1985 P Cr (PLP)

Raja Mahmood Akhtar for Appellant. M. Naeem for the State. Dates of hearing: 24th and 25th June, 1985. This criminal appeal arises from the judgment of learned Special Judge, Anti‑Corruption, Sargodha and Faisalabad Division, Sargodha, whereby he on 13‑4‑1985 convicted Nasir Beg appellant under section 161, P.P.C. and sentenced him to 4 months' R.I. and a fine of Rs.10,000 in default thereof 21 months' R.I.

2. The appellant was a Foreman (Electric) G.T.S. at Lahore. The ‑charge against him was that he demanded and accepted Rs.100 as illegal gratification from Muhammad Tahir, P.W.2 for the sanction of a bill submitted by him. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined 4 witnesses. Muhammad Tahir, P.W.2 appeared to prove demand as well as acceptance of Rs.100 from him by the appellant as illegal gratification. Muhammad Ashraf Qamar, Magistrate, P.W.3 and Sakhawat Ali S.I., A.C.E., P.W.4 were produced to prove the recovery of tainted currency notes from the appellant. They supported the allegations against the appellant. The rest of the evidence is of not much importance.

4. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. While admitting the recovery of tainted currency notes from him, he explained that the complainant had borrowed Rs.100 from him and at the time of raid, he had returned the same. In defence he produced Abdul Hamid, D.W.1, who stated that the appellant had no authority to pass the bill and that the appellant had in fact been transferred few days before the occurrence and had already handed over the charge. Mumtaz Hussain, D.W.2 stated that the complainant had taken Rs.100 as loan from the accused and when the accused demanded back, the appellant promised to pay the same.

5. The learned counsel for the appellant submitted that the appellant was not a public servant; that the prosecution witnesses are not reliable; that the appellant has been involved falsely by the complainant on account of enmity; that the tainted currency notes were given to the appellant towards the payment of loan obtained by the complainant from him and that the prosecution has failed to prove its case beyond reasonable doubt. Conversely the learned counsel for the State has supported the judgment of the trial Court.

6. I have not been able to persuade myself to agree with the learned counsel for the appellant. I find that the complainant Muhammad Tahir had no enmity with the appellant to involve him falsely in the case; that the tainted currency notes were recovered from the physical possession of the appellant and that the Magistrate and the Sub‑Inspector a Anti‑Corruption are quite dependable witnesses. They have successfully faced the cross‑examination and nothing damaging to the prosecution could be elicited. Their statements do not suffer from any inherent infirmity. The recovery of the tainted currency notes from the appellant gives rise to the statutory presumption that the same were received by him from the complainant as illegal gratification; that the plea of loan was not raised in statement Exh.P.W.3/J recorded by the Magistrate immediately after the raid when the facts were fresh in the mind of the appellant; that immediately after the raid, the appellant had stated:‑ The words "RISHWAT WASUL KI HAY" are of great significance. Had the complainant obtained any loan from the complainant and had the currency notes been given to him in return of the loan, then the appellant would have stated so before the Magistrate after the raid. His failure to raise the plea of loan at that time indicates that the plea at trial is an afterthought one. So the statement of D.‑W.2 that the appellant had obtained Rs.100 as loan from the complainant and that the complainant had demanded back the money from him do not carry any weight. The appellant has failed to rebut the prosecution case and its evidence. The documents, i.e. office order Exh.D.A. and charge list Exh.D.B. do not rebut the prosecution evidence. For all these reasons I am convinced that the trial Court has rightly convicted and sentenced the appellant.

7. The upshot of the above discussion is that there being satisfactory basis to uphold the conviction and the sentence, the appeal is dismissed. The appellant shall surrender himself before the learned Special Judge, Anti‑Corruption, Sargodha/Faisalabad Division, with headquarters at Sargodha. The learned trial Court shall also issue warrants for the arrest of the appellant. On arrest he shall be sent to jail to serve out the sentence. H. A. K. Appeal dismissed