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Criminal Appeal No. 900 of 1954 decided on 22nd July, 1955 from the order of Qadir Bakhsh, Special Judge, Punjab, Lahore, dated the 30th November 1954.
(a) Criminal Law Amendment Act (XIX of 1948) (as amended by Acts (XXXVII of 1953 and IV of 1954)----
S. 5 (5) proviso‑Sanction in first instance obtained under S. 6, Prevention of Corruption Act (II of 1947)‑Case transferred to Special Judge under subsection (4) of S. 4 of Act XIX of 1948 (as amended)‑New sanction not required after transfer.
Sanctions for the prosecution of public servants which had already been given either by the appropriate authority specified in section 6 of Act II of 1947, or by the Central Government under subsection (5) of section 5 of Act XIX of 1948, (as it stood before amendment) are valid.
The omission of section 6 of Act II of 1947 by Act XXXVII of 1953 was not intended to delete it with retro spective effect. The language actually used makes it clear that the operation of the repeal was to be with future effect: the words are "shall be omitted".
In the present case sanction had in the first instance been obtained under section 6, Prevention of Corruption Act (II of 1947). Subsequently, the case stood transferred to the Court of the Special judge under subsection (4) of section 4 of Act XIX of 1948 (as amended), It was argued by counsel for appellant that since section 6 of Act II of 1947 had lapsed by virtue of clause (e) of section 5 of Act XXXVII of 1953, new sanction was required under section 5 (5) of Act XIX of 1948 (as amended).
Held, that the sanction obtained under section 6 of Act II of 1947 availed for the prosecution of the appellant before the Special Judge after transfer of the case to the latter Court.
‑Sanctioning authority described as "Deputy Commissioner" instead of Collector "‑Error immaterial.
When the authority sanctioning the prosecution was erroneously described as the "Deputy Commissioner " instead of the " Collector ", evidently by a clerk who typed the draft, the error was‑ held to be immaterial.
Heavy amount should not be inflicted merely to cause accused to suffer substantial term of imprisonment on default.
Where fine is beyond the means of an offender to pay, it ought not to be inflicted merely in order that a substantive period of imprisonment in default should be suffered by the accused.
Muhammad Shah, for Appellant.
A. S. Kirmani, for A. G. for Respondent.
Muhammad Sharif son of Bagh Ali, aged 30, Wasil Baqi Nawis, and S3jid Ali son, of Nasir Ali, aged 35,, Additional Wasil Baqi Nawis, Tahsil Qasur, District Lahore, were convicted by Chaudhri Qadir Bakhsh, Special judge, Lahore, under 5 (2) of the Prevention of Cor ruption Act (II of 1947) for accepting an illegal gratification of Rs. 80 from Fazal Din P. W. and sentenced to three years' rigorous imprisonment each, and a fine of Rs. 2,000 each and in default of payment of fine to a further period of one year's rigorous imprisonment. They have filed two separate appeals which will be disposed of by this order.
In brief the facts alleged by the prosecution are that Muhammad Sharif appellant was posted as Wasil Baqi Nawis in Tahsil Qasur with effect from the 22nd of February 1952, and Sajid Ali was working as Additional Wasil Baqi Nawis since February 1953. Bagh Ali (P. W. 2), a shopkeeper of Nuriwala, and his partner Muhammad Ilyas (D. W. 9) made a joint application (Exhibit P. A.), dated the 14th of February 1953, for the sanction of a grain depot in village Nuriwala instead of Mauza Kharaipa. This application was presented to the Naib‑Tahsildar who in turn gave it to Muhammad Sharif appellant for a report. Muhammad Sharif demanded Rs. 100 as bribe from the applicants for making a favourable report on their application. The applicants tried to make him accept a lesser amount but he did not agree. Bagh Ali P. W. requested his elder brother Fazal Din (P. W. 1) to approach Muhammad Sharif appellant with a view to having the amount of bribe re duced. Fazal Din, Bagh Ali and Muhammad Ilyas then jointly approached Muhammad Sharif appellant on the 28th of February, 1953 and offered him a sum of Rs. 45 but the latter returned this sum and insisted on getting Rs. 100 as originally demanded by him. Muhammad Sharif appellant directed the applicants to see him on Monday, the 2nd of March, 1953, with the amount of Rs. 100. The applicants met Muhammad Sharif appellant on the 2nd of March and entreated him again to reduce his demand but he did not agree. Thus disappointed they contacted Ghulam Muhammad, Sub Inspector of the C. I. D. (P. W. 5), and apprised him of the above facts. Ghulam Muhammad P. W. took Fazal Din to Malik Khan Muhammad, Sub‑Inspector, P. W. on the same day. Both the Sub‑Inspectors took the com plainants to the Additional Superintendent of Police who directed them to be taken to Faqir Syed Siraj‑ud‑Din, Sub -Divisional Magistrate, Qasur. A raid was organised and Sheikh Ijaz Ahmad, Magistrate (P. W. 4), was put in charge of it. The Magistrate recorded the statement of Fazal Din (P. W. 1), searched his person and after noting the numbers of the currency notes intended to be given to Muhammad Sharif appellant handed them back to him. Fazal Din P. W. accompanied by Faiz Muhammad constable (P.W.6) in plain clothes went to the Tehsil premises in order pass plain the money on to Muhammad Shari appellant. When they entered his office, Fazal Din P. W. again requested him to reduce the amount but on his refusal to do so, took out Rs. 80 from his pocket and gave them to this appellant. Muhammad Sharif appellant accepted this sum and passed it on to Sajid Ali appellant, Additional Wasil Baqi Nawis, and told him that the accounts would be settled in the evening. Faiz Muhammad '(P. W. 6) who was watching this transaction came out of the room and informed the Magistrate and the police who were waiting outside. The raid party came into the room and searched the person of Muhammad Sharif appellant. Nothing was, however, recovered from his personal search. On the infor mation of Fazal Din P. W., the Magistrate then searched the person of Sajid Ali appellant and recovered currency Notes Exhibit P. 1 to P. 8 from his coat vide recovery list Exhibit P. F. The numbers of the recovered currency notes tallied with the numbers already noted by the Magis trate in Exhibit P. E, before the raid. The remaining two currency notes of Rs. 10 each were recovered from Fazal Din (P. W. 1) vide memo. Exhibit P. G. The application Exh. P. A. which was lying on the table in front of the seat of Sajid Ali appellant was also taken into possession vide recovery memo. ‑Exh. P. H. The application bore an endorsement by Muhammad Sharif appellant. This is Exh. P. A/1, while the statement, dated the 2nd of March, 1953 (Exh. P. B/2) on the back of the application is recorded by Sajid Ali appellant. The Magistrate drew up the usual report, arrested the appellants and handed them over to Malik Khan Muhammad Sub‑Inspector for investigation. After sanction for their prosecution was obtained from Syed Ijaz Hussain Shah, the then Collector of Lahore, the appellants were placed before a Magistrate for trial. This sanction, however, was signed by Mr. Ijaz Hussain Shah as the Deputy Commissioner of Lahore.
When examined under sections 242 and 342 of the Code of Criminal Procedure the appellants denied the prosecution allegations and pleaded their innocence. The plea of Sajid All appellant was that the currency notes recovered from the outer pocket of his coat which was hanging on his chair were placed there by somebody without his knowledge, and that he had never consciously accepted this amount and put it into his coat. He added that the money might have been put there by somebody inimical towards Muhammad Sharif appellant. Sajid Ali appellant admitted having written the statement of Bagh Ali (Exh. P. B/2) on the back of his application Exh. P. A. Muhammad Sharif appellant denied having passed the currency notes to Sajid Ali though he admitted that they were recovered from the latter's possession. He also admitted having received the application Exh. P. A. from the Naib‑Tahsildar fox report and to have made an endorsement Exh. P. A/1 on it. The appellants produced nine witnesses in defence including Muhammad Ilyas (D. W. 9), one of the applicants for the grain depot.
The case was originally tried by Chaudhri Muhammad Bashir, Magistrate with powers under section 30 of the Code of Criminal Procedure, and was then transferred to the Court of Khan Muhammad Shafi Khan, who started de novo proceedings in the case on the 18th of September, 1953. He had almost completed the recording of the prose cution evidence, when it was transferred to the file of Chaudhri Qadir Bakhsh, Special Judge for Lahore Area, under the provisions of subsection (4) of section 4 of the Criminal Law Amendment Act (XXXVII of 1953) which came into force on the 17th of November, 1953. As stated above, sanction under section 6 of the Prevention of Cor ruption Act (II of 1947) had already been obtained from Syed Ijaz Hussain Shah, Deputy Commissioner, Lahore, before cognizance was first taken by Chaudhri Muhammad Bashir. The relevant portion of section 6 may be reproduced below for convenience :‑
"6. No Court shall take cognizance of an offence punishable under section 161 or section 165 of the Pakistan Penal Code or under subsection (2) of section 5 of this Act alleged to have been committed by a public servant, except with the previous sanction :‑
(a) . . . . . . . ;
(b) . ;
(c) in the case or any other person, of the authority competent to remove him from his office ".
Before dealing with the evidence in the case, I would like to dispose of the legal objections raised by the learned counsel for Muhammad Sharif appellant, which are to the fol lowing effect :‑
(1) That Chaudhri Qadir Bakhsh had no jurisdiction to try the case, there being no sanction for the prosecution of the appellants by the " appropriate Government " under subsection (5) of section 5 of the Pakistan Criminal Law Amendment Act (XIX of 1948) as amended by the Criminal Law Amendment Act (XXXVII of 1953) and further amended by the Pakistan Criminal Law Amendment (Amendment) Act (IV of 1954).
(2) That " sanction " referred to in the proviso to sub section (5) to section 5 of Act XXXVII of 1953 should be deemed to refer only to the previous sanction given by the "Central Government" under subsection (5) of section 5 of the Pakistan Criminal Law Amendment Act (XIX of 1948), as it stood before amendment, and not to the one given under section 6 of the Prevention of Corruption Act (II of 1947), that being no longer in force by virtue of the provisions contained in subsection (5) of section 5 of the Act.
(3) And that in any case the sanction for the prosecu tion of the appellants given under section 6 of the Pre vention of Corruption Act (II of 1947) by Syed Ijaz Hussain Shah, Deputy Commissioner, Lahore, was a nullity inasmuch as he gave the sanction in his capacity as Deputy Commissioner and not as a Collector, the letter alone being competent to remove the appellants from service as envisaged by the section.
It may be mentioned here that some changes in law relat ing to corruption were introduced by the Pakistan Criminal Law Amendment Act (XIX of 1948) which in its turn was amended by Criminal Law Amendment Act (XXXVII of 1953), and further amended by Pakistan Criminal Law Amendment (Amendment) Act (IV of 1954). The Prevention of Corruption Act (II of 1947), the Pakistan Criminal Law Amendment Act (XIX of 1948), the Criminal Law Amend ment Act (XXXVII of 1953) and the Pakistan Criminal Law Amendment (Amendment) Act (IV of 1954) will here after in this judgment be referred to as Act II of 1947, Act XIX of 1948, Act XXXVII of 1953 and Act IV of 1954, respectively.
The learned counsel argues that when the trial was in progress in the Court of Khan Muhammad Shafi Khan, sub section (5) of, section 5 of Act XIX of 1948, which required sanction of the Central Government for the prosecution of public servants, had already been enacted and, therefore, the case could not be tried by him without fresh sanction by the Central Government, the previous sanction under section 6 of Act II of 1947 having lapsed and become of no legal consequence. This contention will have force if section 4 of Act XIX of 1948, and subsection (5) of section 5 of the same Act are read disjunctively and not conjunctively. The two sections, however, are clearly complementary and define the jurisdiction of the Special judges appointed under the Act. Section 4 of this Act reads as follows :‑
" 4. (1) A Special judge shall have jurisdiction within such territorial limits as may be fixed by the Central Government by notification in the Official Gazette in respect of cases sent up to him for trial by the Special Police Establishment, constituted under the Pakistan Special Police Establishment Ordinance, No. VII of 1948 ".
It will be noticed that the Special judges appointed under this Act had jurisdiction in respect of those cases only which were sent to them for trial by the Special Police Establishment constituted by the Central Government under Ordinance VII of 1948, and the scheme of the Act was not to interfere with the jurisdiction which already vested in the local Courts in this Province to try corruption cases under section 5 (2) of Act II of 1947. This is made per fectly clear by subsection (5) of section 5 of Act XIX of 1948 which is in the following terms :‑
"5. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, the sanction of the Central Government shall be required for the prosecution under this Act of public servants for offences specified in the schedule or notified from time to time in the Official Gazette for trial by the Special Judges ".
It follows that section 4 of Act XIX of 1948 confined the jurisdiction of the Special judges appointed under the Act only to cases investigated by the Special Police Establish ment. This subsection places a further restriction on their jurisdiction by making a prior sanction for prosecution by, the Central Government a sine qua non to their taking cognizance of such cases. The subsection which is merely restrictive was not intended to repeal the provisions of section 6 of Act II of 1947 even by implication.
Now section 5 (5) of Act XXXVII of 1953 provides :‑
"(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or in any other law, the previous sanction of the appropriate Govern ment shall be required for any prosecution under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act :
Provided that no such sanction shall be required in respect of a case transferred under the proviso to subsec tion (2) of section 4 or by virture of subsection (4) of that section."
It is clear that the sanction referred to in the proviso to this subsection cannot mean " sanction by the Central Government " only as mentioned in subsection (5) of section 5 of Act XIX of 1948, which, as already discussed, was intended to be confined only to the cases tried by the Special judges appointed under that Act. Moreover, the omission of the words " by the Central Government " which occurred before the word " sanction" in the proviso was clearly intended to show that sanctions for the prosecution of public servants which had already been given either by the appropriate authority specified in section 6 of Act II of 1947, or by the Central Government under subsection (5) of section 5 of Act XIX of 1948, were valid. The omission of section 6 of Act II of 1947 by Act XXXVII of 1953 was not intended to delete it with retrospective effect. The language actually used makes it clear that the operation of the repeal was to be with future effect : the words are" shall be omitted". The object in deleting the section seems to be to make the law uniform in cases triable under Act XXXVII of 1953 as section 5 (5) in that Act provided for sanction. Any doubt that there might be is cleared by the provisions of subsections (4) and (5) of section 4 of Act XXXVII of 1953 which run thus :‑
" (4) All cases relating to any offences mentioned in the Second Schedule and pending in any Court other than the Court of a Special judge immediately before the com mencement of the Criminal Law Amendment Act, 1953, shall, on such commencement stand transferred to the Special judge having jurisdiction over such cases.
(5) In respect of cases transferred to a Special judge under the proviso to subsection (2) or by virtue of sub ' section (4), such Judge shall not by reason of the said transfer, be bound to recall and re‑hear any witness who has given evidence in the case before the transfer and may act on the evidence already recorded by or produced before the Court which tried the case before the transfer".
It is, however, obvious that the evidence in the pending cases could only be acted upon by the Special judge under Act XXXVII of 1953 if it had been recorded by Courts which had jurisdiction to try such cases. When making the previous evidence recorded by or produced before the trial Courts in cases under section 5 (2) of Act II of 1947 admis sible under this subsection in subsequent trials by the Special Judges, the Legislature was fully alive to the fact that such cases had started with sanction of the authority mentioned in section 6 of Act II of 1947. Unless, therefore, the sanction under Act II of 1947. was considered to be a valid sanction for the purposes of Act XXXVII of 1953, the subsection would be reduced to nullity which intention will be clearly opposed to the well‑recognised principles of interpretation of statutes. Again, the words " evidence already recorded by or produced before the Court which tried the case before the transfer " in subsection (5) do not exclusively refer to the Court of the Special judges appointed under Act XIX of 1948. In fact if this were the intention of the Legislature, the words " Special judge or judges " in place of the words " the Court " should have been more appropriate and exact and this would have clearly excluded the Courts in which cases under section 5 (2) of Act II of 1947 were already pending. This conclusion is further strengthened by the words " in any Court" used in sub section (4) of section 4 of Act XXXVII .of 1953 which, I have no doubt, refer to all the Courts which had taken cognizance of the corruption cases both under the Preven tion of Corruption Act (II of 1947) as well as under Act XIX of 1948 and not to the Courts of the Special judges alone who were appointed under the latter Act By read ing the words " of Special judges " after the word "Court", we will be clearly contravening a well‑established principle of construction of a statute. I would, for the above reasons, repel the contention of the learned counsel for the appel lants that the trial by Chaudhri Qadir Bakhsh was bad for want of proper sanction by the appropriate Government.
I will now deal with the objection raised by the learned counsel with regard to the competence of the Deputy Commissioner to give valid sanction for the prosecution of the appellants. I have seen the original sanction, dated the 6th of April, 1953, by Syed Ijaz Hussain Shah and find that he signed it as Deputy Commissioner, Lahore, and not as Collector. The sanction clearly indicates that Syed Ijaz Hussain Shah knew that the appellants had been employed in the Revenue Department at Tahsil Qasur and could be removed from service by him as Collector of the district. The sanction is in the following terms :‑
" Sanction under section 6 of the Prevention of Corruption Act II of 1947 for the prosecution of (1) Mr. Muhammad Sharif son of Bagh Ali, Sheikh, Wasil Baqi Nawis, Tahsil Qasur, and (2) Mr. Sajid Ali son of Nasir Ali, Sheikh Additional Wasil Baqi Nawis, Tahsil Qasur.
Whereas information was received that Mr. Muhammad Sharif and Mr. Sajid Ali being public servants on 2nd March, 1953 at Qasur obtained from Fazal Din son of Chughta P. W., whose brother Bagh Ali and his partner Muhammad Ilyas had applied to obtain food grain depot at Nooriwala, Rs. 80 as gratification other than legal remuneration for doing official act, viz., promised to get sanction of food grain depot and whereas it appears that the said Mr. Muhammad Sharif and Mi. Sajid Ali committed offences punishable under section 161 Pakistan P. C. and section 5 (2) of Pre vention of Corruption Act II of 1947.
Now, therefore, I, Syed Ijaz Hussain Shah, Deputy Commissioner Lahore District, do hereby consent to and sanction the prosecution of the said Mr. Muhammad Sharif and Mr. Sajid Ali for the said offences.
(Sd.) IJAZ HUSSAIN SHAH,
Deputy Commissioner,
6‑4‑1953. Lahore.
He also knew the exact nature of the allegations against them and had applied his mind in a satisfactory manner to the facts of the case before he accorded sanction for their prosecution. The words " Deputy Commissioner " in common parlance embraces the status of that officer as a Collector as well as a District Magistrate, and it cannot be argued that Mr. Ijaz Hussain Shah was only acting as Deputy Commissioner at the time of giving sanction and not as a Collector of the District. I am not inclined to attach any importance to the loose terms so employed in the body of the sanction evidently by a clerk instructed to type the draft. I was referred to an unreported judgment by Khurshid Zaman J, in which he held that a sanction given by a District Magistrate was not a legal sanction where it should have been given by him as a Collector. That case is distinguishable on facts from the present case because the officer giving the sanction had described himself as Deputy Commissioner in this case and not as District Magistrate. Moreover, I do not think that such a technical view of the matter should be permitted to defeat the ends of justice. As Syed Ijaz Hussain Shah clearly knew at the time of his giving the sanction that the appellants were working in the revenue department, and that he being the head of that department as a Collector was competent to remove them from service, his mind was working on the lines on which the mind of a Collector should work when he is considering the question of sanction relating to a criminal case against a subordinate working in the revenue department. Finding the objection without substance, I hold that the sanction suffered from no defect.
Before coming to the prosecution case, I would deal with defence case and the evidence led in support of it. Abdul Ghafur (D. W. 1) is the Bills Clerk in the Deputy Commissioner's Office at Lahore, and his evidence is purely formal. D. W. 2, Aziz Ahmad Khan stated that Sajad Ali appellant came to him in his office on the day of the occurrence at 3 p. m. in order to get some challan forms from him. He was not wearing his coat at that time and stayed with the witness for five or six minutes. This evi dence was intended to show that the coat from which the bribe money was recovered was not on the person of Sajid Ali appellant at the time of recovery and was hanging by his chair, thus affording an adequate opportunity to a person sitting next to him to place the money in it without his knowledge. I am not prepared to believe that the incident of obtaining challan forms from the witness on the day of the occurrence had left such an indelible mark on his memory as to enable him to give evidence with such exactitude on the 8th of October, 1954. Azim Ullah Jemadar (D. W. 3) corroborated Aziz Ahmad Khan (D. W. 2) by stating that he entered the room of Sajid Ali appellant on the 2nd of March, 1953 at 12 noon and found him absent from there and that on his enquiry he was informed that the appellant had gone to Siah Nawis to get some forms and that his coat was at that time hanging by the chair. Assuming this statement to be correct‑although I am inclined to think that it is false‑the time given by this witness of the accused's visit to the Siah Nawis is 12 noon and not 3 p. m. as stated by D. W. 2. Ilam Din (D. W. 4) has deposed that when the amount of Rs. 80 was accepted by Muhammad Sharif appellant in his presence, Sajid Ali appellant was not present in his room and had gone to the room of Siah Nawis leaving his coat hanging by his chair. He has gone to the length of stating that the amount of Rs. 80 was actually put by Muhammad Sharif appellant in the pocket of the coat of Sajid Ali appellant in his presence. He is a chance witness and has offered no satisfactory explanation of his presence in the room at the time of the passing of the tainted money to Muhammad Sharif appellant. Moreover, the witness never brought this fact to the notice of the Magistrate when the recovery was affected from the person of Sajid Ali appellant although he alleges to have been present in the room at the time of the raid. Muhammad Sharif (D. W. 5) is a formal witness and his evidence has no relevance to the case. Bagh Ali (P. W. 2) was recalled as D. W. 6 on behalf of Sajid Ali appellant, but from his evidence I find that the only sentence he has uttered in favour of the appellant is that he never demanded the bribe from them, and that no conversation had taken place between the applicants and this appellant before the raid. This is in contradiction of his previous statement made by him before the learned Magistrate on the 8th of October, 1953, wherein he stated that both the appellants enquired from him and his companions whether they had brought " inam kinam " for them. The present concession by the witness in favour of Sajaad Ali appellant having been made after one fall year is not entitled to any weight. The statement of Nawab (D. W. 7) has no bearing on the facts of the case and may be ignored. Muhammad Umar Lambardar (D. W.8) on behalf of Muhammad Sharif appellant averred that he was present in the room when the applicants came there and talked to Sajaad Ali appellant and handed over the money to him. In cross‑examination the witness was unable to reveal the exact nature of his business with Muhammad Sharif appellant and gave evasive replies with regard to the reasons of his visit. He admitted that he never brought this fact to the notice of the Magistrate who arrested Muhammad Sharif appellant in his presence. The suggestion by the cross‑examiner that the son of the witness, who was employed as a clerk in the A. D. C. R's office, and Muhammad Sharif appellant resided together, was not accepted by the witness by saying that he did not know if this was true. D. W. 9, Muhammad Ilyas, is a partner of Bagh Ali P. W. who made the application Exh. P. A. for the allotment of a foodgrain depot. He was given up by the prosecution as having been won over and his appearance in Court as a defence witness amply justifies the stand taken by the Crown. He has however, cor roborated Bagh Ali and Fazal Din P. Ws. on the point of Muhammad Sharif appellant's demanding bribe from them, and further states that he was present at the time of the raid a position which even the prosecution does not challenge. His evidence is mainly to the effect that the amount of Rs. 80 was accepted by Muhammad Sharif appellant who put it into the pocket of Sajaad Ali appellant who was absent from his room at that moment. This version has already been disbelieved by me, and I do not attach any importance to the statement of this witness either. We know it as a fact that witnesses in this country are sometimes success fully approached by the accused party and show no qualms of conscience in deposing in their favour at some later stage of the case. In view of the above discussion, I reject the defence evidence as unworthy of credence.
Coming now to the prosecution evidence in the case, I find that the recovery of the tainted money is not in dispute and it is therefore, unnecessary to refer to it in detail on that point. The explanation furnished by Sajid Ali appellant that the amount of Rs. 80 found its way into the pocket of his coat without his knowledge is frivolous and in the face of overwhelming evidence of independent and respectable persons, I reject it as of no consequence. Fazal Din (P. W. 1) and Faiz Muhammad (P. W.6) have stated in unequivocal terms that the bribe money was first taken by Muhammad Sharif appellant who then passed it on to Sajid Ali appellant in their presence. Their state ments on this point are further corroborated by Bagh Ali (P. W. 2) who deposed that as soon as they reached the Tahsil office both the accused enquired from them whether they had brought "inam kinam " for them. During the course of the arguments, Mr. Kureshy, the learned counsel for Sajid Ali appellant, instead of making any point in favour of his client, merely suggested that the plea of Muhammad Sharif appellant that he did not accept the money was false and that Sajid Ali appellant, who was working under him, could not have accepted the amount in the presence of his superior. The only point in favour of Muhammad Sharif appellant that no money was recovered from his personal search, was vehemently and repeatedly urged by his counsel, but the circumstance has been no satisfactorily explained by the prosecution that it cannot prove his innocence. The evidence of the prosecution witnesses who gave the money to the appellants is unimpeachable and they had no animus against them which might have impelled the witnesses to level a false charge of corruption against them. I, there fore, find that the amount of Rs. 80 was in the first instance given to Muhammad Sharif appellant who in turn passed it on to Sajid Ali appellant from whose coat it was ultimately recovered by the Magistrate in the presence of the police officials and the complainants. For the reasons given above, I maintain the convictions of Muhammad Sharif and Sajid Ali appellants.
There now remains only the question of sentence to be dealt with. Taking the dismissal of the appellants from service into consideration, I feel that the sentence of three years' rigorous imprisonment in their case is rather excessive and demands reduction. The sentence of a fine of Rs. 2,000 is also excessive in view of the financial position of the appellants, and is likely to inflict serious hardship upon their families. Where fine is beyond the means of an offender to pay it, it ought not to be inflicted merely in order that a substantive period of imprisonment in default should be suffered. Taking all the circumstances of the case into con sideration, I reduce the sentence of imprisonment from three years to eighteen months' rigorous imprisonment in the case of each of the two appellants, and reduce the amount of fine from Rs. 2,000 to Rs. 100 in each case. I further direct chat in default of payment of fine, the appellants shall undergo a further period of three months' rigorous imprisonment. Muhammad Sharif appellant, who is on bail, shall. surrender to undergo the unexpired portion of his sentence.
A. H.
Sentences reduced.
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