Appellant Badshah Hussain was tried by learned Special Judge, Anti---Corruption Hyderabad, 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 vide judgment, dated 28-7-1987, sentenced him to suffer S.I. For five months and to pay a fine of Rs.2,000 or in default to suffer S.I. For three months. By this appeal filed under section 10 of the Pakistan Criminal Law Amendment Act, 1958, the appellant has challenged his conviction and sentence.
2. On 29-7-1984, the F.I.R. In this case was lodged with Anti-Corruption Establishment, Hyderabad City, wherein it was alleged that the appellant who was working as Office Superintendent, in the office of Deputy Director, Health Services, Hyderabad, had demanded a sum of Rs.1,000 from Complainant Muhammad Ayub for giving him posting order for the post of dispenser. Accordingly a trap was laid and a sum of Rs.900 was recovered from the possession of the appellant. A sum of Rs.100, which was returned to complainant Muhammad Ayub by the appellant was produced by him before the Raiding Officer. After usual investigation and obtaining requisite sanction the appellant was sent up to stand trial before Special Judge, Anti-Corruption, Hyderabad.
3. At the trial the prosecution examined Khan Bahadur (P.W.1), Muhammad Afzal Arain (P.W.2), Sarfraz Ahmed, Constable (P.W.3), Muhammad Ayub (P.W.4) and Muhammad Rafique, Inspector A.C.E. (P.W.5).
4. In his statement recorded under section 342, Cr.P.C. The appellant has disputed the case of the prosecution, although he admitted the recovery of tainted money from his possession. The explanation furnished by the appellant in this behalf is as follows:- "I had not accepted any bribe money from the complainant, however, I had received the amount of Rs.1,000 from him in discharge of the loan amount given by me to him, and that I had returned back the amount of Rs.100 to the complainant as his expenses for travelling ctr. The trap party had thus secured the amount of Rs.900 from me which was in fact my own money."
"The complainant has falsely deposed as I think he was annoyed due to my persistent demand of payment of the loan amount to me and also because he was posted at far-of place, i.e. Dadu.
Whereas P.W. Khan Bahadur who was simply a peon in our office was compelled by the Anti--- Corruption Police to give evidence, against me."
5. The appellant, however, did not examine himself on oath. He also led no defence.
6. On the assessm ent of evidence available on record, the learned Special Judge found the appellant guilty and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
7. I have heard Mr. M.I. Memon, learned counsel for the appellant and Mr. M. Hayat Qureshi, learned counsel for the State. The latter has not supported the impugned judgment.
8. A great deal in this case depends upon the evidence of complainant Muhammad Ayub (P.W.4), and I have, therefore, carefully examined it in the light of the circumstances on the recorded to satisfy myself whether he has honestly stated the story, in its material particulars and whether the facts leading to the trap that he has given are rendered doubtful or improbable by the existence of any circumstance on record. Complainant Muhammad Ayub (P.W.4) as his own witness has testified that he had applied to Deputy Director, Health Services, Hyderabad, for the post of dispenser and after 2 or 3 months he received the appointment letter at his old address calling upon him to produce fitness certificate. He, therefore, obtained fitness certificate from Services Hospital, Hyderabad, and since the appointment order was received by him after the lapse of long time, he contacted the appellant, who advised him to report to D.H.O. Dadu for posting. The evidence of Muhammad Ayub (P.W.4) further shows that he had reported for duty to D.H.O. Dadu, but since there was no vacancy he was advised to report to Deputy Director, Health Services, Hyderabad, for fresh posting order and it was in these circumstances that complainant Muhammad Ayub (P.W.4) came in contact with the appellant who then demanded a sum of Rs.1,000 as illegal gratification for issuing fresh posting orders. The version of complainant Muhammad Ayub (P.W.4) gets full support from the documentary evidence viz. Envelope (Exh. I.G), appointment letter (Exh.18) and certificate of fitness (Exh.9). It may be added that complainant Muhammad Ayub (P.W.4) resided in District Tharparkar and he was interested in getting his posting in District Tharparkar. The evidence of complainant Muhammad Ayub (P.W.4) on the demand of Rs.l,000 as illegal gratification therefore, does not suffer from any inherent weakness.
9. Complainant Muhammad Ayub (P.W.4) has also testified about the circumstances leading to the trap of the appellant and recovery of tainted money from his possession. The following extract from the evidence of complainant Muhammad Ayub (P.W.4) throws light about the manner in which the appellant was trapped:-- "The accused told me that he was then going to his house to take meals. So he further asked me to accompany him. So we proceeded to his house. After crossing the Niaz Stadium and the Highway we went in a lane near Polytechnic College. We had walked the distance of about one furlong from the road, when I requested him to give me the order as I had to return back to my village. He then took out the appointment letter from his pocket. He obtained my signature on its office copy. He also obtained promised money from me. I then gave the amount of Rs.1,000 to him, but requested him to make concession to me as I was a poor person. He then returned the amount of Rs.100 denomination as my expenses. He kept the remaining amount of Rs.900 in the pocket on front side.
After that I looked around and saw the Anti-Corruption Police coming in a Suzuki followed by 2/3 rickshaws. In the meantime the accused had walked and covered some distance. On reaching near me the Anti-Corruption Police enquired from me, if I had handed over the tainted money to the accused. I replied in affirmative and further told them that he was going ahead in the same street. So they proceeded further and overreached the accused. I also ran there and told them that the accused was having the money in the pocket on front side and that he had returned one note of Rs.100 denomination to me. The Magistrate introduced himself to the accused and caught him by his arm. The tainted money so passed on to the accused was secured from his pocket on front side ...."
10. The version of Muhammad Ayub (P.W.4) gets full support from Khan Bahadur (P.W.1), who had acted as Mashir, Muhammad Afzal Arain (P.W.2) who was IInd Class Magistrate during those days and had supervised the raid, and Muhammad Rafique, Inspector A.C.E. (P.W.5) who had conducted the raid. The witnesses were subjected to cross-examination but beyond very minor contradictions nothing of any substance came out which would discredit the evidence in any way and I see no reason, therefore, to differ from the assessment of the evidence by the Court below and in fact agree with it.
11. The appellant has almost admitted the entire case of the prosecution except that the money so recovered from his possession was not received by him as bribe. Section 4 of the Prevention of Corruption Act, 1947, speaks of raising a presumption, and the Court may presume that the accused under the circumstances accepted the money as a motive or reward. The essence of the matter is the real nature of payment to be gathered from the circumstances attending to each case, but once it is proved to the satisfaction of the Court that the money had passed on to accused then the burden is on him to displace the presumption which will be satisfied if the accused person establishes his case by a preponderance of probability. The appellant has tried to discharge the burden by claiming that the money so received by him was towards the satisfaction of loan which complainant Muhammad Ayub (P.W.4) had taken from him. This aspect of the case was examined carefully by the learned Special Judge, who for good reasons eliminated this plea raised by the appellant in his statement (Exh.12) which he gave before the raiding Magistrate soon after his apprehension. Certainly statement of this kind is by no means conclusive. Cases do occur in which the accused tells a lie at the outset and sticks to it throughout repeating it over and over again and it is as well not to lose sight of fact that any number of repetitions will not make a false story true.
12. There is no evidence on record to satisfy the Court that the relations between the parties who had nothing common were such that the appellant would advance a sum of Rs.1,000 for no obvious reason. Again the complainant could not be so ungrateful to have behaved in this manner, if the appellant had really advanced loan. The recovery of posting order (Exh.8) for Mirpurkhas, District Tharparkar and other relevant documents leads to an irresistible conclusion that the tainted money so recovered from the possession of the appellant was received by him as illegal gratification and not towards the satisfaction of loan. The appellant has come out with a fantastic story which on its face appears to be improbable and incredible and was thus rightly discarded by learned Special Judge, who had also an additional advantage to see and make note of the demeanour of the witnesses. It may be added that the appellant did not step into the witness-box in support of the plea raised by him.
13. Mr. M.I. Memon, learned counsel for the appellant has invited my attention to the following cases in an attempt to show that case against the appellant is doubtful in nature and he is entitled to benefit of doubt:--
(i) Noor Muhammad v. The State PLD 1963 SC 38, (ii) Irtiza Khan v. The State 1985 P Cr. L J 858(2), (i.e) Muhammad Ramzan v. The State 1985 P Cr. L J 295.1, (iv) Muhammad Iqbal v. The State 1988 P Cr. L J 2025, (v) Sakhawat Khan v. The State 1989 P Cr. L J 1104, (vi) Muhammad Walayat v. The State 1989 P Cr. L J 2371, (vii) Muhammad Ali v. The State 1989 P Cr. L J 2.114, (viii) Muhammad Ramzan and another v. The State 1990 P Cr. L J 633 and (ix) Tarique Anwar v. The State 1990 P Cr. L J 1141.
14. I have examined these authorities, but I do not find it necessary to discuss them in detail, and abstain from encumbering this judgment for the simple reason, that it is a question of fact, in each particular case, whether the evidence produced by the prosecution can, or cannot, be considered to be sufficient to establish the guilt of the accused.
15. On overall appraisement of the entire evidence in the case and on considering all the surrounding circumstances, I am of the view that the appellant was rightly convicted.
16. The question of sentence has engaged my anxious consideration. The appellant is an old person and was at the verge of retirement at the time of incident with 38 years of service at his credit. He has remained in custody as U.T.P. For couple of days. He has lost his job and all benefits arising out of the job. For all these reasons, I would reduce the tentative sentence to that already undergone by him. The sentence of tine is, however, maintained. The appellant shall suffer imprisonment awarded in lieu of fine, if the same is not deposited before the trial Court within one month.
17. With this modification in sentence, the appeal is otherwise dismissed.