' This criminal appeal arises from the judgment of learned Special Judge, Anti-Corruption, Bahawalpur, whereby he on 25-6-1989 convicted Mian Abdul Rashid appellant under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 2 years'
R.T. And a fine of Rs,2,000 in default thereof six months' R.I. On each count with the direction that the sentences shall run concurrently.
2. The appellant is a Ziledar. The charge against him was that he accepted Rs,1,000 as illegal gratification from Muhammad Saeed P.W. For showing him favour in Warabandi proceedings. He denied the charge and claimed to be tried.
3. To prove its case prosecution produced 4 witnesses in all. Muhammad Saeed P.W.2 appeared to prove demand and acceptance of Rs,1,000 as illegal gratification from him by the appellant. Ata Muhammad Zafar, Magistrate 1st Class, P.W.3 and Ghulam Qadir Jatoi, Inspector C.I.A. Bahawalpur, P.W.4 were produced to prove the acceptance of Rs,1,000 as illegal gratification by the appellant from Muhammad Saeed complainant. Muhammad Tayyib P.W.1 stated that application Exh.P.W.1/A was given by him to the police which was taken into possession vide memo. Exh.P.W.1/B attested by him. The P.Ws. 2 to 4 have supported the charge against the appellant.
4. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He raised the plea of false implication. Admitting the recovery of the tainted currency notes from him, he stated:- "Saeed P.W. Had given me this amount saying that my brother Abdul Hameed had sent this amount for me through him. The Magistrate could not see the passing of the money because in between the place where he had stated to be present and the place where I was the view was block and there was sufficient distance. It is because I wanted to narrate the whole facts to the Magistrate but he refused to write my statement completely as he was under the influence of the complainant party and went away. Many persons had gathered there who had heard the talk. They wanted to give their statements to the Magistrate pertaining to my innocence, but their statements were also not recorded."
' He declined to give evidence on oath in disproof of the charge against him. In defence he produced two witnesses namely Hafiz Allah Bakhsh D.W.1 and Syed Fazal Hussain Shah D.W.2 Hafiz Allah Bakhsh D.W.1 and Syed Fazal Hussain Shah D.W. 2 stated that it was within their view that Muhammad Saeed P.W. Gave Rs,1,000 to the appellant saying that the amount had been sent by his brother. Allah Bakhsh further stated that amount of Rs,1,000 was still in the hand of Muhammad Saeed complainant when Ghulam Qadir Jatoi, Inspector, and Magistrate arrived and recovered from him. Syed Fazal Hussain D.W.2 stated that the money was with the appellant at the time of recovery as he had received it from the complainant before arrival of the Inspector and Magistrate.
5. Believing the prosecution case, evidence produced by it and disbelieving the plea of the appellant and the defence witnesses, the trial Court has convicted and sentenced him as stated above.
6. Learned counsel for the appellant submitted that the Magistrate and the Inspector P.Ws. Had not heard talk between the complainant and the accused before the money changed hand, as such, there is a reasonable possibility of the defence version being true; that Saeed Ahmad complainant is a dacoy witness; that there is no corroboration of his statement; he is a mischievous person in that he got a raid conducted on a Lineman of WAPDA and had also involved a cement dealer in a false case and proceedings under section 182, P.P.C. Were initiated against him; that application Exh.P.W.1/A had already been disposed of by the appellant, as such there was no occasion to demand and receive illegal gratification at the time of raid. Learned counsel for the State has supported the conviction and sentence of the appellant.
7. I have considered the submissions made by the learned counsel for the parties with care. I find that the recovery of the tainted currency notes from the appellant being an admitted and proved fact, the real questions for determination as to whether the same was received as illegal gratification or not and as to whether there is a reasonable possibility of the defence version being true. The Magistrate and the Inspector had not heard the conversation between the appellant and the complainant at the time of raid nor had the Inspector seen the money changing hand. The Magistrate, however, claims to have seen the appellant receiving tainted currency notes from the complainant. The Magistrate has categorically stated that the tainted currency notes were recovered from the pocket of the shirt of the appellant. Muhammad Saeed stated that the appellant had not only demanded but had actually accepted the tainted currency notes from him as illegal gratification. The recovery of the tainted currency notes from the pocket of the appellant gives rise to the statutory presumption that the same was received as illegal gratification. On the other hand, Hafiz Allah Bakhsh D.W. 1 stated that the money was still in the hand of Muhammad Saeed complainant when recovered by the Magistrate D.W.2. Sycd Fazal Hussain Shah stated that the appellant had physically received the tainted money and the same was recovered from him.
The factum of the recovery of the tainted currency notes from the pocket of the appellant shows that he had consciously received and accepted the same from the complainant. The divergent statements made by D.Ws. Negate reasonable possibility of the defence version being true. It may be noted here that the appellant declined to give evidence on oath in disproof of the charges against him although he was the best witness of the nature of the transaction and circumstances in which the money came into his pocket. For all these reasons, I am convinced that the trial Court has rightly convicted the appellant under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
8. This brings me to the question of sentence. I feel that in the circumstances of the case the sentence awarded to the appellant by the learned trial Court is neither excessive nor harsh.
' For what has been said above, there being no merit, the appeal is dismissed.