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Criminal Appeal No.246 of 1986, decided on 9th July, 1986.

‑‑‑S.5‑‑Penal Code (XLV of 1860), S.161‑‑Illegal gratification‑‑Magistrate and Police Officer who were quite independent witnesses had no ill‑will against accused to falsely implicate him‑‑Magistrate seeing accused holding tainted notes in his hand‑‑Complainant also had no serious enmity with accused‑‑All prosecution witnesses facing test of cross‑examination successfully and no major contradiction, material discrepancy or dishonest improvement existing in their statements‑‑Conduct of accused of throwing notes on ground and of trying to run away on seeing raiding party was an incriminating circumstance which corroborated prosecution version‑‑Possession of tainted currency notes by accused giving rise to statutory presumption against accused‑‑Reasonable possibility of defence version being true ruled out‑‑Defence evidence not reliable‑ Trial Court having had applied its conscious mind to relevant evidence and had appreciated evidence in accordance with law‑‑No legal infirmity existing in judgment of Trial Court‑‑Conviction maintained in circumstance.

Muhammad Rashid Chughtai for Appellant.

Farooq Bedar A.A.‑G. for the State.

Date of hearing: 9th July, 1986.

This criminal appeal arises from the judgment of the learned Special Judge Anti‑Corruption, Lahore whereby he on 22‑4‑1986 convicted Muhammad Sadiq appellant under section 161, P.P.C. read with section 5 of the P. C . A . 1947 and sentenced him to one year R.I. and a fine of Rs.5,000 in default thereof to further R.I. for six months on each count. It was directed that the sentences shall run concurrently.

2. The appellant was a Patwari. The charge against him was that he demanded Rs.1,600 from Abdul Ghani complainant. received Rs.1,200 before the raid and Rs.400 at the time of raid. He denied the charge

3. To prove its case, the prosecution examined four witnesses. Abdul Ghani P.W.1 appeared to prove demand as well as acceptance of illegal gratification from him by the appellant. Raja Muhammad Nawaz Magistrate P.W.2 and Hakim Ali S.I. A.C.E. P.W.4 were produced to prove the recovery of the tainted currency notes from the appellant. They supported the prosecution case. Muhammad Tufail P.W.3 is a formal witness.

4. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. He raised the plea of false implication. He stated that on the eventful day, the complainant wanted him to make false entry in Khasra Girdawari and on his refusal, he (complainant) falsely involved him in the case. 'In defence two witnesses were produced. Muhammad Hussain D.W.1 supported the defence version. Iftikhar Ahmad D.W.2 stated that at the time of occurrence, there was 'a scuffle between the appellant and the complainant and the tainted currency notes fell on the ground during that scuffle.

5. The learned counsel for the appellant contended that the prosecution has not been able to prove its case beyond reasonable doubt in that: the prosecution evidence suffers from infirmities such as material contradictions and discrepancies; that the Magistrate and Hakim Ali S.I. A.C.E. had not heard any talk between the appellant and the complainant at the time of raid and as such it cannot be said that the appellant had received the tainted currency notes as illegal gratification and that there is a reasonable possibility of the defence version being true. Conversely the learned counsel for the State has supported the judgment of the learned trial Court.

6. I have considered the submissions made 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 Raja Muhammad Nawaz Magistrate and Hakim Ali Inspector A.C.E. are quite independent witnesses. They had no ill‑will against the appellant to involve him falsely in the case. They have successfully faced the test of cross‑examination. The Magistrate has stated that he had seen the appellant holding the tainted currency notes in his hand who on seeing them threw the same on the ground. The Sub‑Inspector A.C.E. has supported the statement made by the Magistrate. They successfully faced the test of cross‑examination. Except for minor and immaterial discrepancies here and there, the learned counsel for the appellant has not been able to point out any major contradiction, material discrepancy or dishonest improvement in the statements of the prosecution witnesses. The complainant had also no serious enmity with the appellant to involve him falsely in the case. He, too, has successfully faced the test of cross‑examination. I do not see any legal infirmity in his evidence. The complainant has stated that the tainted currency notes were received by the appellant as illegal gratification. The conduct of the appellant that on seeing the raiding party, he threw the tainted money on the ground and tried to run away, is an incriminating circumstances which corroborates the version of the prosecution. The possession of the tainted currency notes by the appellant, as stated by the Magistrate, also gives rise to the statutory presumption that the same were received by him as illegal gratification. In view of the reliable statement of the Magistrate that the appellant was holding the tainted currency notes in his hand, there is no reasonable possibility of the defence version being true. The defence evidence does not seem to be reliable. The appellant has failed to rebut prosecution case and its evidence. The learned‑trial Court has applied its conscious mind to the relevant evidence and has appreciated the evidence in accordance with the guidelines given by the superior Courts. I do not see any legal infirmity in the judgment of the learned trial Court.

7. For what has been said above, the appeal is dismissed. The appellant shall surrender himself before the learned trial Court immediately. The learned trial Court shall also issue non‑bailable warrants for the arrest of the appellant. The appellant, when arrested, be sent to jail to serve out the remaining sentence.

H.A.K.

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