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Criminal Appeal No. 211 of 1986, heard on 14th September,1986.

---S. 161--Prevention of Corruption Act (II of 1947), S. 5(2)--Illegal gratification--Tainted money whether received as illegal gratification- Proof of--Recovery of tainted money not only proved but also admitted-- Plea of receiving it for passing on to another--Complainant stating demand of illegal gratification by accused in examination-in-chief but making obliging statement in cross-examination-Complainant, stating about demand of illegal gratification by accused before Magistrate just before raid and also just after raid that he had accepted it as such- Complainant not mentioning name of other ,person in his statements- Recovery of tainted currency notes from accused, held, gave rise to statutory presumption that same were received by him as illegal gratification and accused could not rebut this presumption through reliable evidence--Guilt of accused had been successfully brought home to him and there was no reasonable possibility of defence version being true.

Ch. Altaf Hussain for Appellant.

Sh. Ehsan Ahmad for the State.

Date of hearing: 14th September, 1986.

This Criminal Appeal arises from the judgment of learned Special Judge, Anti-Corruption, Sargodha and Faisalabad Divisions with Headquarters at Sargodha, whereby he on 11-3-1986, convicted Muhammad Amin, appellant under section 161, P.P.C. and sentenced him to two months' S.I and a fine of Rs.4,000 or, in default thereof to further S.I. for two months.

2. The appellant was a Canal Patwari posted at Jhamatwala. District Sargodha. The charge against him was that he demanded and accepted Rs.200 as illegal gratification from Haq Nawaz P.W.3 for hushing up the imposition of Tawan. He denied the charge and claimed to be tried.

3. To prove its case, prosecution examined three witnesses. Chaudhry Imtiaz Ahmad, Magistrate P.W.1 and Muhammad Sadiq SCO/ACE were produced to prove the recovery of the tainted currency note from the appellant. They supported the recovery of the tainted currency notes from the appellant. Haq Nawaz, complainant, appeared as P.W.3, In his examination-in-chief he stated that the appellant had demanded Rs.200 as bribe from him to get him absolved of the Tawan case which was pending before Executive Engineer. He further stated that just before the raid he paid Rs.200 to the appellant which was subsequently recovered by the raiding Magistrate from the shirt pocket of the appellant. In cross-examination, he however tried to oblige the accused by making concessional statement in his favour and stated that he had paid Rs.200 the appellant with reference to the demand of bribe by Khalil a Reader to Executive Engineer Irrigation and had requested him to deliver the same to Khalil.

4. When examined under section 312, Cr.P.C. the appellant denied all the incriminating circumstances. He stated that he had enmity with Haq Nawaz complainant. In reply to the question "why this case against you" he stated: ---

"Haq Nawaz complainant and Khalil deader to XEN Irrigation had social contact and dealing with each other without my intervention. On the raid day, I visited the office of Khalil Reader twice but found Khalil Reader absent from his seat. Haq Nawaz complainant delivered me currency notes of the value of Rs.200 with the advice to deliver this money to Khalil Reader. I had no knowledge as to whether the money in question was Tawan money or bribe money. The delivery of money was not to my person. It was simply entrusted to me by the complainant with a request to pass it to Khalil Reader. The moment I was delivered this money by Haq Nawaz complainant, I started walking towards the seat of Khalil Reader. I had walked hardly 2/3 paces while this raid was made. Thereafter, when Haq Nawaz complainant made statement before the raid Magistrate in my presence, only then I learnt that it was bribe money. I made statement accordingly before the raid Magistrate. On the raid day I had visited canal office to submit my casual leave application Exh.P.C. for 31-3-1984. I had not made any report as to 'Tawan' nor I made assessment thereof. I had no connection with the 'Tawan' dispute of the complainant. I had enmity with Haq Nawaz complainant, about a 'Khaal'. I am innocent."

He did not produce any witness in defence. He however, gave evidence on oath in disproof of the charge against him wherein he stated that he was innocent in the matter and his statement was the same as given by him in his statement recorded under section 342, Cr.P.C.

5. The learned counsel for the appellant submits that prosecution has failed to prove that the currency notes were received by appellant as illegal gratification that there is reasonable possibility that the plea taken by the appellant might be true and that the complainant has supported the defence version. 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 counsel for the parties with care. I find that the recovery of the tainted currency notes of Rs.200 from the appellant is not only a proof but also an admitted fact and as such the real question for determination is as to whether the same were received by the appellant as illegal gratification or not. I find that Haq Nawaz has categorically stated in his examination-in-chief that the appellant had demanded Rs.200 as illegal gratification from him; that he had stated so before the raiding Magistrate in statement Exh.P.B. which was recorded before the raid; that in statement Exh.P.F. recorded by the raiding Magistrate just after the occurrence Haq Nawaz has stated that appellant had received Rs.200 from him as illegal gratification; that in his statement Exhs.P.B. and P.F. referred to above the complainant had not named Khalil Reader to XEN at all; that in his statement recorded immediately after the raid, Muhammad Amin appellant had stated that he had received Rs.200. for passing on to Khalil Reader as bribe for hushing up 'Tawan' proceedings whereas in his. statement recorded under section 342, Cr.P.C, he stated that he had no knowledge as to whether the money in question was 'Tawan' money or bribe money; that from the trend of the statement made by Haq Nawaz P.W.3 it is very much obvious that he had made obliging statement in cross-examination; that the recovery of the tainted currency notes from the appellant gives rise to the statutory presumption that the same were received by him as illegal gratification that the appellant has not been able to rebut this presumption through reliable evidence; that the version relating to the acceptance of currency notes by the appellant from the complainant seems to be false because had there been any enmity between the complainant and the appellant, neither the appellant would have given the tainted currency notes to the complainant nor the complainant would have received the same for passing on to Khalil and that the learned trial Court has properly appreciated the relevant evidence on file. For all these reasons, I am convinced that prosecution has successfully brought home the guilt to the appellant and there is no reasonable possibility of the defence version being true.

7. For what has been stated above, there being no merit, the appeal is dismissed. The appellant shall surrender' himself before the trial Court immediately. The trial Court shall also issue warrants for the arrest and detention of the appellant in jail to serve out the sentence.

S.A. Appeal dismissed.

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