SAJJAD AHMED SIPRAJ.- The present appeal has been preferred against the judgment dated 21.3.1989, whereby Ch.Manzoor Hussain Basra, Special Judge (Central) Lahore, convicted the appellant under section 161 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo one year's R.I.
By the same judgment Atif Hussain co-accused of the appellant was acquitted.
2. The brief facts of the case are that on 12.11.1985 on the application of Riaz Barkat, S.L, FIA, Mazharul Haq, Magistrate, was deputed by the Assistant Commissioner, for the supervision of raid to be conducted against a Govemment servant. The Inspector produced Sh.Muhammad Iqbal before the Magistrate who recorded his statement alleging that on 20.1.1985 his father submitted an application to the House Building Finance Corporation for the grant of loan but Muhammad Ibrahim Assistant demanded Rs.l000/-from him as illegal gratification for sanctioning the same.
3. Sh.Muhammad Iqbal produced ten currency notes of the denomination of Rs.l00/-each, which wer returned to him after noting down their numbers. A raiding party was constituted, which went to the office of House Building Finance Corporation, 636-N, Samanabad, Lahore. The complainant and Ghulam Ali, Sub-Inspector, entered into that office. After some time Ghulam Ali,S.L, made a signal to the raiding party, whereupon Riaz Barkat, SI, Rai Abdur Razzaq, SI and the Magistrate entered into the office. Muhammad Ibrahim, appellant, was present there. The complainant pointed out Muhammad Ibrahim to the raiding Magistrate, who recovered the tainted currency notes from him in the office room, of the Regional Manager.
4. Sh.Muhammad Iqbal made a statement after the raid that Ibrahim got the file from Malik Mushtaq to take the same to the D.M. He asked him to secure the removal of objections raised by Atif, for which Muhammad Ibrahim demanded Rs.1000/-. He handed over the tainted currency notes to Muhammad Ibrahim, which had been recovered from him.
5. Muhammad Ibrahim, appellant, made a statement before the raiding Magistrate that the currency notes recovered from him, had been obtained by him from Sh.Muhammad Iqbal for the documents and the same had to be paid to Atif. The complainant had asked him to deliver the amount to Atif, but he had no discussion with Atif Hussain in that respect. The raiding Magistrate ordered the arrest of Muhammad Ibrahim appellant under Section 161 PPC read with Section 5(2)
Prevention of Corruption Act, 1947, and was arrested by Riaz Barkat SI and a case was registered at Police Station FIA, Lahore, vide FIR No..88/85.
6. On completion of investigation Muhammad Ibrahim, appellant, was found guilty, whereas Atif Hussain and Mushtaq Ahmad, co-accused, were declared innocent; but the Government of Pakistan, Ministry of Interior granted sanction for the prosecution of Muhammad Ibrahim and Atif Hussain, a charge was framed against both of them, on 2.3.1987.
7. To prove its case, the prosecution had examined Mst.Nargus Chaudhry PW.l, Sh.Muhammad Iqbal PW.2, Mazharul Haq Magistrate PW-3 and Riaz Barkat SI PWA. Statements of the accused were recorded under Section 342 Cr.P.C. Muhammad Ibrahim, appellant had deposed that no tainted money had been recovered from him and that Atif accused called him to his office and delivered the loan file of the father of the complainant, to place the same in his office at upper storey. When he left for upper storey, he was hauled up in the way and the file was recovered from him. He signed the statement recorded by the- Magistrate under the impression that it was a recovery memo of the file. He had neither received the tainted money from the complainant nor from Atif Hussain accused. Atif Hussain, accused, had stated that because of his raising objections on the loan file of the father of the complainant, he had been implicated falsely in this case. Muhammad Ibrahim appellant klso appeared as DW.2 in his defence.
8. Exh.PB is the statement of the complainant recorded by the Magistrate before the raid. The raiding Magistrate, while appearing as PW3, had stated that in the statement Exh.PB the word 'Atif (Exh.PB/1) had not been written by Jum and the cutting Exh.PB/2 had not been done by him. It is evident that coihplainant had not named Atif Hussain in his statement before the raiding Magistrate. Exh.PC is the statement made by . Muhammad Ibrahim, accused/appellant, after the raid.This statement does not indicate that Atif had demanded any illegal gratification. Atif accused had only raised objections on the file on 10.11.1985 which were upheld by Mst. Nargus Chaudhry PW.l, on the same day, therefore, on the day of raid, i.e. 12.11.1985, Atif had no authority to remove die objections. The complainant while appearing as PW.2 had stated that Atif Hussain had not demanded any illegal gratification from him. Atif Hussain was found innocent by the Investigating Officer. Therefore, the learned trial Court had held that the prosecution has failed to prove the charge against Atif Hussain, but convicted the appellant and sentenced him as stated above.
9. We have heard the learned counsel for the appellant and the State at length and perused the record of the case with their assistance.
10. The case of the prosecution, according to the evidence on the record, is that the complainant's loan was not being sanctioned by Atif Hussain, the acquitted co-accused and it was never the case of the prosecution at any stage that the appellant was the one who had demanded illegal gratification or was the employee of the office concerned who dealt with such cases or was in a position to influence one way or the other the approval of the loan sought by the complainant, In fact it is in evidence, that the appellant was a Chowkidar in the House Building Finance Corporation, the department in question, and as such had no role to play in the approval or refusal of the loan in question or of any work being attended to in the said organization. It is further in evidence that the acquitted co-accused had handed over the file in question for delivering the same to a different room in the same premises, and that while the appellant was on his way thereto, he was intercepted by the raiding party and the said file was taken into custody and the tainted money recovered from him, after the complainant had gone to the office and had come out to inform the raiding party that he had handed over the tainted money to Muhammad Ibrahim.
It is most intriguing that the complaint was against the acquitted co-accused who was pressurising the complainant for illegal gratification, yet the complainant selected the appellant, Muhammad Ibrahim for the payment of the tainted money, whereas there was no complaint against him either in his individual capacity or in league with the acquitted co-accused, of trying to force the complainant to pay illegal gratification. In this respect it is most relevant to take notice of the statement of the appellant which was to the effect that he had been handed over the file, by the acquitted co- accused, to be delivered to a different office from and that as a Chowkidar, he must have been called upon to do so very often and as such his statement is a very plausible explanation of the said file having been recovered from him, thus fully rebutting any adverse presumption arising against him for the said recovery of the file. In this respect, it may be further pointed out that the prosecution of the appellant had taken place under a Special Law, ie.
Prevention of Corruption Act, 1947, and under the provisions of the said law the onus to prove innocence has been placed on the person charged under Section 161 PPC read with Section 5(2) of the said Act, but only if the provisions of Section 4 are attracted to the case. According to the provisions of said Section a presumption has to arise, in the first instance, that the person against whom an offence falling under the provisions of said Act has been lodged, was in a position to do a favour or disfavour and his competence to do so has to be established by cogent evidence being brought on the record against him in this respect, and that he was demanding illegal gratification for the said act of favour or disfavour and furthermore that his explanation for involvemeat in the occurrence, taking into consideration the attendent circumstances thereto, is not satisfactory. As stated above, the appellant being a Chowkidar in the corporation in question was never alleged to be in a position to do any favour or disfavour or influence any action to that effect being taken in the said organization and his explanation as stated above was plausible enough to rebut the presumption of having demanded or accepted illegal gratification. Further more, there is no evidence on the record to prove that he had demanded illegal gratification, in the first place, for any reason or that he was the depository of the said recovered tainted amount on behalf of any one. In fact, that he was never the case of the prosecution at all; and in addition thereto mere recovery of tainted money in absence of the allegation that it was accepted as illegal gratification will not give rise to the presumption that it was accepted as such.
In respect of the observations stated above, the strength is sought from the following authorities: -
1. Sultan Ali vs. The State (PLD 1971 Karachi 781. Wherein it was held that the presumption of guilty was not to be arrived at merely on the basis of money having been passed into accused's possession and that a contrary proof need not necessarily be by evidence but may be furnished by statement pf accused or by circumstances of the case.
2. Baqir Hussain vs.The State(1983 P.Cr.LJ.2556), wherein it was held that mere recovery of currency notes from an accused person was not sufficient to give rise to a presumption that the same had been received as illegal gratification. It was further held therein that the presumption contemplated in latter part of Section 4 of Prevention of Corruption Act, 1947, could arise only if prosecution proved that accused had accepted any illegal gratification.
3. Asyhar Ali and another vs.The State (PLD 1985 Lahore 258), wherein it was held that the reasonable explanation offered by the accused as to the receipt of money rebutting the same having been received as bribe will not support the presumption that the accused had accepted or obtained bribe for the other accused as a motive or reward. And,
4. Muhammad Ramzan and another vs. The State (1990 P.Cr.LJ.633), wherein it was held that the mere passing of tainted money could not raise the statutory presumption against the accused and that the conviction could not be safely based on the statement of the complainant and thus the accused was entitled to benefit of doubt.
11. Another intriguing aspect of the whole affair is, as to why Sh.Muhammad Iqbal had chosen the appellant to be paid the money in question, whereas his complaint was against the acquitted co- accused, Atif Hussain and the rrnding party had been constituted to entrap the said person, but the irony is that whereas the said person/co-accused was acquitted, the present appellant convicted on the basis of the statement of the complainant, who was otherwise held to be unreliable by the trial Court and rightly so as the testimony of the said complainant PW.2 was riddled with material contradictions and dishonest improvements, rendering his testimony of very doubtful value.
12. Therefore, pursuant to the above discussions, the present appeal is hereby allowed, the impugned judgment is set aside and the appellant is acquitted of the offences charged. As the appellant is on bail, his bail bonds stand discharged accordingly.