1. ' This appeal arose from conviction of the appellant Ahmed Abdul Rahim on the charge of corruption. He was tried with co-accused Manual Masih who has since been acquitted, and was convicted under section 161, P.P.C.
2. Read with section 5 (2) Prevention of Corruption Act, 1947 and sentenced to R.I. For three months and fine of Rs, 1,000 or in default further R.I. For one month.
3. ' The F.I.R. Lodged by complainant Illyas Masih, which is the foundation of the case reads as under: "I am working as Sweeper in K.M.C. Ward No,2, where Sanitary Inspector Rahim Bux is posted. The said Sanitary Inspector obtains monthly bribe at the rate of Rs,100 to Rs,200 from each sweeper for giving them facilities etc. In case any Sweeper showed his reluctance he threatened him for marking him absent and deduct his pay. I also used to pay Rs,150 to the said Inspector but for the month of October, 1982, I could not pay him Rs,150 due to my domestic circumstances despite his repeated demand, as such he has extended threats to me that in case I will not pay Rs,150 by 13-11-1982 he would mark me absent from duty and also get my pay deducted."
4. ' In support of their case as contained in the F.I.R. The prosecution has produced in evidence Nazar Mohammad Aditional City Magistrate Karachi (P.W.1), complainant Ilyas Masih (P.W.2), Fakir Muhammad, Inspector Anti- Corruption (P.W.3), and Arif Raza Mashir (P.W.4). The co-accused Manual Masih while admitting the recovery of Rs,150 from his possession has explained that he had advanced the said amount to the complainant as a loan which he returned on the day of recovery. He has added that he has been falsely implicated on account of his having reported against the complainant for his unpunctuality in duty. The defence set up by the appellant Ahmed Abdul Rahim is complete denial of the prosecution allegations. He too has attributed his implication to the act of complainant's remaining absent from his duty. Malik Abdul Aziz Health Inspector K.M.C. (D.W. 1) and Munshi Sweeper (D.W.2) have been examined by the accused in their defence.
5. ' After hearing the arguments addressed at the bar the appeal was allowed and the appellant was acquitted by short order, dated 11-2-1985 for reasons to be recorded later on. Following are the reasons in support of the said order.
6. ' On the point of recovery of the tainted money from co-accused Manual Masih, beside complainant Ilyas Masih, there is evidence of Naar Muhammad Additional City Magistrate Karachi, Fakir Muhammad, Anti-Corruption Inspector and Arif Raza Mashir. Even the said accused himself has admitted the recovery. I have therefore no hesitation to hold that the tainted money to the tune of Rs,150 was recovered from possession of co-accused Manual Masih.
7. ' The next point to be considered is whether the money was delivered by the complainant to the appellant Ahmed Abdul Rahim and if so whether the latter passed it on to co-accused Manual Masih. On this point complainant Ilyas has stated as under:- "At about 2.30 p.m. Accused Abdul Rahim came on the Motor Cycle. I offered the money to the accused who told me to deliver it at his house. I refused to do so on which the accused took the money and gave it to his Jamadar Manual Masih and told him to leave it at his house. The police arrested accused Ahmad Abdul Rahim first and then the police arrested accused Manual Masih".
8. ' Arif Raza, Mashir who claims to be present at the time of passing on of the tainted money to the appellant, has supported the complainant inasmuch as that the appellant first told the complainant to deliver the money at his house, but on his refusal to do so, he took the same from him and passed it on to the co-accused Manual Masih who was standing with him there. The other two witnesses namely Nazar Muhammad Magistrate and Fakir Muhammad Anti-Corruption Inspector have also testified that they saw the complainant delivering the tainted money to the appellant who again passed on the same to the person standing beside him. The last mentioned two witnesses have obviously no motive to falsely implicate the appellant. Therefore I have no reason to disbelieve their evidence. Accordingly it is established from the above evidence that the tainted money was delivered by the complainant to appellant Ahmed Abdul Rahim who again passed it on to the acquitted accused Manual Masih.
9. ' Having arrived at the above conclusion the only point that remains to be cleared is whether the money in question was paid as bribe to the appellant or it was a loan repaid by the complainant to the acquitted accused Manual Masih as has been pleaded by latter in his statement under section 342, Cr.P C. Here it may be pertinent to point out that under section 4(1) of the Prevention of Corruption Act, 1947 it would be presumed that the amount paid to the appellant was accepted by him as bribe unless he had proved to the contrary. While interpreting the presumption to be raised under the above provision of law it was held in the case of Sultan Ali v.
10. The State PLD .1971 Kar. 78: "It would, therefore, be an outrage on commonsense and reason to infer that under section 4, the presumption has itself been displaced and that the offence of bribery must be held to be established the moment money passed into the possession of the accused without further proof that it was accepted as an illegal gratification.
11. When the law raises a presumption against the accused and calls upon him to prove the contrary, it is well- settled that the contrary can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of a interpretation other than that suggested by the prosecution."
12. ' In an other case of Ikram Din v. The State PLD 1958 Kar. 21, it was held: "The presumption against the accused under this section is not to be drawn until the explanation of the accused is considered and found unsatisfactory."
13. ' In the third case of Mir Ahmed v. The State PLD 1962 SC 489. It was held: "Where there is a question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances the decision must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case, and the accused is entitled to the benefit of doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt."
14. ' It appears from the above authorities that if the accused succeeds in showing that the money paid to the accused was not accepted by him as an illegal gratification, he would be entitled to benefit of doubt. Therefore in order to decide if the accused had accepted the money as an illegal gratification it would be essential to consider his explanation. In this case the appellant has no doubt denied having received the tainted money but the acquitted accused had come out with the statement that the money in question was in fact the amount of the loan he had advanced to the complainant. It would appear that the accused Manual who took the above stand was acquitted by the learned trial Judge though not on the strength of his afore mentioned plea. While acquitting him, the learned trial judge gave the following reasoning: "As for the case of accused Manual Masih is concerned, it is quite distinguishable from that of co-accused.
15. There is no evidence that he had played any role in commission of the offence. The only part assigned to him is that accused Ahmed Abdul Rahim had given him the money to deliver it at his house, which any subordinate would have done in circumstances of the case. I, therefore, find him not guilty and acquit him."
16. ' While making the above observations the learned Judge has over looked the fact that the co-accused Manual Masih was standing with the appellant when the tainted money was delivered to him. Therefore he must have heard the conversation between the complainant and the appellant that accompanied the passing on of the tainted money. If the prosecution case is believed then the co-accused Manual Masih would be held to have knowledge of the money paid to the appellant, being tainted money and if despite that knowledge he had agreed to take the same to the appellant's house, he could not be held to have played no role in commission of the offence as has been observed by the learned trial Judge. However such finding depends upon the nature of the conversation that took place between the complainant and the appellant. It would appear that the complainant's statement as to what transpired between him and the appellant is in conflict with the statement of the Mashir. Therefore even the Mashir does not appear to have heard their conversation. It has been repeatedly held by the superior Court that in the corruption cases uncorroborated testimony of the decoy witness cannot relied upon. In the instant case the evidence of the complainant does not inspire confidence for more than one reason.
17. First of all there is no indication either in the F.I.R. Lodged by the complainant or in his evidence in Court that the appellant had agreed to accept the tainted money at the place mutually appointed by the complainant and the appellant. The absence of such evidence creates doubt as to whether the tainted money paid to the appellant was bribe money.
18. ' Although it is in evidence of the complainant that the appellant used to exact monthly payments not only from him but also from other sweepers, no other sweeper has been examined in corroboration of the complainant's evidence. Further it is admitted by the complainant that he never complained to the Higher officers against the appellant's practice of extorting money from him and other sweepers. It is rather strange that a man who made a bold of himself to take his grievance to the Anti-Corruption police would not avail the easier course of bringing the appellant's malpractices to the notice of the K.M.C.'s higher officers. On the contrary the appellant has produced Abdul Aziz, Health Inspector of K.M.C. In his defence. According to the Inspector the complainant used to stay away from his duty and sometime he even ran away during working hours. He has further stated that he had asked the appellant to produce the complainant before him and when he appeared, he warned him to behave properly. He has also stated that no sweeper ever complained to him that the appellant was taking money from sweepers. His evidence remains unshaken. It is not shown why the officer of his status would perjure himself only to please him subordinate. I have no reason to disbelieve his evidence which is corroborated by the complainant himself inasmuch as that he was admonished by the Inspector. Apart from above, the complainant's evidence with regard to conversation between him and the appellant also does not seem to credible. According to the complainant when he offered the money to the appellant he told him to deliver it at his house and when he refused to do so he received the same and passed it on to the other co- accused. In the first place if the venue for payment of the bribe had been settled between the complainant and appellant it is rather incredible that the latter would ask the complainant to deliver the money at his house. But if the appellant really wanted the money to be delivered at his house, nothing prevented him from giving such instructions to the complainant at the time of settling the venue of the payment. It is the complainant's own evidence that it was not the first time that he had made payment to the accused. If so the appellant had no reason to be afraid of the payment on that day. He could have straightaway accepted it and put in his pocket.
19. After all it was not a big amount, that he could not carry on his person. Nor he had justification to ask complainant to deliver it at house and on his refusal he passed it on to the co-accused for the same purpose.
20. ' Taking the above circumstances into consideration I cannot persuade myself to believe the complainant with regard to the conversation that he had with the appellant.
21. ' On the other hand the co-accused from whose possession the tainted money was recovered has already been acquitted. While admitting the recovery he came out with the explanation that it was his money,as the said amount was given by him to the complainant as loan which he had returned on that day. Had this explanation been after thought, even the appellant would have repeated it in his statement. Thus there was no collusion between the appellant and the co-accused in this regard. But at the same time the appellant's denial of having recieved the money from the complainant and having passed it on to the co-accused would not mean that the explanation of the tainted money being a loan was unacceptable. In this connection I am inclined to agree with the learned counsel for the appellant that the prosecution must prove the case on the strength of their own evidence rather than rely upon the weaknesses in the defence case. Despite the plea of denial taken by the appellant the explanation of the co-accused that the tainted money was the loan he had advanced to the complainant appeals to reasonable mind. Before coming out with the above explanation even questions were put to the complainant with regard to the tainted money being a loan money. Unless the explanation had truth in it the co-accused would think hundred times before taking the brunt of prosecution case upon himself and that too without being asked by the appellant. Moreover the co-accused who has given the above explanation with regard to the tainted money has been acquitted. It appears to my mind that if the explanation furnished by the co-accused is tested in the light of circumstances of the case discussed above, it sounds quite reasonable. In any case if it is not wholly true it creates reasonable doubt above the truth of the prosecution case.
22. ' In view of the above discussion I am of the opinion that tainted money delivered by the complainant to the appellant was the amount of loan which he had obtained from the co-accused Manual Masih and which he wanted to return to the latter through the appellant under whom they were both working as sweepers. Mr. Agha Ghulam Ali, the learned State counsel also does not support the trial Court's judgment. Accordingly as stated above the appeal was accepted and the appellant was acquitted.