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Criminal Appeal No. 480 of 1981, decided on 17th February, 1986.

‑‑‑S. 5‑‑Penal Code (XLV of 1860), S. 161‑‑Illegal gratification‑ Complainant proving demand and receipt of illegal gratification by accused‑‑Police Officer and Magistrate who had got no ill‑will against accused proving recovery of tainted currency‑‑Accused in his statement recorded after raid admitting to have received tainted currency from his co‑accused‑‑Case of acquitted co‑accused on whose instance accused allegedly received illegal gratification was distinguishable‑‑Prosecution witnesses who were quite independent witnesses faced cross‑examination successfully‑‑Statements of prosecution witnesses did not suffer from infirmities‑‑Defence evidence failing to rebut prosecution case‑‑Conviction maintained in circumstances.

‑‑‑S. 5‑‑Penal Code (XLV of 1860), S. 161‑‑Sentence‑‑Accused suffering agony of protracted trial and losing his service‑‑Accused receiving 50 rupees only as illegal gratification‑‑Sending accused back to jail, held, would not be desirable‑‑Sentence reduced to one already undergone n circumstances.

Munir Ahmad Bhatti for Appellant.

Arif Sajjad Khan for the State.

Date of hearing: 17th February, 1986.

This criminal appeal arises from the judgment of the learned Special Judge (Central), Lahore whereby he on 9‑5‑1981 convicted Ghulam Sarwar appellant under section 161, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947. He sentenced him under section 161, P.P. C. only, to three months' R.I. and a fine of Rs. 500 in default thereof to further R.I. for one month.

2. The appellant was Assistant Lineman WAPDA. He and Muhammad Aleem Jaffar, Line Superintendent, were jointly tried on the charge of demand and acceptance of bribe from the complainant for installing a meter in his house. The prosecution case was that M. Aleem Jaffar co‑accused demanded bribe for installing meter. He received Rs.100 before the raid and deputed Ghulam Sarwar appellant to install the meter on the day of raid. He told the complainant to pay Rs. 50 to. Ghulam Sarwar as he was not inclined to receive money. The raiding party went to the house of the complainant where the appellant demanded Rs. 50 for M. Aleem Jaffar and Rs. 10 for himself from complainant which were paid to him and were subsequently recovered from him by the Magistrate. He denied the allegations.

3. To prove its case, the prosecution examined four witnesses. Muhammad Jehangir P.W.1 appeared to prove demand and acceptance of illegal gratification from him by the appellant. Jaffar Ali P.W. 2 deposed about the application of the complainant for electricity connection and installing of the meter and proceedings therein. He stated that after the test report, service connection order was issued and was handed over to M. Aleem Jaffar co‑accused. Farzand Ali S.I., F. I. A. P.W. 3 and Safdar Ali Malik M.I.C. P.W. 4 were produced to prove the recovery of tainted currency notes from the appellant. They supported the prosecution case.

4. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. While admitting to have installed meter in the house of the complainant on the day of raid, he stated that he had not demanded Rs.50 for his co‑accused M. Aleem Jaffar and that the complainant had paid him Rs.10 only as a tip. He denied the recovery of Rs.50 from him. In defence Muhammad Ismail Lineman was produced who stated that the meter was installed in the house of the complainant by him, Ghulam Sarwar appellant and Hameed a Assistant Lineman and that the appellant had not received Rs.50 from the complainant and that the complainant himself gave Rs.10 to, Ghulam Sarwar appellant for refreshment.

5. The learned counsel for the appellant submitted that the prosecution has failed to prove its case against the appellant beyond reasonable doubt; that co‑accused M. Aleem Jaffar who was also convicted by the trial Court has been acquitted in appeal that the learned trial Court' has not convicted the appellant for Rs. 10 which he had received for himself and that the prosecution witnesses are not reliable. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the submissions made by the learned counsels for the parties with care. I find that the complainant Muhammad Jehangir has stated that the appellant had demanded and also received Rs.50 as illegal gratification; that Farzand Ali S.I. P.W.3 and Safdar Ali Malik M.I.C. P. W. 4 have stated that the tainted currency notes were recovered from the appellant. The Magistrate and the S.I. F.I.A. had no ill‑will against the appellant to involve him falsely in the case. The appellant himself in his statement Exh. P.W. 412 which was recorded after the raid had admitted to have received Rs.50 for M. Aleem Jaffar co‑accused. Since money was not recovered from the possession of M. Aleem Jaffar co‑accused and the Magistrate has also stated that although the money was offered to him by the complainant yet he was not inclined to receive Rs.50 from the complainant, therefore, his case was quite distinguishable. The prosecution witnesses are quite independent. They have faced the cross‑examination successfully. Their statements do no suffer from infirmities such as contradictions /discrepancies and dishonest improvements. The defence evidence does not rebut prosecution case and its evidence. For all these reasons, I am convinced that the trial Court has rightly convicted the appellant.

7. This brings me to the question of sentence. The learned counsel has also requested for leniency. In these circumstances that the occurrence took place in the year 1978; that the appellant has suffered agony of protracted trial; that he had lost his service and that the allegations were that he received Rs. 50 only, I do not desire to send him back to jail. The sentence of three months' R.I., therefore, altered to fine of Rs.500 in default thereof three months' R.I. The fine of Rs.500 already imposed by the learned trial Court and sentence of one month's R.I. in default thereof, is maintained. Resultantly the appellant shall deposit Rs.1,000 with the trial Court within a month, failing which the learned trial Court shall issue warrants for the arrest and detention of the appellant in default of payment of fine.

H.A.K. Appeal dismissed, sentence reduced.

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