MIAN MUHAMMAD AJMAL, J.--Leave to appeal is sought against the judgment of the High Court of Sindh, Sukkur Bench dated 6-5-2003, whereby Criminal Appeal No,51 of 1992 of the petitioner and Criminal Appeal No,50 of 1992 of his co-accused were dismissed and their conviction and sentences were maintained.
2. Brief facts are that Din Muhammad Lashari complainant was running `Dawakhana' and providing Homoeopathy treatment in Village Sawari. On 17-4-1987 when he opened his Dawakhana, he found a notice from Shah Jehan, Drug Inspector, Khairpur directing him to attend his office on 19-4-1987.
He accordingly, went to his office and met him who threatened him and demanded Rs,1,000 per month as bribe on the pretext that he has the licence to practise Homoeopathy but he was also dealing in Allopathy medicines. The complainant showed his inability to pay the said amount, as such, the petitioner reduced the same to Rs,600 per month with the direction to pay the same by the next day.
3. On the next day i,e, 20-4-1987, the complainant reported to the Anti-Corruption Establishment, Khairpur and produced the notice issued by the petitioner, on the basis whereof Rajib All Baloch, Circle Officer recorded F.I.R. And arranged a raiding party comprising of Badar Din Shaikh, Magistrate, Assistant Mukhtiarkar, Khairpur and Abdul Qadir, Mashir. Before proceeding for raid, the body search of the complainant was made and the currency notes of Rs,600 were handed over to him as per Mash irnama and the raiding party proceeded to the office of the petitioner. The complainant and Mashir Abdul Qadir P.W. Went in the office of the petitioner with the tainted money, they met him who asked about the bribe money from the complainant and then called Asghar Ali, his clerk and directed him to get the money from the complainant for him. The complainant paid the amount to Asghar Ali and after passing on of the money to Asghar Ali, the Circle Inspector, Anti-Corruption and Magistrate conducted the raid and recovered the tainted money from Asghar Ali. The petitioner and his clerk Asghar Ali were arrested. Asghar All Clerk of the petitioner admitted to have received the tainted money under the directions of the petitioner from him. After completion of the investigation and receipt of sanction for prosecution of both the accused, they were sent to face trial before the Special judge Anti-Corruption, Sukkur under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter to be called as the Act). Charge was framed against the accused to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case, examined Badar Din Shaikh, Magistrate, Din Muhammad complainant, Abdul Qadir Mashir and Rajib Ali, investigating Officer. The petitioner in his statement under section 342, Cr.P.C. Besides denying the allegations stated that on the day of raid, he was on tour to Babarloi and at 1-30 p.m. When he reached his office, Altafur Rehman and Habibur Rehman, Advocates complained him about the sale of expired medicines in the market, he asked them to give the complaint in writing and in the meantime the Circle Officer appeared in his office and informed that his clerk Asghar Ali while accepting bribe for him was trapped and his statement was to be recorded. He also made a statement on oath under section 340(2), Cr.P.C.
And examined defence witnesses namely Habibur Rehman, Altafur Rehman and Dr. Khan Muhammad. Asghar Ali, in his statement recorded under section 342, Cr.P.C. Admitted to have received the amount from the complainant under the directions of the petitioner. He also admitted the recovery of tainted money from him in presence of the P.Ws., the presence of the complainant and the petitioner in the petitioner's office on the day of occurrence, the fact that the petitioner called and directed him to accept the amount from the complainant which he accepted having no knowledge that it was bribe money and that he has not been implicated by the complainant.
4. The learned trial Judge after hearing the parties and perusal of the record framed following points for determination:-- Whether on 19-4-1987 accused Shah Jehan in his office at Khairpur demanded illegal gratification of Rs,1,000 per month and subsequently reduced it to Rs,600 per month from complainant Din Muhammad under threat of dealing with allopathic medicines at Dawakhana and directed complainant for payment on 20-4-1987.
(2) Whether on 20-4-1987 at 1-15 p.m. In the office of accused Shah Jehan, accused enquired complainant about the amount and directed co-accused Asghar Ali, his clerk, to accept it for him who accepted Rs,600 and was trapped by ACE, Khairpur?
(3) Offence, if any, committed by the accused." The learned trial Judge held that the demand of bribe by the petitioner was proved against him; the presence of the petitioner in his office at the relevant time was also proved; the case of Asghar Ali was not distinguishable and he knowingly accepted the tainted money as illegal gratification, as such, convicted the petitioner and his co-accused Asghar Ali under section 161, P.P.C. Read with section 5(2) of the Act and sentenced them to suffer six months' R.I. Each and to pay fine of Rs,2,000 each or in default to undergo one month R.I. Each vide his judgment dated 29-6-1992.
5. The petitioner and co-accused Asghar Ali challenged their conviction and sentence before the High Court of Sindh, Sukkur Bench through Criminal Appeals Nos.51 and 50, respectively, which have been dismissed vide judgment dated 6-5-2003, impugned herein.
6. We have heard the learned counsel for the petitioner and have gone through the record of the case with his assistance. His contentions were that the raiding party neither heard the conversation between the complainant and the petitioner nor witnessed the passing of the bribe money to Asghar Ali and that at the time of occurrence petitioner was not present in office. These contentions have no force, for, it is established on record that the raiding party along with the complainant went to the office, of the petitioner, the complainant along with Mashir Abdul Qadir P.W. Entered into the office of the petitioner who on seeing the complainant asked him about the bribe money and on positive response he called his Clerk Asghar Ali and directed him to receive the money from the complainant to whom the tainted money was accordingly paid. The demand of bribe money by the petitioner, its payment to Asghar All on petitioner's direction and its recovery from Asghar All has been corroborated by Mashir Abdul Qadir, an independent and reliable witness, who was a school teacher and had no ill-will or any animus against the petitioner thus his testimony cannot be disbelieved. The overhearing of the conversation of the complainant and the petitioner by the Magistrate or Circle Officer, in presence of such evidence, becomes immaterial which even otherwise is neither a condition precedent to prove a raid case nor the same is a requirement of law. As for passing on of bribe money is concerned, it is admitted by Asghar Ali co- accused that he received the amount from the complainant on the direction of the petitioner for him. In such circumstances presumption under section 4 of the Act, would be against the petitioner that bribe money was received by his co-accused at his direction for him as reward to favour the complainant allowing him to sell Allopathic medicines without having its licence, which has not been reasonably rebutted by the petitioner. In case of Rashid Ahmad v. The State (1974 SCM R 249) this Court has held that though tainted money was recovered from accused petitioner's fellow clerk who was not officially concerned with informer's case yet money paid to him was for the use of his good offices with accused petitioner, who was actually concerned with the case, such circumstances amply satisfy requirement of section 161, P.P.C. And section 5(2) of the Act. In this case bribe money was received by Asghar All co-accused at the instance of the petitioner, who admitted it on recovery of tainted money, in his confessional statement and in his statement before the trial Court recorded under section 342, Cr.P.C. He consistently admitted that he received the bribe money on the direction of the petitioner for him, as such, petitioner's case was covered under section 161, P.P.C. Read with section 5(2) of the Act and the learned Courts have rightly convicted him on proper appraisal of evidence.
7. There is nothing on record to suggest that raiding party would falsely involve the accused petitioner. The prosecution has successfully proved the guilt of the petitioner through reliable witnesses who had no motive against the petitioner to falsely implicate him in the case. The testimony of Din Muhammad P.W.2 finds ample corroboration from the statement of Abdul Qadir Mashir, P.W.3 an independent witness both on the point of demand of bribe, passing on and recovery of tainted money from the co-accused who received the same on petitioner's direction.
Insofar as the second contention of alibi is concerned it has no force at all, the petitioner himself has stated in his statement under section 340(2), Cr.P.C., that he returned to his office at 1-30 p.m.
Two persons namely Altafur Rehman and Habibur Rehman were waiting for him who complained about expired medicines being sold in the market. In the meantime Circle Office Anti-Corruption came to his office and told him that his clerk has, accepted the bribe on his behalf and he asked him to accompany him for recording of his statement. The petitioner's own statement falsifies his plea of alibi as according to his own statement the raid took place when he was in his office and Circle Officer contacted him for recording his statement. Habibur Rehman D.W.1 and Altafur Rehman D.W.2 stated that the petitioner came to his office at about 1-30 p.m. And they complained to him about the sale of artificial medicines at medical stores at Khairpur, when Circle Officer came to the petitioner and told him that his statement was to be recorded in trap case and he took him along. The statements of the D.Ws. Rather support the prosecution case and do not lend any support to the defence version.
8. Both the learned Courts on proper appreciation of the evidence on record rightly convicted the petitioner for the offence charged with and we find no ground to interfere with the same.
Consequently, this petition is dismissed and .