KHIZAR HAYAT, J.- Ghulam Abbas son of Ghulam Hussain, aged 45 years, resident of old Sargodha, was convicted under section 161 PPC by the Special Judge, Anti-Corruption, Sargodha Division, vide Judgment dated 22.3.1986 and sentenced till rising of the Court and a fine of Rs. 2,000/- or in default to undergo simple imprisonment for 30 days. He has appealed.
2. The appellant was posted as revenue Patwari of Village Deowal, Tehsil Bahalwal, District Sargodha in the year 1983. Noor Muhammad (PW. 1) a Zamindar of the same village approached him on or about 7.2.1983 for obtaining a copy of Jamabandi pertaining to his land for which he (appellant) demanded a sum of Rs. 100/- from him by way of illegal gratification. The complainant promised to pay the amount next day, (8.2.1983) and reported the matter to Zahoor Hussain Shah, SCO /ACE who recorded his statement (Ex.PA) and registered a formal FIR (Ex.PA/1) on its hasis. The SCO/ACE then got deputed Mr. Fayyaz Tehseen, Magistrate 1st Class, Sargodha, to supervise the raid to be conducted on the appellant for arresting him red-handed. The Raiding Magistrate recorded statement of the complainant (Ex.PB). He then noted often the number of currency note (Ex.P.I) and returned it to the complainant for passing it on to the appellant on demand. The complainant as per arrangement went ahead for contacting and paying the tainted currency note to the appellant while the Raiding Magistrate, Fayyaz Tehseen, (PW.4), Zahoor Hussain Shah, ACE, (PW. 3) and Nazir Ahmad (not produced) followed him. The complainant delivered currency note to the appellant in the courtyard of the Patwar khana and this transaction was seen through an aperture in the outer wall of the Patwar khana by the Magistrate himself. As soon as the marked amount was handed-over to the appellant the raiding party inclusive of the Raiding Magistrate
(PWA) entered the Patwar khana, recovered the tainted/marked currency note from the appellant and secured it under memo (Ex.PD). The Magistrate then recorded statements of the appellant and the complainant. In his statement (Ex.PF) given to the Magistrate at that time, the appellant stated that the complainant had contacted him title before and asked for issuing a copy of jamabandi to him. He told him that he had no time for it and that he should see him at some other time. Noor Muhammad, complainant, while leaving the place threw a currency note of Rs. 100/- there. He picket it up and asked the complainant to take the same but in the meantime the raiding party entered the Patwar khana. Finding it to be unsatisfactory explanation, the Raiding Magistrate arrested the appellant and handed him over to the police.
2. Zahoor Hussain Shah, ACE, (PW. 3) after completing the investigation and obtaining sanction for his prosecution from competent authority (Ex. PG) sent the challan to the Court.
3. At the trial the appellant denied the charge and the prosecution in support thereof- examined four witnesses. Noor Muhammad, complainant, (PW. 1) stated that the appellant had demanded a sum of Rs.100/- by way of bribe for issuing copy of Jamabandi pertaining to his land demanded by him. He promised to pay the same. But he did not want to pay bribe, therefore, he reported the matter to the SCO/ACE, who got deputed a Magistrate and arranged a raid. He paid the tainted amount to the patwari which was recovered by the raiding party. Mr. Fayyaz Tehseen, AIC (PW. 4), Zahoor Hussain Shah, MCE, (PW. 3) corroborated his version. The Raiding Magistrate claimed to have seen handing over of currency note (Ex. PI) by the complainant and acceptance thereof by the appellant through a hole in the outer wall of the Patwar khana near its outer gate, and then and having entered the Patwar khana he recovered the tainted money from the appellant. At the conclusion of the prosecution evidence the appellant in his statement under section 342 Cr.P.C., denied the allegation. He, however, admitted his statement (Ex.PF) recorded by the Magistrate at the tima of the raid and his signatures thereon. He also admitted that on the day of raid he was revenue patwari of village Deowal. In reply to a question as to why this case was made against him, the appellant stated as under:- "My predecessor Bashir Ahmad wanted to get me transferred from Deowal. He desired to get himself posted in my place. Again said in fact I was posted in Deowal as Addl. Patwari with Bashir Ahmad. Bashir Ahmad used to live at the Dera of Nur Muhammad complainant, and also kept his cattle heads at the Dera. The complainant was not in need of copy of Jamabandi. I am innocent. I have put in 26 years of service and my service record is good. I am about to retire in the near future".
He examined in his defence, Ghulam Rasul, (DW. 1) Muhammad Yar, (DW. 2) and Mushtaq Hussain, (DW. 3), who stated that the patwari is of good moral character and that he had been involved in the case due to enmity with Bashir Ahmad, expatwari. The appellant himself appeared in disproof of the allegation under section 340 (2) Cr.P.C, and stated on oath that he was innocent. The trial Court on consideration of the material on record accepted the prosecution case and convicted and sentenced him lightly observing that the appellant was an old man and was about to retire.
4. The appellant feeling aggrieved of impugned order filed the instant appeal. I have heard the learned counsel for the appellant and also perused the record. Needless to say that about the allegation of demanding Rs.100/- as bribe for issuing a copy of Jamabandi there is evidence of solitary witness Noor Muhammad, complainant. As far handing over of the tainted currency note and its recovery from the appellant is concerned, Zahoor Hussain, ACE/CO, (PW. 3) and Fayyaz Tehseen, Magistrate 1st Class, (PW. 4) have testified to it besides the complainant. There is no enmity between the appellant and these witnesses at all. No such suggestion was made by the appellant to them either. I am, therefore, convinced that the tainted currency note was handed over by Noor Muhammad, complainant, to the appellant which was subsequently recovered from his possession. The question which falls for determination is whether the appellant had consciously accepted it by way of bribe? What conversation had taken place between the appellant and the complainant at the time of payment of tainted money to the appellant is not known. We have on this point solitary statement of PW.1 who stated that the appellant had demanded Rs.100/- for issuing him a copy of the Jamabandi. As Stated earlier this witness has no enmity with the appellant. And of all the person the Raiding Magistrate (PW.4) saw the tainted amount being received by the appellant from the complainant, which was later recovered from his possession. In the circumstances, the burden of proof that the appellant did not accept marked currency note of Rs.100/- (Ex. PI) as bribe has shifted to the appellant under section 4(1) of the Prevention of Corruption Act, 1947. This onus has not been successfully discharged by him, therefore, legitimate and legal presumption is raised that he received the tainted currency note by way of bribe.
Consequently it stands proved beyond reasonable doubt that the appellant demanded and accepted the bribe. I am, therefore, satisfied that the learned trial Court had rightly convicted the appellant on the charge under section 5(2) of the Prevention of Corruption Act, 1947, which is hereby maintained. As far the sentence, I find that the appellant has been dealt with quite leniently, therefore, calls for no interference either. In the result the appeal is dismissed.