1991 P Cr (PLP)

C.M. Latif for the State. Date of hearing: 7th April, 1991. Abid Rasul son of Syed Ale Rasul was tried by Special Judge, Anti- Corruption, Gujranwala, for an offence under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947. Learned trial Court vide its judgment dated 1-4-1986 convicted and sentenced him to three months' R.I. with a fine of Rs.1,000 and in default of payment of fine, further R.I. for one month. The convict appealed, the same shall be disposed of by this judgment.

2. The prosecution story, in brief as disclosed in F.I.R. Exh.P.A. lodged by Mazhar Qayyum, was to the effect that he was a dispenser at Qadirabad Colony. One Mst. Sughran Bibi also used to work there as a Dai. Some money as incharge allowance was due to him. Mst. Sughran Bibi was also required to submit pro forma of pay. Appellant Abid Rasul was Accountant and one Mehmood Ahmad was Clerk. They demanded Rs.100 as illegal gratification for doing the job. Since the first informant did not wish to pay the amount, therefore, he informed the A.C.E. F.I.R. Exh.P.A. was recorded by Zulfiqar Ali, C.O./A.C.E. P.W.2 on 15-10-1983. After registration of the case, Zulfiqar Ali, Inspector wrote an application requesting that some Magistrate be deputed to supervise the raid. Mr. Jamil Ahmad, Magistrate, was duly deputed vide endorsement Exh. P.E. Learned Magistrate recorded the statement of complainant Mazhar Qayyum, Exh. P.B. and thereafter constituted a raid and then went to the office of the appellant. The Magistrate and the complainant went inside the room where tainted currency note of Rs.100 was paid within his presence and hearing. The appellant was arrested at the spot and the Magistrate recorded his statement Exh. P.F. wherein he refused to give any statement.

3. The prosecution in support of its case produced three witnesses in all. P.W.1 Jamil Ahmad, Resident Magistrate gave a detailed account of the occurrence. He further stated that he accompanied the complainant to the room where Abid Rasul appellant was sitting. Within his hearing and view the complainant paid him Rs.100, which he, accordingly, accepted. Mehr Zulfiqar Ali, Inspector, A.C.E. P.W.2 stated that he was waiting in the adjoining room. On the signal received from the Magistrate, he came into the room and recovered tainted currency note Exh. P.1 at the instance of the appellant, which was secured vide memo. Exh. P.D. P.W.3 Mazhar Qayyum, Dispenser supported the version given by him in the F.I.R. Exh. PA. He also corroborated the statement of the Magistrate by deposing that he was accompanied by the Magistrate. At the conclusion of the prosecution evidence, the appellant appeared without oath, wherein he refuted the prosecution evidence and pleaded innocence. He further stated that he had loaned Rs.100 to the complainant, which he returned on the said date. The appellant had also produced six D.Ws. Muhammad Aslam, D.W.1 stated that on the day of raid at 9 a.m., the complainant had come to the office of the appellant and demanded Rs.100 as loan, which was duly given to him. The same day in the evening the complainant came and threw the note in the tray on the pretext of returning the money, which had been borrowed by him. In the meanwhile, the Magistrate apprehended him. Muhammad Sarfraz, D.W.2 corroborated the statement of D.W.1. Mst. Sughran Bibi, D.W.3 deposed that she had never requested the complainant to bring any document on her behalf or concerning her. Arshad Munir, Store-keeper, D.W.4, D.H.O. Office, Gujranwala stated that according to his despatch register, on 12-10-1983 pay fixation pro forma of Mst. Sughran Bibi and of the Dispenser were sent to the XEN. The appellant appeared in his defence on oath as D.W.5. Mehmood Ahmad, D.W.6 also corroborated the testimony of D.Ws.1 and 2.

4. It was contended by learned counsel for the appellant that the defence if kept at juxtaposition with the prosecution evidence, it becomes more reliable and could safely be relied upon. Argued that there was no occasion for the appellant to have received illegal gratification of Rs.100 from the complainant. Argues that not much reliance could be placed on the statement of the Magistrate because he had only seen the money being handed over to the appellant, whereas the appellant also accepted the same but gave a different version. The contentions were opposed by learned counsel for the State. 5 I have heard the learned counsel and gone through the evidence. The most material evidence in the instant case is the statement of Mr. Jamil Ahmad, M.I.C. He had accompanied the complainant inside the room of the appellant. Money was paid to the appellant within the hearing and view of the Magistrate. He had witnessed the appellant receiving the money and putting it in his tray. The Magistrate was cross-examined at length but he was not suggested any motive or ill-will for the false involvement of the appellant. It was not suggested to him that at no stage he wanted to record the statement of the appellant who refused to make any statement. I have noticed that the statement of the Magistrate rinds full corroboration from the statement of Mazhar Qayyum. No ill-will or motive is also ascribed to him for the false involvement of the appellant. He was also cross- examined at length but nothing could be brought on the record to indicate any motive on the part of Mazhar Qayyum for the false involvement of the appellant. The appellant when apprehended at the spot, refused to make any statement before the learned Magistrate. Had the defence version, as given at the trial stage, been true, it would have been natural and obvious on the part of the appellant to have come out with it before the Magistrate. His refusal to make any statement' before the Magistrate leaves no room for doubt that the defence version is an-after thought whit can safely be ruled out of consideration. For what has been discussed above, 1 dismiss the appeal and uphold the conviction. However, learned, counsel, for the appellant contended that the occurrence had taken place in the year 1983, therefore, he may not be sent behind the bars to serve the remaining period of his sentence has some force In these circumstances, while dismissing the appeal, 1 reduce the sentence of imprisonment of three months to the period already, suffered' by him: The sentence of fine is however maintained: The-appeal-is dismissed in these terms. N.H.Q/A-1257/L Sentence reduced.