1989 PLP 4136 (MLD)

Appellant Abdul Razaq, a Traffic Police Constable was tried for the offence under section 161 P.P.C., read with section 5 (2) of the Prevention of Corruption Act, 1947, by Special Judge Anti-Corruption (Provincial) Karachi, who found him guilty for the said offence and sentenced him to suffer R.I. for two months and to pay a fine of Rs. 1,000 or in default to suffer R.I. for one month vide judgment dated 15-12-1988. The appellant has challenged his conviction and sentence by filing this appeal.

2. On 19-11-1984, Fatahuddin Inspector Anti-Corruption Establishment, Karachi received secret information that traffic police officials of District East were harassing the truck drivers with a view to extract illegal gratification from them. On the basis of this information a raid was arranged on 20-11-1984. The services of one Sakhi-ur-Rehman, a driver by profession were obtained who was handed over a sum of Rs. 200 in currency notes of Rs. 50 denomination in presence of Mr. Muhammad Usman Shahani, Magistrate. The raiding party was divided in two groups. Shaki-ur-Rehman occupied the driver's seat, while Mr. Muhammad Usman Shahani, Magistrate and Mashir Ghulam Hasan occupied the front seats by the side of the driver. The remaining members of the raiding party and Mashir Muhammad Ayub took position in the cabin of cleaner of the same truck. Fatahuddin followed the truck in the official van. The party started from the office of Serhad Goods Transport Company at about 5-30 p.m. and proceeded towards Landhi via Sher Shah, Nazimabad, Lasbella, Sabzi Mandi, Drigh Road and Malir. At about 8-30 p.m. the truck reached at Landhi Chorangi, when it was stopped by a traffic police constable who occupied the front seat by the side of the driver. He checked the documents of the driver, which were in order. The constable who is the present appellant then demanded illegal gratification from the driver and forced him to pay a sum of Rs.

50. The driver passed on the tainted money to him. The entire transaction took place in presence of Mr. Muhammad Usman Shahani Magistrate and Ghulam Hassan Mashir. The appellant then got down from the truck and was apprehended by the raiding party immediately thereafter. He was still holding the tainted money which was secured from his possession and such memo. was prepared on the spot. On return to the office of Anti-Corruption Establishment, Fatahuddin Inspector lodged F.I.R. on behalf of the State. After obtaining requisite sanction, the appellant was sent up to stand trial for the said offence.

3. The appellant pleaded not guilty and claimed a trial.

4. The prosecution has examined Fatahuddin Inspector (P.W.-1), Mr. Muhammad Usman A.C.M. (P.W-2), and Ghulam Hasan Mashir (P.W.-3). Sakhi-ur-Rehman has reportedly died. He was, therefore, given up.

5. The appellant met the charge with a bare denial. He did not adduce any evidence in defence. He also did not step into the witness-box.

6. On the assessment of evidence available on record, the learned Special Judge found the appellant guilty for the offence with which he was charged, and convicted him accordingly.

7. I have heard Mr. Umer Farooque Khan, learned counsel for the appellant and Mr. Aziz-ur-Rehman, learned counsel for the State. I have also examined the record of the case carefully.

8. Fatahuddin Inspector A.C.E. (P.W.-1) has testified the same facts which I have reproduced in the narrative part of this judgment. He has been supported fully by Mr. Muhammad Usman A.C.M. (P.W.-2) and Ghulam Hasan Mashir (P.W.-3). The entire transaction took place within the sight and hearing of these two witnesses who had no reason to depose falsely. The evidence of all the three witnesses examined by the prosecution is consistent and the learned counsel for the appellant was not able to pick holes in their testimony. In fact the evidence of Mr. Muhammad Usman A.C.M. (P.W.-2) has gone unchallenged. Where the facts deposed to in the examination-in-chief are not questioned in cross examination, the presumption will be that such evidence is deemed to have been accepted by the party against whom it was given. The case of Qasim and others v. the State, reported in P L D 1967 Kar. 233, is relevant in this regard.

9. Section 4 of the Prevention of Corruption Act, 1947, raises as presumption of quilt where a public servant accepts gratification other than legal remuneration. This presumption was not rebutted by the appellant who simply denied to have received Rs. 50 from Sakhi-ur-Rehman, which was in fact the H tainted money. The evidence of Mr. Muhammad Usman A.C.M. (P.W.2) clearly establishes the guilt of the appellant who had insisted for bribe (Kharchi), in spite of intervention of the Magistrate. The conviction recorded against the appellant is, therefore, not open to any exception.

10. The appellant is facing the prosecution for the last five years. The amount of illegal gratification is nominal one. The services of the appellant are likely to be dispensed with. Taking all these factors into consideration, the substantive sentence is reduced to that already spent by the appellant as under trial prisoner. The sentence of fine is, however, maintained. The appellant is allowed one month's time to deposit the amount of fine before the trial Court, failing which he shall suffer imprisonment in lieu of fine.

11. With this modification in sentence, the appeal is otherwise dismissed. M.Y.H./A-598/K Appeal dismissed.