' Appellant Tarique Anwar, a constable in C.IA. Police Karachi was tried by Special Judge Anti- Corruption (Provincial) Karachi, for the offence under section 161, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947, who found him guilty and sentenced him to suffer R.I. For two months and to pay a fine of Rs,1,000 or in default to suffer further R.I. For one month. The appellant has challenged his conviction and sentence recorded on 14-12-1988, through this appeal.
2. P.W. Aziz Ahmad, son of complainant Mst. Saeeda was a heroin addict. He had given up the habit, but still the police harassed him. It is alleged that on 14-1-1985, the said Aziz Ahmed was taken to C.I.A. Centre and was given beating. He was, however, brought back to the house when the present appellant and one Afzal demanded a sum of Rs,2,000 from complainant Mst. Saeeda for releasing him. The bargain was, however, settled at Rs,1,500, which was to be paid in two instalments. A sum of Rs,500 was to he paid on 16-1-1985 at about 6 p.m. On this date complainant Mst. Saeeda lodged report with Abdul Hameed Qureshi, Inspector Anti-Corruption Establishment, Karachi. A trap was then arranged under the supervision of Mr. Lekhraj A.C.M. The tainted money was passed on to Mst.
Saeeda in presence of Mashirs Abdul Khalique and Sher Muhammad. At about 7 p.m. The appellant arrived there. He demanded the money which was paid to him. The raiding party then apprehended the appellant and recovered the tainted money from his possession. The currency notes were compared and they were found to he the same. After usual investigation and obtaining requisite sanction the appellant was sent up to stand trial for the said offence.
3. At the trial the prosecution has examined Mr. Lekhraj, A.C.M. (P.W.1), Mst. Saeeda (P.W.2), Sher Muhammad (P.W.3), Aziz Ahmad (P.W.4) and Abdul Hameed Qureshi Inspector A.C.E. (P.W.5).
4. In his statement recorded under section 342, Cr.P.C., the appellant has denied the case of the prosecution. He admits the receipt of Rs,500, but states that Aziz Ahmad had borrowed this amount from him which he had returned to him on that day. The appellant also examined himself in defence (D.W.1).
5. On the assessm ent of evidence available on record, the learned Special Judge found the appellant guilty and convicted him accordingly.
6. The appellant has admitted the receipt of Rs,500. From a reading of section 4 of the Prevention of Corruption Act, 1947, it is clear that the moment it is proved that the accused has received any gratification other than legal remuneration from the complainant, it shall be presumed 'unless contrary is proved' that he accepted it as a motive or reward such as one mentioned in section 161, P.P.C. The presumption is, however, not to be drawn until the explanation offered by the accused is considered and found unsatisfactory. The appellant as his own witness (D.W.1) has tried to explain his position in the following words:-- "Aziz who is son of complainant had taken loan of Rs,500 from me. He had called me at his house to return this amount. When I reached there, ' he returned the amount to me and then I was arrested and was involved falsely in this case."
' The appellant has tried to strengthen the plea raised by him through an admission made by Aziz Ahmad (P.W.4) in cross-examination in the following words:-- "It is correct that I had told accused Tarique to get me released from these two persons. It is correct that I had taken Rs,500 from Tarique and gave it to those two persons. It is correct that on the day of incident Tarique had come to my house to take this amount of Rs,500 which I had earlier taken from him."
7. It will not be out of place to mention here that the appellant resides in the same locality where complainant Mst. Saeeda resided and they were known to each other previously. Admittedly none else except Mst. Saeeda (P.W.2) and Aziz Ahmad (P.W.4) saw the actual payment of money or heard the conversation between the two. The members of the trap party were sitting in a room from where they could neither see the actual payment nor hear the conversation. Out of the two inmates of the house, Aziz Ahmad (P.W.4) took a complete somersault by supporting the plea raised by the appellant. Thus, we are left with the evidence of Mst. Saeeda (P.W.2) which appears to be tinged with hatred against police officials who were creating trouble for her son Aziz Ahmad, who was previously an addict of heroin. She has undoubtedly shown everything in the darkest color, but was obliged to admit that the appellant was not amongst the two officials of C.I.A. Who had taken away her son to C.I.A. Centre where he was given a beating.
8. Under section 4 of the Prevention of Corruption Act, 1947, mere passing of money cannot raise the presumption. It arises only when it is proved that the gratification was accepted as a motive or reward. The case of Allah Diwaya v. The State reported in 1973 P Cr. L J 1036, is relevant in a situation like this.
9. For all the above reasons, I am clear in my mind that the prosecution had failed to prove the case against appellant beyond any reasonable doubt. The judgment of the trial Court is, therefore, set aside and the appellant is acquitted from the charge. The fine, if paid by the appellant be returned.
10. In the result the appeal is accepted. 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.