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Criminal Appeal No. 495 of 1967, decided on 25th April 1975.

‑----S. 161 and Prevention of Corruption Act (II of 1947) S. 5(2)[‑Trap case]‑Accused's plea that money found on him was paid back for non‑procurement of wheat desired to be purchased by him through informant on payment previously made by him, (accused) Raiding Magistrate recording in his report of accused having asked informant to supply him good wheat whereupon informant asked accused to purchase it himself after receiving amount---‑Informant admitting to have received amount from accused for purchase wheat----Case, held, not free doubt ---Accused acquitted.

‑‑‑ S. 342‑Trial Court convicting accused on statement of accused before Raiding Magistrate‑‑Such statement not put to accused under S. 342‑Mandatory provisions of section, held, violated ----Statement ruled out of consideration.

M. A. Bajwa for Appellant.

Sh. Naseer‑ud‑Din Ahmad for A.‑G. (Punjab) for the State.

Date of hearing : 25th April 1975.

This appeal is directed against the judgment of learned Special Judge, Anti‑Corruption, Multan, dated 14th July, 1967, whereby Gulzar Ahmad appellant was convicted under section 161, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, 1947, and sentenced to undergo rigorous imprisonment for six months and a fine of Rs. 200.

2. Gulzar Ahmad appellant was posted as Secretary, Union Council No. 139 of village Phullan Toli, District Sahiwal, in the month of May, 1966. Abdur Razzaq complainant (P.W.2) was given the contract for the cons truction of a school building in village Phullan Toli. The contract was for Rs. 7,500. The complainant partly constructed the building. He received a payment of Rs. 6,000. He wanted to receive the balance of

Rs. 1,500. The appellant demanded Rs. 200 as illegal gratification for arranging the payment of balance of Rs. 1,500. Ultimately the bribe money was settled as Rs. 125. The complainant informed Jan Muhammad, Circle Officer, A. C. E. Sahiwal (P.W.4) on 7th May, 1966, who arranged for the raid. Iqbal Ahmad Tehsildar (P.W.6) was deputed to supervise the raid. Abdur Razzaq complainant produced twelve notes P. 1 to P. 12 of the denomination of Rs. 10 each and one note P. 13 of the denomination of Rs. 5 before the Magistrate who returned the same to the complainant after noting down their serial numbers. The members of the raiding party reached the house of Manzoor Ahmad, a relative of Abdur Razzaq complainant, on 7th May, 1966, at 7‑00 p. m. The complainant produced his father Fazal Din before the Magistrate. It was settled that Fazal Din would bring the appellant at the door of the house of Manzoor Ahmad and, thereafter, Fazal Din would call out his son Abdur Razzaq complainant who would pass on the illegal gratification to the appellant. Fazal Din (P. W. 3) brought the appellant in the lane outside the house of Manzoor Ahmad and called out the complainant. The complainant talked to the appellant. The talk which took place between the complainant and the appellant was audible to the other members of the raiding party. The appellant told Fazal Din that some good wheat should be purchased for him but Fazal Din replied that the appellant should get the money and purchase the wheat himself. When the appellant was counting the notes, the members of the raiding party reached the spot and recovered the tainted currency note s from left hand of the appellant. The Tehsildar recorded the raid report and handed over the documents to the Circle Officer for further action. The appellant was challaned after investigation.

3. The prosecution examined six witnesses in order to prove the case. Abdur Razzaq (P.W.2) and Fazal Din (P.W.3) supported the prosecution case as narrated above. Iqbal Ahmad, Tehsildar (P. W. 6) and Jan Muhammad, Circle Officer (P. W. 4) corroborated the statements of Abdur Razzaq and his father Fazal Din. They further stated that the tainted currency notes were recovered from the appellant.

4. The appellant denied the correctness of the prosecution allegations. He gave the following explanation when asked as to why the case had been made out against him :‑‑

I originally belong to the district of Lyallpur. I was posted at Phullan Toli on 4‑4‑1966. As I did not know many persons at this place, I asked Fazal Din P. W. to purchase wheat for me. I gave him Rs. 128 to get wheat. He did not supply me wheat despite repeated requests. Two or three days before the raid 1 asked him either to give me wheat or return my money. Fazal Dii replied that he had no money to give me. He, however, asked me to arrange the payment of Rs. 1,500 in question to him and he promised to give me Rs. 128 out of it. I told him that I was not authorized to issue the cheque as the same could be issued by the Chairman only. I also told him that as he had already received rupees six thousand, he could not be given any more money. Fazal Din came to me on 6‑5‑1966 and said to me that on 7-5-1966, he would either give the wheat to me or return my money. On 7‑5‑66, he came to me and asked me to take delivery of the wheat from the house of Manzoor. At the house of Manzoor, Fazal Din gave me money saying that the wheat could not be arranged by him. As I was counting this money, the Magistrate raided me.

The appellant did ‑not lead any evidence in defence.

5. The appellant admitted to have received Rs. 125 from Fazal Din. According him, he had given Rs. 128 to Fazal Din P. W. for the Purchase of wheat which was not supplied to him despite repeated requests. Fazal Din ultimately told the appellant that he would either give him wheat on 7th May, 1966, or return the money. The appellant further explained that Fazal Din had returned the money to him saying that he was unable to purchase wheat. The plea of the appellant gets support from the prosecution evidence. The Magistrate clearly recorded in his raid report that within his hearing the appellant told Fazal Din to supply him good wheat whereupon the latter told that he (appellant) could purchase the wheat himself after receiving the amount. It was not mentioned in the raid report that the appellant told Fazal Din that instead of Rs. 128, he should be supplied with wheat. It was not the case of the prosecution that the appellant had demanded illegal gratification in the form of wheat. It was alleged by the prosecution that the appellant had demanded Rs. 150 as illegal gratification and the matter was settled at Rs. 125 The complainant admitted in his cross‑examination that four days before the raid, the appellant gave him Rs. 128 for the purchase of wheat. Fazal Din also admitted in cross‑examination that before the raid, the appellant give them Rs. 128 for the purchase of wheat. Both the father and son had come out with explanation that the amount of Rs. 128 had been returned to the appellant. There is a material contradiction in the statements of Abdur Razzaq and Fazal Din regarding the period of receipt and return of amount. Abdul Razzaq first stated in Court that four days before the raid, the appellant gave him Rs. 128 for the purchase of wheat but again said that he had given Rs. 128 about six days J before the raid. He further stated that he returned the amount to the appellant about three or four days before the raid. Fazal Din contradicted his son by stating that the amount had been given by the appellant ten days before the raid and returned to the appellant four days before the raid. It is not understood as to how the appellant could again ask the complainant and his father to purchase wheat for him when the amount had already been returned to him by the complainant and his father on the ground that they were unable to purchase wheat. Abdur Razzaq and his father Fazal Din stated before the trial Court that the appellant did not talk to them about the wheat at the time of raid. Their statements were contradicted by Iqbal Ahmad, Tehsildar, and Jan Muhammad, Circle Officer. The complainant and his father wanted to conceal this fact that the appellant had told them immedia tely before the raid was conducted that they should supply him wheat. These facts cast doubt on the prosecution evidence. The learned Special Judge omitted to put to the appellant in his statement recorded under section 342, Cr. P. C. if he had made statement Exh. P. G. before Tehsildar soon after the raid. The statement of the appellant Exh. P. G. was taken into consideration by the learned Special Judge. The appellant was not afforded any opportunity of giving any explanation regarding his statement Exh. P. G. The mandatory provisions of section 342, Cr. P. C. had been violated. Under the law, statement Exh. P. G. could not be considered as a piece of evidence. The learned Special Judge was influenced to a great extent by the said statement. After having considered all the prosecution evidence carefully, I come to the conclusion that the case was not free from doubt. The appeal is accepted and the appellant is acquitted of the offences mentioned above. He is on bail and is discharged of his bail bonds.

Appeal accepted.

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