' This judgment shall dispose of Criminal Appeal No,295 of 1992 filed by Muhammad llyas, appellant and Criminal Appeal No,300 of 1992 filed by Muhammad Shafiq, appellant as they arise out of the same judgment, dated 9-4-1992 passed by Special Judge Anti-Corruption, Sargodha whereby he convicted both the appellants under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to them in the following terms:--
(i) Muhammad Ilvas, appellant-- One year's R.I. With a fine of Rs,1,000 and in default of payment of fine to further undergo six months'
R.I.
(ii) Muhammad Shafique, appellant-- Six months' R.I. With a fine of Rs,500 and in default of payment of fine to further undergo three months' R.I.
2. The prosecution story as given in the F.I.R. Exh.P.R. Registered on the complaint of P.W.1 Nazar Hussain, briefly stated is that his friend, Akbar was injured in some fight. He wanted to have him medically examined and obtain medico-legal certificate. He went to District Headquarter Hospital, Faisalabad. Muhammad Ilyas, appellant who was serving there as Dispenser, demanded Rs,600 for the. Said purpose. However, after some negotiation, the deal was settled at Rs,400. As he did not want to pay the illegal gratification, he contacted P.W.2, Ch. Muhammad Ashraf, Inspector, F.I.A. And he presented application Exh.P.F. To A.D.C.G. For deputing a Magistrate for the purpose of raid.
However, A.C., Faisalabad vide order, dated 1-3-1987 deputed Ch. Muhammad Ismail, M.I.C. To conduct the raid. He recorded statement of Nazar Hussain, P.W.1 which is Exh.P.A., constituted a raiding party and gave tainted notes of Rs,420 to Nazar Hussain, P.W.1 for the afore-referred purpose. At the appointed time, P.W.1 went to Hospital along with the members of the raiding party.
P.W.1 went inside the room where the Dispenser and the Doctor were present while members of the raiding party remained outside. Within their view, the appellant Muhammad Ilyas, accepted the money and handed over the medico-legal certificate Exh.P.B. To the complainant. Muhammad Shafique, appellant also received Rs,20. Immediately, thereafter, the raiding party went to the. Spot and recovered the tainted currency notes from the appellants Muhammad Ilyas and Muhammad Shafique the serial numbers of which were tallied with the serial numbers which had already been noted prior to the raid. P.W.4 Ch. Muhammad Ismail, recorded the statements of both the appellants. The appellant Muhammad Ilyas, admitted that he accepted Rs,400 for issuing the medico-legal certificate Exh.P.B. However, he stated that he was to get Rs,40 and the rest of the money was to be given to Dr. Iftikhar Piracha and sought forgiveness. The appellant, Muhammad Shafique, although admitted the receipt of Rs,20 but stated that the said amount was paid to him for the purchase of A.T.S. Injection and medicine which had to be administered to Akbar, injured.
Immediately after the raid, a supplementary statement of Nazar Hussain, P.W.1 was recorded to the effect that when he went to hospital, he had also contacted Dr. Iftikhar Piracha who told hire to meet his Dispenser i,e, the appellant, Muhammad Ilyas and that thereafter, he will issue the medico-legal certificate.
3. As the matter pertained to Provincial Government and the case had initially been registered by the F.I.A. Vide F.I.R. Exh.P.Q., the F.I.A. Decided to transmit the same to Anti-Corruption Establishment.
Whereafter, the afore-referred F.I.R. Was registered on 15-8-1987. During trial, the prosecution produced four witnesses i,e, P.W.1 Nazar Hussain, P.W.2, Ch. Muhammad Ashraf, Inspector, F.I.A., P.W.3 Ch. Abdul Hafeez, Regional Inspector ' A.C.E., Faisalabad Region. He conducted the investigation and submitted report under section 173, Cr.P.C. In the trial Court. P.W.4 Ch. Muhammad Ismail, M.I.C.
Supervised the raid proceedings and recorded statements of the appellants immediately after the raid.
4. Learned counsel for the appellants in support of the appeals, raised the following points:--
(i) That the registration of case vides F.I.R. Exh.P.Q. By the F.I.A. Is product of mala fides inasmuch as F.I.A. Had no jurisdiction to proceed in the matter;
(ii) that in terms of Rule 14 of the Anti-Corruption Establishment Rules, 1985, it is either the D.C. Or the A.D.C.G. Who has to pass an order for constituting a raiding party and in this case, the A.C.
Passed the afore-referred order which is not warranted in law;
(iii) that no public witness was associated with the raid proceedings and conviction cannot be based on the statement of Nazar Hussain, P.W.1 who had doubtful credentials inasmuch as he admitted that a complaint was pending before the learned District and Sessions Judge wherein it was alleged that he was (Nazar Hussain) a tout. P.W.1 while recording his statement before the police stated that he was a member "Tanzeem Mohasba Rishwat Satani" whereas during trial, he disowned having made the said statement;
(iv) that prosecution evidence is discrepant. P.W.1 Nazar Hussain, stated that the Doctor was present at the particular time whereas P.W.2 stated that the Doctor was not present. Similarly P.W.I stated that the payment was made in the Hall whereas P.W.2 and P.W.3 stated that it was made in the room;
(v) that non-production of Akbar, injured with regard to whose injuries Exh.P.B., the medico-legal certificate was issued, has weakened the prosecution and the same is, therefore, not free from doubt.
5. Learned counsel for the State on the other hand, has supported the impugned judgment and submitted that Muhammad Ilyas admittedly received the amount in question and the onus was on him to prove that the money was not paid and that onus he has failed.To discharge.
6. I have heard learned counsel for the parties and have also gone through the record.
7. The recovery of tainted money has been proved on record not only by the statement of P.W.1 and P.W.2 but also the statement of P.W.4 Ch. Muhammad Ismail, M.I.C. With whom the appellant has neither any enmity nor the same has been suggested. That being so, in terms of section 4 of the Prevention of Corruption Act, 1947, the onus shifted on the appellant to prove that he accepted the amount for a bona fide purpose. In the initial statement recorded before the raiding Magistrate, he stated that he accepted the money for Dr. Iftikhar Piracha and his share only was to the extent of Rs,40. In raid cases under the anti-corruption laws the statement of an accused assumes' a special significance. In the instant case, the statement of the accused and the recovery of A the tainted money has the effect of corroborating the statement of the complainant. The prosecution case, therefore, to the extent of Muhammad Ilyas, appellant has been proved. So far as appellant, Muhammad Shafique is concerned, his explanation immediately after the raid was that the amount was paid to him as payment of A.T.S. Injection and a medicine that had to be administered to the injured, Akbar. While endorsing this fact that the appellant did make such statement, it is surprising that neither P.W.4 Muhammad Isrriail nor P.W.3 Abdul Majeed, who investigated the case took any note of this and probed any further. It was the duty of the Investigating Officer to investigate the version of the accused. To his extent, therefore, the prosecution case is not free from doubt. The conviction of Muhammad Shafique appellant is thus set aside and his appeal i,e, Criminal Appeal No,300 of 1992 is allowed and he is acquitted.
8. In view of what has been discussed above in the foregoing paragraphs, the conviction of Muhammad Ilyas, appellant is unexceptional. However, coming to the question of sentence, this Court is of the view that the version given by the appellant in his statement that he accepted the tainted money at the asking of Dr. Iftikhar Piracha cannot be ignored. It is on record that P.W.4 Ch. Muhammad Ismail, M.I.C. Recorded the supplementary statement of P.W.1 Nazar Hussain, complainant wherein he alleged that in fact it was Dr. Iftikhar Piracha who referred him to appellant Muhammad Ilyas with the promise that thereafter he will issue the medico-legal certificate. The said Dr. Iftikhar Piracha was 'neither cited as a witness nor impleaded as an accused. The case was registered in March, 1987 and the appellant has suffered the agony of a protracted trial. In these circumstances, the ends of justice would be met if the appellant is sentenced to a period to which he has already undergone.