' Abdul Hamid, Upper Division Clerk in the Office of Revenue Officer, WAPDA, Badami.Bagh, Lahore, was tried by the Special Judge (Central), under section 161, P.P.C. Read with section 5 (2) of the Prevention of Corruption Act, 1947. The trial Judge, by judgment dated 24th September, 1983, held him guilty for the offence he was charged and sentenced him to one year R.I. And a fine of Rs, 1,000; or in default two months' R.I.
2. The convict has appealed to this Court.
3. The appellant was convicted on the complaint lodged by Noor Muhammad son of Ali Muhammad, Shopkeeper, resident of Lajpat Nagar, Shahdara, Lahore at Anti-Corruption Establishment. It was recorded by Aftab Muzaffar, Inspector, A.C.E., Lahore.
4. In the year 1980, Noor Muhammad received an electricity bill amounting to Rs,3,320.22. It was for his factory. It was too much. He went to the office of S.D.O. Ferozewala. The S.D.O. Gave him a letter addressed to the Revenue Officer, for correction of the bill. Noor Muhammad came to the Revenue Officer's office; met the Superintendent thereafter the appellant. The appellant demanded Rs, 200 for doing the needful. Noor Muhammad did not agree.
5. Noor Muhammad went to the Anti-Corruption Establishment. He contacted Inspector Aftab Muzaffar. He told him the entire story. The Inspector took him to the District Courts. He was produced before Mr. Muhammad Naeem Siddiq, M.I.C., Lahore who recorded his statement; complied with other legal formalities and organised a raiding party which consisted of the Magistrate, Inspector Aftab Muzaffar, one Head Constable, two Foot Constables and the complainant. The Magistrate gave Noor Muhammad two currency notes of the denomination of Rs, 100 each (Exhs. P.W.1/2 and P.W.1/3) after recording their numbers. He made sure that the complainant had no other money with him.
6. The raiding party then started for the office of Revenue Officer, Sheranwala Gate. The complainant went upstairs to the room of the appellant in the Revenue Office, Sheranwala Gate.
The Magistrate and the members of the raiding party followed him. Noor Muhammad went inside the room and then came back after few minutes to the Magistrate who was standing outside. He told the Magistrate that the appellant had received illegal gratification. The Magistrate went inside; disclosed his identity; recovered the tainted money from the left side of his bushirt (memo. Exh.
P.W.2/1). He also recovered a wrist watch and two pens. These were taken into possession by means of a separate memo. Exh.P.W.2/2.
7. Jaffar Hussain Alvi, Inspector F.I.A. Conducted the investigation. He recorded the statements of the P.Ws. He identified the signatures of Sardar Muhammad Sharif, D.S.P. Who had been retired by the time the evidence was being recorded.
8. The appellant admitted that he was working as U.D.C. In 1980 in the Revenue Office Sheranwala Gate. He also admitted that Noor Muhammad met "him with a letter of S.D.O. In the office. The date was 8th of September, 1980. He denied to have demanded any illegal gratification. However, the raid was also admitted by him but he said that it was incorrect that he received Rs,200 as illegal gratification from Noor Muhammad.
9. When questioned whether the notes were recovered from the pocket of his bushirt, his answer was "Yes", but he said that the money was recovered from the lower pocket of the bushirt and the currency notes were placed by the complainant without his knowledge. He admitted that he gave a statement to the Magistrate which bore his signatures wherein he had stated that the complainant gave him Rs,200 on his own without any demand being made from his side. He was asked why this case against him. He replied as under:- "On 8th September, 1980 the complainant came to me with a letter of S.D.O. I asked him to get it first entered in the diary and marked it to me from the Superintendent. He brought that letter marked to me by the Superintendent. I prepared the details of his bill. The Senior Clerk prepared adjustment note. The case had not yet been finalized when office closed. He got annoyed. On the following day he enquired about his work from me. He sat by my side. I handed over the papers to him to have his work done from the Superintendent, Audit Branch. The complainant got enraged and tried to bribe me. There were certain clerks and consumers in my room. I got busy with my own work. He put the money in my pocket without my notice and knowledge. I came to know of it when the Magistrate recovered it from my pocket. I have been involved by the complainant falsely due to grudge that his work was not done immediately."
10. Three witnesses were produced in defence. Those were Rashid Baig V.D.C., Said Muhammad U.D.C. And Abdul Jameel Building Supervisor.
11. The only point raised by the learned counsel for the appellant was that although the recovery was admitted by the appellant but that would not mean that it was illegal gratification. Learned counsel submitted that the prosecution failed to lead any evidence as to what transpired or what conversation took place between the complainant and the appellant before the money was passed on. In the absence of any such evidence it would not be safe to uphold the conviction.
12. I have also heard learned counsel appearing on behalf of the State. He supported the impugned judgment.
13. Noor Muhammad admitted that the bill was prepared due to wrong reading by the Meter- reader. He also admitted that when he met the appellant for the first time with a letter from the S.D.O., he was 'told by the appellant that the bill could not be corrected immediately because it had to pass through various hands. Noor Muhammad said that he was advised by one Aziz Ahmad to approach the Anti-Corruption Establishment. He further said that he did not remember whether the currency notes were recovered from the lower pocket or the upper pocket of the bushirt. He denied the suggestion that he put the money himself because he was annoyed with the appellant as he did not prepared the correct bill on the same day.
14. The Magistrate in his evidence admitted that it was agreed that when the money had passed a signal was to be given by the complainant by having his hand but he did not give any such signal.
Instead, he orally told the Magistrate that the money had been given to the appellant.
15. Aftab Muzaffar Inspector contradicted the Magistrate and said that the complainant gave a signal. He denied the suggestion that the complainant did not give signal and instead went directly to the Magistrate and told him that the bribe money had been given to the appellant. However, the Inspector admitted that neither he nor the Magistrate saw the complainant giving the money to the appellant.
16. Rashid Baig U.D.C. Who appeared as defence witness said that on 8th September, 1980 he was present in the Office of the Revenue Officer. In the room of the appellant at about 1-30 p.m. a gentleman came; handed over after to Abdul Hamid and requested him to do the needful. The appellant prepared the necessary details but then told the visitor that the office hours were over and he should come on the next day. He got offended and left the office. That person was Noor Muhammad.
17. Second defence witness was also working as U.D.C. In the office of Revenue Officer, Badami Bagh, Lahore. He deposed that it was in his presence that the raid took place and from the search of the appellant Rs,300 or 200 were recovered from the lower pocket of his bushirt but appellant neither demanded nor accepted any illegal gratification from Noor Muhammad.
18. The third defence witness was Abdul Jameel Building Supervisor, His evidence is of formal type.
He did not depose anything about the incident. He prepared the adjustment note Exh. D.W.3/3.
19. Admittedly there is no evidence as to what transpired between the appellant and the complainant before the money was passed on. From the evidence of the Magistrate and the Inspector it is clear that they were standing far off from where they could neither see nor hear what was going on.
20. It can neither be assumed nor presumed from the factum of recovery that it was bribed money.
Mere recovery is not sufficient. Onus was on the prosecution to prove that it was given as illegal gratification. Although the statement of the appellant might be a remote possibility but as the prosecution failed to prove all the essential ingredients of sections 161, P.P.C., and 5(2) of the Prevention of Corruption Act, 1947, the appellant must be given the benefit of doubt. He is accordingly acquitted. He shall be set free forthwith, if not required in any other case.