Muhammad Aslam appellant was tried and convicted by the learned Special Judge, Anti- Corruption Establishment, Lahore, vide the impugned judgment dated the 19th of December 1964: for having abetted the offence of bribery punishable under section 165-A, P. P. C., with an award of six months' R. I. And a fine of Rs. 300 or further three months' R. I. In default of payment thereof.
2. The prosecution case briefly is that on the 16th of July 1963, the appellant, who, at one the, was employed as a Meter Clerk and was discharged from service sometime in May 1963 approached Amin Ullah P. W. 3, also a Meter Inspector, in the Second Lyallpur Division of the Electricity Department, with Headquarters at Sukheke, at his residence in Sheikhupura where he lived for want of residential accommodation at his Head--quarters, and promised to pay him Rs. 200 as illegal gratification for reversion of meters of four tube-wells and one factory in Hafizabad with a view to show lesser consumption of energy and actually made over Rs. 50 in part payment of the promised amount. The details on that on the previous day, I e. 15th July 1963, Amin Ullah returned from his work in the evening and was delivered ruqqa Exh. P. A. By his wife. The ruqqa which is admitted by he appellant to have been written in his own hand purported to show that the appellant wanted to see Amin Ullah for an important work and would visit his house again at 9 p.m.
Requesting him to stay at home. The appellant allegedly kept his appointment and told Amin Ullah that he wanted that the meters be reversed to show short consumption of energy. H,, further told him that the total amount of Rs. 400 to be obtained from the consumers would be equally shared between them. It is also in evidence that at the relevant the when this conversation was going on between the to, Arif Zia, Secretary, Market Committee P. W. 1 and Safdar Ali, Ahmad of the Court of Administra--the Civil Judge, Sheikhupura P. W. 2 also arrived, heard the talk and left the house of Amin Ullah soon thereafter, Amin Ullah declined the offer and the appellant left only to re-appear on the following morning at 5-30 a.m. When he repeated the offer. Having sensed his keenness, Amin Ullah expressed his willingness to do the job provided his share of Rs. 200 was paid to him in advance. The appellant could offer only Rs. 50 which Amin Ullah promised to receive from him after he had taken his breakfast. Leaving the appellant in his sitting room Amin Ullah allegedly left his house from the other door on his cycle and repaired to the office of the Anti-Corruption Establishment where he met Ch. Mazhar Hussain, Sub-Inspector. The latter took him to the District Courts, made al: application Exh. P. B. To the A. D. M. Who marked the same to Ch. Ghulam Murtaza, Magistrate 1st Class, for supervising the raid. The latter recorded the statement of Amin Ullah Exh. P.
B. And told him to return to his house. It was arranged that the Magistrate and the Sub-Inspector would soon follow, that Amin Ullah will sit with the appellant in his baithak and that the Magistrate and the Sub-Inspector would overhear the talk between the to while. Standing in the courtyard of the house of Amin Ullah. Accordingly both of them stood outside the sitting room behind a curtain and the appellant allegedly repeated his offer and also made over currency notes Exhs. P. I to P. 5 of the denomina--tion of Rs. 10 each to Amin Ullah. At the same the, he is also stated to have told Amin Ullah that if he co-operated with him he would be able to make a fortune as several other persons had already done. It was at this stage that the Magistrate and the Sub-Inspector appeared this the scene and the Magistrate recovered the currency notes Exhs. P. 1 to P. 5 from Amin Ullah.
3. -At the trial, the appellant admitted his visit to the house of Amin Ullah and also having written ruqqa Exh. P. A. He also admitted that when his talk with Amin Ullah was going on Arif P. W. Above came there. He took up the plea that he wanted to borrow some money from Amin Ullah on the security of his gold-ring and denied having requested him to get the meter reading reversed. At the trial in support of the prosecution case, Ch. Ghulam Murtaza, Magistrate who supervised the raid, reproduced from memory what was overheard by him and the Sub-Inspector. The appellant told the Magistrate that he had spent the night with Amin Ullah and had no money with him and that Rs. 50 recovered by the Magistrate from the possession of Amin Ullah were actually advanced by the latter to him as a loan against his gold-ring. He admitted before the Magistrate that he had offered this amount to Amin Ullah towards part payment of the promised amount of Rs. 200. Of course in his statement under section 342, Cr. P. C. This was categorically denied by him. It was also brought on the record that the services of the appellant were terminated in the first instance on the 5th of November 1962, by the order of Mr. A. M. Sayal, Member, WAPDA, on account of some serious irregularities.
4. In defence, the appellant produced Muhammad Aziz, a Line Superintendent, Electricity Br-arch, WAPDA and Mr. Muzaffar Ahmad Bajwa, Advocate of Hafizabad: The former who belonged to Hafizabad, the home town of the appellant, tried to show that Amin Ullah was inimical towards the appellant and wanted to land him into trouble. Mr. Bajwa stated nothing about the occurrence and only credited the appellant with good moral character.
5. Placing reliance on the prosecution version, which rested mainly on the testimony of Amin Ullah P. W. 3, Ch. Ghulam Murtaza Piracha P. W. 4, Mazhar Hussain Sub-Inspector P. W. 6, the learned Special Judge came to the conclusion that the offence had been brought home to the appellant and accordingly convicted him.
6. The following contentions were raised before me on behalf of the learned counsel for the appellant :-
(1) That Arif Zia P. W. 1 and Safdar Ali P. W. 2, who claimed to have heard the first conversation between the appellant and Amin Ullah should not have been believed by the learned Special Judge,
(2) that even otherwise on the legal plane no offence was made out against the appellant for the reason that Amin Ullah being a Meter Inspector, Second Lyallpur Division with Head--quarters at Sukheke, having nothing to do with the supply of energy in Hafizabad where meter reading was allegedly to be reversed, was not in a position to show any favour to the appellant and as such one of the essential ingredients ;of section 161, P. P. C. Namely, showing favour or disfavour in exercise of official function would be missing. Reliance was placed in this regard on Venkata Rama v. Emperor AIR 1929 Mad. 756 and Shamasul Haq v. King-Emperor AIR 1921 Cal. 344 ;
(3) that there was no corroboration available on the record of the testimony of to decoy witnesses, namely, the Magistrate and the Sub-Inspector. Reliance was placed in this/regard on Ansar Ali Man v. The State PLD 1961 Dacca 806.
7. The contentions raised by 'the learned counsel have obviously much substance in them. I have no hesitation in straightaway excluding the testimony of Arif Zia P. W. 1, Secretary, Market Committee, Sheikhupura, and Safdar Ali P. W.2 Ahlmad of the Court of Administrative Civil Judge, Sheikhupura, notwithstanding their status for the simple reason that these to witnesses of whom the presence of the former was admitted by the appellant, do not claim to have overheard to conversation which normally should have been held in strict secrecy unless of course either P. W. 1 and P. W. 2 were also a party to the' proposed shady deal or the appellant had nothing to, hide from them being very thick with them of which there is no indication on the record. The position would have been different if these to witnesses had claimed to have overheard the conversation but their assertion that it took place in their presence would be altogether inconsistent with the ordinary course of human conduct. It is, therefore, not safe to place reliance on their testimony.
A. Coming to the next contention, a perusal of the provisions contained in section 161, P. P. C. Which offence the appellant was found to have abetted clearly shows that "the illegal gratifica--tion sought to-be obtained by a public servant should be a motive or reward for doing or forbearing to do any official at or for showing or forbearing to show in the exercise of his official functions etc".
Since there is nothing to indicate that Fiafizabad also fell within the jurisdiction of Amin Ullah Meter Inspector who was posted in the 2nd Lyallpur Division with Headquarter at Sukheke and rather indications are to the contrary, there was obviously no question of his doing or forbearing to do anything in his official capacity or in exercise of his official functions. Thu one of the essential ingredients of the offence would be missing in the case right from the very outset. The authorities relied upon by the learned counsel lend full support to this view and are directly attracted to the facts and circumstances of this case.
9. In Shamasul Haq v. King-Emperor (AIR 1921 Cal. 344), the petitioner, who was taxi driver, had allegedly offered Re. 1 to the Sergeant for withdrawing charge against him under the Motor Car. Act, on the 21st of June 1920, whereas the case against the petitioner had already been dismissed on the 16th of June 1920, without his knowledge. In view of the fact that on the later date it was not within the power of the Sergeant to show any favour to the, petitioner, the petitioner could not be convicted under section 161/109, P. P. C. Accordingly their Lordships of the D. B, set aside his conviction.
10. In Venkata Rama v. Emperor (AIR 1929 Mad. 756), which is also a D. B. Authority, the petitioner anxious to be recruited as a police constable and having been found below the prescribed standard of height tendered- a five-rupee not to the Reserve Inspector. Their Lordships took the view that since the public officer was functus officio no offence under section 161/116, P. P. C. Was committed. Accordingly, allowing the revision petition their Lordships set aside the conviction and sentence of the petitioner.
11. In the above view of the matter, I allow the appeal set aside the conviction of the appellant and acquit him. . He .Is on bail and is discharged from his bail bond.