' This appeal has been directed against the judgment dated 15-12-1994 passed by learned Special Judge Central, Multan, by which the appellant has been convicted under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced to imprisonment for two years R.I. With a direction to pay Rs.500 as fine, in default whereof to further undergo R.I. For two months. However, benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Brief facts of the case are that Ahmad Yar P.W.6 moved an application in which, he alleged that about 5/6 months ago he wanted to get installed electric meter in his house and he moved an application to the office of S.D.O., WAPDA, Mailsi. He visited the office on a number of occasions but he could not get any clue about the progress on his application. However, one day the appellant Sastay Khan, Sub-Division Clerk met him and demanded Rs.300 from the complainant as illegal gratification for the installation of the meter. The matter was settled at Rs.200 and time was fixed on 4-10-1994 for the payment of the amount. He claimed that he did not want to give the illegal gratification. On the receipt of this application, case F.I.R. No.14 was registered on 8-8-1984 under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 and raiding party was constituted, which was headed by Rana Irshad Ali P.W.5. Ultimately the raid was conducted and Rs.200 were recovered from the possession of the appellant.
3. After the conclusion of investigation challan was submitted in the Court. The learned trial Court supplied the copies of the statements of the witnesses recorded under section 161, Cr.P.C. As well as other documents as required under section 241-A, Cr.P.C. And framed the charge against the appellant which was denied by him and he claimed to be tried.
4. The prosecution in order to prove the guilt of the appellant produced as many as six witnesses.
5. On close of the prosecution evidence, statement under section 342, Cr.P.C. Of Sastay Khan appellant was recorded, in which, he denied the allegations levelled against him and claimed his innocence. On a question that "why this case against you and why the P.Ws. Have deposed against you?", he replied as under:-- "The case against me is false. Ch. Muhammad Ali, Foreman was the friend of the complainant.
There had been numerous complaints against the said Muhammad Ali and I got him transferred on 25-7-1984 on the maintenance side. The complainant in collusion with said Muhammad Ali falsely got me involved in this case."
6. The learned trial Court after hearing the parties has passed the impugned judgment, which is being assailed through this appeal.
7. Learned counsel for the appellant contends that the Magistrate P.W.5 had neither heard the conversation between the complainant and the appellant nor had seen the passing of money to the appellant and in such circumstances the prosecution has not succeeded in proving the case against the appellant. In support of his contention he relied upon PLD :984 Peshawar 107, 1984 PCr.LJ 2774, PLD 1983 Lahore 514, 1984 PCLIJ 1718, 1984 PCr.LJ 2037, 1985 MLD 1394, 1983 PCr.LJ 2088, 1983 PCr.LJ 2556, 1983 PCr.LJ 2559 and 1985 PCr.LI 858(2). It is further contended that the recovery of documents was prepared by the Magistrate in his office and not at the place of occurrence. It is further contended that Ahmad Yar complainant had also sworn an affidavit Exh.D.B., in which, he has admitted that the amount was not paid to the appellant and it was thrown by him on the ground. It is further contended that the prosecution has miserably failed to prove the case against the appellant. Hence, the conviction and sentence are not maintainable.
8. On the other hand, learned counsel for the State opposes this appeal on the ground that the judgment is maintainable being based on cogent evidence, hence, the instant appeal may be dismissed.
9. I have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution. The Magistrate P.W.5 in his cross-examination no doubt has admitted that he had not seen the passing of money and had not heard the conversation between them, but this case is distinguishable from the cases cited by the learned counsel for the appellant that if the Magistrate had not heard conversation or seen the payment of money, in the absence of such evidence, the accused should be acquitted of the charge. In the case titled "Abdul Hamid v. The State" 1984 PCr.LJ 2774, raiding Magistrate and Inspector were standing at a far-off place and they had neither seen, the payment nor had heard the conversation. Mere recovery of money could not be assumed or presumed to be a bribed money. Similarly in case titled "Muhammad Yousaf v. The State" PLD 1984 Peshawar 107 apart from the statement of the complainant nothing was available on the record to show that money was paid to the accused as illegal gratification. Two police officials associated with raid had neither heard conversation between the accused and complainant nor had looked the passing of tainted money. In PLD 1983 Lah. 514 it has been held that onus lies on prosecution to prove basic fact of demand and acceptance of illegal gratification by public servant and if it does not prove, the onus cannot shift to accused to explain as to how he became possessed of tainted amount. Similarly "The State through Advocate-General v.
Muhammad Umar" 1984 PCr.LJ 1718 is also not applicable to the facts and circumstances of the case as the accused were acquitted and appeal against acquittal was not entertained. In "Niaz Ahmad v The State" 1984 PCr.LJ 2037 the accused were acquitted on the ground that the Magistrate had not seen the passing of money as testimony of complainant was not corroborated, hence benefit of doubt was given to the accused. In "Amjad Rashid Khan v. The State" 1985 MLD 1394 on the ground that the Magistrate had not seen the passing of tainted money, the accused was acquitted because uncorroborated testimony of the complainant being a decoy witness was not relied upon. Similarly, in "Muhammad Arif Malik v. The State" 1983 PCr.LJ 2088 the same principle was adopted. In this case the complainant was the only witness and Magistrate had not seen the passing of tainted notes, hence there being no other evidence, the accused were acquitted. In Muhammad Ashraf's case 1983 PCr.LJ 2559 and Baqir Hussain's case 1983 PCr.LJ 2556 the same principle was adopted.
10. The present case is distinguishable from the cases cited by the learned counsel for the appellant. P.W.2 Bahadar Khan, who was posted as Constable in A.C.E., Vehari stated that on the day of occurrence he had associated the raiding party supervised by the Magistrate. He claimed that he alongwith the complainant reached the WAPDA office. Ahmad Yar complainant went inside the office and he stood outside the same. After a short while Ahmad Yar complainant alongwith Sastay Khan appellant came out of the said office and the complainant handed over Rs.200 to the appellant, whereafter P.W.2 gave a signal to Magistrate.' The latter then reached there and while disclosing his identification had asked him to deliver the bribe money whereupon the appellant threw away the same on the ground. Though P.W.5 Magistrate had picked up the same and taken into possession from the ground, yet in spite of lengthy cross-examination nothing could be gained by the defence to support the accused-appellant. P.W.5 denied the suggestion that the recovery of bribe from the appellant was not effected in his presence. P.W.5 also stated that Bahadar Khan P.W.2 was a member of the raiding party and he gave a signal whereafter he and other raiding party members had reached the spot and found the tainted currency notes on the ground.
However, on a Court's question it was stated by him, after reading his report, that accused/appellant Sastay Khan was holding the tainted money in his hands and had thrown away the same on the ground on his arrival. In the present case the Magistrate alongwith raiding party and Investigating Officer admittedly were standing outside the WAPDA office, when the complainant went inside the office. They had seen the passing of money and also recovered the same from the appellant, who had thrown the same when the Magistrate had introduced him. In the present case the statement of complainant is corroborated by the statement of P.W.2. In such circumstances of the present case, the case-law cited by the learned counsel for the appellant cannot be relied upon. It makes no different if the Magistrate had not heard the conversation or seen the passing of bribe money to the appellant. Nothing has been said that why the statement of P.W.2 should not be relied upon, who had no grudge or enmity to falsely implicated the appellant in the present case and although he was subjected to lengthy cross-examination but the appellant failed to gain anything out of the same. The complainant P.W.6 had no enmity or grudge to falsely implicate the appellant in a trap case. The file of his case for obtaining connection was produced by P.W.4 Liaqat Ali, L.D.C. Though during the investigation Ahmad Yar complainant/P.W.6 had sworn an affidavit in which he stated that amount was thrown by him yet at the trial he had categorically stated that this affidavit was signed by him before the Oath Commissioner under the pressure of the respectables of the Ilaqa.
11. From the perusal of the statement of P.W.6 and lengthy cross-examination on him, I do not find any reason for the false implication of the appellant in the present case. The prosecution has succeeded in proving the case against the appellant beyond any shadow of doubt. Now the onus was upon the appellant that how this amount was paid to him but he failed to discharge the onus.
The story narrated by him is not convincing and is not worthy of reliance that Muhammad Ali, Foreman had manoeuvred the registration of present case against him as he had got him transferred. The appellant was only S.D.C. And was not in a position to get transferred any of his colleague. The appellant has failed to bring on record any mala fide or ulterior motive on the part of the complainant or the police including the Magistrate to falsely implicate him in the present case.
12. For the foregoing reasons I do not find any merit in this appeal, which is dismissed and the impugned judgment of conviction and sentence is maintained. The appellant is presently on bail as his sentence was suspended by this Court vide order dated 22-12-1994 and he shall be sent to jail by the learned trial Court to serve out the remaining sentence.