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Criminal Appeals Nos. 62 and 63 of 1980, decided on 13th July, 1986.

‑‑‑S. 161‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Bribery‑‑ Trap‑case‑‑ Evidence, appreciation of‑‑Statements of Raiding Magistrate complainant and Mashir regarding acceptance of tainted currency notes in first instance by accused and then same having been passed on to co‑accused, in line and supporting each other‑‑Defence plea of co‑accused that money was handed over to him by the accused for making certain purchases for his household also belied by attending circumstances of case‑‑Mere fact that tainted currency notes were not recovered from possession of accused, held, were of no avail, in circumstances Conviction and sentence maintained.

Abdul Rasool Agha and Muhammad Ali Sheikh for Appellants.

Makhdoom Abdul Wali for the State.

Date of hearing: 24th June, 1986.

By this judgment I propose to dispose of Criminal Appeals No. 62 of 1980 and 63 of 1980. The two appellants in these appeals have been convicted for offences under sections 161 and 109, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, by Special Judge (Central), Karachi and sentenced to rigorous imprisonment for six months and a fine of Rs.250 in default further R.I. for one month.

2. The facts of the case are, that appellant Salamat Ali was employed as a Clerk in the Office of S.D.O., Electricity, WAPDA, Hyderabad and appellant Nisar Ahmed was employed as peon in the said office. On 20‑6‑1978 complainant Zafar Ahmed went to the said office as he wanted electric connection for the house of his uncle, Wazir Khan, in Unit No.9, Latifabad, Hyderabad where the complainant also used to reside. It is then alleged that appellant Salamat Ali met him there and introduced himself as Line Superintendent and promised to get him electric connection if he was prepared to pay him Rs.250 as illegal gratification. The complainant told the appellant that he did not have such amount of money with him at that time on which the appellant called his peon, appellant Nisar Ahmed, and showed him to the complainant and told him that he might hand over the amount to appellant Nisar Ahmad together with his application and photostat copy of allotment order in respect of his house, in case appellant Salamat Ali could not be found in the office.

3. On the next day, the complainant went and lodged report with the F.I.A. Police which was recorded by P.W. Mushtaq Ahmad, Inspector F.I . A . and a raid was then arranged under the supervision of Mr. Abdul Ahad Shaikh, City Mukhtiarkar and A.C.M., Hyderabad. The complainant was then handed over two currency notes of Rs.100 each and one currency note of Rs.50 after marking the same in presence of Mashirs, Muhammad Abbas and Haroon. The complainant thereafter, went to the S.D.O's Office, accompanied by Mashir Muhammad Abbas, and handed over the tainted money to appellant Salamat Ali together with the application and the allotment order and appellant Salamat All' after taking the same from the complainant passed it over to appellant. Nisar Ahmed. A signal was then sent by the Mashirs to the A.C.M. who recovered the tainted money and the documents from the possession of appellant Nisar Ahmed who at that time was preparing to slip away from the scene. Both the appellants were then arrested by the police at the spot.

4. In their statements recorded under section 342, Cr.P.C. both the appellants have denied to have committed any offence as alleged by the prosecution. According to appellant Salamat Ali, he had neither accepted any amount of money as illegal gratification nor any application for electric connection from complainant Zafar Ahmed. The case, according to him, was concocted at the instance of complainant Zafar Ahmed who bore a grudge against him as he wanted to give application for electric connection on a plain piece of paper, but appellant Salamat Ali had told him that the same was required to be given on a printed form and was to be accompanied by a prescribed affidavit and other documents which resulted in heated arguments between them as a consequence of which a false case was instituted against the appellants.

5. According to appellant Nisar Ahmed, the amount of Rs.250 was recovered from his possession by the Anti‑Corruption Police, but the same had been handed over to him by appellant Salamat Ali for making purchases for his house. The appellant, therefore, pleaded ignorance about the said money being received by appellant Salamat Ali as illegal gratification.

6. I have heared Mr. Abdul Rasool Agha, learned counsel for the appellant No.1 Salamat Ali and Muhammad Ali Shaikh, learned counsel for appellant Nisar Ahmed and Mr. Makhdoom Abdul Wali, learned counsel appearing on behalf of the State.

7. According to Mr. Abdul Rasool Agha, the entire prosecution case against appellant Salamat Ali was doubtful due to the following reasons; Firstly, that appellant Salamat Ali had no authority to sanction electric connection as he was only a clerk. Secondly, that there were material contradictions in the evidence of the prosecution witnesses and the Raid Report prepared by the A.C.M. in respect of the recovery of alleged tainted‑money. Lastly, according to the learned counsel, the alleged tainted‑money, according to prosecutions own case, had not been recovered from the possession of appellant Salamat Ali.

8. The contentions of Mr. Agha Abdul Rasool also found support from Mr. Muhammad Ali Shaikh, learned counsel for appellant Nisar Ahmed who further contended that there was no evidence to show that appellant Nisar Ahmed had acted as privy to the other appellant in the case.

9. The Prosecution case mainly rests on the evidence of complainant Zafar Ahmed, P.W. Muhammad Abbas, A.C.M. Abdul Ahad Shaikh, S.I. Mushtaq Ahmed, I.O. in the case, and P.W. Asadullah. The version of the complainant is fully corroborated by P.W. Muhammad Abbas who had accompanied him inside the office of the S.D.O. and in whose presence tainted‑money had first passed to appellant Salamat Ali and later from him to appellant Nisar Ahmed. The evidence of these witnesses finds further support from that of A.C.M. Abdul Ahad Sheikh, under whose supervision raid was conducted and tainted currency notes were recovered from the possession of appellant Nisar Ahmed together with application and allotment order. Then there is evidence of P.W. Asadullah who was S.D.O. WAPDA and according to whom appellant Salamat Ali used to deal with domestic connections of electricity pertaining to Units Nos.9, 10 and 11, Latifabad.

10. The explanation offered by appellant Salamat Ali is hard to believe. First of all, the version of the appellant appears to be absurd because if he had only wanted to help complainant Zafar Ahmed by providing guidance to him in respect of the procedure which was required to be followed by the complainant, that would hardly give him reason to exchange hot words with the appellant. The behaviour, therefore, attributed to complainant Zafar Ahmed does not appear to be that of a sane person. In fact, the appellant should have earned gratitude of the complainant for doing him a favour, therefore, in my opinion, the reasons given by the appellant for his false involvement in the case are hardly acceptable. Then the appellant has failed to offer any reason for disbelieving the evidence of A.C.M. Abdul Ahad Shaikh or the Investigating Officer in the case, in whose presence tainted‑money alongwith the documents was recovered from appellant Nisar Ahmed. The recovery of tainted‑money from appellant Nisar Ahmed also does not absolve appellant Salamat Ali from his guilt as circumstances leading to such recovery have been fully explained by complainant Zafar Ahmed and P.W. Muhammad Abbas, whose evidence cannot be disbelieved. The argument, that appellant Salamat Ali was not in a position to sanction electric connection for complainant Zafar Ahmed's uncle, also appears to be devoid of force, specifically in view of the evidence of P. W. Asadullah, S.D.O., WAPDA, according to whom, the appellant was dealing with domestic connections of electricity pertaining to Units Nos.9, 10 and 11, Latifabad.

11. The discrepancy, referred to by Mr. Agha according to him, can be found in the Raid Report prepared by the learned A . C . M . wherein it is stated that tainted‑money was accepted by appellant Nisar Ahmed. This according to the learned counsel, was a material discrepancy as according to the evidence given by the witnesses, the money had first passed to appellant Salamat Ali who passed it over to the other appellant. This in my opinion can hardly be called a discrepancy since money in any case, was recovered by the learned A.C.M. from the possession of appellant Nisar Ahmed.

12. The appellant also examined one witness in his defence, who according to the witness, was sitting with appellant Salamat Ali in connection with his own work when complainant Zafar Ahmed came to see him. The witness then saw the appellant and the complainant indulging into a heated argument. The evidence of this witness, cannot be believed in view of the evidence given by the prosecution witnesses and his evidence was rightly disbelieved by the learned Special Judge the reasons for which are stated in the judgment.

13. Turning to the case against appellant Nisar Ahmed, although the fact of recovery of tainted‑money from his possession by the A.C.M. has not been denied by him, but the appellant has pleaded innocence in the matter, as according to him, the money was handed over to him by appellant Salamat Ali for making purchases for his house. The appellant also made a confession which was recorded by P.W. Aftab Ahmed. A . C. M. Hyderabad, but the argument of his learned counsel, Mr. Muhammad Ali Shaikh, in this regard was, that the confession could not be relied upon as the same had not been recorded verbatim by the learned .A.C.M. and further, having been recorded in English, the same, was not read over or explained by the learned A . C . M. to the appellant who was ignorant of the English language.

14. Be that as it may, but there is other independent evidence against the appellant which implicates him fully in the case. According to the complainant, appellant Nisar Ahmed was called and shown to him by appellant Salamat Ali and the complainant was asked to hand over money and documents to appellant Nisar Ahmed in case the other appellant could not be found. Again, the tainted‑money was recovered from appellant Nisar Ahmed alongwith the application and the allotment order in the face of such evidence, the version of the appellant that he was ignorant about the illegal transaction cannot be believed. The case against the other appellant also stands fully proved.

15. The case of the Prosecution, therefore, has been proved against both the appellants and there appears to be no reason to interfere with the judgment passed by the learned Special Judge.

16. These appeals are, therefore, dismissed and both the conviction and the sentence awarded by the learned Special Judge are maintained.

17. Since the appellants were on bail, their bail bonds are cancelled and the appellants shall serve out their remaining sentence.

S. G. D. Appeal dismissed.

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