P L D 1988 Lahore 640 (PLP)

The appellant, Arshad Mirza son of Muhammad Hanif, was tried by the learned Special Judge Anti‑Corruption, Rawalpindi and was convicted under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. He was sentenced to suffer one year's R.I. plus a fine of Rs.2,000 or in default thereof to undergo further six months' R.I.‑ vide his judgment dated 17‑4‑1988. The appellant has challenged his conviction and sentence by filing this appeal.

2. The case of the prosecution in brief is that the complainant Sohail Ahmad PW.2 is fond of hunting. He is the Proprietor of Paradise Hotel, Jhelum. In the month of December, 1985 he ‑went for duck shooting to Head Rasul where the appellant was posted as a Game Watcher. The complainant was intercepted and checked by the appellant and he demanded the production of Game licence. Game Licence was shown to the appellant, however, he was not satisfied. He demanded a sum of Rs.350 as illegal gratification from the complainant which demand was turned down by him and as a consequence thereof the appellant challaned the complainant. This demand of illegal gratification was repeated by the appellant saying that in case of non‑payment of the amount the life of the complainant will be made miserable and that fresh challans shall be prepared against him every month. Under the circumstances, the complainant was compelled to come to terms with the appellant and consequently he invited him to come to his hotel Paradise Jhelum on 8‑4‑1986 for the purpose of receiving the amount of illegal gratification. In the meantime, the complainant moved an application Ex.PW.2/A before the Inspector Anti‑Corruption, Jhelum disclosing as to what has happened with him and asked him to arrange for conducting a raid. The complainant was later on produced before Mr. Muhammad Asam Qureshi, Magistrate, Jhelum. He proceeded to record the statement Ex.PW.1/D which was signed by him. Four currency notes P1 to P3 of the value of Rs.10 ' 0 each and. P4 of the denomination of Rs.50 were placed before the Magistrate who noted their numbers in his report and returned the same to the complainant ‑with the object of their payment to the appellant as illegal gratification. A raiding party was constituted which was headed by the Magistrate Mr. Muhammad Asam Qureshi. Other members of the raiding party were Abdul Ghafoor Inspector Anti‑Corruption PW.3 and Sohail Ahmad complainant PW.2. The raiding party went to the main hall of the hotel whereas the complainant entered into his office situate at the first floor of the building. The appellant was already present in the hall referred to above. The appellant as usual demanded the payment of illegal gratification and the complainant paid the tainted currency notes to him which money was kept by the appellant in his left pocket of the shirt. The appellant after receipt of the money went downstairs of the building when he was stopped by the raiding party and was apprehended. His person was searched and the currency notes mentioned above were recovered from the possession of the appellant which were taken into possession vide memo. Ex.PWl/C. The appellant was asked to make a statement but he declined to do so. The appellant was taken into custody and was handed over to Abdul Ghafoor Inspector Anti‑Corruption PW3 alongwith the bribe money, raid report and other documents for further investigation. The appellant during this statement denied the allegation levelled against him and pleaded that he was innocent. The appellant also made a statement under section 340(2) Cr.P.C. disclosing his version on oath. The learned trial Court placed reliance on the statement of Mr. Muhammad Asam Qureshi, Magistrate Ist Class PW.1, Sohail Ahmad PW2 and Abdul Ghafoor Inspector Anti‑Corruption Establishment PW3 and came to the conclusion as observed earlier that the prosecution case against the appellant is proved.

3. Learned counsel for the appellant forcefully submitted that the prosecution has failed to prove its case beyond doubt against the appellant inasmuch as admittedly the members of the raiding party did not hear the conversation which took place between him and the complainant Sohail Ahmad P.W.2 and further that the raiding party did not see when Rs.350 were paid as illegal gratification by the complainant to the appellant. Learned counsel submitted that in order to prove the payment of illegal gratification, the eye‑witnesses must see the occurrence and should hear the conversation between the parties. Learned counsel urged that this is a case of great doubt and that the appellant has been implicated in the case on account of grudge and enmity which the complainant had for the appellant as he had challaned him for committing the violation of law. The learned State counsel has admitted in Court that the prosecution evidence does not show that passing of bribe money was seen by the witnesses or the conversation between the parties was overheard by them. He made a clear statement that this is a case of no evidence at all.

4. I have heard the learned counsel for the parties and have perused the record. Mr. Muhammad Asam Qureshi Magistrate P.W.1 in his cross‑examination admitted that he did not hear the conversation between the complainant Sohail Ahmad and the appellant nor he had seen the payment of bribe money by the complainant to the appellant. Similarly, Abdul Ghafoor Inspector Anti‑Corruption Establishment P.W.3 adopted the same position by saying that he is not the eye‑witness of the payment of bribe money nor he could hear the conversation of the parties about the payment of illegal gratification. Thus, the evidence deposed by Mr. Muhammad Asam Qureshi Magistrate P.W.1 and Abdul Ghafoor Inspector P.W.3 is of no avail whatsoever so far the prosecution case against the appellant is concerned. The same is, therefore, discarded. The statement of Sohail Ahmad P.W.2 also does not inspire confidence. It is in the evidence that he was challaned by the appellant and as such ‑it was natural that he had a grudge against him. It is, therefore, necessary that the evidence of the complainant should be subjected to deep scrutiny and it requires further corroboration before the same is believed. The prosecution has failed to produce evidence in corroboration to the evidence deposed by the witness.. This is vividly admitted by the complainant in his cross‑examination that he has employed one Abdul Ghaffar as his assistant in his hotel. He further admitted that his assistant was present and was sitting in the room ‑when the bribe money was paid to the appellant by him. Thus, under the circumstances, Abdul Ghaffar, Assistant of the complainant, was perhaps the most natural and reliable witness in the case. However, for unknown reasons the said person has not been produced as a witness in the case by the complainant. Abdul Ghaffar was an employee of the complainant and., therefore, he could very easily produce him in support of his allegation against the appellant. The presumption in law for the non‑ production of Abdul Ghaffar is that the story as relied upon by the complainant is not true. Further, it is clear from the statement of the witness that his office ‑was open to all and that everybody could come to visit him. He stated that the members of the raiding party were present in the hotel at a distance of only 10 feet away from his office. I fail to understand as to why the raiding party ‑did not enter into the office of the complainant and did not apprehend the appellant right in the office and why he was allowed to leave the office and was apprehended when he had already come down from the upper portion of the hotel. Therefore, it is not clear from the evidence of the prosecution as to what was the purpose for which the amount of Rs.350 was paid by the complainant to the appellant. The mere fact that the tainted currency notes were recovered from the possession of the appellant when he was out of the office of the complainant will not necessarily prove the offence of illegal gratification under law. It is now well‑settled that the witnesses must see when the payment of the illegal gratification is made by the bribe giver to the bribe receiver and further that the witnesses must also overhear the conversation between the parties. The facts and circumstances of the case do persuade me to believe that the possibility cannot be ruled out that the appellant was entrapped by the complainant by summoning him in the premises of his hotel and by paying him the tainted money. It is just possible that the complainant might be conveying impression to the appellant that he has paid the money to him as tips so that the complainant might be looked after by the appellant properly and that he should be treated as an important person when out for hunting. Under this impression the appellant might have taken the money from the complainant. The fact that the complainant was challaned by the appellant has been conceded by him. This shows the illwill and grudge which existed in the mind of the complainant against the appellant. This is also in the evidence that the complainant being a business‑magnet of Jhelum is a very rich man. The case of the appellant is that money was not recovered from his possession but instead the same was picked up by the raiding party from the table lying in the office of the complainant. I am not at all convinced with the evidence of the prosecution. I am fortified by the decisions of High Court given in cases: Abdul Khaliq v. The State 1985 P Cr. LJ 86; Muhammad Mukhtar v. The State 1985 P Cr. L J 87; Muhammad Yousaf v. The State 1985 P Cr. L J 1439; Bashir Ahmad etc. v. The State 1985 P Cr. L J 2397; Muhammad Saleem v. The State 1986 P Cr. L J 1615; Jangher v. The State 1986 P Cr. L J 473 and Din Muhammad v. The State 1986 P Cr. L J 1973 to hold that transaction regarding payment of illegal gratification must be seen and conversation between the bribe giver and bribe receiver should also be heard as to prove the offence. I respectfully followed the above‑refered authorities.

5. The upshot of the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt against the appellant. I accordingly accept the appeal, set aside the conviction and sentence of the appellant and direct that he be released for provided of course he is not required in any other criminal case. M.A.K./A‑390/L Appeal accepted.