Altaf Akbar appellant, who at the relevant time was Sub-Engineer in Building Department posted in the Building Division, Kot Lakhpat, Lahore, was tried by a learned Special Judge Anti-Corruption (Provincial), Lahore on the charge of receiving Rs.1,500 as bribe from Shahid Hamid Contractor (complainant) on 10-5-1987 for passing the bill.
On the conclusion of trial he, vide order, dated 18-10-1988, was convicted under section 161, P.P.C.
And sentenced to six months' R.I. And a Fine of Rs.2,000 or in default to further undergo two months'
R.I.
2. The brief facts of the case are that Shahid Hamid, complainant had obtained a contract for the construction of two rooms in Government High School, Chung. On the completion of construction work when he submitted the final bill for payment, the appellant, who was then posted as Sub- Engineer, Building Division, Kot Lakhpat, Lahore, demanded a sum of Rs.1,500 as illegal gratification from the contractor for passing the final bill. The complainant gave him Rs.500 and promised to pay the rest of the amount subsequently. Meanwhile he contacted the Anti-Corruption Department on 15-5-1987 and complained about the illegal demand of the appellant.
3. Mr. Hamid-ud-Din, Magistrate 1st Class, Lahore, recorded his statement, noted down the serial numbers of ten currency notes, each of the denomination of Rs.100, and handed over the same to the complainant for passing them on to the appellant. On the same day the Magistrate arranged the raid party and went to the office of the appellant at Kot Lakhpat, Lahore. The Magistrate and other members of the raid party stood out side the appellant's office, while Shahid Hamid contractor with the tainted money went inside the office. He passed on the money to the appellant and gave the agreed signal to the Magistrate. In response to the signal, the Magistrate went inside the office room and recovered ten marked currency notes from the pocket of the appellant. The Magistrate tried to record the statement of the appellant but he refused to make a statement on the plea that he was mentally up set and he would make a statement in the Court after consulting his lawyer. Zaman Abbas, Inspector had carried out the investigation of the case arrested the appellant and, after the completion of investigation, submitted the challan.
4. On the commencement of the trial the appellant was charged under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. He pleaded not guilty to the charge and the prosecution produced as many as four witnesses. Shahid Hamid complainant, appearing as (P.W.1) reiterated the prosecution story from start to finish. Mr. Hamid-ud-Din, Magistrate (P.W.2) testified about his role as a raiding Magistrate. Zaman Abbas Inspector (P.W3) explained the part played by him in the registration of the case, as a member of the raiding party and as investigating officer.
The last witness was Saeed Gul, Assistant Director Anti-Corruption (P.W.4) who was also a member of the raid party and had witnessed the recovery of the tainted money from the appellant. He deposed accordingly.
5. The appellant, in his statement recorded under section 342, Cr.P.C. Denied all the incriminating circumstances figuring against him in the prosecution evidence and, alleging his false implication, professed innocence. In his detailed statement under section 340, Cr.P.C. He took up the position that he had already prepared the final bill of the complainant on 22-3-1987 and sent the same to the S.D.O. For sanction and no bill was pending with him on the day of raid. He denied having demanded commission from the complainant or having received any part payment thereof from him. He, however, conceded that the complainant was a contractor for the construction of two rooms of Government High School, Chung, from the funds of Mr. Liaquat Baloch M.NA. And he had, besides others, supervised this construction as a Sub-- Engineer. He alleged that the Headmaster of the school was not satisfied with the execution of the work by 'the contractor and he had complained to Mr. Liaquat Baloch, M.NA. About the sub-standard work carried out by him and the M.NA. Had directed the XEN to remove the defects and also directed him to stop the payment of bill to him and ultimately he, under the orders of the Executive Engineer and the S.D.O., got the defects removed .And work completed according to the satisfaction of the Headmaster. He alleged that on account of this course adopted by him, the contractor suffered some loss, he got annoyed with him and concocting a story, got him falsely implicated in this case.
6. Giving the details of the raid, he stated that on the day of raid when he was present in his office alongwith many persons, including Zia Ullah, Head Draftsman, the complainant came there and asked him to talk to him in private and when he told him that he was busy in discussing official matters, he went away. He asserted that three or four minutes thereafter the complainant again came alongwith a Magistrate and the latter, after disclosing his identity, asked him to take out the money he had received from the complainant and he told him that he had not received any money from anyone and offered his person for search. Meanwhile, according to him, the contractor, who was standing behind him, produced some money saying that he had taken it out from his pocket. He produced Saeed Ahmad Siddique S.D.O. (D.W.1) and Zia Ullah Head Draftsman (D.W.2) in his defence.
7. On the conclusion of the trial; the learned trial Judge, vide his judgment, dated 18-10-1988, convicted and sentenced the appellant in the manner aforesaid and aggrieved by it, he came up in appeal to this Court. On 6-4-1991 when this appeal came up for hearing, it was felt that the appellant had been leniently dealt with by the learned trial Judge in the matter of sentence and I, invoking the revisional jurisdiction of this Court under section 439, Cr.P.C. Asked the appellant in the following terms to show cause as to why his sentence should not be suitably enhanced:-- "The appellant, who was a Sub-Engineer in Building Department, was caught red-handed by a raid party of Anti-Corruption Department headed by a local Magistrate while accepting a sum of Rs.1,000 as bribe from a contractor of his department. He was tried by Mr. Munir Ahmad Sheikh, Special Judge, Anti-Corruption (Provincial), Lahore and was charged under section 5(2) of Act II of 1947 as also under section 161, P.P.C.
(2) On the conclusion of the trial he convicted the appellant under section 161, P.P.C. And sentenced him to six months' R.I. And a fine of Rs.2,000 or in default of further undergo two months imprisonment.
(3) When the menace of corruption has engulfed the whole nation and there is hue and cry everywhere against this malady in public life, the sentence of six months awarded to the appellant appears to be inadequate.
(4) In view of the above, notice be issued to the appellant to appear on 20-5-1991 and show cause as to why his sentence should not be suitably enhanced."
8. The appellant represented by his counsel persued his appeal and also contested the notice for the enhancement of sentence.
9. It was argued on behalf of the appellant that he had prepared the final bill on 22-3-1986 (Exh.D.M.) which was duly signed by the S.D.O. As also by the complainant himself and it had been submitted to the XEN, Building Department and after this date he (appellant) ceased to have any concern with this bill. Earlier thereto, according to the learned counsel, the Headmaster of the school had, on 19-12-1986, vide application (Exh.D.C.) addressed to Mr. Liaquat Baloch, M.NA., complained that the construction work carried out by the contractor was sub-standard and on the basis of this complaint the Executive Engineer had, on the direction of Mr. Liaquat Baloch, M.NA., asked the S.D.O. Vide letter (Exh.DA.) to look into the matter. He contended that letter (Exh.DA.) was accompanied by the D.O. Letter of M.NA., dated 31-12-1986 (Exh.D.B.) in which he had directed to stop the payment of the bill till he inspected the site and vide letter (Exh.D.D.) the explanation of the S.D.O. Was called regarding the poor quality of the work being executed by the contractor and ultimately the Headmaster, vide his letter (Exh.D.E.), dated 12-1-1987, informed the Executive Engineer, Buildings, that the contractor had completed the work but did not hand over the possession which should be got transferred to him and vide letter, dated 12-2-1987 (Exh.D.F.), he took over the charge of the newly constructed rooms through the S.D.O. He argued that vide letter, dated 17-2-1987 (Exh.D.G.), the S.D.O. Informed Mr. Liaqat Baloch, M.NA. That the defects in the building had been rectified and he might allow the - Department to pay the bill to the contractor.
Similarly, vide letter dated 24-3-1987, the Executive Engineer made a request to the M.NA. For allowing him to make payment and the M.NA., vide his letter, dated 9-5-1987 (Exh.D.K.), allowed the XEN to make the payment to the contractor and persaunt to this letter, the S.D.O. Gave the cheque, dated 13-5-1987 (Exh.D.L.) of Rs.34,964 to the contractor.
10. With reference to the statement of Shahid Hamid contractor (P.W.1) the learned counsel submitted that in the examination-in-chief he deposed that he had taken out the tainted money from the pocket of trousers of the appellant which was taken into possession by the Magistrate and this fact falsified the entire prosecution case that the Magistrate had taken out the tainted money from the appellant's pocket. With reference to his statement in the cross-examination, the learned counsel contended that the complainant unreasonably denied certain facts which stood amply proved on record, such as his signing the bill, the complaint of Headmaster about the substandard work and the instructions of Mr. Liaquat Baloch, M.NA. In this regard. According to him, since .The appellant had, under the orders of the senior officers, got certain items of construction replaced, as it appears from his own admission in the cross-examination, he felt annoyed and got him falsely implicated in this case.
11. With regard to the statement of Mr. Hamid-ud-Din, M.I.C. (P.W.2), he submitted that he had admittedly neither seen the tainted money changing hands between the complainant and the appellant, nor he had overheard the conversation between them. In his opinion, these were conditions precedent for a successful raid as held in 1983 P Cr. L J 2559 and 1975 P Cr. L J 1286 and non-compliance thereof would inevitably entail acquittal as no conviction could be based on the statement of a Raiding Magistrate if these conditions were lacking.
12. Pointing out certain discrepancies amongst the statements of recovery witnesses, the learned counsel submitted that, as per statement of Shahid Hamid complainant (P.W.1), at the time of raid he had brought out the tainted money from the pocket of the trousers (pant) of the appellant, while the raiding Magistrate deposed that he himself had recovered the tainted money from the pocket of the appellant. He pointed out that, according to these two witnesses, the recovery was effected in the office room of the appellant but Zaman Abbas Inspector Anti-Corruption (P.W.3) testified that when he entered the office room of the appellant, the raiding Magistrate had already recovered the tainted money from the appellant and he did not see this recovery. According to him, Saeed Gul Director Anti-Corruption (P.W.4) on this point stated that on the receipt of the agreed signal from the complainant they all went inside the room and the Magistrate, after disclosing his identity to the appellant, brought him outside the office room and then he recovered the tainted money.
13. He argued that refusal or failure on the part of the accused in a corruption case to make statement to the Magistrate did not necessarily indicate his guilt and no adverse inference could be drawn against him. He quoted an authority of Karachi High Court on this point.
14. On the contrary, it was argued on behalf of the State that the prosecution case stood proved against the appellant beyond any shadow of doubt and he could not furnish any plausible explanation for the tainted money recovered from him at the time of raid.
15. After due consideration of various contentions raised on behalf of the appellant, I have not been able to find any substance therein. Sufficient time had elapsed between the passing of the bill of the complainant by the appellant and by the higher officers of his department and the raid in question but the payment had not been made to the former who was interested in its payment than its mere passage. It was the appellant, who was to prepare and deal with the complainant's bill at the initial stage, and after its passage by the S.D.O. And XEN, to make him payment. The whole process from start to finish is the joint working and venture of the entire heirarchy of the Building Department right from the Sub-Engineer (as the appellant was) upto the XEN and still higher, and unless they all agree, the contractor cannot get payment of his bill. The curse of `commission' at the rate of a specified percentage, which is now rampant almost in every department and official and semi-official agencies where public money is involved, had statedly first taken birth in the P.W.D. Very long ago and it had conventionally and traditionally been in vogue ever since British days. It is in consonance with that nefarious practice that the appellant was expected to demand his share or `commission' in the bill and the complainant might have willingly conceded, had his margin of profit not been reduced due to the complaint of the Headmaster about the substandard execution of the work and the intervention of Mr. Liaquat Baloch, M.NA. If the M.NA. Had stopped the payment of the complainant's bill till he rectified the defects in the building, this fact must be in his notice and why he should have felt annoyed with the appellant who was acting under the directions of the M.NA. And his own senior officers? It appears to be the demand of bribe by the appellant which annoyed him and he reported the matter to the Anti--corruption authorities. Thus, it cannot be said that the appellant had no connection with the payment of complainant's bill after he forwarded the same to the higher officers for sanction.
16. The next contention of the learned counsel for the appellant is also devoid of force. There was no material contradiction between the statement of the complainant and the raiding Magistrate with regard to the manner in which the tainted money was recovered from the personal search of the appellant at the time of raid because it is possible that at the time of search the appellant might have denied the receipt of money from the complainant after having concealed the same somewhere and the complainant might have pointed out that he was having the same in the back pocket of his trouser (pant) and on the receipt of this information the raiding Magistrate might have pulled out the money from there. But if at all there was any contradiction on this point, the statement of raiding Magistrate is to be believed because in bribe cases the complainants are generally prevailed upon and won over by the accused and during the course of their statements before the Court they give undue concession to the accused in order to save them from law and it is possible that the complainant in this case might have adopted the same course.
17. The refusal of the appellant to make statement before the raiding Magistrate on the plea that he was not in the fit frame of mind and he would make statement in the Court after consulting his lawyer, by itself showed as how he stood purplexed on account of his having been caught red- handed. I am not inclined to agree with the views of the learned counsel for the appellant supported by an authority of Sindh High Court that no adverse inference can be drawn from the refusal of the accused to record his statement before the raiding Magistrate regarding the receipt and possession of the tainted money. The appellant was bound to give explanation for the receipt and recovery of the tainted money from his person as the onus under the law had shifted on him to give a plausible explanation therefor then and there. His failure to do so gives rise to a presumption that he was guilty conscious and was overwhelmed by his, sense of guilt, shame and fear.
18. There is also no force in the contention that the raid proceedings suffered from a major defect on account of the failure of the raiding Magistrate to see the tainted money changing hands and his omission to hear the conversation between the complainant and the appellant at the crucial juncture. This is neither the requirement of the statute nor it is a rule of D prudence. The raiding Magistrate, who is a judicial officer as well, cannot be compelled to adopt an awkward course of concealing himself somewhere in order to see the passing of tainted money and overhearing the conversation between the bribe-giver and bribe-receiver. However, if in the ordinary course of things he happens to see the transaction and overhear their talk, it would a corroborative factor.
The detection or recovery of tainted money from the possession of the bribe-receiver by itself is a corroborative factor necessitating no further corroboration. With utmost respect I, therefore, do not subscribe to E the views expressed in the rulings quoted by the appellant's counsel on the point under consideration. In this connection I would also refer to my comprehensive ruling in Criminal Appeal No.315 of 1989.
19. In view of the above, there is no substance in the appeal and the same F is dismissed. So far as the notice for enhancement of his sentence issued by this Court in the exercise of its suo motu revisional jurisdiction is concerned, the same is discharged as the sentence awarded to him on reconsideration appears to be adequate.
20. The appellant being on bail, a copy of this judgment should be sent to the District Magistrate concerned, who shall cause his arrest immediately and send him to the prison for serving out his remaining sentence.