TAHIRA KHATOON Versus MUHAMMAD DIN

Appellant Kifayat Ullah was tried by the learned Special Judge Central, Rawalpindi on a charge under section 161, P.P.C. read with section 5 of the Prevention of Corruption Act (II of 1947). Vide judgment, dated 27-10-1992, the said learned Judge found the appellant guilty of the aforesaid offence, convicted him under section 161, P.P.C. read with section 5 of the Prevention of Corruption Act (II of 1947) and sentenced him to undergo R.I. for two years with a fine of Rs.3,000 or in default to suffer further S.I. for six months. The appellant was, however, awarded the benefit of section 382-B of the Cr.P.C.

2. Aggrieved by the aforesaid conviction, the appellant has preferred the present appeal which is being disposed of through this judgment.

3. The prosecution story in brief as disclosed by the F.I.R. Exh.P.J. lodged by Muhammad Daud P.W.4 with Raja Meharban Hussain, Inspector/Circle Officer P.W.3 of Police; Station Anti-Corruption, Establishment, Attock, on 19-1-1988 at 2-30 p.m. is, that the complainant after having constructed his house at Shahbaz Garh Road, Hazro, had applied for electricity connection to the WAPDA Office at Hazro on 2-4-1987. Thereafter, he visited the said office in connection with the installation of his electricity meter and met Kifayat Ullah, Line Superintendent, the accused/appellant, who demanded Rs.1,200 as bribe for the said purpose but as the complainant did not want to give bribe, he informed the aforesaid Inspector/Circle Officer, A.C.E., Attock.

4. After having recorded the abovesaid F.I.R. Exh.P.J., Raja Meharban Hussain, Inspector/C.O., made an application Exh.PA. to the A.D.C. for deputing a Magistrate to supervise the raid, whereupon Mr. Shahid Bashir Virk, M.I.C., P.W.2, was deputed for the purpose, who, after having recorded the statement Exh.P.B. of the complainant constituted the raiding party, consisting of Meharban Hussain, Inspector/C.O. P.W.3, Abdul Ghaffar Constable P.W.7, Gul Bahar Shah (not produced), Muhammad Daud, complainant P.W.4 and Manzoor Elahi P.W.5. The Magistrate noted down the number of the currency notes to be passed on to the accused/appellant and gave the same to the complainant. The raiding party went towards the house of the appellant which was situated in the lane opposite to Police Station Hazro. On receipt of signal from the complainant, the raiding party entered the Baithak of the appellant who was sitting on a cot with some files lying around him. After introducing himself and the Magistrate, the above-said Inspector/Circle Officer wanted to conduct the personal search of the appellant but the appellant threw the currency notes held by him in his hand on the floor; the Magistrate picked up the same which were 12 in number and after having compared the numbers of those currency notes in the light of the lantern found them of the same numbers which he had already recorded with him. The Magistrate took the said currency notes into possession vide memo. Exh.P.C., attested by Abdul Ghaffar P.W.7, Muhammad Daud P.W.4, Meharban Hussain, Inspector P.W.3 and the Magistrate himself P.W.2. The Magistrate also took into possession 14 files Exhs.P.13 to P.26 and an amount of Rs.3,738 from the personal search of the accused vide memo. Exh.P.D., attested by the same witnesses. Then, after recording the statements of the P.Ws., and preparing his report, he handed over all the papers pertaining to raid proceedings, alongwith the accused to Meharban Hussain, Inspector who after completing preliminary investigation sent the file to the F.IA. as the accused was an employee of the Central Government. After due investigation the accused was challaned to Court to face his trial.

5. To prove its case at the trial, the prosecution produced seven witnesses in all. Muhammad Daud appeared as P.W.4 he while reiterating the contents of the F.I.R. stated that initially the accused/appellant demanded Rs.3,000 and the bargain was settled at Rs.1,200. He stated about the handing over of currency notes of Rs.1,200 as illegal gratification and its subsequent recovery from the hand of the appellant. He, however, admitted the presence of only one other person but stated that he did not know if he was Meharban Khan, D.W. He also admitted that at the time of passing over the tainted money, there was no light in the Baithak because of load shedding.

6. Mr. Shahid Bashir Virk appeared as P.W.2 and after having given the details of the raid admitted in his cross-examination that the tainted notes were picked up by him from the floor of the Baithak as the said notes were thrown by the appellant in his view. He also admitted as correct that while passing over, the tainted money to the accused, he did not hear the conversation between the complainant and the appellant. He also stated in his cross examination that there was light of lantern at that time as the electricity light was off.

7. Raja Meharban Hussain, Inspector/C.O. appeared as P.W.3 and gave the details of the proceedings of the raid conducted on the appellant and stated about the recovery of the tainted currency notes which were thrown by the appellant towards the Magistrate who picked up the same from the ground. He has also admitted that neither he had heard the conversation between the complainant arid the accused nor had seen the passing of tainted money from the complainant to the appellant.

8. Nasir Mahmood, L.D.C., WAPDA, appealed as P.W.1 and stated that he had received the application Exh.PA. for service connection of the complainant, Muhammad Daud, on 2-4-1987 and the same was handed over to the Investigating Officer during the investigation of this case. In his cross examination he admitted that he had not given the application to the Line Superintendent for estimate till 1.9-1-1988.

9. Manzoor Elahi, P.W.5 corroborated the, complainant Muhammad Daud by making a statement that the appellant had demanded Rs.3,000 as illegal gratification but the said amount was reduced to Rs.1,200. He also joined the raid proceedings during which course currency notes P.1 to P.12were recovered from the accused person. He has however admitted the presence of Mubaraz Khan, Lineman at the time of raid in the Baithak of appellant.

10. In his statement under section 342, Cr.P.C., the accused/appellant denied the charge against him. He also made his statement under section 340(2), Cr.P.C. in proof of the allegations against him and also produced four D.Ws. in his defence. The appellant stated that the raid was manoeuvred by one Abdul Rasool from whom he had taken the charge as Line Superintendent. The said Abdul Rasool was inimical towards him, as the appellant was Divisional Secretary of Pakistan WAPDA, Labour Union while the said Abdul Rasool was Sub-Divisional Secretary of Pakistan Hydro-Electric Central Labour Union, who has written letters to various heads of the department, making complaints against him. He was a signatory to a resolution of resentment (Exh.D.A) passed by the Pakistan Hydro-Electric Central Labour Union, against the said Abdul Rasool, in its emergent meeting held on 20-8-1987. He further stated that at the time of raid; two persons namely Mubaraz Khan D.W.1 and Muhammad Shafique D.W.2 were also present at the place of occurrence. They offered their statements in his favour but the police refused to record the same. It was also stated that the tainted amount was thrown on the floor by the friend of the complainant whose name was Manzoor. He also deposed that there was pitch dark in the Baithak due to load shedding, as such there was no light inside. In his statement Exh.P.G. recorded by the Magistrate, he had taken the plea of enmity with Abdul Rasool. He also deposed that he had neither demanded the bribe nor accepted the same and in fact, it was planted upon him by the complainant who had involved him through his friend Manzoor at the instance of Abdul Rasool. When the raid was conducted, he was scrutinising the files for the grant of electric connection of other applicants and the file of the complainant was not there amongst those files. Mubaraz Khan D.W.1 also made a statement to the same effect as that of the accused/appellant. Malik Amanat Khan D.W.2 also made a similar statement. Raza Shah, an employee of the WAPDA, who is also Chairman of Hydro-Electric Labour Union, D.W.4 stated that the accused/appellant and Abdul Rasool from whom the accused had taken charge were on inimical terms. He further stated that Abdul Rasool was a dishonest person and used to side with the administration; the accused/appellant used to snub the same Abdul Rasool who was really sick of the accused. He also stated that after the raid, he was informed by Daud complainant that Abdul Rasool had hired his services for maliciously involving the accuscd/appellant by way of a planted raid. He also stated that once in a meeting Abdul Rasool had proposed the trial of the accused in a trap case but he did not agree to the proposition.

11. On the basis of the aforesaid evidence, the learned trial Court has convicted and sentenced the accused/appellant as indicated above.

12. Learned counsel for the appellant contends that the conviction of the appellant was bad in the eye of law as no member of the raiding party had heard the conversation between the appellant and the complainant nor had seen passing over of the tainted money from the complainant to the appellant. As such the statement of the complainant and Manzoor could not be relied upon being interested witnesses and having enmity with the appellant. According to him there was material discrepancies in the statements of the P.Ws. over the light in the Baithak and regarding the recovery of the tainted currency, notes. He has also referred to the statement Exh.P.G. of the appellant immediately made after the raid and in support thereof the statements of the D.Ws. produced by the appellant. He has strenuously argued that the appellant has taken the plea at the first instance immediately after the raid that the raid was conducted at the behest of one Abdul Rasool an employee of WAPDA with whom the appellant had enmity. According to the learned counsel the said statement further gets support from the evidence of Malik Amanat Khan who was an employee of the WAPDA and has corroborated the plea of the appellant on all material points. It is also contended by the learned counsel that the concerned file of the complainant was not found amongst the files P.13 to P.26 taken into possession by the raiding Magistrate. He has finally submitted that the case against the appellant has not been proved against him beyond any reasonable doubt and the appellant was entitled to acquittal.

13. On the other hand learned standing counsel for Government of Pakistan has strenuously controverted the contentions raised by the learned counsel for the appellant and has vehemently argued that the statement-of the complainant Muhammad Daud, who has no enmity whatsoever with the appellant, stands duly corroborated by independent witnesses namely, Shahid Bmhir, Magistrate 1st Class and Meharban Hussain, Inspector/C.O. According to the learned counsel the minor discrepancies here and there will not affect adversely the case of the prosecution which stands proved beyond any reasonable doubt against the appellant.

14. I have considered the submissions made by the parties and have dispassionately evaluated the same. I feel persuaded by the arguments of the learned standing counsel that the statement of the complainant who has no ill will or enmity directly with the appellant, inspires confidence, its stands supported by Manzoor Elahi P.W.5 and two respectable independent witnesses namely, Mr. Shahid Bashir Virk, M.I.C. P.W.2 and Meharban Hussain, Inspector/C.O. P.W.3. By assessing the intrinsic worth of the P .Ws. individually I had reached the conclusion that the prosecution evidence is more E nearer to the truth than that of the defence. The complainant Muhammad Daud as well as Shahid Bashir Virk P.W.2 and Meharban Hussain P.W.3 were cross-examined by the learned counsel for the appellant at length but nothing favourable to the accused could be brought on record except a few discrepancies which cannot be treated as material contractions in the statements of the witnesses and will not directly affect the main part of the occurrence, i.e., the recovery of the tainted currency notes from the accused/appellant. Both Shahid Bashir Virk and Meharban Hussain have categorically stated that the accused was holding the tainted money in his hand and had thrown it towards the Magistrate who had picked up the same from the floor, while Muhammad Daud had simply stated that it was recovered from the hand of the accused/appellant. However, the fact remains that the tainted amount was thrown by him on the floor of the Baithak at that time. Therefore, these contradictions are of no consequence.

15. Though the presence of Mubaraz Khan D.W.1 is admitted by Manzoor Elahi P.W.5 but his statement if considered as a whole seems to be not worthy of credit because he has stated that it was within his sight that Manzoor P.W., a friend of the complainant, had thrown away something on the ground towards the Magistrate's feet. He has thus admitted thereby the presence of Manzoor P.W. and the recovery of the tainted currency notes from the ground of the Baithak of the accused. Moreover, he could have brought this fact to the notice of the raiding Magistrate and the Circle Officer by making a statement to this effect; if they were not agreeing to the same, he would have moved the higher authorities in that respect. The statement of Muhammad Shafiq D.W. also suffers from the said infirmities as he has also repeated the same version as given by D.W., which too is not plausible on the face of it. I have considered the statement made by D.W.4 Raza Shah who is also an employee of WAPDA, being Line Superintendent, his assertion in his statement that after the raid the complainant Muhammad Daud had informed him that his services had been hired by Abdul Rasool, the adversary of the appellant, for maliciously involving the accused by way of planted raid, is also not worth reliance. He, being an employee and literate person, would have taken the complainant to the concerned police or to higher police authorities for taking action against the complainant, but he has not bothered to do so, meaning thereby that his statement was also an afterthought and had no substance in it.

16. Now, I would discuss the implication of the fact of non-hearing of the conversation between the complainant and the accused, and not witnessing of the currency notes changing hands from the complainant to the appellant by the two independent witnesses, namely, Mr. Shahid Bashir Virk, M.I.C., and Raja Meharban Hussain, Circle Officer, suffice it to say that it was the truthful observations of the said two witnesses, which adds to the authenticity of their statement, rather to detect, because if they wanted, they could have easily replied in affirmative, but they have avoided to do the same, thus proving their veracity to a great extent; they have categorically stated that the tainted currency notes were in the hand of the accused and were thrown by him on the floor at the time of raid and were picked up by P.W. Shahid Bashir who took the same in possession vide memo. Exh.P.C. There is yet another circumstance which goes to prove the guilt of the accused/appellant, which is gleaned out from the evidence of Nasir Mahmood, L.D.C., P.W.1, who produced the relevant file of the complainant before the Investigating Officer by stating that the same was still to be sent to the accused/appellant for estimation purposes. Moreover, the recovery of fourteen files of the same nature from the accused/appellant and the cash of Rs.3,788 at the time of raid speaks volume about the conduct of the accused and his important role in the disposal of such applications.

17. The cumulative effect of the evidence produced by the prosecution is that the prosecution has proved its case beyond any reasonable doubt against the appellant who has rightly been convicted and sentenced by the learned trial Court.

In view of the above, I find no merits in this appeal, which. Ls l accordingly dismissed.

N.H.Q./K-149/L Appal dismissed.