' This is an appeal against the judgment dated 14-5-1986 whereby the learned Special Judge, Anti- Corruption, Sargodha convicted Abdul Ghafoor appellant under section 161, P.P.C. And sentenced him to four months' rigorous imprisonment and a fine of Rs,4,000 or in default to undergo two months' simple imprisonment.
2. The relevant facts are that on 6-5-1981 Mst. Aalan Bibi P.W.2, hereinafter also referred to as the complainant, made a complaint Exh.PA./1 before the Deputy Director Anti Corruption, Sargodha alleging that Abdul Ghafoor Patwari in the Irrigation Department Jhang, appellant herein, was demanding Rs,400 from her as illegal gratification which she was not willing to pay. She requested for arranging a raid to trap the said Patwari. The Additional Director (L) vide order Exh.PA directed the Circle Officer Anti-Corruption Establishment, Sargodha to take' necessary action because no officer in the Anti-Corruption Establishment at Jhang was available. Abdur Razzaq Khan P.W.1 the Circle Officer, Sargodha sent the complaint to Police Station, A.C.E., Jhang for the registration of a case and he himself proceeded to the District Courts for arranging a raid. He made request Exh.P.B before ,the A.D.C.(G), Sargodha for deputing a Magistrate to supervise the raid. The A.D.C.(G) vide order Exh.P.0 directed the Telasildar/Magistrate 2nd Class, Sargodha to do the needful. The Tehsildar vide endorsement Exh. P.D deputed Raja Khaliq Dad P.W.3 Naib Tehsildar/Magistrate 3rd Class to perform duty in his place because he himself was busy in urgent official W01 k. The Naib Tehsildar recorded the statement Exh.P.F of Mst. Aalan Bibi P.W.2 wherein she repeated the allegations contained in the complaint. She produced four currency notes (Exh.P.1 to P.4) of the denomination of Rs,100 e ach. The Naib Tehsildar noted down the particulars of the said currency notes and returned them to her. Thereafter, a raid party was formed which, besides the Naib Tehsildar, included P.W.2 Abdur Razzaq Khan, Circle Officer A.C.E, Sargodha, Malik Gul Muhammad S.I., A.C.E. (not produced) and Noor Muhammad Constable A.C.E. (not produced). They went to Lalian where the complainant lived. She (the complainant) was sent to her house along with the tainted money where the appellant had promised to come in order to receive the bribe. The raiding party sat in the Baithak of Allah Rakha near her house. After about 45 minutes the complainant informed the raiding party that the appellant Patwari has reached her house. After about 20 minutes the complainant gave the appointed signal to indicate that the bribe money had been passed on to the Patwari. Thereafter, the raiding party entered the house of the complainant and found Abdul Ghafoor appellant sitting on a Charpai with the tainted currency notes Exh.P.1 to P.4 in his hand. The said currency notes were taken into possession by the Naib-Tehsildar vide memo.
Exh.P.E. Statement Exh.P.G. Of Mst. Aalan Bibi complainant was recorded wherein she narrated as to how and why the tainted currency notes were delivered to the appellant. Abdul Ghafoor appellant offered to make a statement Exh.P.J. In the said statement he deposed that on 5-5-1981 in the presence of Iftikhar Hussain Shah Patwari, Muhammad Asghar All Patwari and Muhammad Ashiq D.C.R he had paid a sum of Rs,400 to the complainant for the purchase of Ghee which he required for the purpose of the Aqeeqa ceremony of his son which was to be celebrated on 20-5-1981. He further stated that he had gone to the house of the complainant on her asking to receive the delivery of Ghee but was told that the same could not be arranged and, therefore, he should either wait or take back the money and that he agreed. To take back the money, where after, he was trapped. The appellant was arrested on the same day and after the completion of investigation he was challaned.
3. The appellant was formally charged under section 161, P.P.C. But he pleaded not guilty and claimed trial.
4. The prosecution examined three witnesses in support to its case namely P.W.1 Abdur Razzaq Khan Inspector A.C.E., P.W.2 Mst. Aalan Bibi complainant and P.W.3 Raja Khaliq Dad the raiding Magistrate.
5. In his statement under section 342, Cr.P.0 the appellant admitted that the tainted currency notes were recovered from his possession but maintained that he had not received the said amount as illegal gratification. He examined two witnesses namely Iftikhar Hussain Canal Patwari and Muhammad Ashiq Javaid Sub-Divisional Reader in the Irrigation Department. He also made a statement on oath under section 340(2), Cr.P.C. He maintained that he had been falsely implicated at the instance of Muhammad Aslam Patwari against whom he had made a complaint on the basis of which he was tried by a Martial Law Court and was convicted.
6. After considering the material available on record the learned Special Judge convicted and sentenced the appellant as stated above. Feeling aggrieved he has come up in appeal.
7. I have heard the parties' learned counsel and have also gone through the record.
8. Learned counsel for the appellant has submitted that the conviction of the appellant could not be maintained because the prosecution evidence was discrepant and none of the prosecution witnesses had seen the passing of the money in question from the complainant to the appellant nor did they hear what has transpired between the two at the relevant time. The contentions which the learned counsel has raised have no substance and force and thus are not tenable. The discrepancy which he pointed out was that the complainant in her statement as P.W.2 had stated that at the time of the raid the members of the raiding party were standing outside her house while according to the raiding Magistrate (P.W.3) and the accompanying police officer (P.W.2) they were sitting in the nearby Baithak of Allah Rdkha. The discrepancy pointed out by the learned counsel is of no significance and has no bearing on the merits of A the case and, therefore, it can very conveniently be ignored. Learned counsel further submitted that at the time of the raid the husband of the complainant was also present in the house but had not been cited as a prosecution witness which meant that the prosecution had withheld material evidence.
Prosecution is not bound to cite each and every person as a witness in whose presence some incident had taken place. When the complainant herself was appearing in Court as the prosecution witness there was no necessity of citing her husband as another witness. The objection is not sustainable.
9. It is true that in the present case neither the raiding Magistrate nor the accompanying Circle Officer of the Anti-Corruption Department had seen the passing of the bribe money. They had also not heard what had transpired between the complainant and the appellant at the time of the passing of the said money. However, the complainant in her statement as P.W.2 had categorically stated that the said amount was given to the appellant as a bribe which he had demanded and accepted. All the prosecution witnesses have deposed that the tainted currency notes were recovered from the possession of the appellant. This fact is also admitted by him. In these circumstances the fact that the raiding Magistrate and the accompanying police officer had not seen the passing of the bribe money or had not heard the conversation between the complainant and the appellant becomes insignificant. In view of the law laid down by the Supreme Court in Muhammad Siddique v. The State 1977 SCM R 503 the burden of proof on the prosecution in such cases was very light to establish the guilt of the accused and when the tainted money had been recovered from the accused onus would shift upon him to explain how he had received the said money. If he was able to give a plausible explanation he would be entitled to acquittal but if the said explanation was unsatisfactory, unconvincing and absurd it would be presumed that he had received the said money as illegal gratification. The explanation which the appellant in the present case had given at various stages of the proceedings does not come up to the required standard.
Initially at the time of the raid he had stated before the raiding Magistrate that he had paid a sum of Rs,400 to the complainant for the purchase of Ghee for the purpose of celebrating the Aqeeqa of his son but the complainant had returned the said amount to him as she could not arrange Ghee.
During the trial not a word in this regard was suggested to the complainant when she was cross- examined. Thi,. Fact was enough to establish that the story of Ghee was a mere concoction. Even in his statement tinder sections 342 or 340(2), Cr.P.C. He did not narrate the said story. His witnesses, however, namely Iftikhar Hussain Shah and Muhammad Ashiq Javaid D.Ws. Had narrated the said story. They are the colleagues of the appellant. They had never appeared before the Investigating Officer during the investigation to depose about the innocence of the appellant and, therefore, no reliance on their testimony could be placed. In these circumstances the story of Ghee to which the appellant did not adhere during the trial loses all credibility. It was rightly disbelieved by the learned trial Court.
10. The appellant has also asserted that he has been falsely implicated at the instance of Muhammad Aslam Patwari who had been convicted by a Martial Law Court on his complaint.
Firstly no such complaint, F.I.R. Or the judgment of the Martial Law Court has been produced during the trial to establish that Muhammad Aslam Patwari had been convicted on the complaint of the appellant. Secondly there is no material on record to suggest that the complainant in the present case had been instigated by the said Muhammad Aslam Patwari to involve, the appellant in this case. No nexus between the said Patwari and the complainant is proved on record, therefore, it is not possible to believe what the appellant has alleged.
11. In view of the above discussion it is established to my satisfaction that the appellant had demanded and accepted Rs,400 from the complainant as a bribe. He had failed to explain that the tainted money which had been recovered from his possession was accepted by him for a purpose other than illegal gratification. He has rightly been convicted under section 161, P.P.C. By the learned trial Court. The learned trial Court has already taken a lenient view while awarding sentence. I, therefore, do not fad any merit in this appeal which is dismissed. The appellant, however, would be entitled to the benefit of section 382-B, Cr.P.C.