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Criminal Petition for Special Leave to Appeal No.354 of 1984, decided on 22nd January, 1985.

(On appeal from the judgment and order of the Lahore High Court dated 13‑10‑1984 in Criminal Appeal No.428/71).

‑‑‑S. 161‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Tainted money recovered from accused in presence of witnesses which accused had thrown on ground‑‑No reason was forthcoming on record as to why raiding party would falsely implicate accused‑‑Accused, held, was rightly convicted in circumstances.

‑‑‑S. 161‑‑Prevention of Corruption Act (II of 1947), S. 5(2) Public servant if erroneously thinks that a particular act is within his official duty and accepts illegal gratification by inducing such erroneous belief in another person, he would be guilty under S. 161, P.P.C. read with S. 5(2), Prevention of Corruption Act, 1947, even though said act was not, in fact, within exercise of his duties.

C.M. Latif Rawn, Advocate Supreme Court and Ch.Muhammad Aslam, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 22nd January, 1985.

.‑‑This petition is directed against the order of the Lahore High Court, dated 13‑10‑1984 whereby appeal of the petitioner against his conviction and sentence was dismissed.

2. The facts are that the petitioner was Reader to the S.D.O. Irrigation, Area Sub‑Division, Sargodha. Barkat Ali P.W.4. resident of Chak No.85 Shumali, Police Station Saddar, Sargodha who owned 3 Killas of land in the said Chak out of which 11 Killa fell in square No. 45 of Chak No.85. There arose some dispute over the water‑course pertaining to the land in square No.45 for which Barkat Ali made an application to the Irrigation Authorities which is Exh. P.W.4/A and Exh.P.W.4/B. He contacted the petitioner who was Reader to Abdul Rashid Khan P.W.2. S.D.O. Incharge of the Area Sub‑Division at Canal Office, Sargodha and sought his help in securing for himself a new water‑course for his land. It is stated that the accused /petitioner demanded Rs.100 as illegal gratification in this connection. Barkat Ali complainant, at that time, had only Rs.53 on him which he paid to the accused/ petitioner and promised to pay the balance after a day or so Barkat Ali then contacted the Anti‑Corruption officials on 3‑1‑1970 and made a complaint before Mehr Muhammad Nawaz, Inspector, Anti-Corruption Establishment, Circle Office, Sargodha who detailed Sh.Imam Din, Sub‑Inspector, A.C.E. P.W.5 for arranging a raid. The said Sub‑Inspector, after observing necessary formalities, produced Barkat Ali before Amanullah Khan, M.I.C. P.W.1 who recorded his statement; and also recorded the number of currency notes of Rs.47 and return the same to Barkat Ali for passing on to Abdul Latif the accused/ petitioner.

3. The raiding party including Barkat Ali, Amanullah Khan M.I.C. P.W.1 and Sh. Imam Din, Sub‑Inspector A.C.E. P.W.5 reached the office of the Irrigation Department. Barkat Ali went inside the office of the accused /petitioner while the remaining members of the raiding party waited outside. Barkat Ali came out of the Office shortly afterwards and informed the members of the raiding party that the accused /petitioner has directed him to go to the Canteen where he would receive the money from him. The raiding party left towards the Canteen and stood near the office of the Commissioner. After about 10/15 minutes Abdul Latif came out riding a bicycle and stopped near Barkat Ali who passed on the sum of Rs.47 to him within the view of the raiding party. Amanullah M.I.C. P.W.1 cought hold of the accused /petitioner and disclosed his identity to him. The other witnesses also reached there. The accused /petitioner took out the money from the pocket of his pent and threw it on the ground. Amanullah P.W.1 picked up the currency notes and compared their number which he had earlier noted. He then recorded the statement of the accused /petitioner which is EXh.P.l/E.

4. The learned trial Court, relying on the prosecution evidence, convicted the accused /petitioner under section 161 P.P.C. read with section 5 (2) of the Prevention of Corruption Act; 1947 and sentenced him to one year's R.I. each on both counts and ordered the same to run concurrently. The accused /petitioner filed an appeal before the Lahore High Court which was dismissed vide the impugned order.

5. On examining the record that the accused /petitioner had produced Niaz Ali as D.W.1 who had stated that the accused /petitioner had given Rs.100 to Barkat Ali to purchase ghee for him. Barkat Ali could not bring ghee but promised to return the money. He returned Rs.50 as first instalment and he gave the remaining amount to Barkat Ali requesting him to give it to Abdul Latif accused/ petitioner in the presence of Suleman Lambardar. Later on, he learned about the trap which resulted in the arrest of the accused /petitioner. Suleman D.W.2 also made similar statement.

6. Learned counsel contended 'that the Courts below have ignored the statements of the D.Ws. that the Investigating Officer failed to investigate properly in order to find out whether or not the responsibility "''of fixing turn of water within a square of land was not that of Canal Office, or was it the responsibility of land‑owners themselves. In this connection the statement of Abdul Rashid Khan P.W.2 stood unrebutted that the matter relating to the turn of water could not be interfered with by the Canal Office.

7. We have examined the contentions raised by the learned counsel "' and are not impressed with the points raised by him. The tainted money was recovered in the presence of the witnesses which the petition had thrown on the ground. No reason is forthcoming on the record as to why the raiding party would falsely implicate the accused/ petitioner. As regards the second point we are of the view that if a public servant erroneously think that a particular act is within his official duty, ,and accepts illegal gratification by inducing such erroneous belief in another person, he would be guilty under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, even though the act is not, in fact,‑ within the exercise of his duties. We find no merit in this petition and the same is, accordingly, dismissed.

M . Z . M. Petition dismissed.

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