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Criminal Appeal No. 561 of 1984. heard on 22nd December, 1984.

--S. 5(2)--Penal Code (XLV of 1860), S. 161--Illegal gratification- Complainant stating that money was received by accused as illegal gratification--Money recovered, from possession of accused by Magistrate--- Accused in his statement recorded just after raid admitting recovery of tainted money--Recovery of tainted currency notes from possession of accused giving rise to statutory presumption that same were received by him as illegal gratification--Accused in his statement under S. 342, Cr.P.C. denying recovery instead of explaining same- Accused failing to rebut statutory presumption that he had received money as illegal gratification--Magistrate and Police Officer having no enmity to falsely implicate accused--Said witnesses found to be quite independent witnesses--No material discrepancy found in statements of prosecution witnesses--Defence plea not accepted--Trial Court, held, had rightly convicted accused--Conviction maintained in circumstances.

---S. 5(2)--Penal Code (XLV of 1860), S. 161--Illegal gratification- Recovery--Mere fact that recovery memo. was not prepared on spot or that statements of complainant or accused were recorded in Office of Magistrate, held, was not sufficient to discard testimony of reliable witnesses--Recovery believed.

Nisar Ahmad Butt for Appellant.

Shabbir Lali for the State.

Date of hearing: 22nd December, 1984.

The Criminal Appeal arises from the judgment of learned Special Judge (Central) Anti-Corruption, Rawalpindi whereby he on 3-11-1984 convicted Muhammad Shafi appellant under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to two years' R.I. on each count and also a fine of Rs.1,000 on each count, in default thereof three months' R.I. on each count.

2. The appellant was a Bill Clerk in WAPDA, Revenue Office, Gujranwala. The charge against him was that he demanded and accepted ,Rs.350 an illegal gratification from Bashir Ahmad P.:W.2--for,the correction of his bill. He denied the charge and claimed to be tried.

3. To prove its case prosecution produced four witnesses. Bashir Ahmad P.W.2 appeared to prove demand as well as acceptance of Rs.350 from him as illegal gratification by the appellant. Malik Israr Ahmad Magistrate f.W.1 and Mushtaq Ahmad Sub-Circle Officer, Anti-Corruption P. W.3 were produced to prove the recovery of , tainied currency notes from him. They supported the prosecution case, Muhammad Yaqoob Bhatti P.W.1 had investigated the case.

4. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances including the recovery of tainted currency notes from him. He raised plea of false implication at the instance of Riasat Ali. He did not produce any evidence in defence.

5. The learned counsel for the appellant submits that prosecution has failed to prove its case beyond reasonable doubt; that the appellant was acting as establishment clerk therefore, he could not correct the bill; that no recovery memo. was prepared on the spot; that the statement of the appellant was not recorded on the spot; that he was forced to sign statement. Which was written by the Sub-Circle officer and that there was no independent corroboration, of the statement of the complainant that the money was received by the appellant as illegal tax; gratification. Conversely the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellant. I find that Bashir Ahmad complainant has stated that the money was received by the appellant as illegal gratification; that the money was recovered from the possession of the appellant by the Magistrate; that in his statement Exh. P.A/4 which was recorded by the Magistrate immediately after the raid, the appellant stated that the tainted currency notes were given to him by the complainant which he kept in the left pocket of his shirt; that the recovery of the tainted currency notes from his possession gives rise to the presumption that the same were received by him as illegal gratification and that instead of explaining the recovery of the tainted notes the appellant denied recovery in his statement recorded under section 342, Cr.P.C. The Magistrate and the Sub Circle Officer are quite independent witnesses. They had no enmity to falsely involve the appellant. The recovery of application Exh. P.6 and electricity bills P.7 and P.8 from the appellant also supports the story of the prosecution. The learned counsel has failed to point out any material discrepancies in the statements of the prosecution witnesses. The mere fact that recovery memo. was not prepared on the spot or that the statement of complainant or the appellant were recorded in the office of Magistrate is not sufficient to discard the testimony of the reliable witnesses. The appellant has failed to rebut the statutory presumption that he had received the money as illegal gratification. For all these reasons, I am convinced that there is no force in the submissions made C by the learned counsel and that the trial Court has rightly convicted the appellant. The sentence awarded to him is not excessive.

7. For what has been stated above, the appeal is dismissed.

H. A. K.

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