1989 P Cr (PLP)

Ch. Dil Muhammad Tarar for the State. Date of hearing: 24th January, 1989. A case under section 165‑A, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 was registered against Muhammad Ashraf and Ali Muhammad with Police Station Bhakkar, vide F.I.R., dated 26‑2‑1987. The case, came up for trial before the Special Judge, Anti‑Corruption, Sargodha, who vide his judgment, dated 6‑10‑1988, found Muhammad Ashraf guilty for an offence under section 5(2) of Prevention of Corruption Act, 1947, and convicted him to three years' R.I. and a fine of Rs.5,000 or in default further R.I. for nine months. Ali Muhammad was also found guilty and sentenced to one year's R.I. and a fine of Rs.5,000, or in default further R.I. for three months. Both the convicts have appealed against their convictions and sentences by separate appeals. Both the peals will be disposed of by this judgment.

2. The prosecution story in brief is that a civil appeal titled Ali Muhammad v. Dost Muhammad was pending in the Court of Additional District Judge, Bhakkar. Said Ali Muhammad who was appellant in that case, on 8‑2‑1987 made a complaint to the Additional District Judge that Muhammad Ashraf, Naib‑Qasid of the said Court (appellant) had accepted Rs.5,000 as illegal gratification with the understanding that he would get his appeal accepted. On receiving the information, the learned Judge sent for Muhammad Ashraf in the presence of Rana Muhammad Yasin, Advocate, and Malik Haji Fateh Sher, Advocate. In the presence of the witnesses, Muhammad Ashraf accepted having received Rs.5,000 from Ali Muhammad, appellant. The Additional District Judge reported the matter to the District and Sessions Judge, Bhakkar, who ordered vide Exh.P.C. for the registration of the case. Complaint Exh.P.A. was made by Mehar Ahmad Raza, Additional District Judge, Bhakkar, on the basis of which F.I.R. Exh.P.B. was registered on 26‑2‑1987 with Police Station City, Bhakkar. The F.I.R was recorded by Muhammad Saeed, S.I. P.W.3.

3. After the necessary investigation, challan was submitted in Court where the prosecution examined four P.Ws. in all. P.W.1 Rana Muhammad Yasin, Advocate stated that Muhammad Ashraf was attached as Naib‑Qasid to the Court of Additional District Judge, Bhakkar. On 8‑2‑1987 in his presence, Ali Muhammad, appellant, alleged that Muhammad Ashraf appellant had accepted Rs.5,000 as illegal gratification from him. He further stated that in his presence Muhammad Ashraf appellant admitted before the Additional District Judge that he received the amount with the promise that he would get the appeal of Ali Muhammad accepted. P.W.2 Malik Haji Fateh Sher, Advocate, stated that in his presence on 8‑2‑1987, accused Muhammad Ashraf admitted that he received illegal gratification of Rs.5,000 from Ali Muhammad. P.W.3 Muhammad Saeed, S.I. recorded the formal F.I.R. Exh.P.B. on the complaint Exh.P.A. received from Mehar Ahmad Raza, Additional Sessions Judge, Bhakkar. He recorded the statements of the witnesses, arrested the accused and after necessary investigation, submitted the challan. Mehr Ahmad Raza, Additional District and Sessions Judge, Bhakkar, P.W.4 stated that on 8‑2‑1987, an appeal titled Dost Muhammad and others v. Ali Muhammad was pending in his Court. He further stated that Muhammad Ashraf, appellant was posted as Naib‑Qasid of his Court. He received complaint that said Muhammad Ashraf had received Rs.5,000 as illegal gratification on the promise that he would get the appeal accepted. He further stated that when he called Muhammad Ashraf, he accepted having received Rs.5,000 from Ali Muhammad, appellant. Both the appellants were examined under section 342, Cr.P.C. wherein they denied their involvement in the commission of the offence. They also produced some defence witnesses as well as appeared in their defence on oath. D.W.1 Abdul Razzaq had stated that he knew Ali Muhammad. He stated that Ali Muhammad, appellant, told him that the Presiding Officer was demanding illegal gratification of Rs.20,

000. Muhammad Dilshad D.W.2 stated that about a year back, a case of Ali Muhammad appellant was pending in the Court of Additional District Judge, Bhakkar, anti the accused Ali Muhammad told him that the Presiding Officer was demanding Rs.20,000 as illegal gratification. D.W.3 Ali Muhammad stated that his appeal was pending in the Court of Additional District Judge, Bhakkar who demanded illegal gratification from him but he did not pay the same. Muhammad Ashraf, appellant, D.W.4 stated that the Presiding Officer had demanded Rs.5,000 from Ali Muhammad to decide the appeal in his favour. He further stated that he never accepted any illegal gratification from Ali Muhammad appellant.

4. It is contended by learned counsel for the appellants that the case against the appellants is highly doubtful. Submits that there is no evidence with regard to the demand or acceptance of illegal gratification. Submits that Muhammad Ashraf appellant was only a Naib‑Qasid and was not in a position to prevail upon the Presiding Officer in any manner, therefore, there could be no occasion for him to accept the illegal gratification. Submits that the case of Ali Muhammad, appellant, has not been proved at all, because if he had given illegal gratification and at the same time reported the matter to the authority, it can safely be presumed that he did not willingly give the illegal gratification. The contentions have been opposed by learned counsel for the State.

5. I have heard the learned counsel and perused the record. As far as the case of Ali Muhammad is concerned, the evidence is that he gave Rs.5,000 as illegal gratification to Muhammad Ashraf, Naib‑Qasid, and reported the matter to the appellate Court. In such circumstances, I think there is sonic force in the contention of the learned counsel that had he given the illegal gratification willingly, he would not have reported the matter to the Authorities, or at least should have waited for the date of hearing to find out whether his appeal was decided in his favour or not. In such circumstances, I feel lie is entitled to the benefit of doubt. Therefore, his appeal is accepted and he is acquitted. His bail bond shall stand discharged. As far as the case of Muhammad Ashraf, appellant, is concerned, it is certainly on different footings. There is evidence of two Advocate‑witnesses as well as the statement of learned Additional District Judge before whom he admitted having received Rs.5,000 with the promise to show favour to Ali A Muhammad, appellant. The witnesses have been cross‑examined at length but nothing has come on record to indicate that they were not telling the truth. I find no reason to disbelieve the statement of the learned Additional District Judge, wherein he has stated that Muhammad Ashraf, appellant, confessed his guilt before him. As far as D.Ws. are concerned, they are of no use to Muhammad Ashraf at all. D.Ws. have simply stated that Ali Muhammad told them that the Presiding Officer was demanding illegal gratification to decide the case in his favour. D.Ws. do not inspire any confidence nor they are truthful witnesses. Therefore, I rule B out of consideration their statements. Appellant Muhammad Ashraf in his statement under section 340, Cr.P.C. on oath had pleaded innocence. In cross‑examination, he admitted that when he was called by the District Judge, Bhakkar, he apologised. This would mean that he also accepted his guilt before the District Judge as well. For what has been discussed above, I hold that the prosecution has been able to prove its case beyond any doubt against Muhammad Ashraf, appellant. The contention of the learned counsel that Muhammad Ashraf has already suffered a lot because he was removed from service as well as he has been in jail and was not granted bail, requires some consideration. Therefore, while dismissing his appeal, I reduce the sentence of three years to two years R.I. The sentence of fine shall he maintained. He shall also be given the benefit of section 382‑B, Cr.P.C. With these observations the appeal of Muhammad Ashraf is dismissed. M.Y.H./A‑515/L Appeal dismissed.