JAMALUDDIN H. AHMAD, J.-Respondent Humayun Shafi, Proprietor of National Flour Mills, Korangi, was tried by the Special Judie-cam-Enquiry Officer, Anti-Corruption, Karachi, on a charge under section 165-A, P. P. C. But was acquitted on 18th February, 1974. His acquittal has now been challenged by filing the present acquittal appeal.
2. The case of the prosecution is that complainant Shamim Akhtar, the then Assistant Food Controller, Karachi, approached the respondent on 12th March, 1973, with an order from the Regional Food Director, Karachi, to return 6796 empty gunny bags which were earlier given to him alongwith wheat. The respondent instead of returning the said gunny bags offered him a sum of Rs, 20,0,0 on the condition that a receipt for the said gunny bags be given to him. The Assistant Food Controller promised to give his reply later, and proceeded to inform the Deputy Director Food about this situation. The latter took him to the Anti-Corruption Police where his first information report was recorded. A trap was consequently arranged, and a Magistrate alongwith two Mashirs were called for this purpose. The-Assistant Food Controller prepared a receipt in his own handwriting to the effect that 6796 empty bags of "Bardana" excess issued to Messrs National Flour Mills, by Government for safe custody and return on demand had been received by him in serviceable condition. This receipt was dated 15th March, 1973 and had the signature of the complainant. It was arranged that the respondent would come to the complainant in Room No, 9, Sind Isiamia Hotel, Karachi where he was staying, where the receipt would be given and money accepted. Thereafter on receiving the signal the raiding party would enter that room. Pursuant to this arrangement the complainant went over to the respondent and told him to see him in his room alongwith the money. At the appointed time the respondent came and was shown the receipt but he paid only Rs, 17,000. When asked about the amount being short, he promised to pay the balance later on. The complainant accepted the amount and handed over the receipt to the respondent thereafter he signalled the raiding party. The Anti-Corruption Inspector alongwith a Magistrate, two constables and two Mashirs catered the room and secured the file from the respondent in which he had kept the receipt. The amount of Rs, 17,000 was also secured from the complainant and the respondent was arrested.
3. At the trial prosecution examined Ghulam Haidar Chanar, the Magistrate who had supervised the raid. He supported the case of the prosecution and securing of the receipt from the respondent, as well as amount of Rs, 17,000 from the complainant. The receipt had earlier been entrusted to the complainant in his presence. He prepared a raid report which incorporated the above facts. He had also given the permission for investigation and the arrest of the respondent, to the Inspector, Anti-Corruption. The other witness examined by the prosecution was the complainant who gave the same story and also deposed to the fact of having reported the matter to his superior besides the Anti-Corruption Inspector. Abdur Razzaq, Inspector, Anti-Corruption, Karachi, was examined as he had registered the F. I. R. And investigated the case and had arranged the trap. He had also recorded the statement of the respondent at the time of his arrest.
4. The respondent in his statement in Court did not deny the payment of Rs, 17,000 made by him to the complainant but he denied that it was illegal gratification. According to him, the complainant on seeing the gunny bags lying in the stores had expressed that he could not lift the same as they were torn, and he then suggested that the respondent should pay him Rs, 25,000 for purchasing the gunny bags from the market. He had finally agreed to accept Rs, 17,000 for that purpose and for giving a receipt for having collected the gunny bags. He admitted that the required receipt had been given to him by the complainant which had been secured by the Anti-Corruption Inspector Abdur Razzaq. However, he explained that the complainant was aggrieved as he had insisted on an amount of Rs, 25,000 which had been refused by the respondent. In any case he specifically denied to have given any illegal gratification to the' complainant as the amount was given to him only to purchase the gunny bags from the bazar.
5. The trial Court in deciding the point for determination whether the respondent bad offered a bribe to a public servant I.e. Shamim Akhtar, Assistant Food Controller for showing him favour of not collecting the' empty gunny bags came to the conclusion that it was doubtful, because firstly in the evidence of the complainant it was not proved that the amount had been offered as illegal gratification and secondly that the complainant bad himself admitted in his cross-examination that the respondent told him to purchase "Bardana" of inferior quality from the market with the amount that he proposed to give him. In this state of evidence the trial Court found that the version given by the respondent in his statement whereby he had denied to have given the amount as illegal gratification but had given only for purchasing the gunny bags from the bazar could possibly be true and thus he could not be said to have abetted the offence under section 161, P. P. C.
And therefore the trial Court acquitted him.
6. Mr. Mohammad Hay at Junejo, the learned counsel for the respondent has contended that this is a case in which the payment of the amount of Rs, 17,000 is not denied. It is only the purpose for which the money was passed which is disputed. The only official act that the complainant had to perform in this case was recovery of gunny bags that were lying in charge of the respondent. In order to prove that the amount paid to the complainant by the respondent was any gratification other than legal remuneration as a motive or reward for doing or forbearing to do the official act or to show favour in the exercise of his such official functions, the prosecution had to prove affirmatively that such was the purpose of the payment. In absence of such an evidence the finding of the trial Court resulting into acquittal of the respondent was correct and could not be disturbed. Mr. Manzoor Hussain, learned counsel appearing for the appellant had also to concede to this position.
7. The admitted position that emerged from the evidence on record is that the amount of Rs, 17,000 was paid by the respondent to the complainant, Assistant Food Controller for purchasing gunny bags, as the gunny bags returnable by the respondent were not available with him when demanded. In the words of the complainant the respondent told him that he was prepared to pay him Rs, 20,000 for giving a receipt to the effect that he had received the 'Bardana" which was to be given by him. In his cross-examination as has already been stated, he admitted that the respondent had told him that he can purchase the gunny bags from the market with the amount that he proposed to give him. He admitted having said so even in his further statement made to the police. The receipt that he gave to the respondent on 15th March 1973, is in the following terms :- "Received 6795 (six thousand seven hundred and ninety-five) empty bags of Bardana excess issued to Messrs National Flour Mill by Government for safe custody and return on demand. The Bardana is now received by me in serviceable (First Bhiry) condition. I acknowledge the receipt of said Bardana on 15-3-1973."
It is obvious therefore that the respondent not being able to give the Bunn bags had proposed to pay for the same but only on condition that so far as the record is concerned, it was clearly to be shown that he had handed 679 empty gunny bags in serviceable condition. The complainant had therefore been of necessity to show these gunny bags as having been received on behalf of the Department. There is nothing on record to show that the amount paid by the respondent to the complainant was in any manner in excess o the value of the said gunny bags. In such circumstances it is difficult even to draw an inference that the amount or a part of that was in any manner intended to be an illegal gratification for any favour to be shown within the meaning of section 161, P. P. C. The stand taken by the respondent appears to be supported by documentary evidence Le. The receipt. It I true that instead of making payment in cash the respondent could himself purchase the gunny bags and hand over the same to the complainant but in his statement he persisted that he had the empty gunny bags in his stores which he showed to the complainant and the complainant said that they were torn and he could not lift them. It was then that the complainant demanded the amount for purchasing the gunny bags from the market. On record there is only the word of the respondent against the word of the complainant with no further evidence and no inference of guilt could be drawn from circumstantial evidence unless there could be a necessary and exclusive inference, which does not seem to appear in this case.
8. In view of the above, there appears to be no substance in this acquittal appeal which is hereby dismissed.