' This appeal has been directed against the judgment, dated 28-1-1998 passed by the Special Judge Anti-Corruption, Sargodha, in case F.I.R. No.45 of 1991, dated 4-5-1991 by which the appellant has been convicted and sentenced to three years' R.1. Under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 alongwith fine of Rs.30,000 and in default to further undergo six months' R.I.
2. The brief facts of the prosecution case are that Muhammad Abdullah appellant Was serving as A.S.-I. At Police Station City Chiniot. The complainant of the case Mumtaz Raza submitted an application to the Anti-Corruption Department alleging that the appellant has demanded illegal gratification of Rs.7,000 from him to show favour in a narcotics .Case. This application was moved on 4-5-1991. Mumtaz Khan, Inspector submitted the application to the District Magistrate who nominated Mr. Ubaid Ullah Sial, Magistrate 1st Class for conducting the raid. A raiding party was constituted Which was consisted of Mr. Ubaid Ullah Sial, M.I.C. And Mr. Mumtaz Khan, Inspector Anti- Corruption Department. The statement of the complainant was recorded by the learned Magistrate in which he stated that Abdullah A.S.-T. Came to his house and asked him that you are involved in Narcotics business and to produce some evidence in favour of your innocence. The appellant then again went to his house and directed him to patch up with the police and demanded Rs.10,000 as according to the appellant he was not found innocent. The complainant and the appellant mutually agreed for the payment of Rs.7,000. The complainant has also stated that the said A.S.-I.
Had threatened him if the amount is not paid to him he will be dealt with dire consequences. He also stated that the appellant directed him to produce the abovesaid amount on 5-5-1991 at the police station. The complainant stated that he went to Faisalabad and made an application to the Inspector, Anti-Corruption Department. His statement was recorded on 5-5-1991 at 1-30 p.m. By the Magistrate. Then the Magistrate took the currency notes amounting to Rs.7,000 from the complainant and made his signatures on the notes for its identification at the time of recovery if the appellant accepts illegal gratification. Then the raiding party consisting of Ubaid Ullah Sial, Magistrate and Mumtaz Khan, Inspector, Anti-Corruption and two Constables went to the police station at 2-00 p.m. They started waiting for the appellant. The appellant did not come to the police station. Hence the raiding party at 6-15 p.m. Left the police station but the complainant Mumtaz Raza came after Sometime and told the raiding party that the appellant has informed him that he will come to his house at 7-00 p.m. The raiding party went near the house of the complainant and at 7-15 p.m. They were informed that the appellant has entered into the house of the complainant, and after sometime at 7-30 p.m. The complainant through a signal informed that the money has been passed on. When the appellant came out of the room, the raiding party introduced to him. Hearing this the appellant tried to run away but with the help of Inspector Mumtaz he was apprehended. In the meanwhile the appellant from his pocket of shirt brought out the amount and it was thrown in the street and also started raising hue and cry and the people also gathered there. The amount was collected by the raiding party and the appellant and the complainant and raiding party came to Faisalabad on official vehicle and the statement of the appellant was recorded. He made statement that Mumtaz Shah is involved in heroin business and he offered to produce defence that he is not inyolved in Narcotics business so in order to verify his innocence, he went to the place of occurrence. He has not received the amount. After the investigation of the case the challan was submitted in the Court of Special Judge, Anti-Corruption.
The charge was framed which was denied by the appellant. The prosecution to prove the guilt of the accused/appellant produced Mr. Ubaid Ullah Sial, Magistrate 1st Class as P.W.1 who supported the prosecution version and stated that the raiding party was constituted under his supervision under the direction of the District Magistrate and the incident took place as has been narrated above. When they introduced themselves the appellant tried to run away. However, he was overpowered by him and C.O./A.C.E. In the meantime the appellant threw out the tainted amount from his left pocket on the ground. The amount was seized by him vide memo. Exh.P.C. Numbers of the currency notes tallied with the numbers already noted vide note Exh.P.D. He admitted that the passage of moue; to the appellant was not seen by him and he also did not hear the conversation between the complainant and the accused/appellant. Mumtaz Raza has appeared as P.W.2 and in examination-in-chief conducted on 18-12-1993 he supported the prosecution version and case was adjourned for 24-1-1998 on which date he made some concession in favour of the appellant regarding Professor Kafiat who is his friend. He, however, stated that he after taking the money from Professor he produced the same to A.C.E. To record their serial number. He also stated that the appellant came to his house and nabbed by the raiding party in the Gali and was taken to Faisalabad. He denied the factum of throwing of money by the appellant. He also gave a concession in favour of the appellant that he never demanded Rs.7,000 bribe from him. Mumtaz Khan. D.S.P. C.O./A.C.E. Faisalabad appeared as P.W.3 and supported the prosecution version. P.W.4 Muhammad Ajmal recorded the formal F.I.R. Exh.P.J./1. After the completion of the prosecution evidence the statement of the accused was recorded and when he was asked that after the aforesaid raid he had thrown the amount on the ground, he made the following statement:-- "Exh.P.G./1 bears my signatures and my statement was recorded by the Magistrate. (On instruction from learned defence counsel the accused submits that it was not read out to me).
' Note.---After reading the statement, the accused submits that there is following differences in recording my statement-- ' Mumtaz Shah and Kafayat had come to seek release of a person from me but I challaned him.
There was altercation and threat was hurled that I would be dealt with."
' Neither he appeared in his defence nor he produced any evidence. The learned Special Judge, Anti-Corruption has convicted the accused and passed the above sentence.
2. Learned counsel for the appellant contends that the accused/appellant has been involved in this case falsely and he has given explanation in his statement made before the Magistrate at the time of so-called raid. Learned counsel for the appellant has further contended that the passing of money was not seen by the Magistrate. Similarly it was also admitted by the Magistrate that the conversation was not heard between the complainant and the appellant at the time of passing of money by him. He has also stated that the prosecution has failed to prove its case against the appellant and the judgment is based on surmises and conjectures and is liable to be set aside.
3. Learned counsel appearing on behalf of the State has supported the judgment and has prayed for maintaining the sentence passed by the learned Special Judge, Anti-Corruption.
4. I have heard the learned counsel for the parties and also perused the record minutely. The Magistrate, Ubaid Ullah Sial, who appeared as P.W.1 has fully supported the prosecution case and has given details of the raid, conducted by him. He has also recorded the statement of the complainant before the commission of raid and after the commission of raid the statement was also recorded. He has fully supported the factum of arrest of the accused/appellant at the time of raid when he was coining out of the house of the complainant. The Magistrate had also fully supported the factum of throwing of money by the appellant at the time of his apprehension, on the ground, which was collected by the Investigating Officer at the same time. The conduct of the appellant was that instead of facing the raiding party and explaining his position he tried to run away. This conduct has been fully supported by Ubaid Ullah Sial, M.I.C. P.W.1 and Mumtaz Khan, Inspector P.W.3. The complainant of this case fully supported the prosecution version in his cross- examination but the case was adjourned for another date and he gave some concession in favour of the appellant during cross-examination. It will be kept in mind that the appellant is a police official and the complainant could not resist the pressure lodged on him before the completion of his statement. The making of concession during cross-examination cannot be considered as the complainant himself appeared before the Inspector, Anti-Corruption on 4-5-1991 and made a statement before him that illegal gratification has been demanded by the appellant. Then the complainant made a similar statement before the Magistrate P.W.1 and on the basis of his statement a raiding party was constituted and the raiding party remained kept on sitting near the police station from 2-00 p.m. To 6-00 p.m. For four hours and then the complainant was informed that the appellant will come to his house at 7-00 p.m. And then the raiding party went near the house of the complainant and the appellant came there. P.W.1 and P.W.3 have seen the appellant throwing the money out of his pocket on the ground, when he was apprehended by the raiding party. In the circumstances of the case non-seeing of Magistrate the passage of money and non- hearing of the conversation is not material. The Honourable Supreme Court of Pakistan in judgment reported as Malik Umer Hayat v. The State 1998 SCM R 586 has held that the mere fact that conversation between the complainant and the petitioner was not heard and the passing of tainted money was not seen will not entitle the accused of his acquittal if other evidence is available on the record which is trustworthy and not inimical. This view was also taken in Abdul Ghafoor v. The State PLD 1996 Lah.
17. The presence of the appellant at the time and date in the house of the complainant shows his interest in getting illegal gratification which was actually recovered from him at the time of raid when he threw the same from his pocket in the presence of the witnesses. This factum is fully supported by P.W.1 and P.W.3 and even the complainant has supported the version of the prosecution in toto when he appeared as P.W.2 in examination-in-chief. The contention of the learned counsel for the appellant is incorrect as Ubaid Ullah Sial P.W.1 who is a Magistrate and is an independent person and even Mumtaz Khan, Inspector, Anti-Corruption Department have no enmity or grudge against the appellant to involve him in the false and fabricated case. Even no suggestion is made to them that they had any personal grudge against the appellant. The prosecution in this case has stood on its own legs and has fully proved the case against the appellant beyond any shadow of doubt. The learned trial Court has rightly convicted the accused/appellant and sentenced to him.
5. There is no merit in this appeal which is accordingly dismissed.