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Criminal Petition for Special Leave to Appeal No. 18-R of 1981, decided on 21st March, 1981. .

(On appeal from the judgment and order of the Sind High Court dated 10-1-1981 in Cr. A. 3 of 1979).

S. 161 read with Prevention of Corruption Act (II of 1947), S. 5(2)- [Trap-case]-Bribery-Appreciation of evidence Accused found present in informer's house in order to receive second instalment of bribe and petitioner at time of search found to have been carrying three warrants of arrest of informer-Informer alleged by petitioner to have been inimical to him but no explanation given as to why he happened to be present in informer's house at time of-raid-Such circumstances, held, corroborated evidence of informer as to first instalment having been paid earlier and second instalment of bribe i being arranged to be paid at time when raid took place.

----Art. 185(3)-Leave to appeal-New point--Plea as to petitioner's prosecution having been conducted without obtaining sanction of appropriate Government and conviction as such being bad not raised in Courts below-Leave to examine such question at leave to appeal stage refused.

Agha Aziz Ahmad Khan, Advocate and Ch. Akhtar Ali, Advocate-on Record for Petitioner.

Nemo for the State.

Date of hearing: 21st March, 1981.

.--The petitioner was convicted by the Special Judge, Anti-Corruption, Sukkur, under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to imprisonment till rising of the Court and to a fine of Rs. 3,000, or in default three months' R.I. The appellant challenged his conviction in an appeal in the Sind High Court which was dismissed on 10-1-1981. Hence this petition for leave.

The petitioner was tried with one Ghaus Bakhsh, who it would appear, did not file an appeal against his conviction by the Special Judge, therefore, it is sufficient to state that, according to the prosecution, P. W. Mouledino had been taken to the Police Station, Kashmore and confined there on some charge (of which learned counsel was not aware), therefore, it is alleged that the petitioner demanded a bribe of Rs. 1,000, for arranging his release. The petitioner agreed to pay this bribe and on his wife's paying the petitioner a sum of Rs. 500, he was released. Mouledino was to pay the balance of the bribe a few days later. Before paying it, he reported the matter and a raid was arranged. The raiding party consisted of the Magistrate, Class III, Jacobabad, the local Circle Officer one Nisar Ahmad and one Ghulam Muhammad. Mouledino was to pay the bribe in his house, therefore, the marked currency notes were handed to him. The petitioner came with Ghaus Bakhsh at the pre-arranged time and, according to the prosecution, received the bribe and passed it over to Ghaus Bakhsh. Meanwhile, as Mouledino had given the pre-arranged signal, the raiding party entered Mouledino's house and recovered the marked notes from Ghaus Bakhsh.

In order to prove the occurrence, the prosecution examined Mouledino, who gave evidence about the petitioner's demand for a bribe and the payment of Rs. 500, by him to the petitioner which the petitioner passed on to Ghaus Bakhsb. The prosecution also examined the other members of the raiding party and then supported the prosecution case, except that Ghulam Muhammad, who was the Mashir of the marked notes. Both the Courts below held that this evidence was sufficient to prove the petitioner's guilt and the only question is whether there is any error of law in this concurrent finding of the two Courts.

Mr. Aziz Ahmad pointed out that the prosecution had not examined Mouledino's wife, and, therefore, it failed to prove the payment of the first instalment of Rs. 500. This plea has been accepted by the Courts below, and as the failure of the prosecution to examine Mouledino's wife reacts against its case, learned counsel was right when he stated that the prosecution had failed to prove the receipt of the first instalment of the bribe. But, even though the payment of the first instalment of the bribe has not been proved beyond reasonable doubt, Mouledino's evidence fully implicates the petitioner about the payment made in his (Mouledino's) house. Therefore, learned counsel stated that Mouledino's evidence was not fit to be believed, because he was a very hostile witness and as there was no corroborative evidence, the prosecution had failed to prove the petitioner's guilt. It is true that Mouledino's evidence cannot be accepted without corroboration, but the Courts below have relied on two circumstances the petitioner's presence in Mouledino's house at the time when the petitioner was due to come, according to Moulidino, in order to receive the second instalment of the bribe and the fact that the search of the petitioner's presence showed that he was carrying three warrants for the arrest of Mouledino.

In this background, the petitioner had to explain his presence in the house of his bitter enemy, namely Mouledino, but his explanation was patently false and, therefore, the two circumstances relied upon by the Courts below has corroborated evidence undoubtedly furnish corroboration of evidence, and, therefore, we see no error of law in the concurrent findings of the Courts below. Mr. Aziz Khan's only other plea was that the petitioner's conviction was bad, because he had been prosecuted without obtaining the appropriate Government sanction. As this plea had not been raised in. the Courts below, we will not grant leave to examine it. The petition is without merit and is dismissed.

Petition dismissed.

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