' Muhammad Bakhsh son of Muhammad Ramzan caste Sial, Accountant in Agricultural and Engineering Office, Bahawalpur, has been convicted by Special Judge, Anti-Corruption, Bahawalpur under section 161, P. P. C. And section 5(2) of Prevention of Corruption Act, 1947, and sentenced to 1 year's R.
1. On each count which was ordered to run concurrently. The convict has challenged his conviction and sentence through the instant appeal.
2. The prosecution case briefly is that the appellant worked as Accountant in the office of Agricultural Engineering Department, Bahawalpur while Sultan Mahmood P. W. 2 was a unit supervisor in the same department who submitted two T. A. Bills for a sum of Rs, 464 Exhs. P. A. And P. B. Pertaining to the months of October, November and December, 1971, which were passed by the Agricultural Engineer, Bahawalpur and the Treasury Officer, also, but were pending with the appellant for further action. It is alleged that the appellant demanded Rs, 50 as bribe from Sultan Mahmood in order to make payment of the T. A. Bills. Sultan Mahmood informed 5.-I. Peer Jee Abdul Qadir. Be produced him before Ch. Nazir A hmad Magistrate 2nd Class who recorded his statement Exh. P. E. And after noting down the numbers of the currency notes of the denomination of Rs, 10 each valuing R. 50 returned the same to Sultan Mahmood with the direction that he should pass them on to the appellant on demand. The raiding Magistrate Ch. Nazir Ahmed (P. W. 6) and other members of the raiding party waited outside the office of the appellant. Having received the pre- appointed signal the raiding party rushed to the spot and found the appellant standing near the iron almirah. On his personal search the tainted money was not recovered, however, on being further asked by the Magistrate he opened the almirah, took out the currency notes of Rs, 50 and produced them before the raiding Magistrate which were seized under memo. Exh. P. F. The appellant's statement Exh. P. H. Was recorded wherein he stated that Sultan Mahmood paid him Rs, 50 for exchanging them with One Rupee Notes whom he told that he would do so after he was free from his work and placed those currency notes in his almirah. He also stated that the appellant had enmity with him because his brother-in-law worked as subordinate of Sultan Mahmood and for whose dereliction of duty a sum of Rs, 305.50 was deducted in instalments from his (Sultan Mahmood's) salary and on this account he was inimiucally disposed towards him (appellant) and had landed him in this trouble. The Magistrate, however, did not arrest the appellant since the recovery was not effected from his person. The Magistrate then handed over the raid report Exh. P.
K. To the Sub-Circle Officer Peer Jee Abdul Qadir (P. W. 4) besides the tainted currency notes. Peer Jee Abdul Qadir investigated the case under the permission of Magistrate 1st Class and having completed the investigation challaned the appellant.
3. At the trial the prosecution in support of its case examined 5 witnesses. Out of them the important witnesses whose evidence is relevant from prosecution point of view are Sultan Mahmood complainant (P. W. 2), Ch. Nazir Ahmad Magistrate 1st Class, the raiding Magistrate (P. W.
6) and Peer Jee Abdul Qadir, the Investigating Officer (P. W. 4). The appellant while controverting the allegations of accepting bribe of Rs, 50 from Sultan Mahmood P. W. Stated that the said amount was paid to him for exchanging them with currency notes of Rupee One each. He also offered to produce defence and examined Nawab Din (D. W. 1), Abdul Majeed son of Sher Muhammad (D. W. 2) who stated that in their presence Sultan Mahmood approached the appellant and handed over the currency notes of Rs, 50 (Ten-Rupee Notes) for exchanging them with currency notes of Re. 1 each and the appellant told him that he would do so after be was free and placed that money in his almirah but in the meanwhile the appellant was raided. D. W. 3 Mir Abdul Majid, Agricultural Engineer, stated that a sum of Rs, 350.50 was shown outstanding against Muhammad Siddique who worked under Sultan Mahmood and had left the service. Consequently, Rs, 50 used to be deducted every month from the salary of Sultan Mahmood P. W. He also stated that he had held an inquiry and had given finding that the appellant was implicated due to personal grudge by Sultan Mahmood P. W. Learned Special Judge on consideration of evidence on record believed the prosecution case and convicted and sentenced him as indicated above.
4. I have heard learned counsel for the appellant as well as for the State and also perused the record.
5. Sultan Mahmood P. W. Stated that his T. A. Bills were lying pending for payment with the appellant who demanded Rs, 50 as bribe for making payment of the amount of said bills. He informed the Anti-Corruption police whereupon a raid was arranged. He produced Ten-Rupee currency notes of Rs, 50 before the Magistrate who noted down their serial number and returned the same to him for payment to the appellant on demand. He contacted the appellant and passed on the money to him which was placed by the appellant in an almirah. He was locking the almirah when the Magistrate raided him. The appellant opened the lock by applying a key in his possession and produced the money before the Magistrate which was taken into possession under memo. Exh.
P. F. The Magistrate also took into possession copies of the T. A. Bills Exh. P. A. And P. B. He recorded his statement Exh. P. G. In his cross-examination he stated that although the appellant demanded bribe from him in his office yet he did not complain to the Agricultural Engineer who was present there at that time. He admitted that Rs, 350.50 price of oil found short in his stock was recovered from his pay. He admitted that his defence plea before the Investigating Officer in this case was that the responsibility for shortage of oil was that of Muhammad Siddique who worked under him but was saved by the appellant. He admitted that the conversation which preceded the handing over of the tainted money to the appellant was not overheard by any other person. He also admitted that Eid-ul-Azha fell 2/3 days after the day of raid. He denied the suggestion that he had given notes of Rs, 50 to the appellant for getting them exchanged with currency notes of Re. 1 each.
Peer Jee Abdul Qadir, Sub-Circle Officer (P. W. 4) and Ch. Nazir Ahmad, the raiding Magistrate (P. W.
6) made similar statements. They admitted to have neither overheard any conversation of Sultan Mahmood P. W. With the appellant nor did they see the passing of the money. Peer Jee Abdul Qadir (P. W. 4) in his cross-examination admitted that Abdul Majid, Nawab Din and Abdul Aziz, clerks, were present at the time of raid near the appellant but during investigation, he did not record their statements. He also admitted that the appellant was not arrested at the spot.
6. The prosecution story as Well as of the defence coincide with each other with the only difference that according to the prosecution the tainted currency notes were passed on to the appellant on his demand as bribe whereas the case of the appellant is that it was delivered to him for changing the notes of Rs, 10 each into One Rupee currency notes. As admitted by the prosecution witnesses the talk preceding the handing over of the tainted money to the appellant was not overheard by any of them and on this point we have solitary statement of Sultan Mahmood alone that it was delivered to the appellant as bribe. Therefore, the question arises whether the statement of Sultan Mahmood is sufficient without any corroboration to hold the appellant guilty on the charge of corruption ? The plain answer to this question is in the negative. Firstly, because Sultan Mahmood has himself admitted that a sum of Rs, 350.50 was deducted from his salary although one Muhammad Siddique his subordinate was responsible for the shortage of oil from the stock and the said Muhammad Siddique was helped and saved from punishment by the appellant. It is, therefore, obvious that Sultan Mahmood P. W. Was annoyed with the appellant and therefore, his statement cannot be safely relied without corroboration. Secondly, Sultan Mahmood (the bribe- giver) is an abettor in the commission of offence, hence implicit reliance cannot be placed on his statement until and unless it is corroborated by some reliable evidence of independent character which is conspicuously wanting in this case. Furthermore, Nawab Din and Abdul Majid D. Ws., clerks of the office where raid was conducted and who were present at the relevant time according to Peer Jee Abdul Qadir (P. W. 4) have deposed by appearing in defence that Sultan Mahmood delivered currency notes of Rs, 50 to the appellant for getting One Rupee notes in exchange. In the circumstances, the defence version appears to be more probable than that of the prosecution. The appellant, therefore, is entitled to the benefit of doubt which is hereby extended to him.
7. There is yet another glaring lacuna in the case i,e,, the tainted currehcy notes allegedly recovered from appellant were not produced at the trial and their identity was thus not fixed. It is true that the fact of receiving the currency notes of Rs, 50 has been admitted by the appellant yet it did not absolve the prosecution from its duty to establish through legal and reliable evidence that the currency notes recovered from the appellant were the same which were handed over to Sultan Mahmood for passing on to the appellant after noting down their number.
8. For what has been stated above, the charge that the appellant accepted Rs, 50 as illegal gratification from Sultan Mahmood P. W. As motive or reward to make him payment of amount of his T. A. Bills Exhs. P. A. And P. B. Has not been proved beyond reasonable doubt and consequently the appellant is acquitted. He is on bail. He is discharged of his bail-bonds.