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Criminal Appeal No. 19 of 1957, decided on 21st March 1957.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 15th May 1956, in Criminal Appeal No. 502 of 1955).

S. 5(2)‑Appeal to Supreme Court against conviction‑Decision based on apprecia tion of evidence and not vitiated in any manner‑No interference by Supreme Court‑Penal Code (XLV of 1860), S. 161.

Nasim Hussan Shah, Advocate Supreme Court instructed by M. Siddiq, Attorney acting on behalf of Virasat Hussain Naqvi, Attorney for Appellant.

S. A. Mahmud, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.

Date of hearing : 21st March 1957.

This is an appeal ,by our special leave against the judgment and order of the High Court of West Pakistan, Lahore, dated the 15th May 1956, reversing, on appeal by the Government, the order of acquittal of the Special Judge, dated the 21st March 1955, and convicting the appellant under section 161, Pakistan Penal Code, read with section 5 (2) of the Prevention of Corruption Act, 1947, and sentencing him to one year's rigorous imprisonment and a fine of Rs. 100, or in default of three months' further rigorous imprisonment.

The appellant was appointed an Enquiry Officer of Naulakha Ward from the 27th of April 1953. Serai Sultan was included within it limits. One Muhammad Rashid was running a hotel in Serai Sultan and was issued a ration card. Muhammad Amin complainant had acquired it on the 19th of April 1953 and on the 23rd of April 1953, he applied for the transfer of the ration card in his own name as the previous hotel‑keeper, Muhammad Rashid, had gone away. The application was registered in the Food Controller's office on 27th of April 1953. The appellant made a report on the application on the 4th of May 1953 to the effect that the applicant could not draw ration on a card in the name of another person and that he should bring Muhammad Rashid to the office to have his statement recorded before the change could be made. But as this had not been done till the 4th of May 1953, the application was consigned to the record room. It appears that both the parties appeared subsequently as directed and the permit in the name of Muhammad Rashid was changed to that of Muhammad Amin on 7th of May 1953. It is alleged that Muhammad Amin had to pay Rs. 10 before he could get the ration card issued in his own name. This, however, is not the subject‑matter of the charge. It is further alleged that on the Ist of August 1953, Muhammad Amin made another application requesting for an increase in the quota of at (wheat flour) issued to the hotel. The prosecution case is that the appellant demanded Rs. 50 as bribe before recommending this application. Muhammad Amin agreed to pay Rs. 40 on the condition that, besides the increase asked for, the appellant should also recommend the grant of some fine ata as well. Muhammad Amin then met a police Head Constable and narrated to him the illegal gratification demanded by the appellant. He then went to the Anti‑Corruption Department and was later produced before a Magistrate. His statement was recorded and marked currency notes of the value of Rs. 40 were handed over to Muhammad Amin for passing them on to the appellant. This was on the 5th of August 1953. The appellant was. not found in the office and on the succeeding day, i.e., the 6th of August, another raid was made by Mr. Abdur Rauf, Magistrate in the company of some police officials. Muhammad Amin passed on Rs. 40 to the appellant and, on the agreed signal being given, the Magistrate with his companions appeared on the scene and disclosing his identity called upon the accused to, produce Rs. 40 which he had just received by way of a bribe from Muhammad Amin. The money was found in the pocket of the appellant and on comparing the numbers it was found that these were the same which were marked by the Magistrate. A regular case was registered and after investigation the accused was sent up for trial.

There is no doubt that the currency notes of the value of Rs. 40 were recovered from the possession of the appellant. His. plea, however, was that the amount was not paid by way of bribe. This was stated on the 24th of August 1953. to his subsequent statement on the 30th of September 1953, it was, added that Muhammad Amin was previously known to him and he (i.e. the appellant) would give details of his intimacy with' him which, however, was never done.

The sole question in this case is whether the sum of Rs. 40 admittedly received by the appellant was taken by him for the purchase of two lungees from Khushab as stated by him or as illegal gratification for the purpose of showing some favour to Muhammad Amin

Section 4 of the Prevention of Corruption Act, 1947, is as follows

Where in any trial of an offence punishable under section 161 . . . . . . . . of the . . Penal Code, it is proved that an accused person has accepted or obtained . . . . any gratifica tion (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, . . . . that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161 . . . . : '

Since the appellant was a public servant and had received Rs. 40 from Muhammad Amin, it was for him to show that the money was received for some innocent purpose.

Reference to the "lungees" was not at all made by the appellant in his first statement made on the 24th of August 1953. All that was said was that he had not received the money as a bribe and the case was said to have been started on. account of enmity with Muhammad Amin against whom he had made reports. It is significant that in the lengthy cross‑examination of Muhammad Amin (P. W. 1) on 24th of August 1953, not a single question was put suggesting that the amount was given by the complainant for buying lungees from Khushab. In his own statement on that day. as mentioned earlier, no reference to the lungees was made. The case was then adjourned to the 3rd of September 1953. Muhammad Amin was re‑called for further cross‑examination. It was then that a suggestion was made that the money was given for the lungees, which was stoutly repudiated by the witness. It might be added here that at the time of the raid on the 6th of August 1953 when the Magistrate called upon the appellant to produce Rs. 40 "which he had taken as bribe from Muhammad Amin" the appellant did not there and then say that the money was taken for some other purpose, but stood still for a minute or two. The Magistrate, Sheikh Abdur Rauf, was examined as a witness on 30th of September 1953 and he denied that the accused had at the time of the recovery of the money ever stated that the lungees were intended to be purchased for the money paid to him by Muhammad Amin. Under these circumstances, the story of lungees seems to have been invented at a very late stage. Moreover, it is difficult to believe that the appellant should have agreed to do any service to a person whom he considered to be his enemy and against whom had already made adverse reports.

Four witnesses were examined in defence. Siraj Din (D. W. 1), who is a contractor at the cycle stand near the Ration Office, deposed that Muhammad Amin was pressing the accused to receive Rs. 40 for bringing lungees from Khushab. The accused was then accompanied by Fateh Muhammad. Both of them followed by Muhammad Amin went away and the witness did not know what happened afterwards.

The second witness is Nazir Hussain. He is residing in the upper story of the Rationing office where the accused was employed. He stated that he was present at the time when the raid was made and the appellant informed the Magistrate immediately that the money was not accepted as illegal gratification but for lungees. His statement is directly contradicted by the evidence of the Magistrate and in particular his note prepared at the time of the raid.

To the same effect was the evidence of A. K. Moosa (D. W. 3) and the same remark applies to his testimony.

The fourth witness for the appellant was Fateh Muhammad a clerk in the Rationing Office. He stated that at about 9 a.m. on the morning of 6th of August 1953, in the company of the accused, he came out of the office. They were followed by Muhammad Amin who was already known to him. Muhammad Amin requested the witness to persuade the appellant to bring lungees for him from Khushab and he offered Rs. 40. The appellant hesitated on the ground that if he purchased the lungees, Muhammad Amin might not approve of them and might refuse. On the assurance given by the witness that if that happened, he himself would take the lungees, the appellant agreed and accepted the money. In cross‑examination, it was elicited that he had mentioned this fact to Capt. Khadim Hussain, Assistant Ward Rationing Officer, who was examined as P. W. 6. The defence evidence was produced on 13th of October 1953 and Khadim Hussain had been examined on the 24th of August 1953. Not a single question was put to him to show that Fateh Muhammad had ever communicated to him the story which he later gave in Court. According to the Magistrate P. W. 10, after the other person had parted company with the accused, Muhammad Amin spoke to the appellant alone.

The learned Judges of the High Court have rightly dis believed the evidence produced in defence and have accepted the testimony of the Magistrate. The Special Judge had given the benefit of the doubt to the accused without taking into full consideration the statement of the Magistrate made at the trial, corroborated as it was by his note prepared at the time of the raid on the 6th of August 1953.

The decision in this case is based upon appreciation of evidence and we could not discover any reason for thinking that it was in any way vitiated or that some circumstance favouring the appellant was not taken into consideration.

There is no question of principle of law involved and we see no ground to interfere. This appeal is, consequently, dismissed.

Appeal dismissed.

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