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Criminal Appeal No. 88 of 1964, decided on 14th December 1967.

S. 6‑Prosecu tion of public servant‑Sanction to prosecute‑Appointing and dismissing authority, himself complainant‑Separate order of sanction not necessary‑Penal Code (XLV of 1860), S. 161.

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---Corruption case‑Bribe‑givers not incompetent witnesses unless found to be participant criminals‑Testimony of such persons to be received with caution.

Noor Muhammad v. The State P L D 1963 S C 38 ref.

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---Trial protracted and covering four years Sentence reduced to that already undergone.

Muhammad Nawaz for Gul Muhammad Khan for Appellant.

A. H. Syed for A.‑G. for the State.

Criminal Appeals Nos. 88 and 89 of 1964 filed by Muhammad Iqbal appellant are directed against two similar orders of the Additional District Magistrate, Sargodha functioning as Special judge, dated 20th January 1964, convicting the appellant for two different offences under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act with an award of one year's R. I. in each case.

2. The relevant facts giving rise to the appeals are that during the year 1960 Muhammad Iqbal appellant was posted as a Patwari in village Poohla of Sargodha district where consolidation operations were in progress under the supervision of the Deputy Registrar, Co‑operative Societies, and to the appellant who was also designated as Sub‑Inspector Co‑operative Societies was entrusted the preparation of the consolidation scheme in the village. It appears that he made lavish promises to the share holders to allow them to obtain or retain lands of their own choice and allegedly extracted huge sums from most of them as illegal gratifications. Since it was practically impossible for him to satisfy the conflicting demands of the various Khewatdars in the village, about 40 of them feeling disgruntled submitted an application to the Martial Law Administrator, Zone B. This document which is Exh. P‑B on the record contained definite allegations of favouritism, corruption, forgery and inefficiency specifying the nature and amounts of bribe offered by or extracted from different persons. It was also alleged that in view of the mounting hostility and apprehending danger to his safety, the appellant suddenly disappeared from the village along with his children and household effects as also the relevant records. 1c was further alleged that one Sultan, President of the Consolida tion Committee, who later appeared as a prosecution witness against the appellant at two out of the three trials had got mixed up with him and was instrumental in the various illegalities and irregularities committed by him. The application also con tained some allegations against the Deputy Registrar but they are not relevant for the purposes of the instant case.

3. On the basis of this application which contained the signatures and thumb‑impressions of more than 40 persons, two enquiries were conducted in succession. The first of these was conducted by Mr. Nazeer Ahmad, A. C. O. Sillanwala, who after recording detailed statements of the signatories gave a finding that the appellant who was a new and inexperienced hand did not enjoy good reputation and bad absented himself. It may be pertinent to observe in this context that he was subsequently dismissed by the Deputy Commissioner, Sargodha, vide his order dated 15th August 1961, on the establishment of charges of absence without leave and in subordination against him. The report of the A. C. O. was submitted by Mr. Gul Amir Khan, C. O. to Malik Hakim Khan the then Additional Deputy Com missioner who feeling dissatisfied returned the same to the C. O. with a direction that the latter should personally hold afresh enquiry and submit a detailed report. In compliance with this direction, Gul Amir Khan conducted a fresh enquiry on the spot and after recording the statements of several persons, submitted his report Exh. P. G. and gave a finding that the appellant had been accepting bribe and remained absent from duty and did not even join the enquiry. Consequent upon this report, Mr. M. A. Bajwa, C. S. P., the then Deputy Commissioner, Sargodha addressed letter Exh. P. A. dated 21st January 1961 to the Superintendent of Police, Sargodha for registration of cases against the appellant on charges of accepting illegal gratification and criminal misconduct. Accordingly, three different cases were registered against the appellant giving rise to three simultaneous trials by the Special Judge who acquitted him in one case in which allegations were confined only to attempts to extort bribe. The appellant's conviction, in the two cases has now been challenged in the present appeals which will be disposed of by 'a single judgment.

4. In Criminal Appeal No. 89 the allegations levelled against the appellant were that he had accepted Rs. 400 as illegal gratifi cation from one Shera (P. W. 2) of village Poohla and one maund of wheat plus Rs. 10 from Ghulam Muhammad (P. W. 3) of the same village on the promise that the possession of their lands shall not be disturbed. The allegations were denied by the appellant who took up the position that the cases had been in4iated against him on account of party factions in the village, particularly at the instance of Wahid Bakhsh, a dismissed Head master, who was a leader of his party and feeling frustrated in his efforts to get the land of his choice at the hands of the appellant started a campaign of villification against him. He produced three witnesses in defence who deposed that there were two parties in the village, one headed by Sultan and the other by Wahid Bakhsh and that there were no complaints against the appellant about his corruption. Placing full reliance on the testimony of the P. Ws. including Malik Amir Gul who after holding a detailed enquiry submitted his report Exh. P‑G, the learned Special Judge convicted the appellant, as stated earlier.

5. In Criminal Appeal No. 88 though similar allegations of accepting illegal gratifications were levelled against the appellant by Allah Yar (P. W. 3), Khuda Yar (P. W. 4) and Ghulam Ali alias Malhi (P. W. 5) yet there was one distinguishing feature that the appellant bad returned a sum of Rs. 200 to Khuda Yar on a demand being pressed by the latter. Strangely enough, Sultan, President of the Consolidation Committee, who headed the party opposite to that of Wahid Bakhsh and should have been quite happy with the appellant, also appeared as a P. W. against him to establish the return of the sum of Rs. 200 to Khuda Yar (P. W. 4). At the trial the position taken up by the appellant was the same as in the previous case attributing his false implication to party factions in the village and in particular the disappointment of Wahid Bakhsh leader of the opposite‑party in getting land of his own choice. The same witnesses were produced by the appellant in defence who tried to show that there were party factions in the village and that there were no complaints against the appellant about corruption.

6. The learned counsel for the appellant raised the following contentions before me which were common to both the cases :‑

(i) that no sanction had been obtained for the prosecution of the appellant which vitiated the trial.

(ii) that the two cases rested mainly on the testimony of the bribe‑givers and there was no independent evidence available on the record warranting the conviction of the appellant.

(iii) that there were material discrepancies and inconsist encies in the statements of the P. Ws. which made the prosecution story doubtful.

(iv) that Sultan (P. W. 6) did not implicate the appellant and his evidence was misconstrued to support the appellant conviction.

7. Having given my careful consideration to the contentions raised by the learned counsel, I have not been able to see much substance in them. The first objection relating to want of valid sanction for prosecution is wholly misconceived, inasmuch as the appointing and dismissing authority namely, the Deputy Commissioner was himself the complainant in this case and as such there was hardly any question of obtaining a separate order of sanction for prosecution. The significant fact that the prosecution was initiated by the Deputy Commissioner after having fully satisfied himself about the misconduct of the appellant as emerging from the two enquiries held in turn by the A. C. O. and the C. O., cannot be lost sight of. The letter personally appeared to prove his report Exh. P‑G in this regard and as such it would be incorrect to suggest that nobody had applied his mind before sanctioning the appellant's prosecution. The technical objection, therefore, must fail.

8. The next contention is equally devoid of force. N doubt the bribe‑givers are the principal witnesses on whose testimony the convictions of the appellant rested, yet they are no incompetent witnesses and unless they are found to be participant criminals in the offence their testimony cannot be thrown out. Although, the law insists on the receipts of the testimony of a bribe‑giver with caution, yet on a careful examination of their' statements I have not been able to take a different view from the one taken by the Special Judge who had also the additional advantage of studying their demeanour. In the circumstances of the case one cannot avoid an impression that in the course of consolidation operations entailing large scale dislocation, Khewat dars in possession of better quality land would naturally be anxious to retain them and were constrained to offer illegal gratification when threatened with dispossession. It is in these circumstances that the P. Ws. appeared in the case. This is precisely what is laid down in Noor Muhammad v. The State (P L D 1963 S C 38) relied upon by the learned counsel for the appellant.

9. Coming now to the next contention on the point of dis crepancies in the statements of the P. Ws. it may be pointed out that the learned counsel concentrated in this regard only on Criminal Appeal No. 88. It was argued that the statements of Allah Yar (P. W. 3), Khuda Yar (P. W. 4) and Sultan (P. W. 6) were discrepant both in regard to the time of payment of Rs. 360 as illegal gratification and that of the return of Rs. 200 in the presence of Sultan P. W. The existence of these discrepancies cannot be denied, but keeping in view the time‑lag which had intervened between the payment and their depositions in the Court the discrepancies lose much of their significance. Even otherwise no such allegations were available to the learned counsel in respect of the payment of Rs. 40 made by Ghulam Ali (P. W. 5) which was never returned to him. This contention was not pressed in so far as Criminal Appeal No. 89 is concerned and even if this part of the allegation is deemed alone to have been brought home to the appellant short of other allegations, this would not make any difference in so far as his conviction is concerned.

10. As regards the objection based on the testimony of Sultan (P. W. 6) is concerned, it is confined only to Criminal Appeal No. 88. In the first instance it may be born out in mind that the conviction does not rest exclusively on the testimony of this witness. Besides even this witness had to admit in answer to a specific question during cross‑examination that the appellant had told him that he had received the money. He stated "It is correct that the accused had told him that he had received the money". He further stated "it is wrong that the accused had told him that the bribe had been given to him forcibly". Of course, he admitted the correctness of a suggestion made to him that the appellant told him that he had refused to take the money which nonetheless had been left with him by Khuda Yar P. W. This concession is hardly of any help to the appellant, and even on the most favourable interpretation cannot have the effect of washing off the entire prosecution evidence brought on the record against the appellant.

11. The upshot of the above discussion is that the offences stood rightly established against the appellant and the learned Single Judge was fully justified in recording his convic tion. There is, however, yet another aspect of the matter. I have already referred to the order of the appellant's dismissal made on 15th August 1961. After having lost his job he under went the agony of a protracted trial which ended in his conviction on 20th January 1964. Normally this Court would be reluctant to remand a convict to custody after the lapse of four years and as such the sentence of two months and ten days already under gone by him till he was released on bail by this Court on 31st March 1964, should be good enough to meet the ends of justice. Thus while maintaining the conviction, I reduce the sentence to the one already undergone by the appellant in each case. The appeals are partly accepted to this extent.

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