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Criminal Appeal No. 879 of 1976, decided on 30th January, 1985.
‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S. 161‑‑Illegal gratification‑ [Trap‑case]‑‑Appreciation of evidence‑‑Statements of Magistrate and Inspector, proving recovery of tainted currency notes from physical possession of accused‑‑Such witnesses having no ill‑will against accused, also having stood test of ‑‑cross‑examination and no inherent infirmity found in their statements‑‑Accused when examined under S. 342, Cr.P.C. denied charges against him and raising plea of false implication but could not give any explanation of recovery of tainted currency notes from him at trial stage and also at time of raid, rather denying very recovery of such notes‑‑Accused, Assistant Sub‑Inspector, appearing to have won over complainant and another prosecution witness, who gave obliging statements in his favour‑‑Such witnesses confronted with their previous statements wherein they had fully implicated accused‑‑Recovery of tainted currency notes from accused, gives rise to statutory presumption that same was received by him as illegal gratification which accused not caring to rebut‑‑Accused, held, rightly convicted in circumstances of case.
M.S. Chughtai for Appellant.
Sharif Butt for the State.
Date of hearing: 30th January, 1985.
This criminal appeal arises from the judgment of the learned Senior Special Judge Anti‑Corruption, Punjab, Lahore whereby he on 20‑8‑1976 convicted Mumtaz Ali appellant under section 161, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947 and sentenced him to two years' R.I.
2. The appellant was A.S.I., C.I.A. Staff, T. T. Singh. The charge against him was that he demanded and accepted Rs.300 as illegal gratification from Allah Bukhsh complainant. He denied the charge and claimed to be tried.
3. To prove its case, the prosecution examined six witnesses. Allah Bukhsh P.W.3 and Ahmad Saeed P.W.4 appeared to prove demand as well as acceptance of illegal gratification from the complainant by the appellant. Ejaz Ahmed Khan Magistrate P.W.5, and Fazal Muhammad A.S.I., P.W.6 were produced to prove the recovery of tainted currency notes from the appellant. They supported the prosecution case. The rest of the evidence is of formal nature.
4. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. He raised plea of false implication. In defence, he produced no evidence.
5. The learned counsel for the appellant contends that the prosecution has failed to prove its case beyond reasonable doubt; the prosecution evidence suffers from contradictions/ discrepancies; the Magistrate and the Inspector neither saw the transaction nap did they hear any conversation; Allah Bakhsh complainant and Ahmad Saeed did not support the prosecution case and that motive for bribe has not been proved. Conversely, the learned counsel for the State 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 from the statements of the Magistrate and the Inspector, the recovery of the tainted currency notes from the physical possession of the appellant stands proved beyond reasonable doubt. Ijaz Ahmad Khan Magistrate and Fazal Muhammad A.S.‑I. are quite independent witnesses. They had no ill‑will against the appellant. They have stood the test of cross‑examination. I do not see any inherent infirmity in their statements. The discrepancy pointed out by the learned counsel in the statements of the Magistrate and the recovery memo. is insignificant; that in his statement recorded immediately after the raid, Mumtaz Ali appellant did not give any explanation of the possession of the tainted currency notes by him; that at trial stage, he also did not give any explanation of the recovery of tainted currency notes from him; he rather denied the very factum of the recovery of the tainted currency notes from him; that it appears that the appellant who was an A.S.I. had won over Allah Bukhsh the complainant p.W.3 and Muhammad Saeed P.W.4 and as such they made obliging statements; that the complainant and Ahmed Saeed P.W.4 have made divergent statements and they were duly confronted with their earlier statements wherein they had fully implicated the appellant; that the recovery of the tainted currency notes from the appellant gives rise to the statutory presumption that the same were received by him from the complainant as illegal gratification. The appellant did not care to rebut this presumption. For all these reasons, the submissions made by the learned counsel do not hold any water. I am convinced that the appellant has rightly been convicted by the trial Court.
For what has been stated above, the appeal is dismissed. The appellant shall surrender himself before the learned trial Court immediately. The trial Court shall also issue warrants for his arrest and detention.
M. A. K. Appeal dismissed.
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