' The appellant was tried by learned Special Judge, Anti-Corruption (Central), Rawalpindi for alleged offences under section 161, P. P. C. And section 5(2) of the Prevention of Corruption Act, 1947 and convicted and sentenced to one year R. I. And a fine of Rs, 2,000 and in default of payment of fine to further undergo 9 months' R. I. Vide judgment dated 20-4-1981. The conviction was under section 161, P. P. C.
2. This is a trap case. The allegation against the appellant is that no 31-3-1976, when he was posted as Line Superintendent WAPDA at Gujrat, he demanded and accepted a sum of Rs, 300 as bribe for getting restored the electric connection of Sultan Ice Factory. Thereby he abused his official position and obtained illegal gratification and tainted money was recovered from him by a raiding party headed by a Magistrate.
3. The appellant was reported against vide F.
1. R. No, 8 dated 31-3-1976 Polide Station Anti-Corruption. Establishment, Gujrat and the same was recorded at 1-30 p.m. On that day on the statement of Abdul Ghafoor (P. W. 2). Manager of Sultan Ice Factory, Gujrat on the allegation that the accused appellant was demanding Rs, 300 as illegal gratification for reconnection of electric supply to Sultan Ice Factory. A day earlier the complainant had given him Rs, 600 as bribe but despite that the accused had failed to oblige. On the same day, a raid was conducted in the office rooms of S. A. Fan Factory which was owned by the same proprietor. The Magistrate immediately, thereafter recorded statements of the appellant-accused and P. W. 2 and P. W. 3 were recorded by the raiding Magistrate.
4. The prosecution examined six witnesses at the trial. They were P. W. 1 Yayha Bashir XEN WAPDA, P.
W. 2 Abdul Ghafoor complainant, Manager of Sultan Ice Factory, P. W. 3 Muhammad Anwar, owner of Sultan Ice Factory and S. A. Fan, P. W. 4 Munawar Hussain Cheema, raiding Magistrate, P. W. 5 Hashmat Ali forrnirr S. I. Anti-Corruption and the sixth was a formal witness P. W. 6 Muhammad Khan S. I. F. I. A. Rawalpindi. He was not the investigating officer.
5. The accused appellant in defence examined three witnesses, namely, D. W. I Ghulam Sarwar Shah, U. D. C. Office of the Revenue Officer, WAPDA, Gujrat, D. W. 2 Nadeem Farooqi, L. D. C., Office of Divisional Officer, WAPDA, Gujrat and D. W. 3 Wall Muhammad, Lineman WAPDA, Gujrat. The statement of the accused-appellant immediately after the raid is Exh. P. W. 4/2.
6. The sum and substance of the prosecution case, as unfolded at the trial, was that the electric supply of Sultan Ice Factory had been disconnected at the end of the summer season. It had to be got restored as again summer season was approaching. In this connection, P. W. 2 Abdul Ghafoor contacted the appellant who on 30-3-1976 accepted from him a sum of Rs, 600 as illegal gratification. Despite that, he failed to oblige the complainant: Later on, it was indicated that he would not oblige unless a further sum of Rs, 300 was paid. This happened on the following day i. e.
31-3-1976.
7. The complainant then reported the matter to the Anti-Corruption establishment which arranged the raid in the course of which the Magistrate recorded the statement of P. W. 2 which is Exh. P. W.
2/2. The complainant produced before the Magistrate .Currency notes P. 1 to P. 3 whose numbers were noted in the raid report and returned to the complainant for giving the same as illegal gratification to the appellant. It was agreed between the complainant and the accused that the sum of Rs, 300 will be passed on to him at 4 p.m. The same day at S. A. Fan Factory. The raiding party was accordingly informed.
8. The raiding party reached the said factory at the appointed time and got lodged in one room while the complainant was to receive the accused in the other room. The two rooms were connected by a window through which the activities of persons in the other room could be seen.
The accused dictated an application to Muhammad Anwar (P. W. 3) and put it in his pocket whereafter Rs, 300 was given by the complainant to the accused-appellant whereupon he gave a signal by coughing and then the raiding party came to that room and recovered the tainted money.
9. The learned trial Court thought that the statement of the complainant stood corroborated by the statement of P. W. 3 Muhammad Anwar, the owner of the factory, who was statedly present in the same room and also the statement of P. W. 4 the Magistrate and P. W. 5 the Sub-Inspector who was a member of the raiding party. The learned trial Court was further of the view that it did not appeal to his good reason that a person could be inimical to an official on account of the latter's performance of official duties. He also ralied on the character and status of P. W. 2 and P. W. 3 and found them reliable and incapable of stooping down to falsely involve the appellant for the reason that he had cut off their electric supply. The learned trial Court therefore took the view that the charge stood proved beyond reasonable doubt and convicted and sentenced the appellant as noticed above,
10. It may be mentioned at this stage for facility of reference briefly that in so far as the important question of recovery of the tainted amount is concerned, the eye-witness account given by P. W. 2 was that the raid party came and recovered the tainted money from the accused. The eyewitness account furnished by P. W. 3 was that the Manager i,e, P. W. 2 in his presence handed over currency notes P. 1 to P. 3 to the accused, The Magistrate reached his room within 10 minutes of the passing of the tainted money to the accused and that the currency notes were lying on the table under the hand of the accused. The Magistrate recovered the amount from the table after removing the hand of the accused from over the tainted money. The Magistrate Mr. Munawar Hussain Cheema P.
W. 4 in his testimony stated that after the accused had accepted the illegal Certificated he went over to the room of P. W. 3 and after introducing himself recovered the tainted amount from his pocket. P. W. 5 Hashmat Ali S. I. White merely stating that the bribe money was recovered from the possession of the accused, denied the suggestion that the bribe money was lying on the table and was picked up therefrom. P. W. 1 Yahya Bashir XEN WAPDA not an eyewitness stated that the appellant had been a Line Superintendent working under him and was to carry out the departmental orders for connection and disconnection. Disconnection orders were issued against Sultan Ice Factory, S. A. Fan and Sultan Flour Mills which were handed over to the accused- appellant for execution. In cross-examination, he admitted that the accused-appellant had disconnected the premises of the aforesaid mills on account of arrears and that Abdul Ghafoor and Muhammad Anwar (P. W. 2 and P. W. 3\ respectively) of these mills complained against the accused about the disconnection of residential premises. These premises were again reconnected because stay order of the civil Court bad not been vacated,
11. The accused appellant in his statement under section 342, Cr. P. C. Denied the charge as false or that he ever demanded the bribe or that the tainted money was recovered from his possession.
When questioned as to why this case against him, he stated that S. A, Fan. Ghani Flour Mills and Sultan Ice Factory belonged to Muhammad Anwar (P.W. 3) who was defaulter in the payment of electric supply bills of all the three factories. The accused appellant accordingly, under the departmental orders, had cut off the electric energy supply of these factories. He produced a copy of the complaint lodged by P. W. 3 Muhammad Anwar against the accused with WAPDA Authorities being Exh. D. A. He also produced in support of his stand Exhs. D. B., D. C. And D. D. The tainted money according to the accused appellant 'was lying on the table and it was picked up from there by the raiding party. The existence of a window between the two rooms was denied. He further produced Exhs. D. E., D. G. And D. G. With the plea that he had been falsely involved in this case as a result of grudge harbored by the complainant and Muhammad Anwar as he had while disconnecting the electric supply to the factories also cut off the energy supply to the houses of P.
W. 2 Abdul Ghafoor and P. W. 3 Muhammad Anwar.
12. I have heard the learned counsel appearing in support of this appeal and the learned counsel for the State at considerable length and gone through the record in minute detail.
13. It must be observed at the very outset that there lies a heavy onus on the prosecution to prove the demand and acceptance of illegal gratification by a public servant in a trap case. Once this basic fact has been proved, it is thereafter that the onus shifts on to the accused to explain as to how he became possessed of the tainted amount. Where therefore this basic fact was not proved beyond reasonable doubt, there arises no question of shifting of onus to the accused. The matter has to be viewed with a greater degree of seriousness and caution where a plea has been raised by the .4 accused that his involvement in a case of this nature is motivated by malice, grudge or out of spite. There is preponderance of view of the superior Courts to the effect that in order to bring home the charge to the accused beyond reasonable doubt, the Magistrate who is heading the raid party should have heard the conversation which took place between the bribe giver and the bribe taker at the time of the trap and also seen the passing over of the tainted money. I, inter alia, propose to examine the merits of this case in the light of the criteria and principles for safe dispensation of criminal. Justice.
14. I will take up first the question whether the giving and acceptance of Rs, 300 as illegal gratification stands proved and the same was recovered from the possession of the accused appellant. P W. 2 and P. W. 5 content themselves by merely making the, bald statement that it was recovered from the possession of the accused-appellant. The other eye-witness P. W. 3 Muhammad Anwar, however, categorically stated that the money was lying on the table under the hand of the accused appellant from where it was taken into possession by the learned Magistrate.
The raiding Magistrate P. W. 4 in no less categorical terms in his deposition at the trial asserted that he recovered the tainted amount from the pocket of the accused appellant. For corroboration of his statement, he also referred to the raid report (Exh. P. W. 4/1) and in particular portion marked B/1 therein. A B reference to the raid report however would show that the learned Magistrate completely contradicted himself inasmuch as in the raid report he has mentioned that he introduced himself to the accused appellant and recovered the bribe money from his right hand in which he was holding it The conclusion is thus irresistible that the prosecution own version given at the trial is contradictory and suffers from material discrepancies. The ratio of the case in re : Muhammad Saddique State (1) would seem to fully cover the facts of this case. In the precedent case, where the Magistrate and the Inspector of Police did not see the passing of the currency notes nor they heard any talk between complainant and the appellant and there was a contradiction between the statements of the two officials and the complainant, the High Court set aside the conviction on the view that the prosecution had failed to prove the case beyond reasonable doubt. In the present case, the position of P. W. 3 Muhammad Anwar is no less of a complainant as he is also an eye-witness and he admitted that he told the Manager to pass on the money to the accused after fixing the time for passing the same and he would arrange the raid against. The version of P. W. 2 Abdul Ghafoor is to the same effect that he had acted in consultation with and under the instructions of his employer.
15. In so far as the presumption of truth attaching to the statement of learned Magistrate is concerned, that also stands demolished by the fact that he visibly tried to make a deliberate improvement on the prosecution case by trying to place the matters beyond doubt and dispute by stating that the bribe money had been recovered from his pocket whereas, as per the raid report, the same had been taken into possession from the right hand of the accused-appellant. It is, therefore. Difficult for me to appreciate how the learned trial Court could keep out of consideration these material facts and circumstances because his judgment under appeal does not show conscious application of mind to these material aspects He content himself by merely going by the status and character of the complainant and the owner of the factory as being incapable of stooping down. It needs to be noted that in so far as the evidence of P. W. 3 Muhammad Anwar owner of the Ice Factory is concerned, he was not declared hostile by the pro section nor cross- examined by it. Therefore, in any view of the matter, the prosecution had failed to prove beyond reasonable doubt the recovery of Rs, 300 from the accused appellant. There thus arose no question of shifting of any burden on the accused-appellant in the case.
16. As has already been pointed out above, the superior Court of the country have been at pains to emphasize the desirability of the raiding Magistrates hearing the conversation which took place between the bribe giver and the accused as well as seeing the actual passing of the tainted money. A careful reading of the statement of P. W: 4, the raiding Magistrate, would show that he merely stated that the partita on of both the rooms had one window through which the activity as for one room were visible in the other room if some person peeped through it. The accused arrived in the adjoining room and he could see him accepting the amount of money and drafting of application through this window. There is a world of D difference between stating that one could see and that one had actually seen. He never stated that in order to accomplish this purpose, he peeped through the window. He does not claim to have heard anything at all. Thereafter, he deposed that after the accused had accepted the illegal gratification, he went over to his room after introducing himself recovered the tainted amount. The statement of the learned Magistrate stands completely contradicted by the statement of P. W. 3 Muhammad Anwar who deposed in his examination in chief that the Magistrate reached his room within ten minutes of the passing of the tainted money to the accused appellant. The gap of ten {{FOOT NOTE}}
(1) 1975 P Cr. L J 1286 {{FOOT NOTE}} ' minutes is a material circumstance which casts a cold of doubt on the prosecution version and seems to suggest that the Magistrate neither saw nor heard anything. I must observe that eye- witness account given by a prosecution witness which seems to contradict its own version in material respect when such a witness was not declared hostile has to go to the benefit of the accused and an inference adverse to the prosecution must be drawn therefrom. Therefore, in any view of the matter, I am obliged to hold that the prosecution has failed to establish the recovery of the tainted amount from the person of the accused appellant.
17. The view of the learned trial Court that it did not appeal to its good sense that discharge of official duties could give rise to a grouse or grudge or ill-will, apart from the unsoundness of the view, seems to have been formed by excluding from consideration the material circumstance brought on the record that ' vide Exh. D. A., P. W. 3 Muhammad Anwar had in fact lodged a complaint with the XEN, WAPDA so that the accused-appellant be taken to task and be punished.
This circumstance by itself was sufficient to show that the complainant and his Manager were not disinterested persons but they had suffered a grievance at the hands of the accused who while taking off the switch of the transformer supplying electric energy to their factories had also disconnected the electric supply feeding the residential houses of P. W. 2 and P. W.
3. The consequential annoyance caused to the consumer can be well appreciated and understood. The foundations were thus laid for harbouring of a grudge against the employee which was manifested through the application Exh. D. A. This fact finds further support from the testimony of P. W. 1 Yahya Bashir XEN, WAPDA when he deposed that Anwar and Abdul Ghafoor of these mills complained against the accused about the disconnection of their residential electric supply. It was further proved through his evidence that it was the accused appellant who recovered the arrears amount from the complainant's factories and also disconnected the electric supply.
18. In a case like the one in hand where the complainant or the witnesses are established on the record to harbor enmity, grouse or grudge and motivation exists for false involvement of the accused, the evidence of such witness cannot be treated to be that of disinterested persons and therefore corroboration must be sought from independent sources and circumstances brought on the record. The evidence of P. W. 2 and P. W. 3 cannot reasonably be said to have been corroborated by P. W. 4 and P. W. 5 as their testimony is contradictory to each other.
19. The F. I. R. In this case is shown to have been recorded at 1.30 p. m. On 31-3-1976. The complainant's statement was recorded by the learned Magistrate after 3.30 p. m. As is evident from a perusal of the raid report Exh. P. W. 4/1. The complainant on the other hand in his cross- examination clearly admitted that there was no appointment with the accused regarding the time prior to suggestion of Magistrate and that he had met the Magistrate before lodging the F.
1. R. Along with the Anti-Corruption man who took him to the Magistrate and the Magistrate had given them time of 4 p.m. The F. I. R. Was lodged after meeting the Magistrate. The Magistrate on the contrary stated that the appointment with the accused regarding time was not fixed at his instance but was pre-fixed by Abdul Ghafoor with him. The deposition of the complainant himself would seem to suggest therefore that the F. I. R. In the case was lodged not at 1.30 p. m. But, to say the least,. After due deliberations and a prior meeting with the learned Magistrate who came in the picture from 3.30 p. m. Onwards the same day. This circumstance would against adversely reflect on the sanctity of the proceedings held in this case resulting in the trap of the accused appellant.
20. The learned counsel for the appellant appears to be right in asserting that this Court ought to take notice of the material fact that an attempt had been made for the false involvement of the accused appellant. He drew my attention to Exh. P. W. 2/2 statement of the complainant Abdul Ghafoor recorded by the Magistrate wherein in the 10th line the allegation is levelled against Javed Iqbal alias Zaidi. The name "Javed Iqbal" has been scored out and then substituted by the words "Khurshid Ahmad" which carries the initials of the Magistrate over the cutting. However, again in the 14th line of the statement, it was stated that the complainant had already given Rs, 600 to Javed Iqbal and now by taking advantage of his helpless, he was demanding more money as illegal gratification. The name "Javed Iqbal" is clearly legible which has been scored out by a single thin line and the words "Khurshid Ahmad" have been written above it. The cutting appears to be wholly unauthorised because it does not carry the signatures or initials of the Magistrate. The version of the prosecution and the complainant at the trial was that Rs, 600 had already been paid a day earlier to the accused-appellant whereupon he failed to oblige and thereafter a further sum of Rs, 300 was being demanded by him as a bribe. The substituted name "Khurshid Ahmad" is visibly in a different pen and with a different band. This fact has two-fold meaning. First, the complainant was hobnobbing with one Javed Iqbal and had given him Rs, 600 and secondly that while giving the statement before the Magistrate for arranging a raid the complainant was not sure even about the identity of the person to whom he had paid bribe a day earlier and the one who was demanding more amount. It further contradicts the prosecution own version that if Rs, 600 was paid to Javed Iqbal, how would the story fit in with the version that the appellant was demanding more money.
21. The learned trial Court also appears to have acted in oblivion of the principle of appreciation of evidence in criminal matters inasmu ch as it has been often said and reiterated that the defence plea of the accused at the trial must be placed in juxtaposition to the prosecution version and the Court must try to evaluate it and discover the probabilities of the case. Immediately after the raid the statement of the accused-appellant had been recorded by the Magistrate. He denied a demand for bribe or acceptance thereof. He categorically stated that the money was recovered from the table and that he was being falsely involved in the case on account of enmity because he had incurred the wrath of P. W. 2 and P. W. 3 by disconnecting the electric supply to their factories as well as to their houses. The version of the accused-appellant found corroboration from the material on the record. Exh. 1). A. Clearly established that in the performance of his official duties the accused-appellant had indeed incurred the displeasure and caused annoyance to P. W. 2 and P. W. 3 as a result whereof a complaint was made against him for action to the superior officers.
None other than P. W. 3 himself deposed that the money was recovered from the table and not from the pocket of the accused-appellant. As regards the disconnection of the electric supply, the fact had been completely suppressed by the complainant in the F. I. R. Or in his statement before the raiding Magistrate and even in his examination-in-chief at the trial. It was in the course of his cross-examination that he had to admit that it was not a case of simple H reconnection but that the factories were in default to the tune of thousands of rupees and that the appellant had illegally disconnected the electric supply despite the fact that the matter was pending in the civil Court.
The suppression of this essential background must also adversely reflect on the credibility of the complainant's testimony. The evidence of P. W. 1 Yahya Bashir also gives corroboration to the defence version of the accused-appellant. All these factors have not at all been adverted to or considered by the learned Court resulting in the error of judgment and decision.
22. The learned Slate counsel Ch. Ghulam Muhammad appeared to be right in not supporting the prosecution case by asserting that there was contradictory evidence of recovery, variance as regards the time of raid, hostility between the complainant and the accused stood established and on the quality of evidence adduced at the trial it could not be said that the prosecution had been able to bring home the charge to the accused beyond reasonable doubt.
23. In the last analysis, therefore, I am of the considered view that the prosecution has failed to prove the case against the appellant. The appeal is accordingly accepted and the appellant is acquitted.