1984 PLP 1312 (MLD)

Hamid Ali Mirza for Appellant. Pervaiz I. Mir for Respondent. Date of hearing: 24th September, 1984. This criminal appeal arises from the judgment of learned Special Judge Anti-Corruption, Lahore whereby he on 15-1-1980 convicted Muhammad Ajmal Khan appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to three years' R:I. and a fine of Rs. 100 in default thereof to further R.I. for three months.

2. The appellant was posted as traffic constable. The charge against him was that he demanded and then accepted Rs. 10 as illegal gratification from Muhammad Akhtar P.W.2. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined 4 witnesses. Muhammad Akhtar complainant P.W.2 appeared to prove demand as well as acceptance of tainted currency note as illegal gratification by the appellant from him. Muhammad Akram Cheema, Magistrate, P.W.1 and Riaz Hashmat D.S.P., A.C.E., P.W.4 appeared to prove the recovery of tainted currency note from the appellant. The rest of the evidence is of formal nature.

4. When examined under section 342, Cr.P.C. the appellant denied the incriminating circumstances. He raised the plea of false implication. In defence he produced Muhammad Saeed and Muhammad Akram who deposed that the case against the appellant was false.

5. The learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubts; that no talk between the appellant and the complainant was heard by the Magistrate and that Muhammad Akram and Muhammad Saeed who were very much present with the complainant and had heard the conversation were not produced by prosecution and that since the complainant had not violated any traffic rule (according to prosecution), therefore, the question of paying illegal gratification to the appellant did not arise. Conversely, the learned counsel for the State supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I find that Muhammad Akram Cheema, Magistrate, P.W. I had categorically stated that he had recovered the tainted currency note from the hand of the appellant. Riaz Hashmat P.W.4 supports him. The complainant stated that the money was accepted by the appellant as illegal gratification. In this view of the matter, the onus to rebut the presumption that the appellant received the tainted currency note as illegal gratification had shifted to the appellant. I find that to discharge this presumption, he did nothing. There is oral or circumstantial evidence on record to show that the money was received for the purpose other than illegal gratification. As far the objection raised by the learned counsel. I am of the view that since the recovery of tainted currency note stands proved, therefore, there was a statutory presumption that the appellant had received the amount as illegal gratification and the fact that the Magistrate had not heard the conversation would not be helpful to the appellant. Although Muhammad Akram and Muhammad Saeed were not produced but this will not adversely affect the testimony of the witnesses who have been found confidence inspiring, the defence evidence is not strong enough to rebut pros and cons of evidence. The contention raised by the learned counsel do not make out a case for acquittal. For all these reasons, I am of the view that the trial Court has rightly recorded the conviction of the appellant.

7. This brings me to the question of sentence. The learned counsel has requested for leniency. In the circumstances of the case, that the appellant has lost his service; that he has suffered agony of protracted trial and that the allegation is that he accepted Rs.10 only, I am of the view that it would be proper if the sentence of imprisonment is altered to a sentence of fine. The sentence of 3 years' R.I. is, therefore, altered to a fine of Rs.5,000 in default thereof, he would undergo R.I. for 1 years. The fine of Rs.100 awarded by the trial Court is, however, maintained. Resultantly, the appellant shall deposit Rs.5.100 with the trial Court within two months, failing which the trial Court shall issue warrants for his arrest and detention. S.G.D. Sentence altered.