1993 PCr (PLP)

Deposition of P.W.1 (1) Before lodging F.I.R. went to College five time;: 16-3-1987 17-3-1987 18-3-198719-3-19871-4-1987 (1) Before lodging F.I.R. went to College once, date is not mentioned. (2) Visited Principal three times on 16-3-198717-3-198718-3-1987 (2) Visited Principal once and all. (3) Visited Mr. Jameel appellant trice on: 19-3-19871-4-1987 (3) Never seen and/or visited Mr, Jameel appellant "On the day of the raid came to know that accused was Jameel. (4) On 18-3-1987 I visited him (Principal Mr. Faruqi) then he. told me to contact Mr. Jameel, Accounts Officer and tell him every thing." (4) "I then went to the Principal and he told me that there were limited number of the seats and all have then fiilled and, therefore, it was not possible to admit me. He told me further that after some days, I might get chance if any of the candidates cancel his admission. He did not tell me to whom, I should contact." (5) "I visited Mr. Jameel in hisoffice alongwith mycompanion Capt. ShahidAsrar, then he demanded.bribe of Rs.3,000." (5) "I had no hope of admission therefore, I requested Mr. Lsrar who used to come at my shop for helping me in getting the admission. After few days, Israr told me that Muhammad Jameel, who is Accountant- in the College had demanded Rs.3,000,for getting me admitted in the. College:"I was taken to D.S.P. Anti Corruption by Israr and I narrated him that Jameel had demanded Rs.3,0W from me. He recorded in writing what I told him."

8. The complainant was not declared as a hostile witness. As observed in the case of Abdul Razak Rathore v. The State reported in P L D 1992 Kar. 39, merely because the witness has not fully supported the contents of his F.I.R., it cannot be said that his evidence is wholly unreliable. The correct position in law is that the Court can come to its own conclusion after consideration of whole of the evidence for which it is worth.

9. Besides complainant Mirza Shahzad Baig (P.W.1), the other important witness was Capt. Shahid Israr and he was the person who had admittedly passed on the envelope containing the tainted money to the appellant. Capt. Shahid Israr was however, given up by the prosecution for the, reasons which do not appear to be plausible.

10. Now we are left with the evidence of Shahzar Shamoon, A.C.M. (P.W.2) and Mujtaba Ahmad Khan, D.S.P. (P.W.3). Both of them speak of the recovery of tainted money from an envelope which the appellant had allegedly thrown on the ground There is no evidence on record to prove that the appellant had demanded money from complainant Mirza Shahzad Baig. Mirza Shahzad Baig (P.W.2) has not supported the case of the prosecution and the other witness on the point of demand, namely, Capt. Shahid Israr, was given up by the prosecution. The evidence of Shahzar Shamoon. A.C.M. (P.W.2),' Mujta6a Ahmad Khan, D.S P. (P.W.3) makes it clear that none of them were able to hear the conversation between Capt. Shahid Israr and the appellant. Shahzar Shamoon, A.C.M. (P.W.2) again makes it clear that Capt. Shahid Israr had delivered the envelope containing the tainted money to the appellant who opened it, saw the contents and then threw it on the ground. Mujtaba Ahmad Khan, D.S.P. (P.W.3) however, contradicts Shahzar Shamoon, A.C.M. (P.W.2) by stating on oath that he saw complainant Mirza Shahzad Baig handing over the envelope containing the tainted money. Thus, there is contradictory version about the person who had actually delivered the envelope containing the tainted money to appellant. The trap report which is on record (Exh.11) I however, reveals that the appellant when questioned as to why he accepted the tainted money explained that the complainant had informed him that a letter of recommendation sent by the Minister was lying in the envelope and it was for this reason that he had accepted it but on seeing the currency notes inside the envelope he immediately threw the envelope on the ground. .

11. The question of drawing presumption under section 4 of the Prevention of Corruption Act, 1947, was considered by this Court in the case of Abdul Razak Rathore v. The State reported in P L D 1992 Kar. 39, and was answered in the following words:-- "The presumption in section 4 of the Prevention of Corruption Act, 1947, arises only upon proof that the accused person has accepted any amount as illegal gratification. In the case of Sultan Ali v. The State reported in P L D 1971 Kar. 78, a learned Single Judge of the Court observed that it would be an outrage on common sense and reason to infer that under section 4 of the Prevention of Corruption Act, 1947, the presumption has itself been displaced and that the offence of bribery must be held to be established the moment the money is passed into the possession of the accused without further proof that it was accepted as an illegal gratification. When the law raises a presumption against the accused and calls upon him to prove the contrary, it is well-settled that the contrary can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution. The proof of the contrary need not necessarily be by evidence, oral or documentary; but it may be furnished by the statement of the accused himself or by the circumstances of the case."

12. Thus, the earliest statement made by the appellant in the raid report (Exh.11) when examined together with the evidence of the prosecution witnesses available on record leads to the conclusion that the defence put forward by the appellant might be true specially when the person who had passed on the tainted money to the appellant and the Mashirs in whose presence the recovery was made were not put in the witness-box. It was obviously for this reason that the learned counsel for State has not supported the case of the prosecution. In the result the impugned judgment is set aside and the appeal is allowed. The appellant who is on bail is discharged from his bail bond. By a short order, dated 19-1-1993, 1 had allowed this appeal and these are the reasons for the said order. N.H.Q./M-1818/K Appeal allowed.