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Criminal Appeal: No. 195 of 1978, heard on 4th October, 1983.

(On appeal against the judgment and order of the Lahore High Court, Lahore, dated 13‑5‑1978 in Criminal Appeal No. 44 of 1974).

‑‑Art. 185(3) ‑‑ Penal Code (XLV of 1860), S. 161 ‑‑. Prevention of Corruption Act (II of 1947), S. 5(2) ‑a Leave to appeal granted to consider where there ex1sted any evidence against accused to sustain his conviction under S. 161, P. P. C. read with S. 5(2), Prevention of Corruption Act, 1947.

‑‑‑‑‑‑S. 161 ‑‑ Prevention of Corruption Act (11 of 1947), S. 5(2) ‑Credit worthy evidence present on record to show implication and knowledge of accused ‑ Accused admitting that recovery of tainted money was effected from him ‑ Accused failing to discharge burden which after such recovery rested on him to establish that his role was innocent‑Accused, held, liable under S. 161, P.P.C. read with S. 5(2), Prevention of Corruption Act, 1947 in circumstances ‑ Evidence on record having been accepted against accused indicating that he had a apparently no personal gain to obtain but acted more as a loyal obedient subordinate of co‑accused in an unholy alliance for unlawful object ‑Such association though implicated accused in crime but conduct of co‑accused was graver which d1stinction should have reflected in sentence awarded‑‑Sentence of accused, therefore, reduced to one already undergone in circumstances.‑‑[Sentence].

Ch. Akhtar Ali, Advocate‑can‑Record for Appellant.

S. Abid Nawaz, Advocate‑on‑Record (absent) and Ghulam Dastgir, Advocate Supreme Court for the State.

Date of hearing : 4th October, 1983.

Leave to appeal was granted to consider whether there ex1sted any evidence against the appellant, an ex‑Foot‑constable, to sus tain his conviction under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947.

Ghulam Jilani (P.W. 2), the complainant, was Manager of a manufacturing concern. Marco Limited, situate at 321‑Ferozepur Road, Lahore. On the 9th of October, 1972 he handed over a cheque for Rs. 3,000 to his Chowkidar for encashing the same from the bank. The Chowkidar returned from the bank and reported to him that on way back to the factory some persons had forcibly deprived him of the money which he was bringing from the bank. The Manager got a report reg1stered at Police Station Model Town the same day. The investigation of that case was taken up by Muhammad Yasin Shah S.‑I., 'the co‑accued of the appellant and a convict alongwith him. The recovery of the amount was effected from the same Chowkidar. Muhammad Yasin Shah sought as illegal gratification from Ghulam Jilani a sum of Rs. 700 in cash and a pram which the company was manufacturing. Ghulam Jilani reported the matter to Shamsul Hassan Khan Laghari (P.W. 4) who recorded his statement and took steps to arrange a raid under the supervision of Jamshed Ali (P. W. 1), a Mag1strate 1st Class. On 1‑1‑1972 first Muhammad Yousaf visited the factory all by himself and demanded the money and the pram for Muhammad Yasin Shah. Ghulam Jilani asked him to bring Muhammad Yasin Shah alongwith him for taking delivery of the pram and the money. He thereupon went to the Police Station and returned soon in the Company of Muhammad Yasin Shah. They were s Bated in a room adjacent to which was sitting the raiding party, The entire conversation which took place between Ghulam Jilani and Muhammad Yasin Shah was heard by the Mag1strate and the Anti Corruption Inspector and when the payment of tainted currency notes of Rs. 200 by way of part payment was made and the necessary indication given the raid was conducted. The tainted currency notes of Rs. 200 were recovered from the possession of Muhammad Yousaf who had been asked by Muhammad Yasin Shah to pick up the same from the table. The statements of the two accused were recorded by the Mag1strate and they were sent up for trial.

The plea of the appellant before the Mag1strate as well as in the Court of the Special Judge was that he had earlier visited the factory at the instance of the co‑accused, his superior, for bringing the pram and something else and that immediately before the raid he was asked by his co‑accused to pick up the money from the table which he had picked up without l1stening or attending to the preceding conversation between them and he did not know what sort of money it was. He took up the position that the money was received by him but not as a bribe.

The trial Court considered the plea of the appellant and the circum stances in which the recovery was effected from him and held as follows:‑

"As to the co‑accused Muhammad Yusaf constable who' admittedly received the amount of Rs. 200 at the instance of Muhammad Yasin. Shah Sub‑Inspector accused, he is obviously liable under section 161, P. P. C. being his agent or confederate who accompanied him all the way long for the purpose from Police Station Model Town to the Factory of the complainant and then remained present with him all the time during the course of incriminating conversation as took place between the complainant and the accused Sub‑Inspector and as such he was obviously conscious of the fact that the money, that was being offered to the accused S. I., was in fact the bribe money which he, at the instance of the Sub‑Inspector accused had ultimately received. Section 161, P. P. C. reads that whoever, being a public servant, accepts or obtains from any person, for himself or for any other person, any gratification, whatever, other than legal remunera tion, as a motive or reward for showing a favour or disfavour to any person, is liable. In the circumstances of' the present case, Muham mad Yusaf constable accused by obtaining the bribe money at the instance of Muhammad Yasin Shah Sub‑Inspector accused had only acted as an agent for him, presumably being in privy with him in such matters, being a man of his confidence. Thus, to my mind, he as such was aware of the nature of the money as bribe money and when he received it for Muhammad Yasin Shah Sub‑Inspector accused, as such, he becomes obviously liable.

The appellant and his co‑accused were convicted under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947 and they were sentenced to undergo rigorous imprisonment for one year each and the tainted currency notes of Rs. 200 were ordered to be paid back to Ghulam Jilani, complainant.

On appeal the High Court re‑examined the case of the two convicts and maintained the‑ conviction and sentence of the appellant observing as follows :‑

"It is in the evidence of Ghulam Jilani (P.W.2) that the appellant visited the factory earlier in the, day And asked for the money and the perambulator but he was told to send the Sub‑Inspector personally. He again accompanied the Sub‑Inspector for the same purpose. The entire conversation between the complainant and the Sub‑Inspector took place in his presence and the tainted money was also offered in his presence. He picked up by him (sic) which was recovered from him. Thus there can be no manner of doubt that he was a privy to the commission of the crime."

The High Court had issued suo motu notice to the appellant and his co‑accused to show cause why the sentence should not be enhanced. The notice was discharged on the ground that the matter came up for hearing five and a half years after the commission of the offence, that the convicts had lost their jobs and had no further chance of being appointed in any government or semi‑government department. The sentence was nevertheless considered to be lenient.

Muhammad Yasin Shah, the Sub‑Inspector, has not appealed against his conviction and sentence and, therefore, his matter is not before us. The appellant's case has throughout been that he was not aware of the taint or corruption attaching to the transaction and was acting as an innocent but loyal and obedient subordinate at the command of his superior. This very plea has been considered by the two Courts and keeping in view the facts and circumstances of the case and also the state ment of the appellant himself they have concluded that he was neither ignorant nor un-ware of the nature of the transaction and, in fact, was acting in advancing the object of realization of illegal gratification from Ghulam Jilani. In his statement under section 342, Cr. P. C. the appellant denied having visited the factory on 1‑11‑1972 in the Company of Muhammad Yasin Shah and was put no question with regard to his first earlier visit the same day all by himself. He, however, admitted the correctness of his statement Exh. P. W. 1/H made before the Mag1strate on 1‑11‑1972 wherein he admitted having gone at the bidding of his superior to the factory for bringing the cycle and for one other work. He had been sent back from there and asked to come back with his co‑accused which he did. He pleaded ignorance about the conversation that preceded the handing over of Rs. 200 by Ghulam Jilani to Muhammad Yasin Shah. He admitted having picked up the currency notes at the bidding of Muhammad Yasin Shah.

From the statement of the Mag1strate who conducted the raid and the Anti‑Corruption Inspector who accompanied him at the time of raid it appears that there was a detailed conversation with regard to the recovery of amount from the Chowkidar, the chances of its being handed over on Superdari to the complainant and about the part payment of illegal gratifi cation on that day. The appellant was seated in the same room in front of his co‑accused. He could not, therefore, remain unaware of the conversation or the subject‑matter or the taint attaching to the whole transaction. His silence about the other work for which he had been sent the same day is in fact indicative of the fact that he was not unaware of the clandestine nature of his visit. There was on the record creditworthy evidence to show the implication and knowledge of the appellant and as the recovery was admittedly effected from him he was liable under section d 161, P. P. C. read with 5(2) of the Prevention of Corruption Act. He has failed to discharge the burden which after such recovery rested on him to establish that his role was innocent. The two. Courts have committed no legal error in drawing the inference with regard to the guilt of the appellant and hence the conviction is proper.

From the same evidence which has come on record and has been accepted against the appellant, it appears that he had apparently no personal gain to obtain, no axe to grind and was acting more as a loyal and obedient subordinate in an unholy alliance for an unlawful object. Such an associ ation did implicate him in the crime but for the purposes of sentence the conduct of the more responsible officer Muhammad Yasin Shah was graver and that distinction should have been reflected in the sentence awarded. In the circumstances, we consider that the ends of justice shall be adequately served if the sentence of the appellant is reduced to one already undergone with a fine of Rs. 1,000 or in default six months' R. I. The appeal is otherwise dismissed except for this modification.

M. Z. M. Appeal dismissed.

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