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Criminal Appeal No. 207/BWP of 1977, decided on 22nd October, 1983.

---S. 161/419/420--Prevention of Corruption Act (II of 1947), S.5(2)--Conviction recorded under S.419 read with S.420, P.P.C.--Held, conviction was illegal inasmuch as both offences were independent and conviction could not be recorded under S.419 read with S.420, P.P.C.

---Ss. 419 & 420--Mere fact of disclosing of some fictitious name instead of his original name by accused, held, not sufficient to punish him under S.419 read with S.420, P.P.C.

---S. 161--Prevention of Corruption Act (II of 1947), S.5 (2)--Statement of prosecution witnesses regarding demand of bribe being joint--Held, statement of prosecution witnesses were inadmissible.

---S. 5(2)--Acceptance of bribe--Defence plea that accused had recovered tax from complainant under instruction of his boss--Two notices duly signed by Taxation Officer for recovery of Rs.20 from father of complainant, found on record--Defence witnesses supporting plea of appellant--There being reasonable possibility that explanation given by accused might be true--Just after recovery of tainted money accused taking same plea as he took at trial stage--Held, it was difficult to hold that appellant accepted bribe- -Prosecution ailed to prove its case beyond reasonable doubt--No satisfactory basis to maintain conviction- Conviction and sentence set aside.

Sardar Ahmad Khan for Appellant.

Nazir Ahmad Bhatti for the State.

Date of hearing: 22nd October, 1983.

This criminal appeal arises from the judgment of learned Special Judge Anti-Corruption, Bahawalpur, whereby he on 25-7-1977 convicted Abdul Qadir appellant and his co-accused Muhammad Yousaf under section 161/419/420, P.P.C. and section 5(2) of Prevention of Corruption Act, 1947 and sentenced him to one year's R.I. on each count with the direction that the sentences would run concurrently. Muhammad Yousaf co-convict had filed separate Criminal Appeal No. 206/77 (BWP). Since Muhammad Yousaf has died, the appeal has been disposed of as having been abated.

2. The prosecution case is that the appellant and his co-accused Muhammad Yousaf were posted as peons in the Office of District Council, Rahimyar Khan. Ghulam Qasim complainant owns Radio Service Shop at Rahimyar Khan. His father Ghulam Sarwar has installed a flour machine in his land in village Nonrai. The appellant and his co-accused went to the shop of Ghulam Qasim complainant. The appellant introduced himself as Yar Muhammad whereas Muhammad Yousaf personated as Muhammad Sharif Inspector Taxation. They told the complainant that they would levy heavy tax on Flour Mills of his father and in case he pays Rs.50 as bribe, they would not impose any tax. At that time Khurshid Ahmad P.W.5 was also present. On the request of Ghulam Qasim, the amount was reduced to Rs.20. The complainant promised to pay the same on the next day. Since the complainant did not want to pay the bribe, he informed Ch. Muhammad Shah, Circle Officer who produced him before Ch. Nazir Ahmad Magistrate. The Raid Party consisting of Ghulam Qasim complainant, Muhammad Shafi, Circle Officer under the supervision of Ch. Nazir Ahmad, Magistrate was arranged. On the day of occurrence, Abdul Qadir appellant went to the shop of the complainant and told him that he was being summoned by the Inspector. He took the complainant to Railway Chowk where Muhammad Yousaf was already present. Muhammad Yousaf again demanded bribe whereon the complainant told him that he would pay the same at 11 a.m. at his shop. Muhammad Yousaf said that either he would come to the shop or would send Abdul Qadir appellant. At about 11 o'clock Abdul Qadir appellant reached the shop and told the complainant that the Inspector had sent him to bring the money. Ghulam Qasim complainant gave the tainted currency notes to the appellant in the presence of Khurshid Ahmad P.W.5 and Abdul Qayyum (not produced). On receiving the signal, the Magistrate and the Circle Officer came to the spot and recovered the tainted currency notes from the pocket of the shirt of the appellant. The appellant and Muhammad Yousaf co-accused were arrested, and the challan was submitted against them.

3. To prove its case, the prosecution examined 6 witnesses. Ch. Nazir Ahmad P.W.1 and Ch. Muhammad Shafi P.W.4 supported the recovery of bribe money from the appellant, Muhammad Sharif, Tax Inspector P.W.3 was examined to prove that both the accused were posted as peons in the Office of District Council, Rahimyar Khan and that no tax was assessed in the name of Ghulam Sarwar, father of the complainant in respect of his flour machine installed in village Nonari. Ghulam Qasim P.W.2 and Khurshid Ahmad P.W.5 have been examined to prove the demand as well as the acceptance of bribe money by the appellant and his co-accused. The statement of P.W.6 Abdul Ghafoor A.S.I. is of formal nature.

The appellant when examined under section 342, Cr.P.C. denied the incriminating circumstances. He however, admitted the recovery of bribe money from him but explained that:

"It was practice in those days that the peon used to realize the tax and deposit the same either in the Treasury or before the A.A.O. and obtain the receipt from him. I was given notices and was asked to go to village Naunari to recover the tax from Ghulam Sarwar, father of the complainant. I went to Ghulam Sarwar. He gave a chit to me in presence of Khameesa Chaukidar and directed me to realize the amount from his son Ghulam Qasim P.W.1. I went to Ghulam Qasim. He started quarrelling with me. I had gone there under the direction of Muhammad Sharif P.W.1 brought Ghulam Qasim to Muhammad Sharif. Ghulam Qasim admitted that he would pay the amount to me at 11 o'clock. I went to his shop to bring this amount at 11 o'clock. I, after obtaining the amount was about to issue the receipt when the raid in question was conducted."

The accused produced Ghulam Murtaza D.W. 1, Abdul Ghani D.W.2' Ghulam Qadir Lumbardar D.W.3 and Khameesa D.W.4 in their defence.

4. Learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubts and that there is no reasonable possibility of the plea raised by the appellant being true.

As against this, the learned counsel for the State has supported the judgment of the trial Court.

5. After hearing the learned counsel and going through the record I find that the conviction of the appellant under section 419 read with section 420, P.P.C. is illegal inasmuch as both the offences being independent one, the trial Court could not record the conviction under section 419 read with section 420, P.P.C. Furthermore, the mere fact that the appellant disclosed his name as Yar Muhammad instead of Abdul Qadir is not sufficient to punish him under section 419 read with section 420, P.P.C. As far the conviction under sections 161, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947. I find that on the question of demand, the statement made by Ghulam Qasim is inadmissible for the reason that the demand was made jointly, Khurshid Ahmad P.W.5 also made identical statement. He stated:

"They said to Ghulam Qasim P.W. that the tax would not be assessed on flour mill if he was willing to pay bribe to them."

Coming to the question of acceptance of bribe I find that the prosecution has examined 2 witnesses namely Ghulam Qasim P.W.2 and Khurshid Ahmad P.W.5., The trend of the statement of Ghulam Qasim indicates that Muhammad Yousaf had sent Abdul Qadir appellant to his shop to take Rs.20 for him Ghulam Qasim has clearly stated that at the time of main occurrence, the appellant came to him and told that the Inspector had sent him to bring the money. I am of the opinion that in view of this evidence, it is difficult to hold that the appellant had accepted the bribe. I also find that there are two notices, dated 27-5-1972 duly signed by District Taxation Officer, District Council Rahimyar Khan. P.W.3 for the recovery of Rs.20 from Ghulam Sarwar (father of the complainant). P.W.3 has admitted his signatures on these notices, The 4 D.Ws. have also supported the plea raised by the, appellant and as such there is a reasonable possibility that the explanation given by the appellant may be true. It is remarkable that just after the recovery of the tainted money, the appellant had taken almost the same plea in statement recorded by Ch. Nazir Ahmad, Magistrate.

6. For what has been stated above, I am convinced that the prosecution has failed to prove its case against the appellant beyond reasonable doubts. There being no satisfactory basis to maintain the conviction recorded by the trial Court, the same has to be set aside. The appellant is, therefore, acquitted of the charges. He is on bail. His bail bond shall stand discharged.

S.A./4383/L Acquittal ordered.

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