This appeal is directed against the judgment of Special Judge, Anti---Corruption, Lahore, dated 12- 4-1974, whereby the learned Special Judge convicted Muhammad Asghar appellant under section 161, P.P.C., read with section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947), and sentenced him to undergo rigorous imprisonment for nine months.
2. The detailed facts of the case are as following:- Mr. M. R. Abbas (P. W. 2) lived in house No. 18, Street No. 46, New Dharampura, Lahore. The electricity meter was in the name of his brother Mr. Z. A. Rehman Abbasi. The appellant asked Mr. M. R. Abbasi complainant two months before the present occurrence to fix his monthly amount and in lieu of that, he would issue bill of petty amount, but the complainant did not agree to it. He did not receive electricity bill for two months. He inquired from the appellant as to why he had not received the electricity bill. The appellant replied that huge amount was due from him and in case he (complainant) paid him some money, he (appellant) would send him a bill of Rs. 4/5 and would set right the -meter by breaking the seal. The complainant did not agree to this proposal.
Thereafter, the complainant received a bill of Rs. 36.58. On the second day of the receipt of the bill, the appellant met the complainant at the house of the latter and repeated his earlier demand of money, but the complainant declined. The complainant returned home on 16-10-1969, and learnt that his meter had been removed by the meter clerk who had left a message at the house that he (complainant) should meet him (appellant). The, complainant went to the office of the appellant on 17-10-1969, but the appellant was not present in the office. On 18-1069, the complainant again went to the office of the appellant and the appellant informed the complainant that the meter was still in his possession and had not been deposited in the office and in case be was paid some amount the meter would be re-installed. The appellant further asked the complainant to meet him at 12-CO noon, at the shop of Iqbal Dry Cleaner, Dharampura, Lahore. The appellant demanded Rs.
40 and the matter was settled at Rs.
30. The complainant in fact did not want to give the bribe. He met Syed Kafayat Hussain. Inspector Anti-Corruption Establishment, Lahore (P. W. 5) and lodged the F. I. R. Exh. P. W. 2-A. The Inspector made application Exh. P. W. 5/A to the A: D. M , who deputed Mr. Sated Akhtar, Magistrate (P. W. 6) to supervise the raid. The Magistrate recorded the statement of Mr. M. R. Abbasi Exh. P. W. 2/B. The complainant produced three currency notes of the of Rs. 10 each. The Magistrate noted down their p.m-- complainant had no other money with him. A raiding party (P. W. 2), Kafayat Hussain, Inspector and Mr. Saeed Akhtar (P. W. 6) was constituted. The complainant entered .The shop known as lqbal Dry Cleaner, followed by the Magistrate. A radio was on in the shop, yet the Magistrate heard the complainant telling the appellant that his meter should be installed on that day. The Magistrate saw the complainant passing on the tainted money to the appellant. The appellant took that amount from the complainant and said that the meter would be installed in the evening. The Magistrate introduced himself and demanded the money from the appellant, which he was holding in his hand and the appellant handed over that money to the Magistrate, who compared it and found that the notes had the same numbers. The Magistrate went to Police Post, Dharamura and recorded the statement of Mr. M. R. Abbasi Exh. P.W. 2/C and Exh. P.W. 2/D that the appellant had informed him that the meter had been sent at his house and it would be installed. In order to verify this fact, the Magistrate deemed it proper to visit the house of the complainant. The Magistrate found Muhammad Rafique and Farzand A.I, Assistant Linemen at the house of the complainant. Muhammad Rafique made statement before the Magistate. The Magistrate returned to the Police Post, Dharampura, and recorded the statement of appellant Exh.
P.W. 6/G. The appellant stated that on 17-10-1969, Mohammad Rafique and Farzand A.I, Linemen met him in Street No. 44 while he was busy in meter reading and inquired about the house of the complainant and he gave the address of the house of the complainant. The appellant further stated that the complainant met him in the morning in his office and informed him that the Lineman had removed the meter; that the complainant asked about the Linemen and he informed him that they had not yet come; that the complainant informed him that he would make payment of electricity bill by 12-00 noon and that he should help him in the reinstalla--petition of the meter, and he replied that he did not know the Linemen; that he asked the complainant to come at the shop of 1qbal Dry Cleaner and both the Assistant Linemen would meet him there; that he was present at 3-45 p.m. At the shop of Iqbal Dry Cleaner and the complainant came there and inquir- -ed about the Linemen, but he informed the complainant that he did not know whereabouts of the Linemen; that the complainant gave him the electricity bill in order to show it to the Linemen but he informed him to show it himself to the Linemen; that the complainant took out money and asked him to pass it on to the Assistant Linemen, but he informed the complainant that he had no concern with them and that he should pay the money himself to the Linemen; that the complainant placed the amount on the table where he was sitting, but he told the complainant not to place the money there and take it away, however, the complainant did not listen to him and went out; that the complainant had and no previous emmity with him.
3. The appellant was arrested. He was challaned after investigation.
4. The appellant denied the accusation when put to him. He expressed that he would show cause about the innocence.
5. The prosecution examined six witnesses in support of the case. Mr. M. R. Abbasi (P. W. 2), Mr. Kafayat Hussain Inspector (P. W. 5) and Mr. Saeed Akhtar, Magistrate (P. W. 6) are the material witnesses in this case. Mr. M. R. Abbasi supported the prosecution case. Syed Kafayat Hussain and the Magistrate corroborated the statement of Mr. M. R. Abbasi and deposed against the appellant.
6. The appellant was examined under section 342, Cr. P. C. He denied the prosecution allegations.
When asked to explain as to why the case had been made out against him, he gave the following answer :- "I had no concern with the disconnection of electricity nor I .Was in a position to restore the connection. I as a meter clerk visit every house and as such, most of the consumers become known to me. The complainant was looking for Rafiq A.I Lineman when per chance, he met me in the office and talked about his meter. I told him that I could not help him in this connection. I further told him that next day I was to visit the area including the shop of Iqbal Dry Cleaner for meter reading and he could give me his paid-up bill, which I would pass on to the office. On the day of raid when I went to the shop of lqbal Dry Cleaner for meter reading, he met me there. He gave me his paid-up bill and also took out some G. C. Notes saying that the same should be passed on to Rafiq A.I. I placed the G.C. Notes on the table saying that it was not for me to do so. Immediately the Magistrate arrived there."
He produced Bashir Khan (D. W. 1) and Sh. Iltaf Hussain (D. W. 2) in his defence. The former was a press-man at the shop known as Iqbal Dry Cleaner while the latter was proprietor of Groukson Dry Cleaner, Mayo Road, Lahore. Bashir Khan (D. W. 1) stated that a person came to the shop and started reading the newspaper. On enquiry, that person told him that he wanted to read the newspaper, and in the meantime, the appellant entered the shop and started meter reading. The person who was reading the newspaper, tried to give a receipt and a sum of Rs. 30 to the appellant saying that the bill had already been deposited, but the appellant replied that he had no concern and it was the job of lineman. The witness further stated that the appellant and that person continued arguing for about 15 minutes and that person placed the currency notes on the table and went out of the shop and after that two more persons entered the shop and one of them informed that he was a Magistrate. He picked up currency notes from the table and took away the accused. Sh. Iltaf Hussain (D. W. 2) stated that he had gone to the shop of Iqbal Dry Cleaner for repair of his electric iron from where Mr. Abbasi was present at the shop; that he inquired about the owner of the shop who was not present and he was informed that the owner had gone out; that he asked Mr. Abbasi if he had started dealings with the owner of Iqbal Dry Cleaner, but Mr. Abbasi replied that he had some other job; that the appellant arrived and Mr. Abbasi told him that the Lineman had removed his meter and sought his help. Mr. Abbasi informed the appellant that he had already paid the amount of bill and in case the appellant wanted to give some money to any other person, he could pay it; that the appellant told Mr. Abbasi that it was not his job but Mr. Abbasi compelled the appellant to help him in the matter as he had gone to the office for a number of times and n, body listened to him; that the appellant informed Mr. Abbasi that it was not his job and he should go to the office; that Mr. Abbasi placed Rs. 30 on the table and all of a sudden, two persons came there and one of them declared himself to be a Magistrate and he picked up the money from the table and arrested the appellant.
7. The learned counsel for the appellant took me through the entire record. He contended that the appellant was not a public servant and his case was not covered under the definition of a public servant as contained in section 2 (b) of the Pakistan Criminal Law Amendment Act, 1958, because WAPDA had not been set up by the Central Government and it was set up by the West Pakistan. In the alternative, he contended that in case it was held that WAPDA had been set up by the Central Government, the trial was illegal because it was held before a Provincial Special Judge whereas it ought to have been tried by Central Special Judge, I cannot agree with the contention of the learned counsel for the appellant that an employee of WAPDA is not a public servant. Public servant has been defined in section 21 of the P. P. C. Causes 9 and 10 are very comprehensive.
Government has been defined in section 17. It is contained therein that the word "Government" denotes the person or persons authorised by law to administer an executive Government in Pakistan or in any part thereof. The Provincial Government is clearly cover--ed under the word "Government". The appellant, who was an employee of WAPDA, was clearly covered under the definition of "public servant" as con--tained in section 21, P. P. C. Section 19 of the West Pakistan Water and Power Development Authority Act, 1958 (Act XXXI of 1958) has further made it clear. It is contained therein that an employee of WAPDA shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal A Code. It was held in Wall Mohammad v. General Manager, Electricity, WAPDA, Lahore and others (PLD 1964 Pesh.161) that the Authority established under section 3 of West Pakistan Water and Power Development Authority Act, 1958, was a person performing functions in connection with the affairs of the Province. For the aforesaid reasons, I hold that the appellant was a public servant.
It was further contended that the provisions of section 161, P. P. C. Were not applicable to the case of the appellant as it was not the function of the appellant to remove or re-install the meter and the function of the appellant was only to read the meter. Similar contention was raised it Akhtar Hassan Khan v. The State (1974 SCMR 199) and it was urged before the Supreme Court that since the accused was neither demolishing Inspector nor locality in question was within his jurisdiction, he could not have performed an official act within purview of section 161, P. P. C. But their Lordships did not agree with that contention and held that when the accused represented to the complainant of his capability to demolish unauthorised structure, it was enough and sufficient to constitute the offence and the complainant need not have believed that the accused had in fact power to render services promised.
According to the prosecution evidence, the appellant had told Mr. M. R. Abbasi complainant that his meter would be restored provided he paid the money and after that a bargain was settled at Rs. 30 and the appellant promised that in case the said amount was paid, the meter would be restored. The appellant made the complainant to believe that it was within his power to restore the meter.
It was urged by the learned counsel for the appellant that the version given in F. I. R. Exh. P. W. 2/A, was quite different from the one given by Mr. M. R. Abbasi, while making statement in Court. I see little force in this contention. In F. I. R. Exh. P. W. 2/A, Mr. M. R. Abbasi, had given the details that the appellant had been telling him for the last 2/3 months that in case some monthly amount was fixed by him (complainant), he (appellant) would get him come concession in the electricity bill.
The complainant further mentioned in the F. I. R. That he did not receive the electricity bill for two months and he contacted the appellant, who told him that huge amount had been calculated as electricity bill and in case he was paid some amount, he would reduce the electricity bill to a negligible amount. The witness while appearing in Court, did not give the details of the incident, which happened 2/3 months earlier and started giving evidence from the date when he learnt that the meter had been disconnected. The witness was not required to give the details in Court as to what had been happening in the past 2/3 months. The omission on the part of the witness to give those details cannot damage the statement of the complainant in any manner.
9. The learned counsel for the appellant also argued that Mr. Saeed Akhtar, Magistrate had not heard the entire talk between the complainant and the appellant and thus he could not say as to what exactly transpired between the appellant and the complainant. The argument is without much force behind it. The Magistrate clearly stated that when the complainant passed on the tainted money to the accused, he heard him telling the appellant that the meter should be re- installed on that date. The witness also stated that after receiving the tainted money, the appellant told the complainant that the meter would be restored. These talks sufficiently proved that the appel--lant had received illegal gratification for the re-installation of the meter, which had been removed earlier.
10. I have carefully considered the entire evidence on record. The appellant himself mentioned in statement Exh. P. W. 6/G, which he made immediately before the Magistrate after the raid that he had no enmity with the complainant. In fact there was nothing on the record to show that the complainant had any malice or ill-will against the appellant In case, the appellant bad not demanded the illegal gratification, the complainant would not have informed the Anti-Corruption Staff. It was P trap case. The complainant passed on the tainted money to the appellant, which lie received and was caught red-handed by the Magistrate, who recovered the tainted money from the right hand of the appellant. I have no reason to disbelieve the prosecution witnesses that the tainted, money had not been recovered from the hand of the appellant. After the money was recovered from the appellant, the statement of the complainant Exh. P. W. 2/D eras recorded wherein he mentioned that the appellant had told him that persons had gone to his (complainant's) house for the installation of the meter. In order to verify this fact, the Magistrate went to the house of the complainant and found that Muhammad Rafique and Farzand A.I, Assistant Linemen, were present. This is another independent corroboration of the statement of the complainant. The prosecution case was clearly established against the appellant. The plea of the appellant that the money had been placed by the complainant at the table where he was sitting, was a clear lie. The statements of the two defence witnesses were discrepant. The version given by Sh. Altaf Hussain (D. W. 2) was quite different from the one given by Bashir Khan (D. W. 1). The appellant did not mention the names of the defence witnesses in his statement under section 342, Cr. P. C. He did not suggest the names of the defence witnesses during the cross-examination of the prosecution witnesses. From this, I conclude that the two defence witnesses were introduced at later stage of the case: and for that reason also, their statements could not be considered. In his statement under section 342, Cr. P. C., the appellant stated that the complainant gave him the paid-up bill and also the Government currency notes and he placed Government currency notes on the table saying that it was not his business. In his statement Exh. P.W. 6/G, which he made before the Magistrate after the money had been recover: d from his hand, be mentioned that the complainant had placed the amount on the table where he was sitting. These two statements of the appellant cannot be re-conciled in any manner. I have no hesitation in rejecting the defence plea as false one.
11. For the reasons stated above finding no merit in this appeal, I dismiss it. The appellant who is on bail, shall be re-arrested and sent to jail for serving the remaining period of imprisonment.