JUDGMENT ALI SAIN DINO METLO, J. - Finding him guilty of receiving Rs. 4,000/- as bribe, the Special Judge Anticorruption, Larkana, by his-judgment,, dated 30.6.2004, sentenced the appellant to suffer rigorous imprisonment for two years and to pay fine of Rs. 10,000/- or in default of the payment to undergo rigorous imprisonment for six months more. By this appeal, he has challenged his conviction and sentence.
2. Briefly, the facts are that about one month before registration of F.I.R. On 25.10.1992, the appellant, a watchman in the office of Sub-Divisional Officer Education (Male), Garhi Yaseen, received Rs.
3,000/- as illegal gratification from complainant Nazeer Ahmed Dayo in presence of his brother Gulsher and one Ali Muhammad Odho for getting Gulsher employed as watchman in Education Department. Later on, he demanded Rs. 1,000/- more for getting the job done. On 25.10.1992, the complainant went to the Circle Officer, Anti-corruption Establishment, Shikarpur, and got his report registered as F.I.R. No. 19 of 1992. On 26.10.1992, the Circle Officer, Noor Muhammad Solangi, arranged a trap party comprising himself, his constable l. Mdad Ali Shah, private person Gul Muhammad Shaikh, complainant Nazeer Ahmed Dayo and Mr. Raza Muhammad Bhutto, Assistant Mukhtiarkar and Second Class Magistrate, Lakhi, and went to the office of the Sub-Divisional Officer Education (Male), Garhi Yaseen, where complainant paid tainted money of Rs. 1,000/- to the appellant in presence of Gul Muhammad Shaikh. On receiving signal from the latter, they i.e. The Magistrate, the Circle Officer and the Constable, apprehended the appellant and secured the tainted money from his possession. On the basis of his statement that he wanted to arrange the job for Gulsher through. Acquitted accused Ayaz Hussain, a clerk in the same office, the latter was also arraigned.
3. At trial, both the accused pleaded not guilty and the prosecution examined four witnesses namely, Magistrate Raza Muhammad Bhutto, private witness Muhammad Ali Udho, Circle Officer Noor Muhammad Solangi, and constable Imdad Ali Shah. The complainant, his brother Gulsher and private witness Gul Muhammad Shaikh were not examined on the ground that they were not traceable. Both the accused did not produce any evidence and barely denied the allegation. The Trial Court acquitted accused Ayaz Hussain and convicted and sentenced the appellant as above.
4. Out of the four prosecution witnesses, the only private witness, namely, Muhammad Ali Udho, in whose presence bribe of Rs. 3.000/- was allegedly received by the appellant, stated that neither any amount was paid to the appellant in his presence nor he knew anything about the payment of any bribe to him. He was not declared hostile and thus the prosecution accepted his version. None of the remaining, three prosecution witnesses stated that any. amount was paid to the appellant in their presence or that they heard any conversation between the complainant and' the appellant at the time of latter's receiving the tainted money. Their evidence is only on the point of recovery.
According to them, on receiving signal from Gul Muhammad Shaikh, they had gone to and apprehended the appellant and had recovered the tainted money from his possession.
5. 'Thus, the position of the prosecution case is that its major part about payment of bribe of Rs.
3,000/- is not only not supported by any evidence but indeed stands falsified by prosecution's own witness.
6. As regards the remaining part regarding recovery of Rs. 1,000/- from the appellant, except for the presumption under Section 4 of the Prevention of Corruption Act, 1947, there is not evidence to show that the money was received by him as illegal gratification. The complainant, who had allegedly paid the money as bribe, private witness Gul Muhammad Shaikh, in whose presence the money was paid, and the complainant's brother Gul Sher, 'for whose job the money was paid, have not been examined. The Magistrate, the Circle Officer and the constable, who claim to have recovered the tainted money from the appellant, have not claimed that the money was paid in their presence or that they had heard any conversation between the complainant and the appellant at the time of handing over the money. The Magistrate has clearly stated that they had not heard any conversation between the two.
7. The appellant was simply a watchman. He could not himself make any appointment. The co- accused, who has been acquitted by the Trial Court for want of any evidence against him and through whom the appellant allegedly wanted to get the complainant's brother appointed, was also a clerk incapable of making any appointment. Thus, the prosecution has failed to explain how the appellant was to accomplish the job.
8. In the cases of receiving illegal gratification by public servants, the bribe-givers are regarded as accomplices and their evidence is required, to be scanned with much care. Generally, conviction is not to be based upon uncorroborated testimony of an accomplice and, therefore, the Courts mostly insisted upon corroboration of bribe-giver's evidence, which, keeping in view the nature of the crime, demanding secrecy, posed difficulty of proof in many genuine cases. With a view to meet the challenge of rise in the crime of bribery, the legislature, by enacting Section 4 ibid, created a presumption against persons accused of such offence and thereby made proof of the offence easier. However, the presumption was. Made rebatable by qualifying it with words "unless the contrary is proved". The burden of proving to the contrary upon the accused is lighter than the burden of proof upon the prosecution. The prosecution has to prove the charge beyond reasonable doubt, while the accused is required to show the possibility of his defence being true. It is not necessary for an accused to lead evidence in every case. The contrary can be proved by the examination of the accused on or without oath or by the circumstances of the case. It depends upon case to case. In some cases, like the present one, where there is no evidence, not even of the afterage bribe-giver, about receipt of bribe by the accused, the presumption under Section 4 ibid, can be displaced by showing that the act alleged against the accused is capable of .
Interpretation other than that suggested by the prosecution.
9. The appellant and the complainant were co- villagers. A suggestion was put to the Circle Officer in his cross-examination that the complainant had paid Rs. 1,000/- to the appellant for delivery to his brother at his village. The Suggestion, in absence of any evidence to the contrary, is quite plausible. The suggestion was, however, denied by him notwithstanding the fact that he did not know what had transpired between the complainant and the appellant at the time of former's handing over the money. Such denial on his part, being without any justification, is inconsequential.
The in view of the suggested plausible explanation regarding the money recovered from the appellant, it can safely be said that the presumption of receiving the money as bribe envisaged by Section 4 ibid, stood displaced particularly when there was no direct evidence to show that the money was paid as bribe. The-appellant was, therefore, entitled to acquittal and the Trial Court erred in convicting him. It was for these reasons .That the appeal was allowed and the appellant was acquitted by a short order passed on 23.11.2007.