection may be made to Mahmood Ahmed v. State (1971 P Cr. L J 723). To that case the learned Judge relied on Ansar Ali Mian v. The, State (P L D 1961 Dacca 806) and Maqbool Hussain v. The State (P L D 1957 Lah. 903.) in which similar views were expressed. In any case even if it be said that a presumption of guilt under section 4 of the Prevention of Corruption Act, 1947, had arisen the moment it has been shown that Abdul Sattar P.-W. 2 has passed on the currency notes to the appellant and the onus had, thereafter, shifted on the latter, I am of the view that the appellant has satisfactorily discharged that onus by giving a plausible explanation which is supported by two defence witnesses whose presence near the spot at the time of the occurrence is admitted by the prosecution themselves. This view is strengthened by the fact that the appellant had given the same explanation spontaneously on being questioned by the Magistrate immediately after the recovery of the money from him. As already mentioned the appellant had denied the recovery of Parcha Kasht P. 4 from him, but even if it be assumed that the same was in fact recovered from him, it is not by itself sufficient to show that the tainted money was given as bribe for the purpose of getting that document rectified for, besides other things, it has not even been shown on the record through any independent evidence, except the words of the complainant himself, that the Parcha Kasht P. 4 contained 20/22 killas belonging to some other persons, in addition to the land taken, on lease by him. As such the recovery of this document does not advance the prosecution case.

5. As a result of the above discussion I feel that the prosecution case against the appellant has not been established beyond reasonable doubt. As such I accept his appeal, set aside the impugned judgment and acquit him. Since, he is already on bail, big bail bonds should be discharged. Appeal accepted.