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Criminal Appeal No.20 of 1983, decided on 22nd March, 1987.

---S.161--Prevention of Corruption Act (II of .1947), S.5(2) -Accused admitting acceptance and recovery of amount but stating that same was given by complainant, who was contractor, for disbursing tc labourers in lieu of their work done on road where work of special repairs was being carried on through a contract allotted to complainant--Accused received amount in question from complainant and handed it over to co-accused after calling him from inside of office--Complainant admitting that accused told raiding Magistrate at time of raid that-tainted amount had been given to him for payment of labour charges--Defence story appearing to be reasonable and probable and supported by fact that complainant had admitted in cross-examination that he paid wages to certain labourers after raid meaning thereby that on day of raid he owed wages to certain labourers--Prosecution case also rendered doubtful by fact that both accused ware stated to have asked for bribe and when total amount was given to one of them he handed it over to other without keeping his share--Held, prosecution failed to bring home charge of corruption to accused beyond reasonable doubt--Conviction and sentence set aside.

---S.161--Prevention of Corruption Act (II of 1947), S.5(2)--No allegation whatsoever made against co-accused about his demanding any illegal gratification from complainant or receiving tainted currency notes directly from complainant--Main accused received amount in question and gave it over to co-accused for handing over to somebody else--Conviction and sentence of co-accused, held, absolutely unsustainable and set aside.

Sh. Zamir Hussain for Appellants.

Muhammad Aslam Malik for the State.

Date of hearing: 22nd March, 1987.

Zamir Akhtar, Sub-Engineer, Noor Muhammad Road-Inspector and Muhammad Nawaz Sub-Divisional-Clerk of Highway Department, Attock, were tried by Special Judge Anti-Corruption, Rawalpindi (camp at Attock) under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947, who, holding them guilty for the said offences convicted and sentenced each of them to 9 months' R.I., and a fine of Rs.1,000/- or in default of payment of fine to undergo further 2 months' R.I. Against their conviction and sentence Zamir Akhtar and Muhammad Nawaz filed Criminal Appeal No.20/1983 and Noor Muhammad filed Criminal Appeal No.22/1983 to this Court which are being disposed of by this single judgment.

2. Briefly stated facts of the prosecution case are that Muhammad Aslam complainant (P.W.1) an approved contractor of Highway Department, got a contract for carrying out special repairs of Fateh Jang Dullian Road for Rs.90,000/- vide Executive Engineer, Highway Department, Attock's letter No.2791 dated 18-4-1981. He carried out the work within stipulated period but he was paid only Rs.13,756/ out of Rs.90,000/- actually due from the Highway Department. Both Zamir Akhtar and Noor Muhammad (appellants) demanded Rs.400/ each by way of illegal gratification if from the complainant before releasing payment of his outstanding bill, telling him that if he would not pay bribe to them then he would either be paid nothing or would be paid a lesser amount. Two days after this demand had been made the complainant reported the matter to SI. Muhammad Safdar S.H.O. Police Station Anti-Corruption Establishment Attock (P.W.4) who after recording F.I.R. EX.P.W.1/A planned to conduct raid on the appellants and for executing this plan he moved application Ex.P.W.3/A requesting Additional Deputy Commissioner, Attock, for detailing a Magistrate to supervise the raid whereupon Mr. Shamsuddin, Magistrate Ist Class (P.W.3) was directed to do the needful vide order Ex.P.W.3/B.

3. The complainant produced before the Magistrate, eight currency notes of the denomination of RS.100/- each (P.1 to P.8). The Magistrate noted down the numbers and returned these notes to the complainant for passing over the same to the accused in the office of Highway Department Attock. The complainant went to the said office according to the plan while the raid party comprising the Magistrate, the S.H.O. and two Constables stood outside that office waiting for the complainant's signal.

4. The complainant called Zamir Akhtar, Sub-Engineer out of his office and gave him tainted currency notes (P.1 to P.8) who in turn called Muhammad Nawaz Sub-Divisional-Clerk and handed over Vat amount to him. Meanwhile the complainant signalled to the raiding party and while Zamir Akhtar, Muhammad Nawaz (appellants) and the complainant were still standing together the Magistrate arrived there and on his demand Muhammad Nawaz taking out notes P.1 to P.8 from his pocket produced before him which were seized under memo. EX.P.W.1/C.

5. Zamir Akhtar (appellant) in his statement Ex.P.W.3/C told the raiding Magistrate that as the labourers employed by the complainant had deserted, therefore, Noor Muhammad Road Inspector at former's request had request had arranged labourers for him but the complainant /contractor did not pay their wages and that tainted amount of Rs.800/- was given to him by the complainant for paying outstanding wages of the labourers and that he gave the amount to Muhammad Nawaz for delivering it to Noor Muhammad the same evening for the purpose as he himself had to stay for the night at Attock for preparing bills etc. as it was 30th June (last day of the financial year). Likewise, Muhammad Nawaz in his statement Ex.P.W.3/D told the Magistrate that the currency notes P.1 to P.8 recovered from him had been given to him by Zamir Akhtar (appellant) for delivering the same to Noor Muhammad Road Inspector Fateh Jang. The Magistrate however arrested both Zamir Akhtar and Muhammad Nawaz being prima facie guilty under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, and directed S.I. Muhammad Safdar to proceed further with investigation in accordance with" law. The Sub-Inspector investigated the case arrested Noor Muhammad Road Inspector as well and after obtaining sanction for prosecuting the three appellants challaned them to Court.

6. At the trial prosecution examined 4 witnesses in support of its case, namely, Muhammad Aslam complainant (P.W.I) who stated about demand and receipt of bribe from him by Zamir Akhtar (appellant); Muhammad Sarfraz (P.W.2) a Clerk of office of Highway Department stated that the complainant out of contract money was: paid only Rs.13,756/-; Sh. Shamsuddin (P.W.3) the raiding Magistrate and S.I. Muhammad Safdar (P.W.4) proved recovery of the tainted amount from Muhammad Nawaz (appellant). The appellants in their statements under section 342, Cr.P.C., denied the allegations. They almost stuck to their defence story narrated by them before raiding Magistrate at the time of raid. They appeared as their own defence witnesses and also produced Chairman of the Ilaqa Honorary Captain Abdul Qadir (D.W.4) and Sultan Khan (D.W.5). Captain Abdul Qadir stated that Sultan, Farooq and Liaqat with others had complained to him that their labour wages have not been paid by the contractor. He asked Noor Muhammad, Road-Inspector to help them. Sultan Khan (D.W.4) stated that he worked as labourer with Muhammad Aslam contractor for repairing the road but he was not paid his dues. He complained to Chairman Abdul Qadir who asked Noor Muhammad Road Inspector to help him. They however admitted to have not appeared as defence witnesses of appellants during the investigation.

7. Learned trial Court on consideration of the material on record discarded the defence version observing that had Noor Muhammad (appellant) arranged labourers for the complainant then he being under obligation to him would not have falsely implicated him in the case, therefore accepted the prosecution story and convicted and sentenced the appellants as indicated above.

8. Learned counsel appearing on behalf of the appellants argued that there is no satisfactory material on the record proving that appellants had demanded and received bribe from the complainant for releasing payment of his outstanding bills; that the prosecution evidence suggests that Zamir Akhtar (appellant) had been handed over tainted currency notes for making payment to the labourers their outstanding wages. He therefore argued that defence theory being equally probable deserves to be accepted in preference to the prosecution story. Replying, learned counsel for the State has submitted that the statement of complainant that Zamir Akhtar and Noor Muhammad (appellants) demanded bribe from him evinces confidence for he had no animosity with the appellants to implicate them falsely; that Zamir Akhtar and Muhammad Nawaz have admitted receipt as well as recovery of tainted currency notes from the complainant which raises statutory presumption of guilt under section 5(3) of Prevention of Corruption Act, 1947, against them, therefore, learned trial Court had rightly discarding the defence version, convicted and sentenced them.

9. I have carefully considered the arguments of learned counsel for the parties and perused the record.

10. Since the receipt of tainted currency notes by Zamir Akhtar (appellant) and their recovery from the person of Muhammad Nawaz (appellant) is admitted by them, so there is no need to discuss the evidence pertaining to handing over the currency notes or its recovery.' Admission about the receipt or recovery of tainted amount by, the appellant gives rise to rebuttable presumption of guilt against them, therefore, the question which falls for determination before me is that whether Zamir Akhtar and Muhammad Nawaz (appellants)had received the tainted amount as illegal gratification as has been mentioned by Muhammad Aslam complainant or it was received for sending it to Noor Muhammad Road-Inspector for paying outstanding wages of the labourers who worked for the contractor /complainant to repairing Fateh Jang Road as stated by the appellants.

11. The complainant has of course largely supported the prosecution case narrated in paragraph 2 of the judgment. In his cross-examination the complainant conceded that his first bill pertaining to this contract had been passed for payment of a sum of Rs.56,073/- and that none of the appellants had demanded or received any bribe for passing that bill and that the second bill (pertaining to the remaining amount) had been prepared by late Mahboob Rabbani, Sub-Divisional Officer, prior to the raid. He also admitted that 2/3 days before the raid some labourers had quarrelled with him wherein Zamir Akhtar and Noor Muhammad (appellants) had asked him as to why he was not making payment of the labourers. He stated that his interference by them was uncalled for. He also admitted that outstanding wages of some labourers were paid by him after this raid; that 30th June being the clearing day the appellants were required to attend their office at Attock. He frankly conceded that Zamir Akhtar (appellant) at the time of raid had told the Magistrate that the complainant had handed over to him tainted amount of Rs.800/ saying that the said amount was to be paid to the labourers through Noor Muhammad and that he further handed over the same amount to Muhammad Nawaz (appellant) for delivering it to Noor Muhammad (appellant) the same evening. The complainant when asked to state by taking oath on Holy Qur'an that the said amount was given to Zamir Akhtar (appellant) as bribe had declined to do so.

12. It may be at once stated that no allegation, whatsoever has been made against Muhammad Nawaz (appellant) about his demanding any illegal gratification from the complainant or receiving tainted currency directly from him as such. What is alleged against him is that Zamir Akhtar had given him the tainted currency notes of Rs.800/ (subsequently recovered from him by the raiding Magistrate). There is no evidence that when Zamir Akhtar gave to Muhammad Nawaz the tainted currency notes he was informed by the complainant or anybody else that the said amount had been paid as illegal gratification tol Zamir Akhtar. Therefore, it is not proved that he received the amount from Zamir Akhtar Sub-Engineer knowing it to be bribe money. Td the contrary, he stated that Zamir Akhtar had given him this amount for handing over to Noor Muhammad Road Inspector Fateh Jang. Zamir Akhtar has supported him. Consequently, his conviction an sentence under section 161, P. P. C. read with section 5(2) of Prevention of Corruption Act, 1947, is absolutely unsustainable and is here set aside.

13. The raid was conducted on 30-6-1981. Zamir Akhtar, Noor Muhammad and Muhammad Nawaz (appellants) in those days were posted at Fateh Jang. As 30-6-1981 was the last day of the financial year, therefore, Zamir Akhtar and Muhammad Nawaz had come to Divisional Office Attock for preparing/ clearing their pending bills and for this purpose Zamir Akhtar, ac stated by him was staying there for the night. Noor Muhammad Road Inspector had however stayed behind at, Fateh Jang on that day. It is nobody's case that Zamir Akhtar having received the tainted amount from the complainant handed it over to Muhammad Nawaz on seeing the Magistrate or police to evade his arrest. The complainant, as indicated above, admitted that Zamir Akhtar told the raiding Magistrate at the time of raid that the tainted amount had been given to him for paying labour charges through Noor Muhammad. Therefore, the conduct of Zamir Akhtar (appellant) in calling Muhammad Nawaz (appellant) from inside the office an handing over the total amount to him appears to me a an innocent act. Furthermore, Zamir Akhtar (appellant) spontaneously stated before the raiding Magistrate that currency notes P.1 to P.8 were given t him by the complainant for handing over to Noor Muhammad for making payment to labourers as their outstanding wages. This defence story appears to me as reasonably probable. I am fortified in this view of mine further by the fact that the complainant has admitted in cross-examination that he paid wages of certain labourers after this raid meaning thereby that on the day of raid he owed wages to certain labourers. There is yet another glaring circumstance making the prosecution case as doubtful, that is, according to complainant, Zamir Akhtar and Noor Muhammad (appellant) had demanded Rs.400/- each as bribe from him and that currency notes of Rs.800/- P.1 to P. were paid by him to Zamir Akhtar for both of them. If it were so then ordinarily Zamir Akhtar would have kept his share of Rs.400/ with him and sent the rest Rs.400/- to Noor Muhammad through Muhammad Nawaz as his share. The fact that he handed over total amount to Muhammad Nawaz clearly shows that it was not the bribe money. It completely knocks prosecution case out of bottom.

14. In the above circumstances, I am constrained to hold that the prosecution has failed to bring home charge of corruption to the appellants beyond reasonable doubt. Consequently, giving benefit o doubt to Zamir Akhtar and Noor Muhammad (appellants) also I would set aside their conviction and sentence. The result is that both the appeals are allowed and all the three appellants are hereby acquitted. They are on bail. They are discharged from their bail-bonds.

M.Y.H./Z-19/L Appeal accepted.

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