' Appellant Muhammad Jamil, an Accountant, in Government College of Technology, S.I.T.E., Karachi, was tried by learned Special Judge, Anti-Corruption (Provincial) Karachi, for the offence under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, who found him guilty and vide judgment, dated 10-12-1990, sentenced him to suffer R.I. For six months and to pay a fine of Rs,5,000 or in default to suffer R.I. For one month more. By this appeal filed under section 410, Cr.P.C. Read with section 10 of the Pakistan Criminal Law Amendment Act, 1958, the appellant has challenged his conviction and sentence.
2. It is alleged that the appellant had demanded a sum of Rs,3,000 as illegal gratification from complainant Mirza Shahzad Baig, who was interested in getting admission in the Government College of Technology, S.I.T.E., Karachi. On 4-4-1987, Mirza Shahzad Baig lodged such report before Anti-Corruption Establishment, being Crime No,56 of 1987, alleging against the appellant for the demand of illegal gratification from him. This report was registered with the help of Capt. Shahid Israr, a friend of complainant Mirza Shahzad Baig. On the same day a trap was laid and the tainted money was handed over to complainant Mirza Shahzad Baig in presence of Shahzar Shamoon, A.C.M., Court No,8 (West), Karachi. The raiding party went to Government College of Technology S.I.T.E., Karachi, where Capt. Shahid Israr is said to have passed on the tainted money to appellant which was lying in an envelope. The appellant on seeing the raiding party threw the envelope and was taken into custody. A raid report was prepared and after usual investigation and obtaining the requisite sanction the appellant was sent up before the Special Judge Anti-Corruption (Provincial), Karachi, to stand trial for the aforesaid offence.
3. At the trial the prosecution examined complainant Mirza Shahzad Baig (P.W.l), Shahzar Shamoon, A.C.M. (P.W.2) and Mujtaba Ahmad Khan, D.S.P. (P.W.3) and then closed the side.
4. In his statement recorded under section 342, Cr.P.C., the appellant disputed the case of the prosecution. According to him he had no authority to give admission to any student in the College, but was being pressurised by Capt. Shahid Israr, who got him involved in this case falsely. The appellant did not step into the witness-box. He also led no defence.
5. On the assessm ent of evidence available on record the learned Special Judge found the appellant guilty and convicted him accordingly.
6. I have heard Mr. S. Ali Ahmad Tariq, learned counsel for appellant and Mr. Aziz-ur-Rehman Shaikh, learned counsel for State. The latter has not supported the impugned judgment.
7. Complainant Mirza Shahzad Baig (P.W.1) as his own witness has not supported the case of the prosecution. The learned counsel for the appellant has brought about the inconsistencies between the F.I.R. Lodged by complainant Mirza Shahzad Baig (Exh.6) and his evidence recorded as (P.W.1) in the trial Court in the following words:-- {{TABLE}} F.I.R. Deposition of P.W.1
(1) Before lodging F.I.R. Went (1) Before lodging F.I.R. Went to to College five times: College once, date is not mentioned.
(2)
(3) #TBS
(4) 16-3-1987 17-3-1987 18-3-1987 19-3-1987 1-4-1987
(5) Visited Principal three times on
(6) 16-3-1987
(7) 17-3-1987
(8) 18-3-1987
(9) Visited Mr. Jameel appellant twice on:
(10) #TBE
(11) Visited Principal once and all.
(12) Never seen and/or visited Mr. Jameel appellant "On the day of the raid came to know that accused was Jameel.
(13)
(14) #TBS
(15) 19-3-1987
(16) 1-4-1987
(17) On 18-3-1987 I visited him (Principal Mr. Faruqi) then he told me to contact Mr. Jameel, Accounts Officer and tell him every thing."
(18) #TBE
(19) "I then went to the Principal and he told me that there were limited number of the seats and all have then filled and, therefore, it was not possible to admit me. He told me further that after some days, I might get chance if any of the candidates cancel his admission. He did not tell me to whom, I should contact."
(5) "I visited Mr. Jameel in his office along-with my companion Capt. Shahid Asrar, .. Then he demanded . Bribe of Rs,3,000." (5) "I had no hope of admission therefore, I requested Mr. Israr who used to come at my shop for helping me in getting the admission. After few days, Israr told me that Muhammad Jameel, who is Accountant in the College had demanded Rs,3,000 for getting me admitted in the College."
"I was taken to D.S.P. Anti-Corruption by Israr and I narrated him that Jameel had demanded Rs,3,000 from me. He recorded in writing what I told him." {{TABLE}}
8. The complainant was not declared as a hostile witness. As observed in the case of Abdul Razak Rathore v. The State reported in PLD 1992 Kar. 39, merely because the witness has not fully supported the contents of his F.I.R., it cannot be said that his evidence is wholly unreliable. The correct position in law is that the Court can come to its own conclusion after consideration of whole of the evidence for which it is worth.
9. Besides complainant Mirza Shahzad Baig (P.W.1), the other important witness was Capt. Shahid Israr and he was the person who had admittedly passed on the envelope containing the tainted money to the appellant. Capt. Shahid Israr was however, given up by the prosecution for the reasons which do not appear to be plausible.
10. Now we are left with the evidence of Shahzar Shamoon, A.C.M. (P.W.2) and Mujtaba Ahmad Khan, D.S.P. (P.W.3). Both of them speak of the recovery of tainted money from an envelope which the appellant had allegedly thrown on the ground. There is no evidence on record to prove that the appellant had demanded money from complainant Mirza Shahzad Baig. Mirza Shahzad Baig (P.W.2) has not supported the case of the prosecution and the other witness on the point of demand, namely, Capt. Shahid Israr was given up by the prosecution. The evidence of Shahzar Shamoon, A.C.M. (P.W.2), Mujtaba Ahmad Khan, D.S.P. (P.W.3) makes it clear that none of them were able to hear the conversation between Capt. Shahid Israr and the appellant. Shahzar Shamoon, A.C.M. (P.W.2) again makes it clear that Capt. Shahid Israr had delivered the envelope containing the tainted money to the appellant who opened it, saw the contents and then threw it on the ground. Mujtaba Ahmad Khan, D.S.P. (P.W.3) however, contradicts Shahzar Shamoon, A.C.M. (P.W.2) by stating on oath that he saw complainant Mirza Shahzad Baig handing over the envelope containing the tainted money. Thus, there is contradictory version about the person who had actually delivered the envelope containing the tainted money to appellant. The trap report which is on record (Exh.11) however, reveals that the appellant when questioned as to why he accepted the tainted money explained that the complainant had informed him that a letter of recommendation sent by the Minister was lying in the envelope and it was for this reason that he had accepted it but on seeing the currency notes inside the envelope he immediately threw the envelope on the ground.
11. The question of drawing presumption under section 4 of the Prevention of Corruption Act, 1947, was considered by this Court in the case of Abdul Razak Rathore v. The State reported in PLD 1992 Kar. 39, and was answered in the following words:- "The presumption in section 4 of the Prevention of Corruption Act, 1947, arises only upon proof that the accused person has accepted any amount as illegal gratification. In the case of Sultan Ali v.
The State reported in PLD 1971 Kar. 78, a learned Single Judge of the Court observed that it would be an outrage on common sense and reason to infer that under section 4 of the Prevention of Corruption Act, 1947, the presumption has itself been displaced and that the offence of bribery must be held to be established the moment the money is passed into the possession of the accused without further proof that it was accepted as an illegal gratification. When the law raises a presumption against the accused and calls upon him to prove the contrary, it is well-settled that the contrary can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution. The proof of the contrary need not necessarily be by evidence, oral or documentary; but it may be furnished by the statement of the accused himself or by the circumstances of the case."
12. Thus, the earliest statement made by the appellant in the raid report (Exh.11) when examined together with the evidence of the prosecution witnesses available on record leads to the conclusion that the defence put forward by the appellant might be true specially when the person who had passed on the tainted money to the appellant and the Mashirs in whose presence the recovery was made were not put in the witness-box. It was obviously for this reason that the learned counsel for State has not supported the case of the prosecution. In the result the impugned judgment is set aside and the appeal is allowed. The appellant who is on bail is discharged from his bail bond.
' By a short order, dated 19-1-1993, I had allowed this appeal and these are the reasons for the said order.