1985 PLP 75 (MLD)

Khalid Javed Salimi for the State. Date of hearing: 23rd November, 1983. The appellant Abdur Rashid (36) who was employed as Clerk (Reader to Deputy Settlement Commissioner, Faisalabad) in the year 1974, was tried by the learned Special Judge, Anti-Corruption, Sargodha Division, under section 161, P.P.C. and section 5 of the Prevention of Corruption Act, 1947, for demanding and accepting Rs.100 as illegal gratification from Atta Muhammad (P.W.1).

2. The learned trial Judge vide his judgment, dated 12-5-1982 convicted the appellant under section 161, P.P.C. and section 5 of the Prevention of Corruption Act, 1947. He was sentenced to nine months R.I. and a fine of RS.500 or in default two months R.1.

3. Through the present appeal, the appellant has challenged his conviction and sentence.

4. The prosecution case is that P.W.l. Atta Muhammad complained to P.W.4, Khan Muhammad, the then S.I. Anti-Corruption Establishment, Faisalabad, that the appellant demanded illegal gratification from him for issuing P.T.D. to his two co-villagers namely, Munir Ahmad (P.W.2) and Shamoon (P.W.7) and for getting the rebate of 25% sanctioned in their favour. He (Atta Muhammad) informed the S.I. that he had already paid Its.100 to the appellant and sum of Its.100 more was still to be paid to him. The S.I. requested the A.D.C. for deputing a Magistrate to conduct the raid. Mr. Inam-ul-Haq (P.W.8), the then Magistrate First Class, Faisalabad, was deputed to supervise the raid. The said Magistrate recorded the statement of P.W.1 Atta Muhammad, noted the number of currency notes and entrusted the same to P.W.1. A raid was thus organized under the supervision of Mr. Inam-ul-Haq, Magistrate, on 17-4-1974. The raiding party arrived at the office of Deputy Settlement Commissioner, Faisalabad, at about 12-00 noon. The members of the raiding party remained present at the tea shop while the complainant contacted the appellant and brought him out from the Court Room. He passed on the tainted currency notes to the appellant within the sight of the Magistrate and other members of the raiding party. On the usual signal, the Magistrate and the S.I. appeared on the scene. They introduced themselves to the appellant and recovered the tainted currency notes from his possession vide memo. Exh.P.W.4/A which was attested by P.W. 8, Inam-ul-Haq, M.I.C. and P.W.4 Khan Muhammad S.I.

5. The statement of appellant was also recorded by the Magistrate at the time. The appellant contended that the tainted currency notes were forcibly inserted into his pocket by Atta Muhammad and that while he 'and Atta Muhammad proceeded towards the Court Room, the raiding party appeared at the scene and apprehended him.

6. At the trial Atta Muhammad (P.W.1), .Munir Ahmad, his co villagers (P.W.2), Muhammad Eshan Constable, who recorded the F.I.R. 3/A (P.W.3), Khan Muhammad, Inspector (P.W.4), Muhammad Hussain, L.D.C. of the office of Deputy Settlement Commissioner, Faisalabad, (P.W.5), Ghulam Nabi, S.I. (P.W.6), Shamoon another co-villager of Atta Muhammad (P.W.7), Inam-ul-Haq, the then Magistrate First Class, Faisalabad (P.W.8) and Bashir Ahmad, Deputy Settlement Commissioner (P.W.9), testified as prosecution witnesses.

7. Atta Muhammad deposed that the appellant demanded illegal gratification from him and that he passed on the tainted currency notes as illegal gratification to the appellant at the time of raid. Munir Ahmad and Shamoon disclosed that they had requested Atta Muhammad to obtain P.T.D. for them from the office of Deputy Settlement Commissioner and also to obtain rebate on the price of the property in question. They were intimated by Atta Muhammad that the official concerned demanded illegal gratification. Khan Muhammad and Mr. Inamul-Haq, Magistrate testified that in their presence, the appellant received the tainted currency notes as illegal gratification from Atta Muhammad, Muhammad Hussain, L.D.C. stated that the appellant had approached him to take in his possession the file relating to the case of Munir Ahmad and Shamoon and that in spite of his resistance he took away the said file from the bundle and made entries in regard to that file it the Dak Bahi. The file relating to property No. 31 of village Ganda Singhwala was recovered from the almirah of the appellant on 17-4-1974 vide memo. Exh.P.W.4/B in the presence of the Magistrate supervising the raid. Similarly, Dak Bahi containing the entry about the file of property No. 31 Ganda Singhwala was produced by Muhammad Hussain (P.W.5) which was taker, into possession vide memo. Exh.P.W.9/A, by Amir Muhammad Khan S.I. This memo. has also been attested by Ch. Bashir Ahmad (P.W.9), the then Deputy Settlement Commissioner, Faisalabad.

8. The appellant did riot plead guilty to the charge. He claimed that he was falsely involved on account of his enmity with the Head Clerk who was father-in-law of Muhammad Hussain (P.W.4). He examined D.W.1, Muhammad Amin Zia, D.W.2 Muhammad Sarwar, D.W.3 Muhammad Rashid and D.W.4 Manzoor Ahmad in his defence. Muhammad Amin Zia, Muhammad Sarwar and Muhammad Rashid simply stated in general and vague terms that on 17-7-1974 no raid was conducted and no recovery was effected from the appellant. Manzoor Ahmad (D.W.4) produced copy of office order, dated 21-2-1974 according to which, record in respect of Settlement Scheme No. VII was kept by Muhammad Hussain Record -keeper.

9. As a result of considered analysis of the evidence on the record it transpires that prosecution has been successful in bringing home the charge to the appellant. In fact in his statement recorded soon after the raid, he admitted that the tainted currency notes were recovered from his possession. His stand at that time was that these currency notes were forcibly thrusted on him and inserted into his pocket by Atta Muhammad. In his statement under section 342, Cr.P.C. he took a somersault and pleaded that nothing had happened and no recovery was effected from him.

10. It has been urged on behalf of the appellant that currency notes which were allegedly recovered from the appellant at the time of raid, have not been produced at the trial and, therefore, the charge against the appellant stood vitiated. Reliance has been placed on Ghulam Shabbir v. The State 1976 P Cr. L J 1063. In this case the recovered stolen cycle was neither actually produced in Court during Trial nor shown to recovery witnesses. The circumstances of the present case are different because in the case in hand, it has been admitted by the appellant in his statement recorded soon after the raid that the tainted currency notes were duly recovered from his possession and the recovery memo. was prepared. It has also been urged on behalf of the appellant that Investigating Officer in this case has not been produced and, therefore, the appellant has been prejudiced. Reliance has been placed on Muhammad Sharif and another v. The State 1972 P Cr. L J 1259. In the precedent case, Police Officer who recorded the statement of complainant and investigated the case, was not examined at the trial. In the present case, however, a raid was arranged by Khan Muhammad S.1. (P.W.4). It was supervised by Mr. Inam-ul-Haq, Magistrate First Class (P.W.8). Both these P.Ws have testified at the trial. They have been cross-examined at length by appellant. In raid cases, the investigation is almost complete at the .conclusion of the raid. The non-production of the officer who completed the subsequent formalities which are of least importance, has not prejudiced the appellant's case in any manner.

11. In the light of above observations, the conviction of the appellant under section 161 , P. P. C . and section 5 of the Prevention of Corruption Act, 1947 as recorded by the learned trial Court is upheld.

12. As regards the sentence, it may be observed that the appellant stands involved in this case since 17th April, 1974. He has thus suffered the agony of the trial and pendency of his appeal for more than nine years. In this manner, he has undergone sufficient mental torture. His sentence is, therefore, reduced to what he has already undergone while the fine of Rs.500 imposed on him by the learned trial Court is maintained. Hut for the above modification in the sentence, the appeal, is dismissed. S.G.D.