MUHAMMAD IQBAL Versus THE STATE Qazi M. Salim , Sarfraz Hussain

Muhammad Iqbal son of Nazar Muhammad, Rajput, resident of Jamia Street Bilal Ganj, Lahore, has filed this appeal against the order of Special Judge, Central, Lahore, dated 30th June, 1983, whereby he has been convicted under section 5(2) of Prevention of Corruption Act, 1947 and sentenced to undergo R.I. for one year and a fine of Rs.2,000 or in default to further undergo two months' R. I.

2. The appellant was employed as Lower Division Clerk in WAPDA and was posted in the WAPDA Office, Wahdat Colony 'Sub‑Division, Lahore, in the year 1981. In those days Hassan Din (P.W.6) constructed a new house for which he wanted an electricity connection. He went to the aforesaid WAPDA office for making an application for the purpose where appellant happened to meet him. He asked him to pay him Rs.6/7 hundred if he really wanted an electricity connection otherwise his visits to the office would be just a futile exercise. The appellant repeatedly demanded money from him and at last asked him to give him Rs.300 in advance and the balance of Rs.300 may be paid after the electricity connection had been installed. Hassan Din promised to pay him Rs.300 next day (19‑8‑1981) at about 5 p.m. at his house and then reported to Syed Iqbal Hussain Shah, Inspector Police (P.W.5) who after necessary formalities got Sardar Muhammad, Magistrate 1st Class (P.W.4) deputed by A.D.C.(G), Lahore, for supervising the raid.

3. The raiding Magistrate (P.W.4) recorded Hasan Din's statement Exh.P.W.4/2 and then gave him three currency notes of the denomination of Rs.100 each (Exh.P.W.4/3 to Exh.P.W.4/5) after noting down their numbers and directed him to hand over the same to the appellant. The members of the raiding party sat in a Baithak of the house of the complainant' at 3‑30 p.m. keeping its window open, while Hasan Din P.W. stood outside the house just near the window from where he was visible to the members of the raiding party and also his talk could be overheard. At about 6 p.m. the appellant came there and contacted Hasan Din complainant. They talked about the installation of meter. The complainant told the appellant that out of Rs.600 he was paying him Rs.300 at the moment and then handed over the tainted currency notes to him. At this the raiding party came out of the Baithak and caught hold of the appellant who threw currency notes on the ground which were picked up and on comparison they were found to be the same currency notes, the numbers of which had been noted by the Magistrate before these were handed over to the complainant and were, therefore, seized under memo. EXh.P.W.l/1. The appellant in his statement Exh.P.W.4/9 recorded by the Magistrate at the time of raid had stated that complainant's application for electricity connection was received by him four days earlier which he had entered in the register. He further stated that the complainant had requested him that he could not come to the office every day, therefore, he (appellant) should get everything done. He admitted that he had received Rs.300 (tainted currency notes) from the complainant. He had promised to get the meter installed by 10‑9‑1981 and the complainant had promised to pay him the balance of Rs.300 by 28‑8‑1981 but explained that the price of the meter and security charges were to be disbursed from this amount. The appellant was, however, arrested and then challaned.

4. At the trial the appellant was charged under section 161, P.P.C. and section 5(2) of Prevention of Corruption Act, 1947, to which he pleaded not guilty. The prosecution examined seven witnesses in all to prove its case. Of them the material witnesses are Hasan Din complainant (P.W.6), Sardar Muhammad raiding Magistrate (P.W.4), Syed lqbal Hussain Shah Inspector (since retired as D.S.P.) P.W.5. The evidence of the remaining witnesses is of formal nature.

5. The appellant in his statement under section 342, Cr.P.C. reiterated his statement made before the raiding Magistrate on the day of raid i.e. that the amount was not received by him as bribe from the complainant, rather he got it for purchasing the meter which was to be installed in complainant's house and also the security charges and other expenses were to be met out of it. He further explained that Hasan Din P.W. had approached him alongwith Muhammad Rafiq, Reader of Special Judge, Central, and had asked him to get them electricity connection without other charges whatsoever and that he had gone to the house of the complainant to get money .for purchasing the meter. Abdul Karim, Line Superintendent (D.W.1) and Liaqat Ali Lineman (D.W.2) have supported the plea of appellant.

6. Learned trial Court on detailed analysis of the evidence did not convict the appellant under section 161, P.P.C. but held him guilty for criminal misconduct under section 5(2) of Prevention of Corruption Act and sentenced him as stated above.

7. I have heard learned counsel for the appellant as well as for the State and also perused the record.

8. In view of the fact that the appellant has admitted the receipt of tainted currency notes of Rs.300 from the complainant, the only question which needs determination is whether this amount was received by the appellant as gratification other than legal remuneration for granting the electricity connection or that it was paid to him for purchasing meter and for meeting other expenses to be incurred for its installation as stated by the appellant? We have the complainant's evidence on this point. In his cross‑examination he denied that the appellant had told him that he would purchase meter from the Bazar alongwith the main wires for installing electricity connection or that he had paid money to him for this purpose. The witness asserted that he had not stated in his statement Exh.P.W.4/2 recorded by the, raiding Magistrate that the appellant had told him that out of that] money he would get the meter, deposit security amount and would do all other things, but on confrontation it was found so recorded in Exh . P.W. 4/2. It is noteworthy that not only this very plea was raised by the appellant at the time of the raid but also the raiding Magistrate' admitted before the trial Court that such talk did take place between the appellant and the complainant within his hearing. The relevant portion of his statement reads:‑

"They were visible to us from window. Their talk could be heard. The accused and complainant talked about the installation of the meter. The complainant told the accused that out of Rs.600 he would pay Rs.300 now. The currency notes were given by the complainant to the accused. The accused told that he would have to purchase the meter also . They fixed some other date for the payment of the remaining amount."

The word 'he' occurring in the above underlined sentence appears to me as having reference to the 'appellant' and not to the complainant'. In the vernacular record the above‑mentioned sentence has been translated in these words:

From these .circumstances it is clear that whatever the money the appellant had demanded from the complainant certainly included the price of the 'meter', security fee and other expenses to be incurred for installing and energizing the electricity connection. It is also clear that the complainant had to pay more money on the subsequent date but there is no reliable evidence as to what was the cost of meter, what was the amount of security fee and how much for other expenses was actually required for obtaining test report regarding fitness of wiring etc. In any case the expenses were more than Rs.300, therefore, it cannot be said that the amount demanded or received by the appellant from the complainant exceeded the 'actual expenses. In the circumstances, I find that the prosecution has failed to prove the charge against the appellant beyond reasonable doubt. To the contrary, the defence plea raised immediately after the appellant had been raided, appears to be more probable and reasonably true as compared to the prosecution version, hence the appellant is entitled to its full benefit. Consequently, I accept this appeal, set aside his conviction and sentence and acquit him. He is on bail. He is discharged from his bail bonds.

S.A./M‑822/L Acquittal ordered.