-Bribe demanded and received 'by accused on direction of another official who was not challaned-Illegal gratification--

 1986 C L C 2509

Penal Code (XLV of 1860)--

---S. 161--Prevention of Corruption Act (11 of 1947), S.5(2)--Illegal gratification--Bribe demanded and received 'by accused on direction of another official who was not challaned--Complainant stated that when he went to accused's office he took him to that official who demanded bribe--Raiding Magistrate also stated that at time of passing on currency notes that other official was present with complainant and accused and that he heard him telling complainant that his job would be done according to his desire--Accused, therefore, not principal accused and only responsible for abetting main accused--Since main accused had not been challaned and convicted, accused, held, could not have been convicted for accepting bribe--Accused acquitted in circumstances.

Ch. Muhammad Jehangir Wahla for Appellant.

Mian Mushtaq for the State.

MUHAMMAD ZAFARULLAH VS THE STATE

1986 C L C 2509

[Lahore]

Before Muhammad Munir Khan, J

MUHAMMAD ZAFARULLAH--Appellant

versus

THE STATE--Respondent

Criminal Appeal No. 616 of 1984, decided on 06/02/1985.

JUDGUBNT

This Criminal appeal arises from the judgment of learned Special Judge, Anti-Corruption, Gujranwala at Lahore whereby he on 29-11-1984 convicted Muhammad Zafarullah appellant under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to six months. R.I. and a fine of Rs.3,0001 in default thereof two months R.I.

2. The appellant was a Senior Clerk in the Labour Office. The facts leading to the raid on the appellant were that on 27-6-1983 he posing himself as Labour Inspector went to the shop of Muhammad Afzal complainant. He inspected .the weights and demanded illegal gratification for not challaning him and directed him to appear in the office on the following day. The complainant went to the office accordingly. The appellant took the complainant to Aftab Ahmad, Labour Inspector. Then both of them demanded Ra.2,000. The bargain was however, settled at Rs.500. The complainant did not like to give the bribe so he informed the Anti-Corruption Establishment and a raid was conducted under the supervision of Jameel Ahmad, City Magistrate, Gujranwala P.W. 2 and the tainted money, was recovered from him, The appellant denied the charge and claimed to be tried.

3. To prove its case prosecution examined three witnesses. Muhammad Afzal complainant P.W. 1 appeared to prove the demand and acceptance of. illegal gratification by the appellant. He stated that Muhammad Zafarullah appellant visited his shop, checked the weights and- asked him to come to the labour office. He then went to the office. The appellant demanded Rs.2,000 as bribe for not sending the challan to the Court. On request, the demand was reduced from Rs.2,000 to Rs.500 and that at the time of raid he went to the labour office alongwith raiding party. He approached the appellant on the first floor and brought him down stairs and given him the tainted currency notes near the stairs. On receiving the appointed signal, the raiding Magistrate came there, introduced himself and recovered tainted currency notes from the appellant. Jameel Ahmad, Magistrate P.W. 2 stated that at the time of raid the complainant went inside the office to pass on the' tainted currency notes while he and Mehr Zulfiqar Ali C.O. A.C.E. P.W. 3 followed him. The complainant brought Muhammad Zafarullah appellant from first floor and stood near the stairs, meanwhile Labour Inspector Aftab, joined them. The complainant handed over the bribe money to the appellant. Aftab Ahmad, Labour Inspector told , the complainant that his job would be done according to his desire and went away. He then recovered the tainted currency notes from the right hand, of the appellant. Mehr Zulfiqar corroborated the statement of the Magistrate.

4. When examined under section 342, Cr.P.C. the appellant while' admitting the recovery of tainted currency notes stated that tainted money was entrusted to him by Mian Aftab, the Labour Inspector. He did not produce any evidence in defence.

5. The learned counsel for the appellant submitted that prosecution has failed to prove its case beyond reasonable doubt, that the bribe was also demanded by Mian Aftab. Labour Inspector that he was very much present when the tainted currency notes were passed on to the appellant and that there is reasonable possibility of the explanation given by the appellant being true. On the other hand the learned counsel for the state supported the judgment of the trial Court.

6.I have considered the arguments advanced by the learned counsel I for the parties with care. I find that in the peculiar circumstances of the case, the possibility that the bribe was in fact demanded and received by the appellant on the direction of Mian Aftab, who was not even challaned cannot be excluded inasmuch as the complainant stated that when he went to the Labour Office, the appellant took him to Labour Inspector who demanded Rs.2,000 as bribe, that the Magistrate has stated that at the time of the passing on of the currency notes Mian Aftab was very much present with the complainant and the appellant and that he had heard Mian Aftab telling the complainant that his job would be done according to his desire. For all these reasons I am of the view that the appellant was not the principal accused, at the worst he could have been held responsible for abetting Mian Aftab. Since Mian Aftab has not been challaned and convicted therefore, the appellant could not have been convicted for accepting the illegal gratification.

7 . For what has been stated above, the appeal is accepted and the appellant is acquitted of the charge.

M . Y . H .Appeal accepted.