' Ghulam Muhammad appellant has challenged the order of his conviction passed by the Special Judge (Central), Lahore on 2nd September 1975, whereby he was convicted under section 161, P.P.C.
Read with section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to 3 months' R. I.
And fine of Rs. 500 or in default of payment of fine to further undergo R. I. For 3 months.
2. Briefly stated the facts of the prosecution case were that on 27th September 1973, Muhammad Siddique son of Abdul Haq, caste Arain, resident of Sher Kot, Tehsil, Kasur, who was employed as Junior Clerk in Revenue Office, WA PDA in Bharat Building Lahore contacted Khair Din Sub-Inspector P.S.P.E., Lahore and reported to him that some time ago the appellant who was working as Current Checking Assistant, checking the ledger maintained by him had detected some irregularities and had threatened him that he would report against him unless he paid him Rs.
200. Muhammad Siddique stated that he paid him Rs. 150 so that he might not send any report against him to the higher authorities. After three or four days the appellant again threatened him and asked him to pay Rs.
100. A sum of Rs. 75 was again paid to him. On 26th September, 1973 the appellant again demanded Rs. 200 from him and threatened him that if the said amount was not paid to him he would get him removed from service. Muhammad Siddique requested Haji Khair Din S.1., P. S. P. E. To take necessary legal action against the appellant. On the sratement of Muhammad Siddique a case under section 161, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act, 1947 was registered and he was produced before Mr. Sajjad Hussain Sherazi, Magistrate First Class, Lahore who on the request of Khair Din S. I. Was deputed by the Assistant Commissioner, Lahore to conduct a raid to recover the bribe money to be paid to the appellant. Mr. Sajjad Hussain Sherazi recorded the statement of Muhammad Siddique and noted down the numbers of three fifty rupees currency notes which were to be given to the appellant. A raid party consisting of Mr. Sajjad Hussain Sherazi, Magistrate First Class, Lahore, Haji Khair Din, Sub-Inspector P. S. P. E. Muhammad Siddique and one constable was constituted. The raid party reached the Revenue Office, Electricity WAPDA, Bharat Building and Muhammad Siddique was sent to the office of the appellant on the first floor of the building. After paying the amount of rupees one hundred and fifty to the appellant, he brought him down on the ground floor and signaled to the raid party whereupon Mr. Sajjad Hussain Sherazi, M.I.C. Alongwith Haji Khair Din, Sub-Inspector and the police constable came out and after disclosing his identity to the appellant asked him to hand over the currency notes to him which he had received from Muhammad Siddique. The appellant took out the currency notes from his pocket and delivered the same to Mr. Sajjad Hussain Sherazi. In his statement recorded by Mr. Sajjad Hussain Sherazi the appellant explained that the amount of Rs. 150 was paid to him by Muhammad Siddique as he had told him that some person had asked him for a loan which he would give to him after showing him that the amount lent to him had been borrowed by him (Muhammad Siddique) from the appellant as it would ensure the repayment of the loan by an early date. The appellant was taken into custody and after completion of the necessary investigation of the case was challaned and sent up for trial.
3. At the trial the appellant did not admit the charge and the prosecution produced four witnesses to prove its case against him. Ghazaufar Ali P. W. 1, an employee of the WAPDA had produced memo Exh. P. W. 1/1, before the Investigating Officer which contained a report by the appellant against the L K B C (ledger keeping and bill clerk) indicating some irregularities and fictitious entries in the ledger. Mr. Sajjad Hussain Sherazi M.I.C., Lahore appeared as P. W. 2 to depose about the raid conducted by him when the tainted currency notes were handed over to him by the appellant. Muhammad Siddique appeared as P. W. 3, to prove his statement Exh. P. W. 3/I, forming the basis of the F.
1. R. In the case, the passing over of the tainted currency notes to the appellant and the recovery of the said currency notes from him by the raid party. Haji Khair Din, S. I. Was examined as P. W.
4. He had recorded the statement of the complainant and he was present when the raid was conducted and the tainted currency notes were handed over by the appellant to Mr. Sajjad Hussain Sherazi P. W.
2. He also had conducted the investigation of the case.
4. In the statement recorded under section 342, Cr. P. C. The appellant admitted that he was serving as UDC in the Revenue Office Electricity Branch Bharat Building, Lahore since September, 1973, that Muhammad Siddique P. W. Was also employed in the said office and that his duty was to prepare bills for the industrial connections which used to be checked by him and that he had checked the ledger maintained by Muhammad Siddique in August 1973 and had detected some mistakes. He however denied to have received any money from him as illegal gratification to show him favour as contended by him. He admitted that he had received Rs. 150 from Muhammad Siddique on the day when the raid was conducted by the Magistrate but he had not receive the said money as illegal gratification and he reiterated his earlier stand taken up by him before Mr. Sajjad Hussain Sherazi, Magistrate First Class, who had recorded his statement after tainted currency notes were handed over by him. In the end he pleaded that he had been falsely implicated in the case on account of grudge which Muhammad Siddique bore against him for his having made a report against him. According to the appellant, Muhammad Siddique was also annoyed with him as he had been involved in a case under section 307, P. P. C. Registered at the instance of the appellant's friends.
5. The learned trial Judge did not consider the explanation given by the appellant satisfactory and found him guilty of having received illegal gratification from Muhammad Siddique for which he convicted and sentenced him as noticed earlier.
6. The learned counsel for the appellant has contended that the prosecution has failed to prove that the amount received by the appellant was received by him as illegal gratification because the solitary statement . Of Muhammad Siddique, the alleged bribe-giver whose position was no better than an accomplice was not sufficient to prove that the amount was received by the appellant as illegal gratification. According to the learned counsel for the appellant the mere fact that the tainted currency notes were produced by the appellant did not prove that he had received the same as illegal gratification as the explanation given by the appellant for receiving the said currency notes was not unsatisfactory.
7. The learned counsel appearing on behalf of State has contended that it was not necessary for the prosecution to have proved that the tainted currency notes produced by the appellant had been received by him as illegal gratification because section 4 (1), of the Prevention of Corruption Act, 1947 raises a presumption against the appellant that he had received the money as illegal gratification and that it was for the appellant to rebut that presumption. The explanation given by the appellant was not satisfactory in view of the strained relations between the complainant and the appellant and that the learned trial Judge has rightly refused to accept it.
8. The tainted currency notes were received by the appellant from Muhammad Siddique and the same were handed over by the appellant to Mr. Sajjad Hussain Sherazi Magistrate on his demand.
Muhammad Siddique P. W. Has stated that the aforementioned amount was paid to him as illegal gratification as he had threatened him that he would make a report against him to the higher authorities for committing irregularities in the ledger unless he paid him Rs.
200. There is no doubt that there is no evidence to corroborate the above statement of Muhammad Siddique. But the question arises whether any such corroboration is at all needed in the present case. In a case where the fact of money paid to the accused being tried for an offence under section 5(2) of the Prevention of Corruption Act, 1947 is not disputed and the tainted money is recovered from the accused, no corroboration of the testimony of the bribe giver is necessary because the case is covered by subsection (1) of section 4 of the Prevention of Corruption Act, 1947.
It shall be presumed unless the contrary is proved that the accused accepted the money as illegal gratification.
' Learned counsel for the appellant however has referred to Sultan Ali v. The State (1) where it was held that presumption of guilt could not be raised merely on the basis of money having passed into the accused's possession. This judgment is based on the decision in Ikramuddin v. The State
(2) where it was found that the presumption against the accused under section 4(l) of the Prevention of Corruption Act, 1947 was not to be drawn until the explanation of the accused was considered and found unsatisfactory.
9. The learned counsel for the State on the other hand has referred to Muhammad Salem v. The State (3) where it was held that when passing of tainted ,money was not only established but was also admitted by the accused, presumption could legitimately be drawn against the accused under section 4(1) of the Prevention of Corruption Act, 1947 that such money had been accepted or had been obtained by the accused as bribe. In this case the view expressed in Ikramuddin v. The State was also considered but was not followed.
10. 1 have carefully considered the above legal proposition. Section 4(1) of the Prevention of Corruption Act, 1947 embodies a special rule of evidence which is contrary to the well recognised legal principle, that in a criminal case the onus to prove the guilt of the accused is always on the prosecution because the accused is presumed to be innocent. Thi departure from the well settled legal principle was necessitated by the fac B that in corruption cases it was found extremely difficult for the prosecution to prove that the money or valuable thing accepted or obtained by public servant was by way of illegal gratification because no explicit reliance could be placed on the uncorroborated statement of the bri giver in that behalf as his position was that of an accomplice. So in order to overcome the above difficulty section 4(1) of the Prevention of Corruption Act, 1947 was enacted. Now in view of the aforementioned statutory provisions it is no longer necessary for the prosecution to prove that th money or other valueable thing accepted or obtained by a public servant c was received for doing or showing an undue favour in return for the said money or the valueable thing. I am in respectful agreement with the interpretation of the provisions of section 4(1) of the Prevention of Corruption Act, 1947 as made in Muhanzmad Saleem's case. In Muhammad Siddique v. The State (4) the Supreme Court has also held that once the tainted money is recovered from the accused the onus to explain how he received it shifts upon him. Thus the prosecution case is not affected adversely merely because the statement of Muhammad Siddique is not corroborated by any evidence that the appellant had demanded illegal gratification from him and that the money paid to him which later on was recovered from him was by way of illegal gratification. The question of the appellant's guilt is to be determined on the explanation given by him with regard to the money received by him from Muhammad Siddique.
11. In order to appreciate the explanation given by the appellant it is necessary to keep in view his relations with Muhammad Siddique. It is in evidence that the appellant had already made a repot against Muhammad Siddique about the irregularities noticed by him in the ledger which clearly indicated that the appellant's relation with Muhammad
(1) PLD 1971 Kar. 78 (2) PLD 1958 Kar. 21
(3) PLD 1971 Lab. 799 (4) 1977 SCMR 503 ' Siddique could not be such that the appellant would have readily accepted Muhammad Siddique's proposal to receive the amount of money from him to be paid to him later in the presence of some person who had asked Muhammad Siddique for a loan. Apart from this fact the appellant knew that Muhammad Siddique was being prosecuted under section 307, P. P. C. At the instance of the appellant's friends and so on that account also their relations could not have been cordial or of such a nature that the appellant would have readily agreed to help Muhammad Siddique as desired by him. The learned counsel for the State has pointed out that the appellant had not mentioned the name of the person to whom Muhammad Siddique had agreed to give loan, nor the appellant had put the plea taken up by him in his defence to Muhammad Siddique when he entered the witness box. I see considerable force in the contention of the learned counsel for the State that the above facts also indicate that the plea taken up by the appellant before the Magistrate who conducted the raid and later on at the trial in Court was without substance. The learned Special Judge has, therefore, rightly refused to accept the explanation given by the appellant for the tainted money received by him.
12. For the foregoing reasons I see no force in this appeal which is hereby dismissed.