1976 P Cr (PLP)

The Raiding Magistrate recorded the supplementary statement (Exh. P. E.) ref the complainant and also recorded the statement of the appellant (Exh. P. D). He completed the proceedings of raid ordered arrest of the appellant and delivered the papers alongwith the appellant in custody to Malik Wahid Bakhsh, Inspector, Anti‑Corruption Establishment for further proceedings. The case was investigated by Ch. Muhammad Hanif (P. W. 5) Inspector, Anti‑Corruption Establishment. After comple tion of investigation police challaned the appellant for trial in Court.

3. At the trial prosecution examined five witnesses in all. Faiz Muhammad (P. W. 2) Magistrate Ist Class, Lahore, who supervised the raid, proved the proceedings of raid and recovery of tainted money from the appellant. Muhammad Bashir complainant (P. W. 3) proved his allegations and previous statements before the police and the Raiding Magistrate to the effect that the appellant had demanded Rs. 100 from hirer as illegal gratification which he paid to the appellant and which amount after being accepted by the appellant from the complainant was put by the appellant in the pocket of his trouser from where it was recovered by the Raiding Magistrate. Ch. Muhammad Hanif (P. W. 5), Inspector, Anti Corruption Establishment, proved his investigation and also proved the investigation by Malik Wahid Bakhsh, Inspector, Anti‑Corruption Establishment, member of the raiding party, who could not be produced at the trial because he could not be served for the date. Shamshad (P. W. 4) clerk in the police department, produced the service record of the appellant. Muhammad Rafiq (P. W. 1) Head Constable P. S, New Anarkali, Lahore proved the registration of the F. I. R. (P. A/1). All the prosecution witnesses supported the prosecution case.

4. The appellant pleaded not guilly to the charge. In his statement (Exh. P. D) recorded by the Raiding Magistrate immediately after the raid the appellant inter alia stated that on the asking of the complainant the appellant had accompanied him to the shop of Nan Kabab for eating food and on arrival there the complainant forcibly delivered the tainted money to the appellant saying that the appellant should keep that money with him and the appellant without counting it put the tainted money in the right pocket of his pant and occupied the seat on the table in order to take food. In the meantime the Raiding Magistrate, who was occupying the seat in front of him, went forward and after introducing himself directed the appellant to deliver the tainted money which he did after taking it out of his pocket. The appellant stated that the tainted money recovered from him was not bribe money and the appellant did not know about it. The appellant also stated that the C. I. A. Police had taken proceedings against the complainant under the Goondas Act in the Police Station, Baghbanpura where the appellant was posted but the appellant bad no connection with that case. In his statement recorded under section 242, Cr. P. C. before commence ment of trial the appellant denied the allegations and stated that he had not committed any offence and will explain later on. At the conclusion of the trial when statement of the appellant under section 342, Cr. P. C. was recorded he denied the allegations of the prosecution, also denied that he demanded and accepted any illegal gratifica tion, further denied that the tainted money was recovered from him by the Raiding Magistrate or that the tainted money belonged to him. The appellant admitted that he made statement (Exh. P. D) immediately before the Raiding Magistrate after the raid and explained the case against him as under :‑- "Muhammad Bashir complainant was a bad character of the Police Station and he had already been challaned under the Goonda Ordinance before the raid. He was annoyed with the whole of the Police Station and wanted to involve any Police Officer so that he could manage to get himself acquitted in the case against him under the Ghoonda Ordinance. On the day of raid I was present in the office of S. S. P. Lahore where he met me by charge and when I was going to the shop of Naan Kabab for some refreshment he accom panied me and on reaching the shop, he passed on to me some G. C. notes saying that the same be kept as trust, because some person was demanding loan from him, but he did not want to give him loan. I kept the money with me without counting and soon after I was confronted by the Raiding Magistrate." He examined three witnesses in his defence. Mir Shahid Hussain (D. W. 1), who was then S. H. O. Police Station, Baghbanpura denied that he demanded or accepted Rs. 200 as illegal gratification from the complainant as alleged by him and before the raid he had put a challan under sections 13 and 14 of the Criminal Law Amendment Ordinance in Court against the complainant. Mian Chiragh Din (D. W. 2), a witness from the public, deposed that he was present at the shop of Nan Kabab outside the District Courts Lahore where the tainted money was passed on by the complainant to the appellant, the witness saw the complainant giving some Government Currency Notes to the appellant saying that the complainant owed some money to a certain person and the complainant apprehended that that person might not snatch it from him. It was on that understanding that the appellant received and kept the money with him when immediately thereafter the raid was conducted and tainted money was recovered. Khalid Masood (D. W. 3), Mobarrir A. S. I. at Police Station, Baghbanpure, Lahore brought the record of P. S. Baghbanpura relating to the year 1968 and deposed that summons were received from Bile court of District Magistrate, Lahore under sections 13 and 14 of the criminal Law Amendment Act against the complainant. On the basis of other record relating to Arms Register he deposed that no arm licence had been issued to the complainant according to the record.

5. The learned trial Judge found that the talk between the decoy witness and the appellant was over‑heard by the Raiding Magistrate who himself saw the passing of tainted money and also believed the complainant and rejected the defence plea of the appellant. The learned counsel for the appellant argued that no positive motive was alleged by the prosecution against the appellant, the motive is flouted because different acquisitions were put to the appellant in his statement recorded immediately after the raid, before commencement of his trial and on the conclusion of his trial; the statement of the Magistrate was not reliable in view of the material improvements made by him that affect the testimony; the statement of the complainant was not reliable for material contradictions therein and the statement of the complainant that tainted money was passed as bribe was not corroborated ; the presumption raised under section 4 of the Prevention of Corruption Act stood rebutted by the statement of the appellant at the spot which was corroborated by Mian Chiragh Din (D. W. 2). According to the learned counsel for the appellant the Magistrate was only to repeat words and not to incorporate and with the expression and opinion of the learned Magistrate could not be treated as evidence. He further argued that the sanction for prosecution of the appellant was given mechanically and was factually incorrect because the description therein showed that the money was demanded for showing favour in Goondas Act, challan under the Goondas Act was not before the sanctioning authority and at the bottom of the sanction order the words "designation of the sanctioning authority" was typed but the designa tion of the authority who sanctioned the prosecution was not typed. Finally he argued that a period of seven years has passed since trial of the appellant. The learned counsel for the State submitted that the conviction and sentence of the appellant be maintained for the cogent reasons given by the learned trial Judge. He submitted that the Raiding Magistrate over‑heard the conversation and saw the passing of tainted money which should be believed; that recovery of the tainted money was proved by the prosecution and was not denied by the appellant; and that the Raiding Magistrate had no enmity or ill‑will so as to falsely implicate the appellant on the charge for which the appellant has been convicted and sentenced. I have been taken through the entire evidence which I have read myself and have considered it in the light of the submissions made by the learned counsel for the parties.

6. Muhammad Bashir complainant P. W. deposed at the trial that the appellant met him in Anarkali when the appellant was going to S. S. P. office and told the complainant that the appellant would challan him under the 6oondas Act and would let him go if he paid another Rs. 100 as bribe to which the complainant readily agreed and, promised to pay. Since the complainant did not want to pay he reported the matter to the Anti‑Corruption Establishment who organised the raid. Faiz Muhammad P. W., Magistrate 1st Class, Lahore, who supervised the raid after recording the statement (Exh. P. C.) of the complainant before the raid in which the complainant reiterated the demand of Rs. 100 as bribe from him by the appellant and after marking Government currency Notes of the value of Rs. 100 delivered the same to the complainant which amount was to be passed to the appellant. The Raiding Magistrate deposed at the trial that he himself heard the appellant asking the complainant if the later had brought the money and on his replying is the affirmative the appellant demanded its payment upon which the complainant delivered the tainted currency notes to the appellant which the appellant counted and put in his pocket. He further deposed that thereafter he got up from his seat and after disclosing his identity to the appellant demanded the tainted money from the appellant upon which the appellant produced it before him which was secured. He also deposed that after recovering the tainted money from the person of the appellant he recorded the supplementary statement (Exh. P. E.) of the complainant and the statement of the appellant after the raid (Exh. P. D). From the testimony of the complainant, and the Raiding Magistrate it stands established that the tainted money in Government currency notes of the value of Rs. 100 was passed on by the complainant to the appellant in the ‑presence of the Raiding Magistrate. The Raiding Magistrate testified that the tainted money was given by the complainant on demand of the appellant. The recovery of tainted money from the person of the appellant thus raises a presumption envisaged under section 4 of the Prevention of Corruption Act that the tainted money had been passed on by the complainant tea the appellant as illegal gratification. In his statement (Exh. P D) recorded immediately after the raid the appellant stn rep mat the complainant forcibly delivered the tainted money to the appellant saying that the appellant should keep that money with him and accordingly the appellant without counting it put that money in the right pocket of his pant and occupied the seat on the table in order to take food when the Raiding Magistrate after introducing himself to the appellant recovered the same from his person. The appellant did not give any explanation is to why he accepted Rs. 100 from the complainant and it is not acceptable that the tainted money was given to him forcibly when the complainant was an ordinary citizen while the appellant was an A. S. I. in police uniform. The fact remains that the tainted money was recovered from the pant pocket of the appellant and immediately after the recovery the appellant did riot give any satisfactory explanation of his having accepted that money and also of his having joined the complainant for taking food at the Nan Kebab shop outside the District Courts. At the conclusion of the trial the appellant stated in his statement under section 342, Cr. P. C. that the complainant passed on the tainted money to the appellant saying that the same be kept as trust because some person was demanding loan from the complainant while the complain ant and not want to give loan to that person and it was for that reason that the appellant kept the money with him without counting and soon after the appellant was confronted by the Raiding Magistrate. The explanation given by the appellant after the raid, by way of suggestion during cross examination at the trial and in his statement under section 342, Cr. P. C. does riot discharge the burden on the appellant. The explanations given by him at different stage are inconsistent. The appellant failed to rebut the presumption raised against him under section 4 of the Prevention of Corruption Act. On the evidence pit record and in the circumstance of the case I am satisfied that the appellant, demanded Rs. 1.00 tram the complainant as illegal gratification and accepted the same from bins as bribe. Therefore, I am of the view that the prosecution has proved the guilt of the appellant beyond reasonable doubt. On conviction under section 161, P. P. Prevention of Corruption Act, 1947, the learned trial judge sentenced the appellant to suffer R. I. for six months and to pay a fine of Rs. 200 or in default of its payment to further suffer R. I. for one month, ride his judgment and order passed on 22‑1‑1972. His sentence was suspended by this Court on 25‑1‑1972. The case against the A. S. I. was registered as far back as on 16‑4‑1968 and during all this time he suffered to agony of prolonged investigation and trial. He will lose his service. As such I consider it a fit case for reducing his sentence to already undergone.

6. As a result of above discussion the conviction of the appellant is maintained but his sentence is reduced to already undergone. With this, modification his appeal is dismissed are discharged. Appeal dismissed.