' Shakil Anjam has filed this appeal against his conviction under section 161 P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, recorded by the learned Special Judge, Anti- Corruption, Rawalpindi, vide his order dated 21-12-1982, whereby he sentenced him to nine months R.I. And a fine of Rs,5,000 or in default to further R.I for two months.
2. The brief facts are that the appellant at the relevant time was working as Sub-Engineer, Municipal Corporation, Rawalpindi. On 14-1-1981, the appellant was raided upon under the supervision of Qazi Farooq Ahmad, Magistrate 1st Class, Rawalpindi P.W.1 and tainted money of Rs,1,000 was recovered from him.
3. The prosecution story as disclosed before the trial Court is that the appellant who was posted as Sub-Engineer, Municipal Corporation, Rawalpindi, demanded illegal gratification from Abdul Rashid P.W.2 who, at the relevant time, was working as Contractor, Municipal Corporation, for the payment of the bill with respect to the construction contract obtained by him for the construction of Octroi Post Rata Amral. The prosecution case is that the appellant demanded Rs,1,000 for helping Abdul Rashid P.W.2 in receiving the balance amount of Rs,5,006 for the work done by him. As the complainant did not want to give illegal gratification, he approached the Anti-Corruption Police. He made application Ex.P.W.2/A whereupon FIR Ex.P.W.5/B was recorded at the A.C. Police Station, Rawalpindi. Abdul Rashid P.W.2 was then produced before Qazi Farooq Ahmad Magistrate who again recorded his statement and ten G.C. Notes of the denomination of Rs,100 each P.1 to P.10 were handed over to the complainant for passing it over to the appellant as illegal gratification.
4. The prosecution in order to prove its case examined five witnesses. The brief resume of their evidence is as follows:- ' Qazi Farooq Ahmad Magistrate 1st Class, Rawalpindi, appeared as P.W.1 He deposed that the complainant was produced before him. He recorded his statement. The complainant produced 10 G.C. Notes of the denomination of Rs,100 each P.1 to P.10 before him and he after noting down their numbers returned the same to the complainant for passing it to the appellant. The raiding party proceeded towards the office of Municipal Corporation, Rawalpindi. The complainant was sent to contact the appellant and make the payment while the other members waited nearby at the gate of the office of Municipal Corporation, Rawalpindi. The complainant went in and brought the appellant out in the verandah where the complainant passed on the money to the appellant who put that money in his pocket. Thereafter, the witness introduced him to the appellant and recovered the tainted money. He also recorded his statement. The money was taken into possession vide memo. Ex.P.W.1/D. This witness in cross-examination conceded that he had not overheard the conversation which took place between the complainant and the appellant.
' Abdul Rashid P.W.2 complainant, reiterated what has been mentioned in the F.I.R. And deposed that Malik clerk of the Municipal Corporation, Rawalpindi, demanded Rs,1,650 from the complainant for passing it over to the appellant as bribe money for the passing of pending bill with respect to the construction work, referred above. Malik clerk has not been produced. The complainant also deposed that he contacted the Mayor of the Municipal Corporation and he advised him to report the matter to the Anti-Corruption Department. The Mayor has also not been produced. The complainant reported the matter to the A.C. Police vide his application Ex.P.W.2/A, whereupon a raid was arranged, he was produced before Qazi Farooq Haider Magistrate P.W.1. The complainant produced ten G.C. Notes of the denomination of Rs,100 each before the Magistrate, who returned the same to the complainant after taking down the numbers. The complainant stated that he joined the raiding party and passed on the tainted money to the complainant. In cross- examination this witness conceded that he had not given the money to the appellant as illegal gratification, rather he gave that money to the appellant that he should pass it over to Malik clerk on his behalf.
' Sajjad Hussain Inspector P.W.3 deposed that he investigated the case and then submitted the challan before the Court. He has not deposed before the Court that he has overheard the conversation between the complainant and the appellant at the time of passing of the money, although the money was recovered from the appellant by the Magistrate in his presence.
' Tajammal Hussain S.I. Appeared as P.W.4. He was one of the members of the raiding party and narrated the facts as stated above, but has not deposed that he has overheard the conversation between the complainant and the appellant at the time of passing over the money to the appellant.
' Malik Ghulam Raza Inspector P.W.5 deposed that he recorded the formal F.I.R. Ex.P.W.5/B.
5. The appellant took up the plea that he has been falsely implicated in this case on account of enmity with the complainant Abdul Rashid P.W.2. He has not denied the receipt of money but said that he did not receive that money as bribe, but it was given to him by the complainant that it should be given to Malik. He further stated that after the work is complete, and entered in the measurement book, then he had no business or authority to make the payment. This is the job of the dealing clerk. As such there was no occasion for him to demand the illegal gratification for getting the bill passed.
6. I have heard the learned counsel for the parties. The learned counsel for the appellant has taken up the plea that in the present case there is no evidence on the record that the raiding Magistrate or any other member of the raiding party, who otherwise are independent witnesses, overheard the conversation between the appellant and the complainant to show that the appellant received the money by way of illegal gratification. He has relied upon Jalal Din v. The State (1986 P Cr.L J 1557), wherein it has been laid down that mere passing of the money, unless it is proved that it was passed on to the public servant by way of illegal gratification, is not sufficient to sustain the conviction.
7. In the present case, the recovery of the G.C. Notes of the denomination of Rs,1,000 is admitted by the appellant, but the question that arises for determination is whether the same were received by the appellant as illegal gratification or not. In this case, according to the learned counsel, even the complainant has not supported the prosecution case, because he has categorically stated that the money was given to the appellant with the direction that it should be paid to Malik not for getting the job illegally done through the good offices of the appellant. The members of the raiding party, as observed earlier, have not overheard the conversation which took place between the appellant and the complainant. According to the learned counsel, there is possibility that the appellant might have innocently received this money for the purpose as disclosed by the complainant himself, hence he has not committed any offence. Reliance has been placed on Ijaz Ahmad Qureshi v. The State (1973 P Cr.L J 833), wherein it has been laid down that the prosecution is bound to establish the factum that the tainted money was received by the accused by way of illegal gratification.
8. The learned counsel for the State on the other hand submitted that the complainant went to the Anti Corruption Police, got recorded his statement, produced the money before the Magistrate which was later on recovered from the pocket of the appellant. He submitted that no doubt before the trial Court the complainant has given an obliging concession to the appellant, but placed reliance on Muhammad Amin v. The State (1987 P Cr. L J 208), to contend that when the money is recovered from the accused, then statutory presumption arises that he must have received that money by way of illegal gratification.
9. I have heard the learned counsel for the parties, but I find that in the present case, the prosecution has failed to prove its case through convincing evidence that the money was received by the appellant by way of illegal gratification, because Abdul Rashid P.W.2 complainant has categorically stated that he gave the money to the appellant with the direction that it should be given to Abdul Malik and has not given the money by way of illegal gratification to the appellant, hence it reflects adversely on the prosecution case and A the prosecution case becomes doubtful.
It would not be safe to place explicit reliance on this evidence of the complainant which is not corroborated by the testimony of the members of the raiding party, as they have not heard anything which could show or demonstrate that the money was being passed by way of illegal gratification. The case-law relied upon by the learned counsel for the State is distinguishable from the present case as in this case even the complainant has not mentioned in his examination-in- chief that the appellant demanded the money from him by way of illegal gratification. His case from the very beginning was that Malik had informed him that he has to pay Rs,1,650 by way of illegal gratification, though he mentioned his name, but according to the evidence the appellant was not present at that time. It does not stand to reason how the appellant accepted Rs,1,000 when his demand for illegal gratification was for Rs,1,650 which makes the prosecution case further doubtful.
10. The upshot of the above discussion is that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. This appeal is accepted. The conviction and sentences of the appellant are set aside. The appellant is on bail. He is discharged from his bail bond. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.