' The appellant, Ghulam Haider, a former A.S.-I. Was tried in case F.I.R. No,23, dated 21-7-1993 and the Special Judge, Anti-Corruption, Gujranwala vide his judgment, dated 3-8-1994 convicted the appellant under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to R.I. For 9 months and a fine of Rs,10,000 and in default of payment thereof, to further R.I. For 'three months. Hence, this appeal.
2. The appeal was admitted to regular hearing on 17-8-1994 and the appellant's sentence was suspended and he was granted bail, by this Court, on 25-8-1994.
3. The relevant facts are that the complainant Muhammad Siddique (P.W.4) had a hotel at Abbot Road, Sialkot and on 15-7-1993 at about 5-30 p.m. Farooq etc. Injured his brother Muhammad Shafi with a Chhuri. Muhammad Siddique got lodged F.I.R. No,224, dated 17-7-1993 at Police Station Kotwali and the appellant was entrusted with the investigation of the same who was posted as A.S.-I. At that time at Police Station Kotwali. The appellant arrested the accused Noshi. On 20-7- 1993, Muhammad Siddique (P.W.4) met the appellant for arrest of the other accused namely Farooq and Muhammad Boota and the appellant allegedly demanded an illegal gratification of Rs,1,000 payment of which was promised on '21-7-1993. Muhammad Siddique then went to Police Station A.C.E., Sialkot, and on 21-7-1993 got recorded F.I.R. Exh.P.H. Muhammad Riaz Khan (P.W.3), CO/ACE, Sialkot recorded the F.I.R. (Exh.P.H.) gave an application to A.D.C.(G), Sialkot for deputing a Magistrate to supervise the raid, Syed Sibte Hassan Shah (P.W.1), Duty Magistrate was deputed, P.W.3 produced the complainant Muhammad Siddique (P.W.4) before the raiding Magistrate who recorded his statement Exh.P.A., the complainant produced one currency note of Rs,1,000, the raiding Magistrate noted the serial number and returned the money to the complainant, raiding party was constituted which went outside of the Police Station Kotwali, the complainant went inside the room of the appellant and after payment of the money, gave a signal to the raiding party, the raiding Magistrate and CO/ACE entered the room of the appellant, searched his person and from the front pocket of the shirt one currency note of Rs,1,000 Exh.P.1 was recovered, serial number tallied with the one already noted and the currency note was secured vide memo. Exh.P.C. The raiding Magistrate then recorded the statement Exh.P.E. Of Muhammad Siddique (P.W.4) and statement Exh.P.F. Of the appellant who stated that he was worried at this time, no money had been recovered from him and neither he has demanded any bribe from the complainant nor he has taken any from him. He was arrested. The proceedings recorded by the raiding Magistrate were handed over to the CO/ACE. The sanction Exh.P.K. Was obtained and challan was submitted in the Court.
4. Syed Sibte Hassan, M.I.C. (P.W.1) and Muhammad Riaz Khan, CO/ACE, Sialkot (P.W.3) stated that they did not hear the conversation between the complainant and the accused at the time of payment of money and they also did not see the accused accepting the money. Muhammad Siddique (P.W.4), the complainant, supported the prosecution case but admitted in the cross- examination that the land of the father of the appellant adjoined the land of his (complainant's) maternal-uncle and 3/4 months prior to the registration of the present case he had taken a loan of Rs,1,000 from the father of the appellant and his maternal-uncle stood surety for the return of the money which was promised to be returned to the appellant's father in one month. The complainant, however, denied the suggestion that till the time of raid, he had not returned the amount to the father of the appellant and further stated that the said amount was adjusted because the complainant's tractor was used for cultivation of land by the appellant's father. The complainant further admitted that a month before the registration of the present case, the appellant, Ghulam Haider, had asked for the return of amount of Rs,1,000 to his father and had told him that if he did not return the money he will take action against him. He further, admitted that during the investigation of the abovesaid criminal case, the appellant had talked with him about the return of the amount owed by the complainant to appellant's father but denied the suggestion that at the time of raid he returned the amount of Rs,1,000 to the appellant telling him that it was the amount which was payable by him to the father of the appellant. Towards the end the complainant stated that no talk took place when he paid the money to the appellant and denied the suggestions that, the accused neither demanded nor accepted any amount from him as an illegal gratification, an amount of Rs,1,000 was paid to the appellant towards the amount due to his father and that he had developed a grudge against the appellant as he was not arresting the persons named in the F.I.R.
5. The appellant in his statement under section 342, Cr.P.C. Answered the Question No,3 as follows:- - ' .. It is incorrect that the amount was accepted towards bribe. The complainant Siddique had borrowed Rs,1,000 from my father and at the time of raid he paid me the currency note of Rs,1,000 Exh.P.1 telling me that it is towards the amount payable by me to my father and I accepted the money in good faith."
6. Murawwat Ali (D.W.1) stated that on 21-7-1993 he was posted as A.S.-I. Police Station Kotwali and he and the appellant shared the same room as office and on the said date at about 7-00 a.m. The complainant Siddique came to their room and the appellant in his presence told the complainant to pay the money payable by the complainant to his father. The appellant also examined himself on oath as D.W.2 and reiterated that the amount was paid to him towards the loan advanced by his father to the complainant.
7. The learned trial Court disbelieved the defence version on the ground that the appellant in his statement Exh.P.F. Had not taken this stand and the defence version was an afterthought and the complainant had given concessions to the appellant in cross-examination to support the defence plea and convicted and sentenced the appellant as mentioned above.
8. I have heard the leaned counsel for the appellant, learned Additional Advocate-General and have seen the record with their help.
9. It is contended by the learned counsel for the appellant that the raiding Magistrate (P.W.1) as well as the Investigating Officer (P.W.3) neither heard the conversation nor saw the passing of the currency note of Rs,1,000 to the appellant and the sole evidence available against the appellant is that a sum of Rs,1,000 was recovered from the pocket of the appellant and at the time of raid the appellant had immediately denied the receipt of any bribe from the complainant and the complainant Muhammad Siddique (P.W.4) also did not use the word "bribe" in his statement (Exh.P.E.) which was recorded at the time of raid, the complainant admitted in the cross- examination that he owed Rs,1,000 to the appellant's father and the appellant had previously demanded the return of the same and admittedly no conversation took place between the appellant and the complainant at the time of the passing of the money and the appellant pocketed the money bonafidely believing that complainant was refunding the loan which he had taken from the appellant's father and under these circumstances it is not safe to rely on the prosecution evidence and benefit of doubt should go to the appellant and he should be acquitted.
It is submitted next that the trial Court had illegally concluded that the complainant Muhammad Siddique in his statement as P.W.4 gave concessions, the bare reading of the examination-in-chief as well as the cross-examination shows that the complainant did not give any concession, he merely admitted a fact that he knew the appellant's father through his maternal-uncle as the lands of appellant's father adjoined the lands of complainant's maternal-uncle and that the complainant had obtained a loan of Rs,1,000 from the appellant's father and he categorically denied in the cross-examination that at the time of raid he was merely returning the said loan and in fact the complainant came with story that the loan stood adjusted because of the use of complainant's tractor by the appellant's father. In the alternate it has been argued that if this Court comes to the conclusion that the appellant has been correctly convicted then, the sentence should be reduced to that of already undergone. Learned counsel for the appellant has placed reliance on Manzoor Hussain Shah v. The State 1978 PCr.LJ 885 (Lahore), Muhammad Aslam v. The State NLR 1992 Cr.LJ 545, Syed Nazakat Raza v. The State 1977 PCr.LJ 694 (Karachi), Ehtisham Abbas Kazmi v.
The State 1993 PCr.LJ 1299 (Lahore), Naseer Ahmad v. The State 1993 PCr.LJ 299 (Lahore), Lad Khan v.
The State 1992 PCr.LJ 1484 (Lahore), Muhammad Ashraf v. The State 1996 SCM R 181 and Mirza Fayyaz Baig v. The State 1994 PCr.LJ 2233.
10. The learned Additional Advocate-General while vehemently opposing the appeal has submitted that the entire story that the complainant had previously obtained a loan of Rs,1,000 from the appellant's father and, therefore, the appellant bonafidely believing that the complainant was returning the loan is merely an afterthought because in his statement (Exh.P.F.) which was recorded at the time of raid, the appellant did not take up this plea and, therefore, defence version is not believable, the prosecution has established its case against the appellant beyond any shadow of doubt, he was caught red-handed accepting the money as the tainted money was recovered from his pocket and he is not entitled to be acquitted merely because the raiding Magistrate and the Investigating Officer did not hear the conversation or did not actually see the passing of the money.
11. The tainted currency note was recovered from the pocket of the appellant by the raiding party.
The appellant at that time in his statement (Exh.P.F.) did not take up the defence plea, which was taken up by him later on. The defence plea is merely an afterthought and the trial Court has rightly disbelieved the same. Even otherwise the appellant was member of disciplined force, a man in uniform, was not expected to pocket the money silently without asking as to why the same was being offered to him, the money changed hands inside the police station and the raiding Magistrate obviously could neither hear the conversation nor actually see the passing of the money and none-hearing of the conversation and non-witnessing of the passing of the money by the raiding party, in my opinion, is not fatal to the prosecution case and cannot by itself entitle the appellant for acquittal. The trial Court has, thus, correctly recorded the appellant's conviction.
However, the alternate plea of lesser punishment to that of already undergone has merit because the appellant has lost his job or is likely to lose the same because of his conviction and if he is sent to jail again now after six years of the suspension of his sentence, he might lose present source of livelihood as well.
12. In view of the abovementioned, the conviction of the appellant as recorded by the trial Court is upheld and the appeal is dismissed. However, keeping in view of the peculiar circumstances of the case, sentence of the appellant is reduced to that of already undergone. The sentence of fine and consequential imprisonment in default in the payment of the same is maintained. He shall undergo simple imprisonment for three months in default of payment of fine and not rigorous imprisonment as recorded by the trial Court.
Sentence reduced.