MUHAMMAD NAWAZ ABBASI, J.~Rana Khalid Sohail son of Chiragh appellant was tried for an offence under section 161 PPC read with section 5(2) PCA. 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 years R.I with a fine of Rs.1000/ in default of the payment of. Fide to undergo R.I for six months.
2. Briefly the facts are that Zahoor Ahmad PW (not produced as having been won over) and Suleman PW4 made separate applications for domestic electric connection to the concerned Wapda authorities at Muzafargarh. The appellant who was Assistant Line Man Wapda Muzafargarh, 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 agreed to accept Rs.100/- per application. However, the matter was reported to the FIA authorities on the same day i.e. 13.12.1977 (through application PW1/1 moved by the complainant). Nasir Khan Naib Tehsildar Leiah PW1 was deputed to supenlse the raid who recorded the statement of complainant PW1/2 and noted down the number of three currency notes of Rs.100/- each (Exhs. Pl to P.3). The raiding party was arranged under the supervision of Nasir Khan Naib Tehsildar PW1. Tariq Mehmood Head constable, Muhammad Aslam constable, Khushi Muhammad complainant, Abdul Rafique S.I Chiragh Din PW3 and Suleman PW4 Were the members of the raiding party. As per arrangement the appellant and the complainant with PWs met each other in the lawn of Tehsil office where PW1 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 PW-1/4 and PW-1/5 in the name of Zahoor Ahmad with his which were recovered from him eith tainted notes and taken into possesion vide memo Ex P.W 1/11. The currency notes were taken into possession vide memo Ex. P.W.
1/3. The consumer files marked CF/1 to CF/3 were also taken into possession from the office of SDO, vide memo Ex. P.W. 1/10. The rating Mejistrate recorded the statement of Khushi Muhammad, Chiragh Din and Suleman Khan PWs. The accused in his ststement before the raiding Mejistrate admitted the aceptence of Rs. 300/- an illegal gratification from the coplainanat in connection with the demand notices for electricity connection recovered from him. After the completion of investigation the appellant was challanges to face the trail.
3. The prosecution in order to prove its case produced Nasir Khan PW1 who supervised the raid and carried the necessary proceedings in this behalf, Khushi Muhammad complainant PW2 made the appellant agreed to accept Rs.100/- per application and lodged complaint against the appellant before the FIA authorities. Chiragh Din PW3 and Suleman PW4 .Being member of the raiding party deposed about the conversation between the appellant and the complainant and also the conversation taken place between the PWs and the appellant on 14.12.1977 before the raid.
Mohammad Abdul Rafique SI PW7 had made a statement consistent with the evidence of other PWs, Abdul Majeed PW5 stated that the application of Zahoor PW.5/1 and demand notices Ex.PW- 1/4 and Ex.PW-1/5 were issued for the deposit of amount of estimate and security in the bank. Fazal Ahmad PW6 is a witness of the recovery of the files containing the applications of Zahoor Ahmad and Suleman which were taken into possession vide memo PW1/10. Mehar Muhammad Iqbal PWS 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 SDO was not issuing the demand notices, therefore, the applicant sought his help in the matter. However, he pleaded 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 statement 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 Muzafargarh and could not be in Muzafargarh at the relevant time.
Learned counsel for the appellant with reference to the contradiction in evidence contends that the csse 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 Muzafargarh 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 an area not within his jurisdiction.
6. The learned counsel for the stage 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 finder section 161 PPC the essential ingredients are:-
(i) That the accused at the time of offence was1 or expected to be a public servant,
(ii) That he 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 PPC for doing or showing favour or disfavour to any person.
8. 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 discharging 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 Line Man 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 complete belief that matter is within his power and control. A public servant even under a erroneous belief that a matter is within his official duty, if proceeds committing an act constituting an offence is guilty of the offence.
9. From perusal of the record, it is no where 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 Muzafargarh 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 SDO concerned and applicant sought his help to solve the problem, It is known to every one that even for petty needs and 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 agreed 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 Line man 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 notice with hint 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 Tee 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 Muzafargarh 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 PWs in this behalf. The witnesses are independent, confidence inspiring, impartial, unbiased and truthful. The appellant has not pleaded enmity, with PWs or challaned the correctness of the story. The explanation offered by him is not convincing to be accepted and the presumption of guilt is not displaced.
11. The upshot of the above discussion is that the findings of guilt of the appellant arrived at by the learned trial court are unexceptional 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.