Muhammad Siddiq appellant, who at the relevant time was H.C. Incharge of Police Guard at Data Darbar, Lahore, was tried by the learned Special Judge, Anti-Corruption, Lahore, W the charge of his having been found in possession of Rs.100, which he allegedly received as bribe from Muhammad Fayyaz complainant (P.W.2), for allowing him to sell balloons in the vicinity of Data Darbar, when on 1-11-1988 at about 2-25 p.m. He was raided by a party of Anti-Corruption 'Department headed by Muhammad Siddiq, Magistrate 1 Class, Lahore. On the conclusion of the trial he was vide order of the said Court dated 17-12-1990, convicted under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to, three months' R.I. And a fine of Rs.1,000 or in default of its payment to further undergo one month's R.I. Aggrieved by this order he came up in appeal to this Court.
2. It is argued on behalf of the appellant that H.C. Mukhtar Ahmad had remained posted as Incharge of Police Post, Data Darbar for a period of about two and a half years prior to appellant's posting there replacing him and since .The former was under the impression that the appellant had manipulated his posting in order to replace him, he availed of the services of Muhammad Fayyaz complainant, with whom he had been hand in glow due to long posting, and got the appellant falsely implicated in this case. According to the learned counsel, his above contention Finds support from the fact that after the raid and the registration of the case when the appellant was removed from his duty as Guard Incharge, Mukhtar Ahmad H.C. Was again posted there, as it appears from the report of daily diary (Exh.D.A,).
3. It is further urged that the raid party, prior to the conducting of actual raid, was concealing itself about 15 to 20 yards away from the place where Muhammad Fayyaz complainant had allegedlyst passed on the tainted money to the appellant and this fact was admitted by the raiding Magistrate in cross--examination that he did not overhear the conversation between the appellant and the complainant though he saw the latter passing t-he tainted currency note of the denomination of Rs.100 to the former which he later recovered from him (appellant). Omission on the part of Raiding Magistrate to overhear the conversation between the complainant and the appellant left a serious lacuna in the prosecution case as held in PLD 1983 Lah. 514, 1986 P Cr. L J 1973 and 1986 P Cr. L J 1557, he adds.
4. On the other hand, it is contended on behalf of the State that the prosecution had examined three witnesses, namely Mr. Muhammad Siddiq, Magistrate 1st Class, Lahore (P.W.1), Muhammad Fayyaz complainant (P.W.2) and S.I. Altaf-ur-Rehman (P.W.3) who fully supported the prosecution case and they all were independent witnesses, having no animosity or illwill against the appellant to depose falsely against him. According tothe learned State counsel the explanation of the appellant that he was entrapped in this case at the instance of H.C. Muhammad Mukhtar, was not plausible and it was only an afterthought. He submits that the tainted money was actually recovered from the appellant and the raiding Magistrate had actually seen the marked currency note changing hands between the complainant and the appellant and the Magistrate could not overhear their conversation because of the distance.
5. There is nothing tangible on the record to suggest that Muhammad Fayyaz complainant, who used to vend balloons in the vicinity of Data Darbar, was set up by H.C. Mukhtar Ahmad the predecessor-in-office of the appellant, m order to get him involved in a false case for substituting him. No inference can be drawn in support of the above contention raised by the learned counsel for the appellant from the copy of the daily diary, indicating reporting of H.C. Mukhtar Ahmad.
6. As regards the second contention this too is without substance. Mr. Muhammad, Siddiq the raiding Magistrate (P.W.1), frankly conceded that due to the longer distance he could not overhear the talk between the appellant and the complainant when the latter was passing the tainted money on to the p. Former, though he saw them so doing. Neither the passing of illegal gratification by the complainant to the accused official within the view of the raiding Magistrate, nor to overhear their conversation at that time is the requirement of statutory law or any rule of prudence, though this idea has recently crept in the case-law. I have considered this aspect of the matter in some detail in my recent judgment in Criminal Appeal N0315 of 1987 (which is likely to be reported in the law journals) and have come to the conclusion that the omission on the part of the raiding Magistrate to watch the passing of tainted money and overhearing the talk between the bribe- giver and the bribe--receiver does not damage the prosecution case.
It is an admitted position that the marked currency note, constituting tainted money was recovered by the raiding Magistrate from the pocket of the appellant who could not give any plausible explanation therefor, neither at the time of raid nor at the trial.
Data Darbar, Lahore, is a busy place, which is a good market for petty vendors like Muhammad Fayyaz complainant who vended balloons for the children and the appellant, who was Incharge of the Police Guard of that area, could scare him away unless he oiled his palm after regular intervals.
To find more customers he had to pay the bribe to the appellant under compulsion but at the same time he did not like it and reported the matter to the authorities which arranged a raid and got the appellant apprehended rod-handed while receiving illegal gratification from him. The prosecution case, in my opinion, stood amply proved against the appellant by the testimony of Muhammad Fayyaz complainant and the raiding Magistrate and he was rightly convicted and sentenced. There is, therefore, no substance is his appeal and the same is dismissed.
Appellant being on bail he should be taken into custody and sent to the prison for serving out his remaining sentence.