Sardar Ali son of Ashraf, and Muhammad Younis son of Noor Muhammad were sent up by Police Station F.I.A., Lahore, for trial for offences under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947. Ch. Manzoor Hussain Basra, Special Judge (Central), Lahore, vide his judgment, dated 22-1-1989 gave the benefit of doubt to Muhammad Younis and acquitted him.
Sardar Ali was, however, found guilty and was sentenced to three months' R.I. For an offence under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947. The convict has appealed. This judgment will dispose of the same.
2. The prosecution story, in brief, as disclosed in the F.I.R. Lodged by Fazal Muhammad P.W., was to the effect that he was employed as a peon in the office of Deputy Commissioner, Gujranwala. His mother had gifted three acres of land to him. Two months before the lodging of the F.I.R. Exh. P.H.
Sardar Ali and Muhammad Younis, Qasid in the Office of Gift Tax, Davis Road, Lahore, came to-him and demanded Rs.300 as illegal gratification with the threat that in case he failed to pay the amount they would have him heavily taxed. The first informant reluctantly paid Rs.140 to them. The remaining amount of Rs.160 was promised to be paid on receipt of his salary. On 2-9-1984, both of them again came to him for receiving the remaining amount. As he did not wish to pay illegal gratification, he reported the matter.
After the registration of F.I.R. Exh. P.H. Zulfiqar, C.O./A.C.E., P.W.2, wrote an application Exh.P.A. For deputing a Magistrate to supervise the raid. Mr. Khalid Majeed, M.I.C., Gujranwala, was, accordingly, deputed, who recorded the statement Exh. P.B. Of the first informant and thereafter noted the numbers of tainted currency notes to be handed over to the accused. A raiding party was constituted, who went to the office of Deputy Commissioner, Gujranwala. Fazal Muhammad complainant met the accused persons in the P.A. Room of Deputy Commissioner Office. On receiving the signal, they entered the P.A. Room. The Magistrate after introducing himself asked Sardar Ali to hand over the money, which he accordingly took out of his pocket and gave to the Magistrate. Statement Exh. P.D. Of Fazal Muhammad was again recorded by the Magistrate at the spot, who stated that the money was passed on to the accused who kept it in his pocket.
Thereafter, statement Exh. P.E. Of Sardar Ali was also recorded, wherein he stated that he was an employee of Wealth Tax. He stated that the money recovered from him was given by Fazal Muhammad for him to have meals, which he refused, but the complainant forcibly put it into his pocket. The accused was arrested. Thereafter, on the completion of the investigation, challan was submitted.
3. The prosecution in support of its case produced four witnesses in all. P.W.1 Khalid Majeed, M.I.C.
Gave a detailed account by stating that he was deputed to supervise a raid. He recorded the statement of the first informant. Thereafter, when he received a signal from the complainant, he went into the room and after introducing himself directed Sardar Ali to produce the currency notes received by him, which he accordingly did. He again recorded the statement .Of the Complainant as well as of the accused. In cross-examination he, however, admitted that he did not overhear the conversation nor saw the money changing hands. Zulfiqar Ali, P.W.2 was Circle Officer/A.C.E. During the year 1984. He had recorded F.I.R. Exh. P.H. On the dictation of Fazal Muhammad, thereafter he moved an application, on which a Magistrate was deputed. He was a member of the raiding party.
He arrested the accused at the spot. He further stated that he saw the money changing hands because he was standing near the door and could see inside. Fazal Muhammad P.W.3 corroborated his statement made earlier. Ch. Muhammad Akram, Inspector, F.IA. P.W.4 had conducted the investigation and challaned the accused.
At the conclusion of the prosecution evidence, Sardar Ali appellant was examined without oath. In answer to a question he stated that a notice of gift tax had been issued against the mother of the first informant. When questioned whether he had made statement Exh. P.E. Before the Magistrate, his reply was that his signatures were obtained on the statement by the police. In answer to another question he stated that a notice had been issued against the mother of the complainant.
He with his co-accused went to get the service effected where the first informant and his son quarrelled with them and threatened them.
4. It was contended by learned counsel for the appellant that the case against the appellant was extremely doubtful. Submitted that there were glaring contradictions between the statement of the Magistrate and of the Inspector who formed the raiding party. Argued that the Magistrate did not see the money changing hands or heard the conversation. On the other hand, the Inspector stated that he saw the money changing hands. Submitted that the witnesses were at variance with regard to the place where the occurrence took place, and, in such circumstances, could not be relied upon. About Fazal Muhammad, complainant, it was submitted that he was an interested witness and could not be relied upon without corroboration which was not available. Asserted that the recovery of currency notes has not been proved because both the witnesses, i.e. The Magistrate and the Inspector, have contradicted each other. The contentions were refuted by learned counsel for the State.
5. I have heard the learned counsel at length and gone through the evidence. I have noticed that the appellant was employed at Lahore and was resident of Lahore as well; whereas the first informant was employed at Gujranwala and was residing there as well. In such circumstances, there cannot possibly be any enmity between them. The defence did not challenge the assertion of the complainant that his mother had gifted him some agricultural land. Fazal Muhammad, P.W., the first informant, had been cross-examined at length but nothing was brought on the record to indicate that it would be unsafe to rely upon his testimony. I feel it is quite safe to rely upon his statement. As far as the raiding Magistrate and the Inspector are concerned, I have noticed that there are some discrepancies in their statements, but they are not fatal to the prosecution. It is just possible that the Inspector might be standing at the point where he could see the appellant and the first informant, and the Magistrate might have been at a place where he could not. Therefore, this fact alone would not be sufficient to discard their testimony. The other contradiction pointed out by the learned counsel for the appellant is that the Magistrate had stated that he had recovered the tainted currency notes from the appellant, but the investigating officer stated that it was he who had recovered the tainted currency notes. I have considered this aspect and find it is not a serious contradiction. In such like cases the normal practice is that a Magistrate orders the police officer to recover currency notes from the possession of the accused. Therefore, both of them could be right when they said that they recovered the tainted currency notes, because they were recovered on the direction of the Magistrate by the police officer. In any case, nothing has been brought on the record nor was stated at the Bar that these two officers would have implicated falsely a process-server of the office of Gift Tax for any motive.
The tainted currency notes were recovered from the possession of the appellant, his statement was recorded at the spot wherein he accepted this fact. Learned Magistrate has also stated that he had recorded the statement of the appellant immediately after the recovery proceedings. The Magistrate in cross---examination has not even been suggested that he did not record his statement. The appellant when examined under section 342, Cr.P.C. Stated that a notice for gift tax was issued against the mother of Fazal Muhammad, P.W. Which would explain the circumstances under which he went there.
For what has been discussed above, I find the prosecution has been able to establish its case beyond doubt. There is no merit in the appeal which is accordingly, dismissed.