1. ' Appellant Farooq Ali Baig was tried by the Special Judge Anti-Corruption (Provincial), Karachi in Special Case No, 49 of 1984 and convicted under section 161, P.P.C. Read with section 5(II) of Prevention of Corruption Act, 1947 and sentenced to R.I. For four months and to pay fine of Rs,1,000 or in default to undergo R.I. For one month more. The appellant has challenged his conviction and impugned the judgment, dated 29-3-1987 by filing this appeal.
2. ' Mr. Syed Ahmed Farooqui appeared for the appellant and Mr. A.K. Jatoi argued on behalf of the State.
3. ' Briefly stated, the facts of the prosecution case are that on the date of commission of the offence i,e, 30-7-1984 the appellant Farooq Ali Baig was serving as Assistant-cum-Cashier in the Office of Sub-Divisional Education Office (South), Karachi and as such public servant by abuse of his official position accepted from complainant Ateequr Rahman Rs,250 as gratification other than legal remuneration as a motive or reward to get the bill of arrears of salary of Mst. Hadis Fatma, the mother of the complainant. The appellant is said to have accepted the tainted amount from the complainant. On the date of offence a raid was arranged consequent to a report lodged with the Anti-Corruption Police (East), Karachi, under No,85 of 1984 by inspector, Anti-Corruption Establishment namely Mr. Faqeer Muhammad. The F.I.R. Was registered and produced during the trial as Exh.7 on the record which reads as under:- "That my mother namely Hadisa Fatima was school teacher under Sub-Divisional Education Officer, Sub-Division Ranchore Line, District South (Female), Karachi. Her salaries for the months of June and July, 1982 were not paid to her. She was retired in the year 1982. Later on she died on 19-12-1982.
4. Her above claims are still lying pending with the Accountant Mr. Farooq Beg of the Sub-Division. My mother in her life made so many applications but of no use. I then contacted Mr. Farooq Assistant several times, he did not do the work.
5. ' On 29th July, 1984 I contacted him and requested him to do the needful. Mr. Farooq Accountant demanded Rs,250 as bribe to pass the bills and get the cheques from the A.-G. Office. Having no other way I made a promise to pay Rs,250 on 30th July, 1984, in his office at Bolton Market. F.I.R.
6. Read over to the complainant, admitted correct and signed."
7. ' The Inspector Anti-Corruption Establishment, Mr. Faqeer Muhammad after registering the F.I.R.
8. Sent for P.W. Muhammad Sarwar through a police constable and went to the Court of P.W. Ali Akbar Mughairi, A.C.M. Court No,IV (South), Karachi alongwith Mashir Muhammad Sarwar and the complainant and requested him to supervise the trap so arranged. The Inspector has also produced the copy of F.I.R. Before him who verified the contents of F.I.R. From the complainant and Mashirnama was prepared and the numbers of the notes so handed over to the complainant as tainted money for passing on to the appellant as bribe were mentioned in the Mashirnama which is produced as Exh.9 on the record.
9. ' Thereafter, the Inspector and the Magistrate along with the complainant and the Mashir Muhammad Sarwar proceeded to the office of the appellant which was situated at Bolton Market.
10. Complainant went inside the office of S.D.E.O. And entered the room but immediately came out and disclosed to the trap party that the appellant was not available in the office. While the complainant, Mashir, Magistrate and the Inspector were going out of the office of S.D.E.O. Present appellant was going inside and the complainant met the appellant and talked with him. The Magistrate, Inspector and the Mashir were at a close distance witnessing the transaction and saw complainant Ateequr Rahman passing on the tainted money to the appellant who after taking the same put it into his pocket of the pant. The signal was arranged and immediately after the signal the Magistrate and the Inspector rushed towards the appellant and caught hold of him and the Magistrate secured the money from the pocket of the appellant. For the money so recovered from the possession of the appellant the memo. Was prepared which is Exh.10 containing the number of the notes. The Magistrate, Inspector and the Mashir had put their signatures on the Mashirnama and on comparison of the numbers of the notes with the Mashirnama Exh.9 the numbers tallied.
11. The appellant was thereafter arrested under Mashirnama Exh.11. Inspector Faqeer Muhammad took the appellant inside his office where the Senior Clerk of D.E.O. By name Tufail took out office copy of the bill of the arrears of the salary of Mst. Hadis Fatima which was secured in presence of the Magistrate and the Mashir under the Mashirnama Exh.12. The trap party then came back to the Anti-Corruption Office where the Inspector recorded the further statement of the complainant and also the statement of Mashir Sarwar. The Magistrate prepared a raid report and handed it over to the Inspector which is Exh.16 on the record. On 1-8-1984 the Inspector again visited the office of S.D.E.O. Where he was given the original copy of bill along with the annexures which included the correspondence which was secured under a Mashirnama Exh.18 which was signed by the Inspector and the S.D.E.O., District South (Female), Karachi. On completion of the investigation the prosecution obtained sanction Exh.20 from the Anti-Corruption Committee No, 3 Karachi and sent up the appellant to stand trial before the Special Judge which resulted in his conviction and sentence as mentioned above and the.Same has been impugned in this appeal.
12. ' In support of their case the prosecution examined P.W.1 Ateequr Rehman complainant Exh.6. He produced the F.I.R. Exh.7, P.W.2 Muhammad Sarwar as Exh.8 who had acted as Mashir and he produced the Mashirnama of payment of Rs,250 to the complainant as Exh.9. He also produced Mashirnama of recovery from the appellant Exh.10 and Mashirnama of personal search and arrest of the appellant Exh.11, so also Mashirnama of recovery of office copy of the bill with regard to the arrears of salary of Mst. Hadis Fatima as Exh.13, P.W.3, Ali Akbar Mughari at Exh.15 who is the Trap Magistrate having supervised the trap, he has produced the raid report prepared by him as Exh.16, and lastly Faqeer Muhammad, the Investigating Officer, he produced the original bill and the annexures recovered on 1-8-1984 as Exh.18 and the prosecution sanction as Exh.20. Prosecution case was closed and the appellant was examined under section 342, Cr.P.C. The appellant denied the prosecution allegations and his case was that complainant Ateequr Rehman had demanded the salary of two months from him and he had told him to see the S.D.E.O. In this behalf which annoyed the complainant who foisted false case against him. With regard to possession of tainted money, the appellant's case was that complainant Ateequr Rehman was in possession of tainted money and the Magistrate had secured the same from the complainant.
13. ' From the perusal of the statement of the appellant it appears that he wanted himself to be examined in defence but he did not do so and on 8-1-1985 list of defence witnesses was 'submitted on his behalf by the counsel for the appellant.
14. The prosecution case is mainly based on he evidence of complainant Ateequr Rahman, Mashir Muhammad Sarwar, Trap Magistrate Ali Akbar Mughairi and Inspector Faqeer Muhammad.
15. ' The learned counsel for the appellant has mainly emphasised that the evidence on record does not warrant conviction as the conversation between the appellant and the complainant was not heard by any of the witnesses although he has not denied that the witnesses were present at the place of occurrence at a close distance.
16. ' I find no force in this argument much less any substance as I am of the view that in the facts and circumstances of the case the important point for consideration would be only the recovery of tainted money which was to be given by the complainant to the appellant as disclosed at the earlier stage in the FIR.' The learned counsel has cited following cases in support of his contention:
(1) Abdul Hayee v. The State 1969 P Cr. L J 343.
(2) Bashir Ahmed v. The State 1968 P Cr. L J 670.
17. ' I have carefully considered the submissions made by the learned counsel for the appellant. As already stated by me, on the point of the recovery of tainted money from the possession of the appellant there is evidence of Ali Akbar Mughairi, the Magistrate who had supervised the trap and took out the money from the pocket of the appellant, the Mashir Muhammad Sarwar, Investigating Officer, Faqir Muhammad and all the three witnesses are unanimous on the point of time, place and the manner the occurence took place and there can also be no doubt that currency notes which form the tainted money in the case had been earlier given by the Magistrate to the complainant under Mashirnama Exh.9 in presence of the Inspector and the Mashir before the trap.
18. Mashirnama and the F.I.R. Clearly contain that the money so paid was to be handed over to the appellant as illegal gratification for the purpose of getting pay bill passed. It would not be out of place to mention here that in the above cited case a specific plea was taken by the accused persons for having accepted the tainted amount for the purpose other than the illegal gratification and in that case hearing of the talk between the complainant and the accused was necessary. In the instant case no specific plea is taken by the appellant, in fact in his statement under section 342, Cr.P.C. He admitted that the appellant was approached for the release of the bill by the complainant and his advice was mistaken and complainant was annoyed hence he filed false case. I do not find much force in the submissions of the learned counsel that the plea raised by the appellant necessitated the prosecution to produce the evidence of dialogue between the accused/appellant and the complainant. From the evidence on record i,e, the evidence of the Magistrate, Mashir, complainant and the I.O. I conclude that the witnesses with whom there is alleged no enmity, appear to be true witnesses and their evidence sounds natural not suffering from any infirmity. Although the appellant contended that money was taken from the complainant and foisted on him but in the cross-examination of the prosecution witnesses not even a suggestion to this effect was made by the appellant's counsel when these witnesses were examined in the Court. The recovery of the amount of tainted money from the appellant is convincing. There is nothing on the record to disbelieve it and having come to this conclusion that the money was recoverd from the appellant, the onus shifted upon him to explain how and for what purpose he had received the same. Reference may be made to section 4(i) of Act II of 1947 and also to the case of Muhammad Siddique v. The State reported in 1977 SCMR 503 and Ghulam Nabi v. The State 1975 SCMR 164 wherein the Honorable Judges of the Supreme Court had held that the tainted money having been recovered from the petitioner, onus was on him to explain how and what for he got the money.
19. ' I have given my anxious thought to the contentions of the learned counsel for the appellant that the appellant was not responsible for the delay caused in passing of the bill of arrears and the same was caused at the office of the Accountant. I am not impressed by this contention for the simple reason, that the prosecution has placed on record the original copy of the bill due with the annexures and the appellant in his defence had examined two witnesses namely, Shamsuddin and Mst. Jannat Khatoon who are the Accountant and the Headmistress respectively but nothing has been brought on record through these witnesses. As a matter of fact the appellant has given up defense witnesses, Intizar Ahmed, the Superintendent of Directorate of School Education and Sarfraz Hussain, Assistant to Auditor Education Centre of A.-G., Sind Office. Consequently the contention raised by the learned counsel for the appellant is without any force.
20. ' Lastly it was argued by the appellant's counsel that the trial Court had misread the evidence, in that, it was argued that the appellant had stated in his statement that he was Government servant and was working as Assistant only but from the evidence of D.W.1 Exh.23, Mst. Jannat Khatoon who was examined in defence it is clear that the appellant Farooq Ali Baig was Head Clerk in the office of D.E.O. At Bolton Market and she had approached him for the purpose of receiving the letter of her retirement which is subject of the fact that the appellant in his capacity was dealing with the retirement papers. The remaining evidence brought on record in defence has been carefully considered by me. I find there is nothing in the evidence of the defence witnesses to be treated favourable to the appellant. The evidence of prosecution witnesses, in my considered view, apart from being very clear and consistent, is convincing and rings true moreso in absence of any enmity between the witnesses and the appellant.
21. ' In the result I find no merit in the appeal, hence it is dismissed and the l6 conviction and sentence imposed on the appellant is confirmed.
22. ' The appeal was dismissed on 25-8-1988 by a short order and these are the reasons for the same.
23. Since the appellant was allowed ten days time to surrender before the trial Court and serve the sentence, the office is directed to send this judgment to the trial Court without any loss of time.