1982 P Cr (PLP)

S. 5-Witness-Evidence, appreciation of-Statement made by complainant before Raiding Magistrate prior to raid-Not a substantive evidence and cannot be used against accused.-[ Witness] -- S. 161 read with Prevention of Corruption Act (11 of 1947), S. 5 (2)-Bribery

[Trap-case)-Evidence, appreciation of

No evidence that accused ever demanded illegal gratification and even complainant stating that no demand of illegal gratification made by accused and money received by him actually meant to be paid to a third person

Prosecution, held, failed to establish necessary ingredients of offence charged-Conviction and sentence set aside, in circumstances. Ghulam Muhammad v. The State 1980 P Cr. L J 1039 ref. Malik Abdur Rehman for the State. Allah Ditta appellant was convicted under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947 and was sentenced to undergo six months' R. I., vide judgment dated 13th March, 1978 by the Special Judge (Central), Lahore.

2. Learned counsel for the appellant argued that neither the demand of the bribe nor acceptance of the money as bribe was established on record and as such the conviction recorded is illegal.

3. I have gone through the record with the assistance of the learned counsel and I find that there is much substance in the submissions made on behalf of the appellant. Ghulam Nabi complainant appearing as P. W. 1 admitted that the appellant never demanded illegal gratification from him and that it was one Mr. Qazi who demanded the same and that he had gone to pay the money to the said Mr. Qazi. The Magistrate conducting the raid appearing as P. W. 7, on a question from the Court, stated that he has not mentioned in his report that the appellant had demanded illegal gratification from the complainant. From his evidence it is apparent that he had not heard the words exchanged between the appellant and the complainant at the time of passing of the money. In the circumstances there is nothing on record to establish that illegal gratification was demanded and that the tainted money on 20th September, 1975 was received as bribe. The learned Special Judge has convicted the appellant by placing reliance on the statement made by the complainant before raiding Magistrate prior to the raid. This statement is not substantive evidence and as such cannot be relied upon in view of the statement made at the trial. The statement of the complainant made at the time of raid in the circumstances, cannot be used as against the appellant. The initial onus was on the prosecution to prove that the bribe was demanded and the money, in fact, was received as bribe. This onus was not discharged.

4. Learned counsel for the State has relied on Ghulam Muhammad v. The State (1980 P Cr. L J 1039) to contend that section 4(1) of the Prevention of Corruption Act, 1947 embodies a special rule of evidence which is contrary to the well recognised legal principle, that in a criminal case the onus to prove the guilt of the accused is always on the prosecution because the accused is presumed to be innocent. This departure from the well settled legal principle, it was argued, was necessitated by the fact that .in corruption cases it was found extremely difficult for the prosecution to prove that the money or valuable thing accepted or obtained by a public servant was by way of illegal gratification because no explicit reliance could be placed on the uncorroborated scat; meat of the bribe giver irk that behalf as his position was that of an accomplice. It was contended that in order to overcome the above difficulty section 4(1) of the Prevention of Corruption Act, 1947 was enacted. Despite the provisions of section 4(1) there has to be substantive evidence to discharge the initial onus and to establish the fact that bribe was demanded and the money was received as illegal gratification. In the precedent case there was evidence of the complainant at least that the bribe was demanded and that the money paid by him and received by accused was in pursuance to the demand so made. In the instant case, even the complainant stated that no demand of illegal gratification was made by the appellant and that the money received by him was meant to be paid to Mr. Qazi. The precedent case in the, circumstance establish B distinguishable. As in the present case the prosecution failed to establish necessary ingredients of the offence charged, the conviction recorded was illegal. "The appeal is, therefore, accepted, the conviction and sentence awarded to the appellant is set aside. The bail bond furnished shall stand discharged. Appeal allowed.