' Rana Khalid Sohail son of Chiragh appellant was tried for an offence under section 161, P.P.C. Read with section 5(2), P.C.A., 1947 by learned Special Judge Central, Lahore, Camp at Multan, who vide judgment, dated 27-5-1981 convicted the appellant for the charge and sentenced him to 1-1/2 years' R.I. With a fine of Rs,1,000 in default of the payment of fine to undergo R.I. For six months.
2. Briefly the facts are that Zahoor Ahmad P.W. (not produced as having been won over) and Suleman P.W.4 made separate applications for domestic electric connection to the concerned WAPDA authorities at Muzaffargarh. The appellant who was Assistant Lineman WAPDA, Muzaffargarh, demanded Rs,200 for per connection from the applicants which was brought to the notice of Khushi Muhammad complainant who approached the appellant and made him agree to accept Rs,100 per application. However, the matter was reported to the F.IA. Authorities on the same day i,e. 13-12-1977 (through application P.W.1/1 moved by the complainant). Nasir Khan Naib- Tehsildar Leiah P.W.1 was deputed to supervise the raid who recorded the statement of complainant P.W.1/2 and noted down the number of three currency notes of Rs,100 each (Exhs.P.1 to P.3). The raiding party was arranged under the supervision of Nasir Khan, Naib-Tehsildar P.W.1. Tariq Mehmood Head Constable; Muhammad Aslam Constable, Khushi Muhammad complainant, Abdul Rafique S.I. Chiragh Din P.W.3 and Suleman P.W.4 were the members of the raiding party. As per arrangement the appellant and the complainant with P.Ws. Met each other in the lawn of Tehsil office where P.W.1 from the Verandah of his Court room witnessed the receiving of tainted money by the appellant from the complainant. The appellant had also two demand notices P.W.1/4 and P.W.1/5 in the name of Zahoor Ahmad with him which were recovered from him with tainted notes and taken into possession vide memo. Exh.P.W.1/11. The currency notes were taken into possession vide memo. Exh.P.W.1/3. The consumer files marked C.F./1 to C.F./3 were also taken into possession from the office of S.D.O. Vide memo. Exh.P.W.1/10. The raiding Magistrate recorded the statements of Khushi Muhammad, Chiragh Din and Suleman Khan P.Ws. The accused in his statement before the raiding Magistrate admitted the acceptance of Rs,300 as illegal gratification from the complainant in connection with the demand notices for electricity connection recovered from him. After the completion of the investigation the appellant was challancd to face the trial.
3. The prosecution in order to prove its case produced Nasir Khan P.W.1 who supervised .The raid and carried the necessary proceedings in this behalf, Khushi Muhammad complainant P.W.2 had wile the appellant agree to accept Rs,100 per application and lodged complaint against the appellant before the F.IA. Authorities. Chiragh Din P.W.3 and Suleman P.W.4 being members of the raiding party deposed about the conversation between the appellant and the complainant and also the conversation taken place between the P.Ws. And the appellant on 14-12-1977 before the raid. Muhammad Abdul Rafique S.I. P.W.7 had made a statement consistent with the evidence of other P.Ws. Abdul Majeed P.W.5 stated that the application of Zahoor P.W.5/1 and demand notice Exh.P.W.1/4 and Exh.P.W.1/5 were issued for the deposit of amount of estimate and security in the bank. Fazal Ahmad P.W.6 is a witness of the recovery of the files containing the applications of Zahoor Ahmad and Suleman which were taken into possession vide memo. P.W.1/10. Mehar Muhammad Iqbal P.W.8 Line Superintendent is another witness of recovery of these files who deposed that the demand notices in respect of applications of Zahoor Ahmad were issued while case of Suleman was still pending.
' The appellant in his statement under section 342, Cr.P.C. Denied the allegation of receiving illegal gratification. However, he has admitted recovery of the currency notes from him taking plea that the same were delivered to him by the complainant as part of the fee to be deposited in connection with the demand notice, of Zahoor Ahmad. He stated that as S.D.O. Was not issuing the demand notices, therefore, the applicant sought his help in the matter. However, he peaded that Muhammad Shall Line Superintendent had arranged a false case against him for the reason that appellant had made a complaint against said Muhammad Shafi for theft of electricity and he was suspended. He has admitted the recovery of demand notices from him with the plea that the same were delivered to him by the complainant at the time of alleged raid in the lane of Tehsil office on 14-12-1977. He however denied to have made a statmcnt before the raiding Magistrate with the plea that he was forced to sign a drafted statement. He produced defence evidence to the effect that on 14-12-1977 he was discharging his duties at village Gujrat at a reasonable distance from Muzaffargarh and could not be in Muzaffargarh at the relevant time.
' Learned counsel for the appellant with reference to the contradictions in evidence contends that the case against the appellant is not free from doubt. He submits that the case was planted against the appellant at the instance of Muhammad Shafi, Line Superintendent through the complainant who is his friend. He forcefully argued that Zahoor Ahmad a star witness of the case did not appear in the witness-box in Support of the prosecution case and resultantly the case against the appellant is not free from doubt. He next contended that the appellant was posted in village Gujrat whereas the electricity connections in question were required to be installed in Muzaffargarh City which place being out of his area, he in the discharge of his official function was not in a position to extend any favour to the applicant and being Assistant Lineman had no business with the issuance of demand notices even in his own area what to speak of not area at within his jurisdiction.
6. The learned counsel for the State has supported the judgment and the conviction on the ground that the circumstances of the case do not suggest any false implication.
7. I have heard the learned counsel for the parties and have also perused the record carefully with their assistance.
8. In order to prove and constitute an offence under section 161, P.P.C. The essential ingredients are:--
(i) That the accused at the time of offence was or expected to be a public servant.
(ii) That the accepted or obtained or agreed to accept or attempted to obtain from some person a gratification,
(iii) That such gratification was not a legal remuneration due to him,
(iv) That he accepted or obtained such gratification as a reward or motive as mentioned in section 161, P.P.C. For doing or showing favour or disfavour to any person.
If a public servant while acting in his capacity as a public servant acted in a manner constituting an offence under corruption laws relatable to and committed in the course of the normal discharge of his official functions, he shall be guilty of committing such offence, irrespective of the fact that, the matter was in his domain or not. The appellant in the present case was Assistant Lineman WAPDA and he while acting as such, promised to get the problem solved by use of his position for consideration, whether he himself was discharging his functions in the same area or not is not material. All essential ingredients having been fulfilled, the appellant affirmatively acted in his official capacity as is stated by the prosecution. Anyhow, a public servant need not possess power to do favour rather it is sufficient to make the complainant believe that matter is within his power and control. A public servant even under an erroneous belief that a matter is within his official duty if proceeds committing an act constituting an offence, he is guilty of the offence.
9. From perusal of the record, it is nowhere mentioned that the area of village Gujrat did not form part of the area where appellant was posted and for which the demand notices were issued.
Village Gujrat may or may not be otherwise part of Muzaffargarh city but it can be part of it for the purpose of electricity distribution and supply by the WAPDA. Therefore the place of duty of the appellant even if in village Gujrat at a distance of 20/22 miles from Muzaffargarh City does not suggest that the appellant being an employee of the WAPDA, was not in a position to extend any favour to the applicants. Zahoor Ahmad given up P.W. Moved two applications for electricity connection which as per appellant's own version were not being materialised by the S.D.O.
Concerned and applicant sought his help to solve the problem. It is known to every one that even for petty needs an problems a common man has to face a lot of self-styled and artificial complications and difficulties in the offices and officials make the matters more complicated, to compel the needy people to act as per their desire. The complainant on behalf of applicants made the appellant agree to accept Rs,100 per application. Admittedly the bribe money was recovered from the appellant by the raiding Magistrate at the time of raid. The explanation of the appellant for receiving and recovery of Rs,300 was to deposit the same as a fee in connection with the demand notices of Zahoor Ahmad. The material facts with regard to the receiving of currency notes and recovery of demand notices from him and to offer his services to the complainant and Zahoor Ahmad to cooperate with them for issuance of demand notices are not denied. The sole question for determination left is as to whether the explanation offered by the appellant is acceptable in the circumstances of the case and whether the legal presumption under section 4 of Prevention of Corruption Act, 1947 is not to be raised and if so has been satisfactorily rebutted. The appellant being Assistant Lineman was not supposed to act as agent of the consumers for deposit of their fee in connection with the demand notices and similarly he was not supposed to carry the demand notices with him particularly when it was not his official duty. The explanation that the same were delivered to him in the Tehsil Office is highly imaginary as the requisite fee could have been deposited by the applicants themselves. The appellant has taken contradictory pleas at the trial. He admitted his presence in the Tehsil Office and receiving of the demand notices by complainant with Rs,300 but at the same time pleaded that he being posted in village Gujrat at a distance of 20/22 miles from Muzaffargarh was not available at the place of occurrence.
10. The contention that a false case was planted against the appellant at the instance of Muhammad Shafi Line Superintendent is without any force. The defence has not taken this plea at any stage at the trial and also did not put any question to the P.Ws. In this behalf. The witnesses are independent, confidence inspiring, impartial, unbiased and truthful. The appellant has not pleaded enmity with P.Ws. Or challenged the correctness of the story. The explanation offered by him is not convincing to be accepted and the presumption of guilt is not displaced.
' The upshot of the above discussion is that the findings of guilt of the appellant arrived at by the learned trial Court are unexceptionable not to be interfered and the appeal is accordingly dismissed.
' The appellant is on bail, his bail bond shall stand cancelled. He be arrested and sent to jail to serve the remaining period of sentence awarded to him.