' This judgment will dispose of Criminal Appeal (Cr. A. 660 of 1984) preferred by Asghar Ali, appellant, and Ciiminal Appeal (Cr. A. 675 of 1984) preferred by Muhammad Arif, appellant, against their conviction and sentence under section 161, P. P. C.
2. The brief facts of the case are that Asghar Ali and Muhammad Arif, appellants, were Lower Division Clerk and Bill Clerk respectively in the Revenue Office of WAPDA at Sheranwala Gate, Lahore, in the year, 1979. Muhammad Ramzan P. W. 4, who had a tube-well, received an excessive bill of Rs, 6,120 in February, 1979. He had also received such an excessive bill earlier, where after he had complained about the same to the S. D. O. Concerned, who had checked it and found that it was issued on industrial tariff instead of tube-well tarrif. Accordingly, Muhammad Ramzan P. W.
Contacted Asghar Ali, appellant, Lower Division Clerk, and Manzoor Shah, the Head Clerk, in the Revenue Office of WAPDA at Sheranwala Gate in Lahore for the correction of the said bill. These two officers told him that they had reduced the bill to Rs, 3,700 and that if he paid Rs, 1,000 to them, they would further reduce the bill to Rs, 2,700. On 6-2-1979, he again contacted these two officers in the company of Muhammad Yousaf P. W. 3, his brother-in-law. The same talk took place. It was agreed that they would pay Rs, 500 on 7-2-1979 as part of the agreed bribe of Rs, 1,000. On 7-2-1979 Muhammad Yousaf P. W. 3 reported the matter to Rana Abdul Sattar, Inspector A. C. E. P. W. 8, who recorded F. I. R. Exh. P. W.
1. Muhammad Yousaf P. W. 3 was then produced before Syed Iqbal Hussain Shah, Naib-Tehsildar, W. 1 who recorded his statement P. W. 1/2. The complainant produced currency notes P. 1 to P. 10 aggregating Rs, 500, whose numbers were noted by the Naib-Tehsildar. A raiding party comprising Syed Iqbal Hussain Shah, NaibTehsildar, P. W. 1, Muhammad Yousaf complainant P. W. 3, Muhammad Ramzan P. W. 4, Rana Mubarik All Inspector A. C. E. P. W. 6, Rana Abdul Sattar Inspector A. C. E. P. W. 8 and Habib Alam H. C. And Munir Baz F. C. (given up P. Ws.) was formed. The raiding party reached the office of WAPDA in Sheranwala Gate, Lahore. They climbed up the building where the appellants had their office. Muhammad Yousaf P. W. 3, Muhammad Ramzan P. W. 4 and Habib Alam H C. (given up P. W.) went and contacted Asghar Ali, appellant and Manzoor Hussain, Head Clerk. They offered currency notes of Rs, 500 to them. Asghar Ali, appellant, brought the said three persons out of the office and took them to a nearby hotel. He did not receive the bribe in the hotel, because some members of the staff were sitting there. He took the group back again to his office, where he asked Muhammad Arif, appellant, to accompany them out of the office to receive the bribe. Muhammad Arif, appellant, brought the said three persons outside the office, where a fodder machine was installed. The other members of the raiding party followed behind. Mohammad Yousaf P: W. 3 handed over the currency notes P. 1 to P. 10 to Muhammad Arif, appellant, who put the same into his pocket. Muhammad Yousaf P. W. 3 then gave the signal to the other members of the raiding party, who ran up. Muhammad Arif, appellant, seeing them, took out the currency notes from his pocket and tried to throw them on the ground, but Habib Alan? H. C. Got hold of his hand and the said notes were taken into possession by Syed Iqbal Hussain Shah, Naib-Tehsildar P. W.
1. After the raid, the said Naib-Tehsildar recorded statement Exb. P. W. 1/4 of Muhammad Yousaf complainant P. W. 3, statement P. W. 1/5 of Muhammad Arif, appellant, statement P. W. 1/6 of Habib Alam H. C. (given up P. W.), statement Exb. P. W. 1/7 of Muhammad Ramzan P. W. 4 and his own raid report Exh. P. W. 1/8. The tainted money was taken into possession vide memo Exh. P. W. 1/9.
3. After the completion of the investigation, the challan against both Asghar Ali and Muhammad Arif, appellants, was sent up.
4. At the trial, the prosecution produced Muhammad Yousaf P. W. 3 and Muhammad Ramzan P. W.
4 in respect of the demand of bribe made by Asghar Ali, appellant, and Manzoor Hussain, Head Clerk? And Syed Iqbal Hussain Shah, Naib-Tehsildar, P. W. 1, Muhammad Yousaf P. W. 3, Muhammad Ramzan P. W. 4, Rana Mubarik Ali Inspector A. C. E. P. W. 6 and Rana Abdul Sattar Inspector A. C. E. P.
W. 8 in proof of the receipt of the tainted money by Muhammad Arif, appellant.
5. The learned trial Judge, relying on the demand made by Asghar Ali, appellant, for the bribe and the receipt of the same on his account by Muhammad Arif, appellant, convicted and sentenced both the appellants under section 161, P. P. C. I have heard the arguments of the learned counsel for the appellants and the State and have also gone through the record. In the first instance, a preliminary objection has been taken on behalf of the appellants, namely, that the sanction given by the Ministry of Interior, Government of Pakistan, in respect of the prosecution of the two appellants under section 6(5) of the Pakistan Criminal Law Amendment Act, XL of 1958, is by an incompetent Ministry and that sanction should actually have been granted by the Ministry of Water and Power, Government of Pakistan, as the said Ministry controls the affairs of WAPDA, under whom the appellants were in service. The sanction orders Exh. P. W. 2/1 and Exh. P. W. 2/2, which are both dated 13-1-1983 and bear the No, 3/87/81-F. I. A. (IV), are from the Ministry of Interior, Government of Pakistan. Obviously, this is not the relevant Federal Ministry which controls the affairs of the Water and Power Development Authority. Previously, a rule was framed under section 12(2) (a) of the Pakistan Criminal Law Amendment Act, 1958, whereby the officer having the power to remove from office the public servant concerned, whose sanction for prosecution was required, was authorised to grant the necessary sanction to prosecute such a servant, subject to such general or special instructions as would from time to time be issued by the Federal Government. This rule was framed vide the Home Affairs Ministry's Notification S. R.
0. 1122 (K)/61, dated 10-11-1961, published in the Gazette of Pakistan on 1-12-1961. However, by a subsequent Notification S. R.
0. 731(K)/64, dated 10-9-1964, issued be the same Ministry, which was published in the Gazette of Pakistan on 25-9-1964, this Notification of 10-11-1961 was rescinded. Thus, as the situation presently obtains, there is no rule in existence under section 12(2) (a) of the Pakistan Criminal Law Amendment Act, 1958, whereby the Federal Government can_ be stated to have authorised any particular person to exercise the power to sanction prosecution on its behalf in respect of any grade of public servant.
6. An Order of the Federal Government made under section 5(1) of the Federal Investigation Agency Act, 1974 (VIII of 1975), is pressed into service to legalize the sanction. The said Order constitutes the annexure to the Office Memorandum No, 1/21/74-SF/F, dated 5-3-1975 issued by the Ministry of Interior, Government of Pakistan, to various offices, including all Federal Ministries and Divisions and the office of Director-General, F.
1. A., Rawalpindi. Those parts of the said Order, in so far as they are relevant to this case, are reproduced below :- "Instructions regarding investigation of cases of bribery and corruption by the Federal Investigation Agency ' Note.-The expression 'Competent Authority' in these instructions means the Anti. Corruption.
Council at the Centre, in the case of an officer of Grade-17 and above who is serving in connection with the affairs of the Federal Government or is not removable from his office save by or with the sanction of the Federal Government and, in any other case, the Interior Division.
(6) At the close of investigation into cases for which sanction for prosecution is required under section 197 of the Code of Criminal Procedure, 1898 (Act V of 1898) or under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958), the Agency shall submit to the Anti-Corruption Council, in the case of officers of Grade-17 and above, as per instructions noted under (a) below and to the Interior Division, in-the case of other officers as per instructions noted under (b) below, full facts of the case, the opinion of the legal advisor, the draft sanction order, a charge sheet and a brief statement of allegations to be supplied to the accused Government Servant.
(a) In cases registered against officers of Grad-17 and above, explanation of the accused officer, giving him 15 days time will be obtained by the Deputy Director of the Agency before submission of the case to the Anti-Corruption Council for decision regarding disposal of the case viz. Charge- sheet for trial or departmental action or dropping the case. The Anti-Corruption Council will take into consideration the explanation of the accused in taking decision regarding disposal of the case.
The Secretary of the Ministry concerned in which the accused officer serves, if he is not a member of the Anti-Corruption Council, will be co-opted as a member of the Council while deciding the case. If charge-sheet for trial in Court is recommended by the Anti-Corruption Council, Interior Division will accord sanction for prosecution, without further reference to the Ministry concerned to obtain explanation of the accused, on the basis -of the decision of the Anti-Corruption Council.
(b) In the case of officers of grade 16 and below, the Interior Division shall communicate the full facts of the case to the Ministry under whom the Government servant concerned is employed and they shall supply to the Government servant concerned a copy of the charge sheet and the brief statement of allegations furnished by the Agency and give hitt an opportunity to submit within 15 days of its receipt a statement in writing to show cause why he should not be prosecuted in a Court of law or otherwise proceeded against : ' Provided that the giving of an opportunity to the Government servant concerned to submit a statement in writing shall, in no case be in the nature of a departmental inquiry or proceedings. The intention is that his statement should be on record when taking a final decision before according sanction for prosecution.
(7) . . .
(8) . . . . The Ministry concerned to whom a reference is made under para. 6(b) shall communicate their recommendations along with the statement of the Government servant concerned to the Interior Division within one month of its receipt.
(9) If it is decided to prosecute in a Court of law a person who is serving in connection with the affairs of the Federal Government or is not removable from his office save by or with the sanction of the Federal Government, the sanction for the posecution under section 197 of the Code of Criminal Procedure, 1898, or subsection (5) of section. 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) as the case may be, shall be issued forthwith by the Interior Division.
(10) . . . . . .
' On the basis of the said Order, it is submitted that the Ministry of Interior in the Federal Government has the power to grant sanction for prosecution under Act XL of 1958, that before it does so, the Ministry of Interior communicates the full facts of the case to the Ministry under whom the Government servant concerned is employed, so that it can supply to the Government servant concerned a copy of the charge sheet and the brief statements of allegations furnished by the F. I.
A., so as to give him an opportunity to submit within fifteen days of its receipt a statement in writing to show cause why he should not be prosecuted in a Court of law or otherwise be proceeded against, and it is after the Ministry concerned, to whom a reference has been made, has communicated its recommendations, that the necessary sanction is issued by the Ministry of Interior. The validity of the said Order is claimed under section 5(1) of Act VIII of 1975, which, with section 5(2), which are relevant, are reproduced below :- "5. Powers of the members of the Agency.-(1) Subject to any order which the Federal Government may make in this behalf, the members of the Agency shall, for the purpose of an inquiry or investigation under this Act have throughout Pakistan such powers including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Code or any other law for the time being in force.
(2) Subject to rules, if any, a member of the Agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an Officer in-Charge of a police station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be an Officer-in-Charge of a Police Station discharging his functions as such within the limits of his station."
The above provisions enable the Federal Government, through orders and rules, to confer vast and special powers on the members of the Agency in respect of inquiries and investigations and on members of the Agency not below the rank of Sub-Inspectors, in respect of their powers as Officer in-Charge of Police Stations. Under the general law governing investigation in criminal cases i,e, the Code of Criminal Procedure, the submission of the challan or report to the Court by the officer- in-charge of a Police Station, after inquiry and investigation is complete, falls in the sphere of investigation. See section 173 of the Code of Criminal Procedure, which falls in Part V relating to "Information to the police and their Powers to Investigate." Thus, to the extent that sanction is required by any law t. Accompany a challan or report, the duty of obtaining the sanction and attaching it with the challan or report would be that of the officer-in charge of the case and this would be a part of the investigation process. The first Proviso to subsection (5) of section 6 of Act XL of 1958 clearl shows that the sanction of the "appropriate Government" must accompany the complaint or report. The Order, to the extent it directs the officers of the Agency to secure the sanction of the Federal Government, is intra vires of Act VIII of 1975. Which is the appropriate Government and the Ministry thereof to grant sanction is not mentioned in Act VIII of 1975. It is covered by sections 6(5) and 12(2) (a) of Act XL of 1958. In. These circumstances, para. 9 of the said Order, to the extent that it lays down th particular Ministry which shall grant the sanction on behalf of the Federal Government, would appear to be ultra vires of Act VIII of 1975. In this view of the matter, one will have to turn to Act XL of 1958 to determine the appropriate Government and its Ministry which can grant sanction under section 6(5); it being clear that there are presently no rules in force framed under section 12 of the said Act by the Federal Government.
8. Under section 2(a) of Act XL of 1958, the "appropriate Government" means, in relation to a person serving in connection with the affairs of the Federation and any other person employed by the Federal Government or by a Corporation or other body or organization set up, controlled or administered by, or under the authority of the Federal Government, the Federal Government, and in other cases, the Provincial Government concerned. The Rules of Business framed by the Federal Government under Articles 90 and 99 of the Pakistan Constitution Rules provide for the working of the Federal Government in its various Divisions. Rules 2(vi) defines "Division" as a self-contained administrative unit responsible for the conduct of business of the Federal Government in a distinct and specified sphere and declared as such by the Federal Government. Rule (ix) defines "Government" as meaning the Federal Government. Rule 2(xiv) defines "Ministry" as meaning a Division or group of Divisions constituted as a Ministry. Rules 3(3) provides that the business of Government shall be distributed among the Divisions in the manner indicated in Schedule II. Serial No, 12 under Schedule II covers the "Interior Division". The subjects assigned to it are listed thereunder and subject No, 6 provides "Anti-corruption laws; and PODO." Since Anti-corruption laws fall within the business of the Division of Interior, the "appropriate Government" for the purposes of section 6(5) of Act XL of 1958 is the Federal Government in the Interior Ministry. The Federal Government cannot act through separate Ministries for the purposes of the Pakistan Criminal Law Amendment Act, 1958, one for appointing the Special Judges to try cases, another for specifying the offences to be tried under the said Act, still another for the purposes of granting sanction and yet another for the purposes of framing the rules, but section 12(2) (a) does provide that the Federal Government as the "appropriate Government" may authorise different persons to exercise the power to sanction prosecution on its behalf in respect of various grades of public servants.
Where such authorisation is not there by rules, the "appropriate Government" will thus be the Ministry of Interior. In these circumstances, the sanction granted by the Government of Pakistan in the Ministry of Interior for the prosecution of the two appellants in the instant case is legal and proper and no exception can be taken thereto. The said Ministry is also the appropriate Ministry to which the Special Judge, Anti-Corruption, would have to make a reference under the first proviso to subsection (5) of section 6 of the Act, assuming that the appropriate sanction did not accompany the complaint or report.
9. Whilst on the subject, it would not be out of place to mention that in respect of persons serving the Government of the Punjab, there exists the Pakistan Criminal taw Amendment (Punjab) Rules, 1962, framed by the Governor of the Punjab, in exercise of powers conferred by section 12(2) (a) of Act XL of 4.958, rule 2 of which grants to the Chairman of the Council or the Committee of the Anti- Corruption Establishment, where such Council or Committee has opined that the public servant should be prosecuted, to sanction prosecution on behalf of the Provincial Government under section 6(5) of the said Act. In this respect, Anti-Corruption Committees exist, which have been constituted under the Punjab Anti-Corruption Establishment Rules, 1974, which deal with cases of corruption and, after investigations and inquiries, recommend prosecutions.
10. I now turn to the main facts of the case; The evidence as regards the demand of the bribe made by Asghar Ali, appellant, and Manzoor Hussain, Head Clerk, is furnished by Muhammad Yousaf P. W.
3 and Muhammad Ramzan P W.
4. According to their testimony, Muhammad Ramzan P. W. Who had a tubewell and had received an excessive bill earlier had complained about the same to the S. D. O. Concerned, who had checked it and found that it was issued on industrial tariff instead of on tubewell tarrif. Again in February, 1979, Muhammad Ramzan P. W. Received an excessive bill for Rs, 6,120. He contacted Asghar Ali, appellant, and Manzoor Hussain. Head Clerk, in the Revenue Office of WAPDA at Sheranwala Gate in Lahore for the correction of the said bill. These two officers told him that they had reduced the bill to Rs, 3 700 and that if be paid Rs, 1,000 to them, they would further reduce the bill to Rs, 2,700. On 6-2-1979, Muhammad Ramzan P. W. Contacted these two persons again in the company of Muhammad Yousaf P. W. 3, his brother-in-law. The same talk took place. It was agreed that they would pay Rs, 500 on 7-2-1979 as part of the agreed bribe of Rs, 1,000. On behalf of the appellants it is submitted, on the basis of documents Exh. P. W. 5/1 to Exh. P. W. 5/3, that on 6-2-1979 the Department had already taken a decision to reduce Muhammad Ramzan's excessive bill from Rs, 6,120 to Rs, 3,530.53, and that no question of any bargaining could have arisen between Asghar Ali, appellant, or Manzoor Hussain, Head Clerk, on the one side, and Muhammad Ramzan P. W. 4 or Muhammad Yousaf P. W. 3, on the other, on 7-2-1979. It is further submitted that the story of the witnesses that if Muhammad Ramzan paid Rs, 1,000 to the appellant and the Head Clerk, they would reduce the bill from Rs, 3,700 to Rs, 2,700 seems absurd, for if they did pay Rs, 1,000, as demanded, they stood to gain nothing. These contentions appear attractive but have no weight. In any case, they are by Muhammad Manzoor P. W. 4 who, in cross-examination, stated that he had asked Asghar Ali appellant, and Manzoor, Head Clerk, as to what benefit he would gain if he paid Rs, 1,000 to them as bribe and still paid Rs, 2,700 on the bill, to which question these 'two persons had told him that if they paid Rs, 1,000 to them, then the benefit would be received by him in future in the shape of change of tariff from industrial connection to tubewell connection. In cross- examination he also admitted that he had instituted a civil suit against WAPDA in respect of the excessive bill and that he had received a bill for Rs, 2,900 instead of Rs, 6,120. It is, therefore, obvious that Asghar Ali, appellant, and Manzoor Hussain, Head Clerk, tried to capitalize on the fact that they had reduced Manzoor Hussain P. W's. Bill from Rs, 6,120 to Rs, 3,700 and they, therefore, goaded Manzoor Hussain P. W. To pay Rs, 1,000 to them with the promise that they would further reduce the bill to Rs, 2,700 and that he would stand to gain in future by having his future bills prepared on the basis of tube-well tariff and not industrial tariff. The fact that later W .PDA did send Muhammad Ramzan P. W. 4 a bill for Rs, 2,900, as attainted by him in answer to a question put on behalf of the appellants, sho, that there was some scope for the further reduction of the bill also from Rs, 3,700 odd to Rs, 2,900. The question whether the appellants arid their companion tried to show favour or not to Muhammad Ramzan W. 4 is not relevant. What is relevant is that they tried to flinch another Rs, 1,000 on the pretext of reducing his bill and giving him the assurance that as a result of the said payment, he would receive future bills on the basis of tube-well tariff. No enmity exist or has been suggested between Muhammad Yousaf P. W. 3 or Muhammad Ramzan, P. W. 4, on the one hand, with any of the appellants. The demand of the bribe, therefore, made by Asghar Ali, appellant, and Manzoor Hussain, Head Clerk, stands proved to the hilt.
11. The actual receipt of the bribe of Rs, 500 on 7-2-1979 by Muhammad Arif, appellant, at the instigation of Asghar Ali, appellant, is furnished by Syed Iqbal Hussain Shah, Naib-Tehsildar P. W, 1, Muhammad Yousaf P. W. 3, Muhammad Ramzan P. W. 4, Rana Mubarik Ali Inspector A. C. E.: P. W. 6 and Rana Abdul Sattar Inspector A. C. E.; P. W.
8. The story of these witnesses stands already reproduced in para 2 above and need not be repeated. On behalf of the appellants it is submitted that Syed Iqbal Hussain Shah Naib-Tehsildar P.
W. 1 in cross-examination admitted that he did not know what section 5(2) of the Prevention of Corruption Act, 1947 or what section 161, P. P. C. Was, that he was technically incompetent to conduct the raid, that there was no final order of A. D. C. (G) directing him to conduct the raid and that he towed the line of the police. In this connection it is submitted that the words "zar-e-ri hwat" in the statement of Muhammad Arif, appellant, could not be that of this appellant, but happen to be a part of the statement dictated by the police officer, which Muhammad .Arif, appellant, was forced to sign under duress. Certain portions of the evidence of the said Naib-Tehsildar, Muhammad Ramzan P. W. 4 and Mubarik Ali Inspector A. C. E.; P. W. 6 have been read out to show discrepancies with regard to the recovery of the tainted notes from the possession of Muhammad Arif, appellant. On behalf of Asghar Ali, appellant, it is specially submitted that even if it be assumed that he made a demand for bribe, but he revoked it by not taking the bribe from any, of the witnesses. Had the said appellant desired to take the bribe, he would have taken it in the office or in the hotel down below, but on the fact that he did not do so at either of the two places, though Muhammad Yousaf P. W. 3 Muhammad Ramzan P. W. 4 and Habib Alam H. C. (given up P. W.) at both these places desired him to tak, the bribe; conclusively shows that he had revoked the demand to receive the same. It is further submitted on his behalf that Muhammad Arif, appellant, actually was the agent of Manzoor Hussain, Head Clerk, for whom he had received the bribe, which also stands also borne out from the admission made by Muhammad Yousaf P. W. 3 that Muhammad Arif, appellant, had earlier also received Rs, 100 as bribe. In view of the non-production of Habib Alam H. C. (given up P. W.), it is submitted that the statements of Muhammad Yousaf P. W.
3 and Muhammad Ramzan P. W. 4 cannot be accepted without corroboration. The evidence of Muhammad Yousaf P. W. 3 and Muhammad Ramzan P. W. 4 is clear that they, with Habib Alam H. C.
(given up P. W.), first went and contacted Asghar Ali, appellant, and Manzoor Hussain, Head Clerk, in the office, where they offered currency notes of Rs, 500 to them, but Asghar Ali, appellant, brought the said three persons out of the office and down the staircase to a nearby hotel. There, Asghar Ali, appellant, did not receive the bribe, because some of the members of the staff were sitting in the hotel. He took the group back again to his office, where he asked Muhammad Arif, appellant, to accompany them out of the office to receive the money. Muhammad Arif, appellant, accordingly brought the said three persons out of the office and. Took them near a foder machine some distance away, where he received the tainted notes from Muhammad Yousaf P. W.
3. Both these witnesses have no enmity with either of the appellants. The acceptance of the bribe, therefore, by Muhammad Arif, appellant, on behalf of Asghar Ali, appellant, therefore, stands proved to the hilt. Muhammad Arif, appellant, even in his statement Exh. P. W. 1/5, made before the Naib-Tehsildar, admitted that Asghar Ali, appellant, took him out of the office and asked him to bring Rs 500 from the companion of Muhammad Ramzan P. Ws., with the remarks that the balance Rs, 500 would be paid the next day after he would receive the bill from him. The evidence of Muhammad Yousaf P. W. 3 and Muhammad Ramzan P. W. 4 does not show that when Asghar Ali, appellant, asked Muhammad Arif appellant to receive the sum of Rs, 500, the former gave any indication to the latter that the sum related to any bribe. Rather, the evidence only shows that Muhammad Arif, appellant, was asked to receive the money on behalf of Asghar Ali, appellant. The prosecution has not, therefore, clearly shown that Muhammad Arif, appellant, knew that the direction to him to receive the money was bribe and not some money relating to any other transaction. However, by virtue of section 4 of the Prevention of Corruption Act, II of 1947, a presumption arises against this appellant that he accepted or obtained for Asghar Ali, appellant, the bribe, as a motive or reward, such as is mentioned in section 161, P. P. C. Nevertheless, the said presumption can be displaced. The said appellant in his statement Exh. P. W. 1/5 made before the Naib-Tehsiidar stated that on the day in question he had come to office after having distributed electricity bills, where he marked his presence in the attendance register. There he saw Muhammad Ramzan P. W. Already present with another person. Asghar Ali, appellant, caught him and took him out of the room and told him that he was to bring Rs, 500 from the companion of Muhammad Ramzan P. W. And that the balance of Rs, 500 would be paid the next day after he would receive a bill from him i,e, Muhammad Arif, appellant. Thereafter, he took these two persons outside the office. On the Circular Road he told Muhammad Ramzan and his companion that Asghar Ali, appellant, would later correct his bill and that he (Muhammad Ramzan P. W.) should receive Rs, 500 from his companion. He then took Rs, 500 from the companion of Muhammad Ramzan P. W. And put it in his pocket and was about to take it to Asghar Ali, appellant, when the raiding party apprehended him. Muhammad Arif, appellant, on the day of the raid was merely a bill clerk entrusted with the duties of distributing bills. Very likely he understood Asghar Ali, appellant, as giving him a direction to receive Rs, 500 from the companion of Muhammad Ramzan P. W., in part payment of a bill, the balance of which was to be received the next day, when the electricity bill would be delivered to him for delivery to the said person. In these circumstances, since there is a reasonable explanation offered by Muhammad Arif, appellant, with regard to the receipt of the money, which negatives the receipt of the same as bribe, the presumption cannot be supported. C Since the receipt of money by Muhammad Arif, appellant, is capable of an interpretation other than as suggested by the prosecution, I have no hesitation but to accept the same. The result, therefore, is that whilst Muhammad Arif, appellant, did receive Rs, 500, he did not know that he was receiving bribe on behalf of Asghar Ali, appellant. Therefore, though he. Is entitled to the benefit of doubt, the same cannot be stated for Asghar Ali, appellant, for he knew that the money to be paid to him was bribe and he had requested Muhammad Arif, appellant, to receive the same as his agent. The objection as regards the technical incompetency of Syed Iqbal Hussain Shah Naib- Tehsildar P. W. 1 to conduct the raid or with regard to his blindly towing the line of the police, cannot be accepted. The mere fact that the Naib-Tehsildar during cross-examination could not impromptu say what offence was made out under section 5(2) of the Prevention of Corruption Act, 1947, or under section 161 of the Pakistan Penal Code, does not mean that otherwise he was not competent to conduct the raid, or that in referring to the said sections in his final order after the raid, he towed the line of the police. The order of the A. D. C. (0) directing him to conduct the jaid is there. He made a request to be spared from this duty, as he had to attend to a commission, but the A. D. C. (G) did not revise his order in writing and he thus had to conduct the raid. He thus was authorised to conduct the raid. The discrepancies as regards which member of the raiding party finally took possession of the tainted money from the hand of Muhammad Arif, appellant, does not advance the case of this appellant, for he admitted in his statement Exh. P. W. 1/5 that it was this very tainted money which he had received from the companion of Muhammad Ramzan P. W. 4 (which obviously was Muhammad Yousaf P. W. 3) and it was the same money which a member of the raiding party seized from his hand, as he was about to throw it on the ground. In these circumstances, the recovery of the tainted notes from Muhammad Arif, appellant, stands proved to the hilt. None of the witnesses to the recovery of the tamed money has any animosity or against Muhammad Arif, appellant. Their statements cannot therefore, be disbelieved on any ground. In these circumstances, the receipt of Rs, 500 by Asghar Ali, appellant, as bribe through Muhammad Arif, appellant, stands proved, though the receipt of the said sum by Muhammad Arif, appellant, as conscious receipt of bribe, does not stand established.
12. For the foregoing reasons, the prosecution has been able to prove its case to the hilt against Asgbar Ali, appellant. He appears to have been properly convicted under section 161, P. P. C. Six years have passed by since the commission of the offence. This appellant has also suffered the agony of a protracted trial. Taking all circumstances into consideration, I would reduce his sentence to six months' rigorous imprisonment with a fine of Rupees Two Thousand (Rs, 2,000) or in default of payment of fine to undergo further rigorous imprisonment for one month. Muhammad Arif, appellant, is entitled to the benefit of doubt. His conviction and sentence is set aside. He shall be set at liberty forthwith, if not required in any other case. The fine, if recovered, shall be refunded to him. The appeal of Muhammad Arif, appellant, therefore, stands fully accepted, whilst that of Asghar Ali, appellant, stands partly accepted, in terms of reduction of sentence only.