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Criminal Appeal No. 418 of 1982, decided on 16th February, 1983.

--S. 161-Prevention of Corruption Act (II of 1947), S. 5 (2) Bribery-Trap case-Assessment of value of evidence-Each particular link furnished by evidence is to be appreciated with keen mind in raid cases.-[Evidence].

------S. 161-Prevention of Corruption Act (II of 1947), S. 5(2)-Bribery ---Trape case-Appreciation of evidence-Magistrate supervising raid not only marking money and recovering same at signal but making his statement as himself witnessing passing of tainted money and hearing conversation-Statement of Magistrate as witnesses, held, has to be believed in absence of strong material to contrary-Conviction upheld but sentence reduced to already served.

Pervaiz I. Mir for Appellant.

Nemo for the State.

Date of bearing : 16th February, 1983.

The appellant was tried by the Special Judge (Central) Rawalpindi for the offence under section 161, P. P. C. read with section 5 (2) 47 of the Prevention of Corruption Act for having accepted Rs. 200 as bribe from Munawar Hussain, the complainant on 19th April, 1980 for repair ing the tube-well of the complainant.

2. Briefly the facts of the case are that the complainant contacted the appellant and Maskin Ali. Assistant Lineman WAPAD for repairing his tube-well. The appellant as a lineman was not willing to conduct the required repair unless his palm was greased and the same demand was made by Maskin Ali. The complainant did not want to give the bribe, so reported the matter to Muhammad Tufail, Circle Officer Anti ---Corruption, Gujrat who recorded the same and after that the Circle Officer made an application to the Deputy Commissioner, Gujrat who deputed Mr. Shamas-ud-Din Magistrate to organise and supervise a raid. The complainant appeared before the Magistrate who recorded his statement which was signed by him. Four currency notes with the denomination of Rs. 50 each were provided by the complainant the serial numbers of which were noted down and the currency notes were returned to the complainant. The raiding party which was organised consisted of the complainant, Muhammad Tufail, Circle Officer, A.C.E., Gujrat and Muhammad Inayat, Constable. The raiding party arrived at the Dera of the complainant in village Lasoori Kalan, Tehsil Phalia District Gujrat. The complainant was sent to invite the appellant who was by that time repairing the electricity pole nearby. The complainant was told that the appellant would be reaching him after finishing up with the repair. After sometime the appellant accompanied by Maskeen Ali, Assistant Lineman, Allah Ditta, Lineman and Zakir Hussain Operator of the Tube-well came to the Dera where the Magistrate was lying on a cot with his face covered with a piece of cloth. The currency notes were passed by the complainant to the appellant. While passing that amount it was mentioned by the complainant that, that was the amount which the appellant had demanded. The appellant pocketed the amount, on which the Magistrate got up from the cot and after disclosing his identity recovered the tainted money from the appellant. All the formalities as to the memos etc. were observed by the Magistrate who also recorded the statement of the appellant to the effect that he had neither demanded nor received bribery which statement the appellant refused to sign. Supple mentary statement of the complainant was also recorded whereafter the statements of Zakir Hussain, Tube-well Operator and Maskeen Ali, Assistant Lineman and Allah Ditta, Lineman were recorded. A report was also drawn by the learned Magistrate after the formalities were covered. The appellant and Maskeen Ali, Assistant Lineman both were arrested. The challan was confined only to the appellant who put at trial on that.

The prosecution substantiated its case by producing Shamas-ud-Din, Magistrate P.W. 1, Munawar Hussain, complainant P.W. 2, Muhammad Tufail, Circle Officer P.W. 3. Muhammad Yaqoob Rashid, Sub-Inspector P. W. 4 and Muhammad Fazalia S. I. F.I.A. P.W. 5.

3. The defence of the appellant during the trial was that he had been falsely implicated due to the enmity existing between the com plainant and him and the cause of that he wanted the return of a rod of the tube-well which the complainant did not want to return and there ensued a quarrel on which they were separated by two persons namely Muhammad Inayat and Muhammad Sadiq. It was also stated by him that during the quarrel the complainant tore out his shirt about which Rs. 200 were assessed as compensation and that was the compensatory amount which was passed by the complainant and he had accepted. Muhammad Inayat and Muhammad Sadiq appearing as D. W. 1 and D. W. 2 stated that there did take place a quarrel between the appellant and the complainant and they acted in separating them. It was admitted by Muhammad Sadiq D. W. in cross-examination that he was not present when there ensued a quarrel between the parties.

4. The learned Special Judge relied upon the evidence produced by the prosecution and specially the Magistrate who had not only conducted the raid but had been a witness as to the passing of the money and the conversation. As to the complainant he observed that there existed no enmity so as to prompt the complainant to go to the extent of involving the appellant falsely. He regarded the evidence of the witnesses inter se as corroborating each other. He also treated the recovery of the tainted money as a corroboratory fact. The learned Special Judge while discussing the defence of the appellant observed that Muhammad Inayat D.W. was neither a resident of the village of the complainant nor that of the accused so he could not be accepted to have witnessed the quarrel. As to D.W. 2 Muhammad Sadiq he observed that he had admitted that the quarrel between the complainant and the appellant had not taken place in his presence, so he did not attach any weight to the account of the witnesses and after disbelieving the statement of the appellant and rejecting the defence of the appellant as an after thought since the appel lant had not come out with the same at the time the Magistrate recorded his statement he convicted the appellant under section 161, P. P. C. read with section 5 (2) 47 of the Prevention of Corruption Act and sentenced the appellant to two years R.I. on each count with a fine of Rs. 2,000 on one of the two counts in default of which the appellant was to undergo six months' R.I. Both the sentences were ordered to run as concurrently.

5. The learned counsel for the appellant has with ability submitted as to the impact of each link of evidence and has also taken me through various reported decisions of this Court as to the assessment of the value of evidence in trap or raid cases but has conceded to this aspect that after the learned Magistrate has been believed himself as a witness to the passing of bribe there is nothing on the record so as to provide any material for disbelieving him. In raid cases no doubt each particular link furnished by the evidence is to be appreciated with a keen mind. Had the case been that of organising and conducting the raid and the role of the Magistrate been confined only to the marking of the money and recovery of the same at the signal of the complainant then the other aspects of the case might have been considered thoroughly but since in this case the Magistrate had made his statement as himself witnessing the passing of tainted money and hearing the conversation, therefore, it is difficult to disbelieve him in the absence of any strong material to the contrary.

6. The conviction of the appellant is upheld. As to sentence then learned counsel for the appellant has submitted that he has already undergone a period of about ten months towards the main sentence. The sentence of the appellant is reduced to a period already undergone by him under both the counts which will meet in the circumstances of the case the ends of justice. The sentence of fine is set aside since the learned counsel has submitted that the appellant is a very poor man. Resultantly the appellant is to be released forthwith if not required in any other case.

Appeal dismissed.

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