' Idrees Ahmad Nasir, Agriculture Officer, Qila Sobha Singh, has been tried by Special Judge, Anti- Corruption, Gujranwala, at Lahore, who convicted him under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced him to 9 months' R.I., and a fine of Rs,3,000 or in default of payment of fine, to undergo further R.I. For 3 months. Feeling aggrieved thereby the convict has filed the instant appeal challenging his conviction and sentence.
2. According to the prosecution, the appellant herein was posted as Agriculture Officer, Qila Sobha Singh, Tehsil Narowal in the year 1987. Abaidullah, complainant (P.W.2), posted under him as Beldar, was deputed to attend gardener's training course at Lahore which he did from 17-2-1987 to 18-6- 1987 and submitted his TA./DA. Bill for that period amounting to Rs,6,773.80 before him on 7-7-1987 for onward transmission to the District Officer, Sialkot. The appellant demanded Rs,500 as illegal gratification for forwarding the said TA. Bill saying that he would not forward the bill if Rs,500 were not paid. The complainant made a report against the appellant to Mahmood Ahmad Cheema, Circle Officer ACE (P.W.3) on 9-7-1983 who having taken down his statement drew up F.I.R. Exh. PH at police station A.C.E., Sialkot. He then made application Exh.PA to Assistant Commissioner, Pasroor, for deputing an officer to supervise the raid who in turn deputed Masood Ahmad, Tehsildar Pasroor (P.W.1) vide order Exh.PA/1. Masood. Ahmad, Tehsildar (P.W.1) recorded the statement (Exh.PB) of Abaidullah, complainant (P.W.2), noted down the numbers of Government currency notes (P.1 to P.5) of the denomination of Rs,100.00 each and gave the same to the complainant for passing on the appellant on demand. Raid party comprising the complainant Abaidullah, Masood Ahmad, Tehsildar, Mahmood Ahmad Cheema, Circle Officer A.C.E., and two constables, left for Qila Sobha Singh. The complainant was sent ahead for contacting and paying money to the appellant while other members of the party waited at the Railway Station Qila Sobha Singh. Little later, the complainant alongwith appellant came out of the office and within view of the raiding party the complainant paid the tainted currency notes of Rs,500 to the appellant who put them in his pocket.
At this the raiding party rushed there, recovered the Government Currency Notes (P.1 to P.5) and the TA. Bill (Exh.PG) from him and seized them under memo. Exh.PC. The appellant though attempted to run away but was arrested. The ' Raiding Magistrate recorded supplementary statement (Exh.PD) of the complainant and that of appellant as Exh.PE and obtained his signatures (Exh.PE/1) thereon. In that statement the appellant stated that he had asked the complainant to repair the roof of the office, who defied his order which led to some unpleasantness; that the complainant had obtained Rs,1,500 as loan from him out of which he paid back Rs,1,000 on the preceding Saturday and the currency notes of Rs,500 (Exh.P.1 to P.5) recovered from him were paid to him by the complainant towards satisfaction of loan and not as bribe. The appellant alongwith raid report was handed over to the Circle Officer for further action. After necessary investigation and obtaining sanction for his prosecution the case was challaned to Court.
3. At the trial Masood Ahmad Tehsildar (P.W.1), Abaidullah, complainant (P.W.2) and Mahmood Ahmad Cheema, Circle Officer (P.W.3) supported the prosecution case. Abaidullah, complainant (P.W.2) stated that alongwith the tainted currency notes (P.1 to P.5) he had handed over his TA. Bill to the appellant, prepared by him prior to the raid but he has not stated that the TA. Bill (Exh.PG) was recovered from the appellant alongwith the tainted currency notes. Masood Ahmad Tehsildar (P.W.1) stated that besides tainted currency notes (P.1 to P5) TA. Bill of the complainant was also recovered from the appellant and seized under memo. Exh.PC but in his cross-examination he conceded that the TA. Bill was produced before him by the complainant. He also stated that the proceedings of the raid were completed by him at Tehsil Pasroor. Mahmood Ahmad Cheema, Circle Officer (P.W.3) stated that alongwith currency notes (P.1 to P.5), TA. Bill (Exh.PG) was also recovered from the appellant and secured under memo. Exh.PC.
4. The appellant when examined under section 342, Cr.P.C. Admitted the recovery of tainted amount (Exh.P.1 to P.5) saying that he had received this amount from the complainant towards satisfaction of outstanding loan and not as bribe. He examined four witnesses in his defence. D.W.1 Nemat Ali, Agricultural Officer, Narowal, stated that the complainant moved an application on 6-7- 1987 for leave for 7-7-1987 vide Exh.DA. He produced Attendance Register for the month of July, 1987 (Exh.DB) and Leave Account Register (Exh.DC) to show that the complainant was on leave on the said date when the appellant allegedly demanded bribe from him. D.W.2 Abdul Bari, EADA Sialkot and Malik Suleman, Head Clerk (D.W.4) stated that TA. Bill of the complainant had been despatched to District Officer by the appellant's office on 22-6-1987 vide Despatch Serial No,226 and that TA. Bill was not required to be forwarded by the Agricultural Officer and that the appellant was reinstated in service with all back benefits after he was found not guilty of these allegations in departmental inquiry. D.W3 Muhammad Aslam stated that in July, 1987 the complainant, before proceeding on training had taken loan of Rs,1,500 from the appellant promising to return the same after his training course. The complainant repaid Rs,1,000 to the appellant in June, 1987 and that on 9-7-1987 in his presence he took the appellant out of office for paying him the balance amount.
The complainant having paid the money raised hue and cry. Some persons from Railway Station side arrived and recovered that amount from the appellant while TA. Bill (Exh.PG) was produced before the raiding party by the complainant himself. He stated that he told all about this to the Investigating Officer, who did not record his statement.
5. Learned trial Court considering the evidence on record disbelieved the defence but accepting the prosecution case convicted and sentenced the, appellant as indicated above. Hence this appeal.
6. Learned counsel appearing on behalf of the appellant submitted that the prosecution evidence was discrepant in material details and also unreliable, therefore, charge against the appellant had not been established beyond reasonable doubt. According to him prosecution story was demolished, as through defence evidence it had been established that the appellant was out of Qila Sobha Singh in connection with his tour on 7-7-1987, therefore, it was not possible for him to demand bribe from the complainant on that day. Again T.A. Bill of the complainant had been sent vide entry No,226 in Despatch Register, to District Officer on 22-6-1987, therefore, the amount of Rs,500 paid to the appellant on the day of raid could not be taken as motive or reward for sending TA. Bill of the complainant to District Office. It was further emphasized that Muhammad Aslam (D.W.3) was right in saying that the amount was paid to the appellant which the complainant owed to him. Lastly he submitted that defence theory about payment of loan was more probable than the prosecution story, therefore, the learned trial Court erred in law and on facts by not accepting it in preference to the prosecutionstory. Learned counsel appearing on behalf of the State has however defended the impugned order of conviction and the sentence awarded to the appellant.
7. I have considered the contentions of learned counsel for the parties carefully and also perused the record. Since the appellant has admitted, the receipt of Rs,500 (P.1 to P.5) and also its recovery from him, therefore, the only question to be determined is whether the complainant paid the tainted amount (P.1 to P.5) for forwarding his TA. Bill (Exh.PG) to the District Office or that it was paid towards satisfaction of the debt which according to the appellant, he owed to him?
' Section 4 of the Prevention of Corruption Act, 1947 says that if an accused admits at the trial to have received the amount (other than legal remuneration) then it shall be presumed that he had accepted the same as motive or reward, such as, is mentioned in section 161, P.P.C. This presumption of course is rebuttable.
8. Before proceeding further, I am prompted to say that the defence-evidence produced to show that the appellant was not present on 7-7-1987 at it Qila Sobha Singh but was on tour to Ghota Siraj and that the TA. Bill submitted by the complainant had been despatched to the District Office since 22-6-1987 vide Despatch Register's Entry No,226 as stated by D.W.1, D.W.2 and D.W.4 was afterthought because it was not told to the Raiding Magistrate (P.W.1) when he recorded the appellant's statement (Exh.PE) after the raid, therefore, the documents produced in support thereof also seem to have been fabricated and forged later. Learned trial Court, to my mind, had rightly refused to act upon aforesaid defence evidence. But this would not mean that 'by ignoring the defence evidence the case of the prosecution would stand automatically proved. It must stand on its own legs. In order to prove that the tainted amount was received by the appellant as bribe for forwarding the TA. Bill (Exh.PG) to the District Office, it was essential for prosecution to establish beyond reasonable doubt that alongwith tainted amount, TA. Bill (PG) was recovered from the appellant at the time of raid. The statement of Masood Ahmad, Raiding Magistrate (P.W.1), Abaidullah, complainant (P.W.2) and Mahmood Ahmad Cheema, Circle Officer (P.W.3) on this point are discrepant. Abaidullah, complainant although stated that he gave his TA. Bill (Exh.PG) to the appellant along with tainted amount (P.1 to P.5) but he did not say that TA. Bill (Exh.PG) was recovered from the appellant by the Raiding Magistrate (P.W.1). Masood Ahmad, the Raiding Magistrate in his Examination-in-Chief stated that TA. Bill (Exh.PG) alongwith the tainted currency notes was recovered from the appellant but in cross-examination he averred clearly that the TA.
Bill was produced before him by Abaidullah, complainant. He was not got declared hostile or- cross-examined. Recovery memo. Exh.PC does not contain specific words to show that Rs,500 and TA. Bill were recovered from the appellant. There is, however, a note in the Raid Report Exh.PF that TA. Bill was recovered from the appellant. The Raid Report according to Raiding Magistrate (P.W.1) had been prepared at Pasroor, miles away from Qila Sobha Singh, the place of occurrence.
Therefore, its sanctity is also violated due to its non-preparation immediately on the spot. It is difficult to say that Raiding Magistrate's statement made in Examination-in-Chief was true or the one made in cross-examination, was true. His veracity is shaken, therefore, it is perilous to believe and act upon any part of his statement. Therefore, in these circumstances the statement of Mahmood Ahmad, Circle Officer (P.W.3) who saw the whole show also cannot be safely relied upon.
I would, therefore, hold that recovery of TA. Bill (Exh.PG) from the appellant was highly doubtful and consequently the story of the prosecution that Rs,500 recovered from the appellant were paid to him as motive or reward for forwarding the TA. Bill (Exh.PG) to District Office, dashes to the ground.
C Contrarily the defence plea that complainant paid the appellant Rs,500 on the day of raid which was put forth by the appellant at the time of raid and ,supported by Muhammad Aslam (D.W.3) had to be accepted.
9. . For what has gone above, I find that the charge under section 5(2) of the PCA against the appellant has failed. Consequently, the appeal is allowed, the conviction and sentence of the appellant is set aside and he is acquitted. Help is on bail. He is discharged of his bail bonds.