Maqsood Ahmad, aged 45 years, was employed as an Assistant in the Animal Husbandry Branch of the Agriculture Department, Civil Secretariat, Lahore. He was tried by the learned Special Judge, Anti-Corruption, Lahore, for an offence under section 161, P. P. C. Read with section 5 (2) of the Preven--tion of Corruption Act, 1947. The learned trial Judge found him guilty by his judgment dated 30-6-1970 and sentenced him to one year's R. I. And a. Fine of Rs. 1,000. In default of payment of the fine he was ordered to undergo another four months' R. I. He has coma up in appeal against his conviction and sentence.
2. The facts of the prosecution case briefly stated are that Dr. Muhammad Ahmad, the brother of Munir Ahmad Kamal P. W. 3 was posted in the office of the Assistant Director, Animal Husbandry, Lahore. In early 1966 he returned from U. K. After successfully completing a two years study course of higher education in Animal Husbandry. In view of the higher academic qualification acquired by him Dr. Muhammad Ahmad made an application to the Director, Animal Husbandry for the grant of four advance increments. The Director recommended his ease to the Government of' West Pakistan. Maqsood Ahmad appellant had 4149 dealt with the relevant file and had given some notings thereon. It is alleged that he went to the house of Munir Ahmad Kamal P. W.
3. Where his brother Dr. Muhammad Ahmad also resided, and had a talk with the latter about his increment case. The appellant promised to help him and demanded Rs. 500 and an English suit-length as illegal gratification in return thereof. Dr. Muhammad Ahmad, however, refused to accept the demand. The appellant therefore, turned to Munir Ahmad Kamal P. W., the elder brother of Dr. Muhammad Ahmad for intervention. The appellant ultimately agreed to accept Rs. 200, but demanded that Rs. 100 be paid immediately and the remaining Rs. 100, after the finalization of the case. When the complainant showed his inability to pay the money, the appellant is said to have threatened to `spoil the work'. The complainant, therefore promised to pay Rs. 100, on the next day but, instead, he informed Muhammad Anwar P. W. 2, an Inspector in the Anti-Corruption Establishment about the demand of bribe by the appellant. The Inspector forthwith approached the A. D. M. With an application Exh. P. A. For the nomination of a Magistrate, to conduct the raid. The A. D. M. Nominated Sh. Anwar Latif, M. I. C. P. W. 1, for this purpose. The Inspec--tor then produced the complainant before the said Magistrate on the same day, who recorded his statement Exh. P. B. The complainant then gave ten currency notes P. 1 to P. 10, of the denomination of Rs. 10 each, to Sh.
Anwar Latif, Magistrate, who noted their numbers and after searching the complainant's person returned the same to him. Thereafter a raiding party consisting of Sh. Anwar Latif, M. I. C. P. W. 1.
Muhammad Anwar, Inspector A. C. E., P. W.
2. Munir Ahmad Kamal complainant P. W. 3 and two foot constables, proceeded to the appellant's office in the Civil Secretariat. Ch. Badruddin, D. S. P. Joined them near the gate of Secretariat. They then proceeded to a place behind the Ministerial Block where the appellant's office was situated, Munir Ahmad Kamal P. W. Alone went to the office of Maqsood Ahmad appellant while the others remained at some distance. Shortly afterwards the complainant came out accompanied by the appellant and descended the staircase. He did not, however, accept the money at that time and told the complainant that he would accept it at his residences the same evening, at about 4-15 p.m. Munir Ahmad Kamal complainant thereupon came back and informed the Magistrate, who recorded his supplementary statement Exh. P. E.
The same day at about 4 or 4-30. In the evening the Magistrate and the Inspector A. C. E., along with two constables, came to the house of Munir Ahmad Kamal complainant. The Magistrate and the Inspector were seated in the courtyard of the house, while the two foot constables were seated in another house, opposite to the complainant's house. At about 5-50 p .m. The appellant came there. His (complainant's) brother Dr. Muhammad Ahmad seated him in the drawing room and after a short while the complainant also came Inside and sat with the appellant. After about 5 or 6 minutes talk the complainant handed over the tainted currency notes to the appellant and the latter is said to have assured that the `work' of Dr. Muham--mad Ahmad would be done. The appellant was still holding the money in his hand when, on a pre-arranged signal, the Magistrate and the Inspector entered the room. On seeing them the appellant put the tainted notes on the table wherefrom they were taken into possession by the Magistrate, vide memo. Exh. P. F. The learned Magistrate also recorded the statement of the appellant which is Exh. P. J. He then completed the raid report, arrested the appellant and got the present case registered, He handed over all the papers including the currency notes to Muhammad Anwar, Inspector P. W. 2, for further action, After the completion of the investigation the appellant was sent up for trial before the learned Special Judge, Anti-Corruption, Lahore, the result of which has already been stated above.
3. At the trial the prosecution produced five witnesses in support of its case. They are: Sh. Anwar Latif (P. W. 1), the raiding Magistrate. Muhammad Anwar (P. W. 2), the Investigating Officer, Munir Ahmad Kamal (P. W. 3), complainant, Ali Ahmad Khan (P. W. 4), Superintendent of the Office of the Director of Animal Husbandry, Lahore who brought the personal file of Dr. Muhammad Ahmad and Ch. Nawab Din (P. W. 5), Section Officer, Civil Secretariat, who produced the relevant file in which the case of Dr. Muhammad Ahmad had been dealt with by the appellant.
4. The appellant when examined, denied his guilt and pleaded innocence. He stated that as a matter of fact Dr. Muhammad Ahmad, who was his neighbour, had approached him to show him favour while dealing his case but he did not accede to his request. According to him, this was the reason for his being falsely involved in the case. He produced four witnesses in defence.
5. I have heard the learned counsel for the appellant as well as the learned State counsel. I have also gone through the entire record with them.
The learned counsel for the appellant urged inter alia that the passing of the tainted money had not been sufficiently proved and that in any case it was not shown whether the money had been passed, as illegal gratification with the result that a presumption under section 4 of the Prevention of Corruption Act could not arise against the appellant. In this connection he pointed that there was no other witness either to demand of the bribe or to the acceptance thereof, except Munir Ahmad Kamal P. W. It was he alone, who had contacted the appellant in the Civil Secretariat earlier in the day, when the appellant is said to have refused to accept the bribe. Later, in the evening, when the complainant is said to have handed over the money to the appellant no one else had heard the conversation that passed between them. It is admitted by Sh. Anwar Latif P. W. 1 that neither he nor any one else had overheard the conversation between Munir Ahmad Kamal complainant and the appellant. The learned defence counsel therefore urged that it could not be sold with any certainty that the complainant had passed the money to the appellant as illegal gratification.
6. I have carefully considered the contentions and find that the learned counsel for the appellant is correct. It is admitted by the complainant as well as the raiding Magistrate and the Inspector that only Munir Ahmad Kamal complainant had contacted the appellant in the Civil Secretariat when the latter refused to accept the money. No one else overheard the conversation between them.
Munir Ahmad Kamal P. W. 3 has stated at the trial that the appellant asked him about the money upon which he told that he had brought the money but since Muhammad Anwar, Inspector P. W. 2 was at some distance, the appellant might have smelt something and told the complainant that he would accept the money at the latter's residence in the evening. According to Sh. Anwar Latif P.
W.
1. When Munir Ahmad Kamal P. W. 3 informed him about this fact, he recorded his (complainant's) supplementary statement Exh. P. E. I have gone through that statement and find that it simply says that the appellant had told him (the complainant) that he would take the money at his house in the evening at about 4-30 p.m. There is no mention whatsoever of the reason for the appellant's refusal to accept the money at that time. It is not recorded in that statement that the appellant had become suspicious on seeing Muhammad Anwar Inspector P. W.
2 standing nearby. The presence of the Inspector, therefore, appears to be a subsequent improvement made at the trial, with a view to show the reason for the non-- acceptance of the bribe money by the appellant at the Civil Secretariat.
Sh. Anwar Latif P. W. 1 has also admitted that when the complainant and the appellant were talking with each other inside the room, he could not hear the conversation. This is what he stated during his examination-in-chief:-- "A door opened' towards the courtyard and its shutters slightly apart. Munir Ahmad Kamal (P. W. 3) was sitting on the sofa chair. He started talking with the accused. We however, could not overhear the talk which passed between the accused and the complainant because the voice was not audible."
It is apparent, therefore, that besides Munir Ahmad Kamal P. W. 3 himself no one can say as to on what pretext he handed over the money to the appellant. It has been held in Ansar Ali Mia v. State (PLD 1961 Dacca 806) that it is the duty of the prosecution to prove that there was conscious acceptance of money as illegal gratification by the accused and the mere recovery of money from the possession of the accused is not enough to fix him with the guilt. The Court must exclude all possibility of the money having been planted on the accused person. Similarly in Abdul Hye v. State (1969 P Cr. L J 343), it was held that mere recovery of the marked currency notes from the person of the accused in the absence of corroboration to evidence does not necessarily prove that money was accepted as an "illegal gratification." In Ghulam Hussain v. State (1969 P Cr. L. J 563) it was held that the solitary statement of the complainant that the accused demanded or accepted illegal gratification cannot be accepted without independent corroboration of the fact that the money was demanded or accepted as such. In Maqsood Ahmad v. State (AIR 1948 Lah. 27), the learned Court observed as follows:- "Money may be passed from one person to another on a variety of pretexts, and it cannot be remembered too carefully that persons who lend themselves for use as decoys and agents provocature possess ingenuity and suppleness of wit above the ordinary. No stupid or simple person could ever hope to perform such a function. Therefore, it is of the utmost importance in cases of this kind that there should be indepen--dent corroboration of the statement of the decoy witness, that the money was received by the accused person for an illegal purpose. Naturally, the decoy witness will be extremely keen that his trap should not fail, and having in the forefront of his mind that the Central thing is that the marked money should be passed to the intended victim, and assuming a certain elasticity of moral character in the decoy witness, there is a real danger that he may pass on the money under some pretext which may perhaps not be guilty in the relevant sense or which may even be wholly innocent, but in giving his evidence may represent that he gave the money for the purpose relevant in the case."
The learned State counsel frankly conceded the contentions raised by learned counsel for the appellant and admitted that the prosecution case has not been proved beyond reasonable doubt.
7. In this view of the matter I feel that the appellant's conviction is not sustainable. I, therefore, accept the appeal and set aside the impugned order. As the appellant is already on bail, his bail bond is discharged.