HASNAT AHMAD KHAN, J. - Muhammad Yaqoob appellant was convicted for an offence under Section 161, P.P.C, vide judgment dated 5.12.2006 passed by the learned Special Judge (Central)
Multan, and was sentenced to one year's R.I. With a fine of Rs. 2,000/-, or in default of payment thereof to undergo simple imprisonment to three months. The said appellant was further convicted for an offence under Section 5(2) Of Prevention of Corruption Act and was sentenced to rigorous imprisonment of one year and a fine of Rs. 2,000/- or in default of payment thereof, to undergo simple imprisonment for three months. However, both the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C, was also granted.
2. Briefly the prosecution story is that the appellant while posted as Commercial Assistant Revenue Office, MEPCO, Rajanpur, demanded an amount of Rs. 1,000/- as illegal gratification from Abdul Ghafoor for correction of his electricity bill. son the move of the said complainant, a raid was organized and conducted under the supervision of a Magistrate and tainted currency note of Rs.
1,000/- was recovered from the possession of the appellant, whereupon, he was booked by the F.I.A/C.C. Multan, vide F.I.R. No. 31/99, dated 28.8.1999, in respect of offences under Section 161, P.P.C, and Section 5(2) of Prevention of Corruption Act, 1947.
3. After completion of the investigation, the appellant was challaned before the Court of Special Judge (Central), Multan. A formal charge was framed by the said Court against the appellant to which he did not plead guilty.
4. During the trial, the prosecution came forward with . 5 witnesses. Malik Muhammad Sami, Tehsildar/Magistrate; who had supervised the raid, appeared as PW-1 and while providing the details of the raid, he fully supported the prosecution version. Aman Ullah, Inspector, ACE, Rajanpur appeared as PW-2 and narrated the details of the raid and proved the recovery of tainted currency note from the possession of the appellant at the relevant time. Whereafter, Abdul Ghafoor, complainant entered into the witness-box as PW-3 and supported the prosecution version. Mufti Muhammad Abdul Haque Shah, Inspector F.I.A., who had recorded the formal F.I.R. (Ex.PI) came forward as PW* 4, while Hassan Shah, DSP who had prepared the complaint (Ex.PH) entered into the dock as PW-5.
5. After the conclusion of the prosecution evidence, the appellant was examined under Section 342, Cr.P.C, In answer to question No. 3, he replied as under:- "Since I quarrelled with Col. Javed of Wapda Military and on his asking I was arrested and kept under illegal confinement for one day and I was not produced before any Magistrate. The raid is also concocted one. I had made any statement before the Magistrate butit was got signed by me under coercion."
The appellant refused to make a statement on Oath under Section 340(2), Cr.P.C. However, he produced two documents Ex. DA and Ex. DB in his defence,
6. In support of this appeal, learned counsel for the appellant has contended that the bill for the correction of which the bribe was allegedly received by the appellant, showed that the due amount had already been paid on 3.11.1998, therefore, the prosecution story is not trustworthy. He adds that PW-2 and PW-3 were declared hostile, as such, no reliance can be placed upon their evidence. He maintains that admittedly neither the passing on of the. Tainted money was seen by the raiding Magistrate, PW-1 and Inspector PW-2 nor did the said witnesses hear the conversation between the decoy witness and the appellant and therefore, no implicit reliance can be placed on the evidence of the said witnesses. He has further maintained that as a matter of fact neither any raid was conducted nor any tainted money was recovered from the possession of the appellant and the entire prosecution case was cocked up on the asking of a serving Colonel namely Javed, with whom the appellant had quarrelled. While Concluding his arguments, he has placed his reliance upon the cases of Nazar Hussain vs. The State (2003 YLR 512), Muhammad Abdullah vs. The State (2003 MLD 1234), Fazal-ur-Rehman vs. The State (2004 MLD 1368), Muhammad Ismail vs. Summary Military Court (1982 P.Cr.L.J 557) and Saif Ullah vs. The State (2004 YLR 2429).
7; Learned counsel for the State has supported the conviction and sentence awarded to the appellant by the Trial Court.
8. I have ardently heard the arguments advanced by both the sides and record has also been perused carefully.
9. The perusal of the record reveals that the .Complainant being consumer of MEPCO received utility bill showing the outstanding amount of Rs. 27,732/- against the electricity meter owner by the complainant. According to the complainant, a bill pertaining to a different meter was shown against his meter No. 002292870, upon which, he contacted the Revenue Officer, WAPDA, who asked him to deposit the .Whole amount. Thereafter, he contacted the appellant who firstly demanded Rs. 10,000/- as bribe for correction of the bill. But the complainant showed his inability to pay such heavy amount as bribe. Ultimately the appellant asked the complainant to pay an amount of Rs. 4,000/- for the said purpose. The complainant being not willing to accommodate the appellant, approached the C.O/ACE, Rajanpur, on 3.2.1999 complaining against the above-said illegal demand of the appellant. After recording the statement (Ex.PB) of the complainant, the C O.
Managed the constitution of a raiding party. Accordingly, a raiding party under the supervision of Malik Muhammad Sami, Tehsildar/Magistrate, conducted a raid and on receiving the signal of a complainant, the appellant was apprehended and tainted currency note of the denomination of Rs. 1,000/- was recovered from his possession. Thereafter, his statement (Ex.PE) was recorded in which he claimed that the complainant had trusted the tainted currency note in his pocket. The prosecution story was duly supported by the evidence of raiding Magistrate, complainant (PW-1) and Aman Ullah, Inspector ACE (PW-2). The evidence of Inspector (PW-2) and. Complainant (PW- 3) has been mainly criticized by the learned counsel for the appellant on the ground that both the said witnesses were' declared hostile and therefore, according to him they are not worthy of reliance.
10. I have perused the statements of all the said witnesses. PW-2 was declared hostile only on the ground that during his examination-in-chief, he had stated that raid was conddieted inside th^ room and not outside the office. On the similar ground PW-3 was declared hostile. According to my humble view, the witnesses could not have been declared hostile simply on the ground that their evidence was based upon some contradictory statements. Apart from said contradictions which were quite natural as statements of said were recorded after about 3 and half years of the occurrences, both the said witnesses had fully supported the prosecution version. Therefore, said witnesses were illegally declared hostile. Reliance in this regard is placed upon a judgment rendered by the learned Division Bench of this Court in case of Fazal alias Fajja vs. The State (1971 P.Cr.L.J 602), wherein, it was held as under:- "The mere fact that the witness described different venue of his signing the recovery memo, should hot have led the Public Prosecutor to the conclusion that the witness had become hostile.
Similarly in a case titled Muhammad Boota vs. The State (1984 SCMR 560), the Hon'ble Supreme.
Court held a's under:- "A witness who is unfavourable is not necessarily hostile, for a hostile witness is one who from the manner in which he gives his evidence, shows that he is not desirous of telling the truth to the Court, that the witness's answer to certain question is in direct conflict with evidence of other witnesses and is not and can never be a reason for allowing the witness to bd treated as hostile and permitted to be cross- examined."
11. As far as the worth of the statements of said witnesses is concerned, that cannot be discarded out rightly on the basic of some contradictions made by them, It is a settled law that the hostile witness may be a truthful witness and a witness does not lose credibility merely on the ground that he had turned hostile. Court should take into consideration entire evidence of such witness to see whether any part of his evidence of such witness to see whether any part of his evidence was worthy of belief in the light of the other evidence, and testimony of such witnesses cannot be discarded altogether and has to be considered like the evidence of any other witness, but with a caution. Reliance in this regard is placed upon the cases of Zarid Khan vs. Gulsher and another (1972 SCMR 597), Muhammad Sadiq vs. Muhammad Sarwar (1979 SCMR 214), Islam vs. The State (PLD 1962 Lahore 1053), Kaloo and 2 others vs. The State (1973 P.Cr.L.J. 334), Muhammad Luqman vs. The State (N.L.R 1989 Criminal 341).
12. In case of Islam vs. The State (PLD 1962 (W.P) Lah 1053J, the learned Division Bench of this Court held as under:-- "Mst. Sattan was admittedly living in the house alongwith her parents. She, therefore, could be the most natural witness of occurrence and her evidence in respect of the incident cannot be easily brushed aside. She in her statement has exonerated her mother and attributed the murder only to Islam. She was, therefore, cross-examined by the Public Prosecutor with the permission of the Court. The learned counsel for the appellants contended that since she was declared to be hostile witness (this is a term of convenience and not to law), she is a witness unworthy of any reliance and her evidence, therefore, should be completely brushed aside. This contention has no force. The fact that the witness is dealt with under Section 154 of the Evidence Act, and she is cross-examined as to credit, in no way warrants that the Court is bound in law to place no reliance on her evidence.
There is also np warrant for the proposition that the party who called and cross-examined her can take no advantage of any part of her evidence. Her evidence is not to be rejected either in whole or in part. But the whole of the evidence so far as it effects both parties favourably or unfavourably, must be taken into account and assessed like any other evidence for whatever it is worth."
In case reported^as Zarid Khan vs. Gulsher (1972 SCMR 597) the Hon'ble Supreme Court of Pakistan held as under:-- "Although the prosecution relied upon the evidence of two eye-witnesses, namely, P.W. Zarid Khan and P.W. Ali Sarwar, the High Court considered it safe to ignore the testimony of P.W. Ali Sarwar from consideration merely on the ground that he had turned hostile at the trial. This, in our opinion, was not a correct view of the matter. The entire evidence of the witness 'should have been taken into consideration to see whether any part of his evidence was worthy of belief in the light of other evidence " Underlining is mine.
12. The perusal of the evidence of PW-2 and PW-3 has shown that the evidence of the said witnesses is consistent, as far as, the recovery of tainted currency note from the possession of the appellant is concerned. Their evidence is fully supported by the evidence of PW-1 Muhammad Sami, Tehsildar, A.S.I. Both of them faced the weapon of cross-examination quite successfully and the defence remained failed to shake them. Said witnesses had got no ill-will to falsely involve the appellant in case of such nature. Even no such enmity was suggested to them. No link between the complainant and Colenel Javed, who allegedly was inimical to the appellant, could be establish or even suggested by the defence. Therefore, their evidence cannot be disbelieved only on the ground that the same was based upon some minor contradictions.
13. As far as the contention of the learned counsel ,for the appellant that neither the passing on of the tainted money to the appellant was seed by the PW-1 and PW-3, nor did they hear the conversation between the complainant and the appellant, is concerned, ,same does not hold water and the case law replied upon by the learned counsel in this behalf is also distinguishable.
Inasmuch as, such plea can be advantageously used by the accused who while making the first statement at the time of the raid, raises a plausible and alternate plea explaining the rec^^ of the tainted money, In the present case, the appellant during his first statement recorded at the time of raid had raised the plea that the tainted currency note was thrusted into his pocket by the complainant. Even during the trial he had not come up with any plausible version. He had simply taken the plea that the case was cocked up on the asking of a serving Colonel. If the said plea is accepted that would mean that the Magistrate as well as Police Officer had become a tool in the hands of the said Colonel. The appellant had raised a plea, whereby, he had out rightly denied even the proceedings of the raid. He had termed the raid as concocted one. The said plea cannot be entertained and the evidence of the witness of Magistrate level cannot be rejected on such an afterthought plea, especially when the appellant had failed to appear as his on witness to support such plea. Similarly, no evidence was produced by him to support the said defence plea. Likewise the appellant could not come up with any plausible plea as to what made the complainant or other witnesses to become tools in the hands of the said Colonel.
14. After the rigorous study of. The record, I have concluded that the defence plea that the disputed bill had been already paid is also a baseless contention. The perusal of the bill which has been placed on record as Expwy-3/1 shows that originally through said bill an arrears of an amount of Rs. 27,146/- were shown against the meter owned by the complainant, while the amount payable after due date is shown to be Rs. 27,732/- which is the exact amount which according to the prosecution version was demanded by the Department from the complainant through the bill which was sought to be corrected by him. The said bill was paid on 3.11.1998 after seeking permission to deposit an amount of Rs. 586/- which was duly paid. The said bill shows that the outstanding arrears which were disputed by the complainant were not paid. Said bill i.e. Ex.PW-3/1 instead of advancing the case of the defence has supported the prosecution version, inasmuch the said bill shows that the complainant had been disputing said amount and seeking correction of the same.
Similarly, no benefit can be given to the appellant on the basis of Ex.DB which only shows that the physical remand of the accused was .Not procured in time. Said illegality cannot over shadow the consistent, solid and, well-established and proven prosecution version.
15. Ordinarily in the criminal jurisprudence, burden to prove the prosecution case is always upon the prosecution, yet Section 4 of the Prevention of Corruption Act, 1947, has created an exception to the said rule which says that after proving the receipt of illegal gratification, it would be the duty of the accused to dislodge the said presumption, In the present case, the appellants have failed to dislodge the said presumption. He had even failed to examine himself on oath under Section 340(2), Cr.P.C, which showed that he had nothing to say in defence. If any case-law is required in this regard, reference is made to the case of Ehsanullah vs. The State (2006 SGMR 304) and Muhammad Nosheen vs. The State (2006 SCMR 351).
16. The nutshell of all the discussion made above is that the prosecution has successfully proved its case against the appellant beyond any shadow of doubt and the impugned judgment does not merit interference, as far as the conviction is concerned. However, the sentence awarded to the appellant seems to be a bit on the higher side, as the appellant is facing the agony of the trial since 28.8.1999. He is likely to lose the service also. Therefore, he deserves some leniency as far as the sentence is concerned. Accordingly, the same is reduced to six months on both the Courts i.e. Under Section 5 (2), 47 of P.C.A, and Section 161, P.P.C. The sentence of the fine alongwith alternative sentence of imprisonment awarded by the learned Trial Court is however maintained. The sentences under both the heads shall run concurrently. Benefit of Section 382-B, Cr.P.C, has already been awarded to the appellant, same would remain intact. With the above-said modification in the sentence, this appeal is disposed of.