' Sardar Muhammad, appellant, Head Constable, was convicted under section 161, P. P. C., read with section 5(2) of the Prevention of Corruption Act, by Ch. Ghulam Rasul Azhar, Special Judge-II, Anti- Corruption, Lahore, vide judgment dated 25-9-1971.
2. Briefly the facts, necessary for the decision of this appeal, are that in the year 1968 Sardar Muhammad, appellant, was posted as Head Constable at Police Post, Sanda Kalan, Lahore. Siraj Din resident of Qila Hakiman, Sanda Khurd, Lahore, approached him with a request that he should do justice to his cousin Mukhtar Ahmad, who was involved in a case under the Pakistan Arms Ordinance. It is alleged that the accused instead of helping Mukhtar Ahmad threatened Siraj Din to involve him in a similar false case, and to show him a favour for not registering a case under the Arms Ordinance against him he demanded Rs,
100. The matter, it is stated, was settled at Rs,
40. As Siraj Din was not willing to pay this amount, on 5-1-1968 he contacted Ijaz Hussain, Sub-Inspector, A. C. B., and on his complaint Exh. P. W. 3/A a case against the appellant was registered at Police Station, Anarkali, Lahore. Ijaz Hussain, Sub-Inspector, made an application, Exh. P. W. 1/A, to the Additional District Magistrate. Lahore, for deputing a Magistrate to supervise the raid. Upon which Mr. Faiz Muhammad, Magistrate, was detailed to supervise this raid, who after recording the statement of Siraj Din, complainant (Exh. P. W. 1/C) noted down the numbers of four currency notes of Rs, 10 denomination each. These notes were returned to Siraj Din to be passed on to the accused Sardar Muhammad.
3. The raiding party consisting of Siraj Din, complainant, Fain Muhammad, Magistrate, Ijaz Hussain, Sub-Inspector A. C. E., and two constables was accordingly formed on 6-1-1968. They reached Sanda Kalan Bazar, Lahore, in a taxi car. The bonnet of the taxi-car was lifted by its driver, under the instruction of the Magistrate, so as to show that something is wrong with its engine. Faiz Muhammad, Magistrate, then instructed Siraj Din, complainant, that the tainted money be passed on to the accused within his view and the conversation if any should be within his hearing. Siraj Din, complainant, accordingly contacted the accused and brought him near the taxi car where they were visible to the members of the raiding party. Siraj Din, complainant, passed the currency notes to the accused and requested him not to tease him any more. The accused, Sardas Muhammad, it is alleged, accepted the money and assured Siraj Din that none would harm him any more. On the appointed signal given by the complainant the Magistrate and Sub-Inspector approached the accused and disclosed their identity. The tainted currency notes were recovered from the right hand of the accused. On comparison the numbers of currency -notes were found the same as noted down earlier. The =used tried to run away from the spot towards the Police Post, Sanda Kahn.
The accused en his apprehension started weeping and by raising hue and cry attracted several persons to the scene of crime. In order to avoid any ugly situation, he was taken to the Police Post, Krishan Nagar, where his statement was recorded, which is Exh. P. W. 1/E. The Magistrate also recorded the supplementary statement of Siraj Din P. W. After completing his raiding report, he handed over the papers to the Sub-Inspector for further investigation. On completion of the investigation the =used was sent up for trial before the Special Judge, Lahore.
4. The prosecution in support of the allegations produced live witnesses Le. Siraj Din, complainant, Faiz Muhammad, Magistrate, Ijaz Hussain, Sub-Inspector, Abdul Majid, P. W. 4 a formal witness who proved copy of F. I. R. Lodged against Mukhtar Ahmed, the alleged cousin of Siraj Din, complainant, and Syed Irshad Hussain, P. W. 5, is the Investigating Officer.
5. The accused when examined under section 342, Cr. P. C., denied the allegations and pleaded innocence. His defence throughout had been that he never demanded or accepted any bribe from the complainant and, as he had refused to help the complainant in the case of his cousin, on that account the complainant had involved him in a false case. In support of his defence he produced eight witnesses. D. W. 1 to D. W. 3 are Ex-Members of the B. D. Sanda Kalan. D. W. 5 is the Secretary of the Union Committee. Malik Muhammad Afzal, D. W. 6 is an Ex-Chairman of the Union Committee.
Malik Muhammad Hussain, D. W. 8 is an Ex-Chairman of the Union Committee, Ward No,
30. D. W. 4 is a Betel Seller, near whose shop the alleged raid took place. All these witnesses who are respectable and have no interest in the appellant, have supported the appellant's version. It is in their evidence that they formed a deputation with some other respectables of the locality and approached the Superintendent of Police, A. C. E., and informed him that the accused was falsely implicated in this case. It is also in the evidence that as no action was taken by the Superintendent of Police they passed a resolution in the Union Committee, Salida Kalan, placing on record their protest against this injustice.
6. Learned counsel for the appellant contends that even assuming for the sate of arguments the prosecution version is accepted as true the case does not fall under section 161, P. P. C., and section 5(2) of the Prevention of Corruption Act. In this respect he has referred to section 161, P. P. C., and 5(2) of the Prevention of Corruption Act. It is argued that the alleged bribe cannot be termed as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to the complainant. It I submitted that, as the complainant was not involved or required by th police in any criminal case, but it cannot be said by any stretch of imaginatio that the appellant being a public servant could in the circumstances d or show any favour to him. The contention of the learned counsel is no A well founded. The offence under section 161 is not only for doing any service to any person but it also includes disservice to any person. Th gist of the offence under this section is the receipt, by a public servant of illegal gratification as a motive or reward for the abuse of his official position or function.
Sections 161, 162 and 163 refer to a motive or a4 reward for doing or forbearing to do something, showing favour or disfavour to any person, or for inducing such conduct by the exercise of his personal Influence. It is sufficient to constitute an offence under section 161, if it is proved that the bribe has been obtained or received by a public servant as a motive or reward.
7. The case of the prosecution when put in juxtaposition to the defence evidence the possibility cannot be excluded that the appellant has fallen prey to a trap laid down by the complainant. The finning of the trial Court that the defence witnesses being Members of the Union Committee have come forward to support the accused's defence who was a public official, is not very plausible in our social set up. The appellant was only a Head Constable in police hierarchy and after this raid he was no more a public servant and it does not stand to reason that any respectable will so persistently support such a social evil. Needless to add that the sentence till the rising of the Court awarded by the trial Court is indicative of they fact that the learned trial Judge was not fully satisfied about the involvement of the appellant in this case. In the light of the defence evidence the case of the prosecution becomes quite doubtful, and the accused is entitled to get that benefit of doubt.
8. In view of the discussions made above, I set aside the conviction and sentence awarded by the trial Judge. Giving the benefit of doubt to the accused I proceed to acquit him. He is on bail, his bail bond shall be discharged. The fine, if paid, shall be refunded to the appellant.
Appeal allowed.