' A case under section 409/201/34, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947, was registered against Nazar Abbas, H.C. No,288, and Iqbal Hussain, C.No, 120 with P.S. A.C.E., Jhang. The case came up for trial before Special Judge Anti-Corruption Sargodha, who, vide his judgment dated 16-12-1987, convicted both the appellants to four years' R.I. Each and a fine of Rs,5,000 each, or in default thereof six months' R.I. Each, under section 409/34, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947. They were further convicted to one year's R.I.
Under section 201/34, P.P.C. Each. It was directed that the sentences shall run concurrently. Nazar Abbas has filed an appeal challenging his conviction, and Iqbal Hussain has also filed a separate appeal against his conviction. Both the matters shall be disposed of by this judgment.
2. The prosecution story, in brief, as disclosed by Qadir Bakhsh in his complaint Exh.P.B., is that on 18- 12-1985 he was working as Naib Court in the Court of Special Judge Anti-Corruption, Sargodha. On the said day at about 10 a.m., he went to the Malkhana of Police Station Saddar Jhang in order to bring case property, in Case No, 46, dated 28-10-1984, and Case No, 42, dated 3-9-1984. Both the cases pertained to receiving of illegal gratification. In one case the case property was Rs,300 and in other case Rs,200. From the police station he got two sealed parcels. The said parcels were opened in the presence of Malik Muhammad Asghar, A.D.P., and it revealed that there were not any currency notes in the envelopes. However, the numbers of the currency notes were recorded on the said envelopes. The matter was reported to the Inspector Anti-Corruption, who went to the said P.S. Where both the appellants were working as Muharrir and Naib-Muharrir. Some other envelopes were also checked and it transpired that in some of them the currency notes were missing.
3. The complaint Exh.P.B. Was lodged by Qadir Bakhsh, Naib-Court, P.W.1, on 18-12-1985. It was recorded by Zulfiqar Ali, Inspector, Anti-Corruption, P.W.14.
' After the registration of the case, the Investigating Officer in the company of Malik Muhammad Nawaz Bandial, M.I.C., went to the police station and checked the Malkhana. He prepared a list of the envelopes which had been checked; that list is Exh.P.I. A separate list Exh.P.J. Of the envelopes which did not contain any currency notes, was also prepared in the presence of the Magistrate.
Iqbal Hussain appellant while in custody led the police party to his house from where he got recovered currency notes worth Rs,400 which were secured vide memo. Exh.P.E. He also got recovered Rs,600 from his house from a box, which were secured vide Memo. Exh.P.F. After the necessary investigation, both the accused were challaned.
4. The prosecution in support of its case produced 14 witnesses in all. P.W.1, Qadir Bakhsh, has supported the averments made in the F.I.R. And has also stated that during those days the appellants were working as Muharrir and Naib-Muharrir of the said P.S. P.W.2, Ilyas Ahmad, was working as Reader to the Court of Special Judge Anti-Corruption, Sargodha. In his presence on 18- 12-1985, the seals of two envelopes were opened, but there was no currency notes inside the envelopes. P.W.3 Ghulam Muhammad was a Stenographer of the said Court. In his presence the seals of two parcels were opened but no currency notes were found inside the envelopes. P.W.4 Muhammad Ashraf, Constable, has stated that on 18-12-1985 he was present in the Police Station Saddar, Jhang, and saw Qadir Bakhsh P.W. Quarrelling with the appellants as one of the parcels was not properly sealed. Hatim Ali, Constable, P.W.5, has stated that during the year 1984 he was working as Constable, A.C.E. On 12-6-1985 he had deposited 67 sealed parcels in the Malkhana of P.S. Saddar, Jhang being the case property. He has further stated that the said parcels were handed over to the appellants. P.W.6 Zulfiqar All witnessed the recovery of currency notes at the instance of Iqbal appellant from his house. He also signed the recovery memo. P.W.7 Malik Muhammad Asghar has stated that on 18-12-1985 he was posted as Assistant Director (prosecution) in the Court of Special Judge Anti-Corruption, Sargodha. Qadir Bakhsh, P.W.1 produced two sealed parcels which he had brought from the police station, before him. The said witness got opened the said parcels in his presence but found that there were no currency notes inside them. Muhammad Nawaz Bandial, P.W.8 was working as Magistrate, Jhang, on 21-12-1985. On the said date, Zulfiqar, I.O. Moved an application Exh.P.G. To the effect that the Malkhana of Police Station Saddar, Jhang, be inspected. The witness accordingly went to the said P.S. At that time in his presence 63 parcels were produced, out of which 33 parcels contained the currency notes, whereas in 25 parcels there were no currency notes in them. Shehzada Izzat Ahmad, S.I. P.W.9, also accompanied the Investigating Officer and the Magistrate to the Malkhana of Saddar Police Station, Jhang. In his presence, 63 parcels were examined. Sajjad Hussain, Constable, P.W.10, witnessed the recovery of the keys of Malkhana at the instance of Nazar Abbas. Haq Nawaz, P.W.11 was posted as Muharrir/Incharge Malkhana, P.S. Saddar, Jhang, in December, 1985. Mr. Sarwar Hayat, R.M. Bheera, District Sargodha, P.W.12, stated that on 24-12-1985 an application Exh.P.O. Was produced before him wherein it was requested that Iqbal Hussain appellant's statement under section 164, Cr.P.C. Be recorded. After observing the formalities the witness recorded the statement of Iqbal Hussain and signed the confessional statement in token of its correctness. According to this witness, the confessional statement Exh.P.P. Was voluntarily made. Bashir Ahmad, S.I. P.W.13, deposed that the appellants were posted as Muharrir and Naib-Muharrir of Malkhana Police Jhang.
Muhammad Zulfiqar, P.W.14 was the Investigating Officer and has given a detail of the investigation which he conducted. At the conclusion of the prosecution evidence, both the appellants were examined under section 342, Cr.P.C. Wherein they refuted the entire prosecution evidence and pleaded innocence.
5. It is contended by learned counsel for the appellants that the case against the appellants is highly doubtful. Contends that the provisions of section 409, P.P.C. Are not attracted to their case at all. Submits that the prosecution has not been able to prove the exclusive possession of the appellants qua the sealed parcels. The contentions have been opposed by learned counsel for the State.
6. I have heard the learned counsel for the parties and perused the record. It is established that both the appellants during 1985 were working as Muharrir and Naib-Muharrir of the Malkhana of Police Station Saddar, Jhang. P.W.1 has deposed that he received the parcels and brought them to the Court of Special Judge Anti-Corruption. On opening the seals in the presence of Malik Muhammad Asghar, Assistant Director (prosecution), P.W. It transpired that the envelopes were empty. The prosecution has produced ample evidence to indicate that the envelopes were empty.
They were brought from the police station where the appellants were posted as Muharrir and Naib- Muharrir, Malkhana. As a matter of fact, all the witnesses were cross-examined at length, but none of them has even been suggested that they were making false statements or have falsely involved the appellants for ulterior motive.
As far as the case of Nazar Abbas appellant is concerned, I think it is on a different footing. No recovery has been effected at his instance. There is no evidence to the effect that he ever was in the exclusive possession of Malkhana. The evidence brought on the file is to the effect that even on the day the case was registered it was Iqbal Hussain, appellant who took out the sealed envelopes and handed them over to Qadir Bakhsh P.W. In the absence of any direct evidence I feel that it may not be safe to convict Nazar Abbas appellant. Therefore, as an abundant precaution, I accept his appeal, set aside the conviction and direct that he be released from custody forthwith, if not required in any other case.
' As far as Iqbal Hussain, appellant, is concerned, his case stands on a different footing. He led to the recovery of currency notes which tallied with the notes which had been deposited in the Malkhana as the case property. In his statement under section 342, Cr.P.C., he has not given any explanation or the circumstance under which he came in possession of the said notes. He has also made a confessional statement whereby he has admitted his guilt. The Magistrate who recorded the confessional statement has stated that before recording the confessional statement, he satisfied himself that the same was being made without any threat or inducement from any quarter. The said Magistrate was cross-examined at length but the defence could not bring anything on the record to suggest that the Magistrate was not careful enough in satisfying himself or any requirement of law was ignored. In such circumstances, I feel no hesitation in placing complete reliance on the confessional statement of lqbal Hussain, appellant, which is corroborated by the recovery of currency notes as well as the statement of Qadir Bakhsh to the effect that it was Iqbal Hussain who handed over the sealed parcels to him from the Malkhana.
' For what has been discussed above, I hold the prosecution has been able to prove its case beyond any doubt against lqbal Hussain, appellant. Resultantly his appeal fails which is accordingly, dismissed. The sentences awarded to him by the trial Court are upheld.