'Appellant Sakhawat Khan, a Junior Clerk working in Excise and Taxation Department, Karachi, is aggrieved against the judgment dated 21-71988, passed by Special Judge, Anti-Corruption (Provincial) Karachi, by which he convicted him for the offence under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced him to suffer R.I. For six months and to pay a fine of Rs,2,000 (Rupees tow thousand) or in default to suffer R.I. For two months more.
2. Complainant Muhammad Ahsan owns a cattle pan (Bara) in Orangi Town, Karachi, and he is a milk-seller by profession. He received a notice for payment of property tax amounting to Rs,7,420 inclusive of penalty. On 4-7-1987, he went to the office of Excise and Taxation Officer and came in contact with appellant Sakhawat Khan working as Junior Clerk, who promised to get the bill reduced to Rs,3,710, to be paid in four installments, provided he is paid Rs,1,500 as illegal gratification. The deal was, however, settled at Rs,1,100. A sum of Rs,200 was paid by complainant Muhammad Ahsan to appellant at his cattle pan in presence of his brother Muhammad Usman and P.W. Muhammad Sultan. The balance of Rs,900 was to be paid on 6-7-1987 in between 2 p.m.
And 5 p.m. At the house of complainant. On 6-7-1987, complainant Muhammad Ahsan appeared before Ghulam Jeelani Inspector Anti-Corruption Establishment, Karachi and lodged the F.I.R. Since no Magistrate was readily available Ansar Ahmad D.S.P. Was deputed to supervise the raid. A sum of Rs,900 was then passed on to complainant Muhammad Ahsan in presence of Mashirs Gul Khan and Muhammad Bashir. The party then went to the house of complainant Muhammad Ahsan.
Ansar Ahmad D.S.P. And Ghulam Jeelani Inspector A.C.E. Went upstairs leaving complainant Muhammad Ahsan and the Mashirs in the guest room. At about 3-30 p.m. The appellant came there and he went to his office alongwith Muhammad Usman, brother of complainant Muhammad Ahsan to fetch challan forms. At 4-20 p.m., Ghulam Jeclani Inspector A.C.E. Received signal and he alongwith Ansar Ahmad D.S.P. Went to the guest room. On seeing them the appellant is said to have returned the amount to complainant Muhammad Ahsan. The challan forms and the tainted money were recovered from the possession of complainant Muhammad Ahsan and such Mashirnama was prepared on the spot. The appellant was taken into custody and after completing the investigation and obtaining requisite sanction he was sent up to stand trial.
3. At the trial the prosecution examined Muhammad Ahsan (P.W.1), Sultan (P.W.2), Muhammad Bashir (P.W.3), Ansar Ahmad D.S.P. (P.W.4) and Ghulam Jeelani Inspector (P.W.5).
4. The appellant met the charge with a denial claiming innocence. According to him, he was involved in this case falsely due to enmity with complainant Muhammad Ahsan. He also examined himself on oath (D.W.1).
5. On the assessm ent of evidence available on record, the learned Special Judge found the appellant guilty for the offence with which he was charged and convicted him accordingly.
6. I have heard Miss Wajahat Niaz, learned counsel for the appellant and Mr. Shaikh Aziz-ur- Rehman, learned counsel representing the State.
7. There are certain facts and circumstances in this case whch are not in dispute. These arc:-
(i) That the tainted money had not passed on to the appellant in presence of Ansar Ahmad D.S.P.
(P.W.4) and Ghulam Jeelani Inspector (P.W.3).
(ii) That both Ansar Ahmad D.S.P. (P.W.4) and Ghulam Jeelani Inspector (P.W.5) had no opportunity to hear conversation between complainant Muhammad Ahsan and appellant Sakhawat Khan.
(iii) That the tainted money and the challan forms were seized by Ghulam Jeelani Inspector (P.W.5) from the possession of complainant Muhammad Ahsan.
(iv) That the raid was not supervised by a Magistrate.
(v) That complainant Muhammad Ahsan did not pay the property tax at any time, although he was receiving bills every year.
(vi) That complainant Muhammad Ahsan did not deposit even a single instalment towards the property tax when this facility was extended to him.
(vii) That Muhammad Usman, brother of complainant Muhammad Ahsan in whose presence Rs,200 were paid to appellant and who had taken the appellant to his office for collecting challan forms was not put in the witness-box.
8. Let me in the light of these facts examine the story of complainant Muhammad Ahsan keeping in view what the appellant has stated to be his version of the case.
9. Muhammad Ahsan (P.W.1) speaks of two payments made to the appellant. The first was made on 4-7-1987, when a sum of Rs,200 as advance was paid to the appellant. The F.I.R. (Exh.6) shows that this amount was paid in presence of Muhammad Usman and Muhammad Sultan.
Muhammad Ahsan (P.W.1), when examined in Court, however, stated that this amount was paid in presence of Muhammad Usman, who is his brother. As observed earlier this Muhammad Usman was not examined, why? Nobody knows. Sultan (P.W.2) who went to the cattle pan of complainant Muhammad Ahsan by chance, was informed about this payment by him. The statement of Sultan (P.W.2) to this effect is not admissible as complainant Muhammad Ahsan (P.W.1) has not stated so in his evidence. Thus, there is hardly any evidence worth consideration to prove the payment of Rs,200 to appellant on 4-7-1987.
10. The evidence of 'trap' is also not convincing. No evidence of conscious acceptance of tainted money is forthcoming. The reason for not seeking the services of a Magistrate is not plausible.
Although I honestly feel that a Magistrate should not be made as limb of police in such cases of raid, thereby perverting his judicial outlook, still the absence of a Magistrate in the circumstances of the present case, cannot be brushed aside lightly.
11. Section 4 of the Prevention of Corruption Act, 1947, raises a statutory presumption of guilt, where a public servant accepts gratification other than legal remuneration. This presumption, however, arises only upon proof that the accused has accepted or agreed to accept or obtain or attempts to obtain for himself or any other person any gratification or any valuable thing from any person.
This does not mean that the burden of proof on the prosecution to establish the above facts is at all displaced. That burden still remains on the prosecuton and it is only when the prosecution has discharged that burden that a presumption will be made against the accused. Admittedly the tainted money was with complainant Muhammad Ahsan when the raiding party reached the guest room and it was secured from his possession. There is also no dispute that both the Inspector and the D.S.P. Had no occasion to witness the transaction or hear the conversation between the parties. The cases reported as Muhammad Nawaz v. The State 1987 P Cr. L J 182, and Noor Muhammad v. The State 1987 P Cr. L 1842, are also relevant to some extent.
12. Complainant Muhammad Ahsan (P.W.1) at his own showing appears to be a dishonest person.
He has not paid the property tax in respect of the property owned by him. He got a blank cheque after getting the appellant trapped, as he did not pay any installment, even after this facility was extended to him. The testimony of such witness alone is, therefore, not sufficient to record conviction against the appellant. There is no doubt that the appellant did not explain satisfactorily his presence in the house of complainant Muhammad Ahsan at the relevant time. A conviction is certainly not to be based on the weakness of the defence. The prosecution has to stand on its own legs
13. In these circumstances the prosecution has failed to prove the case against the appellant beyond all reasonable doubt. The appeal is accepted and the conviction and sentence against the appellant are set aside.