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Criminal Appeal No.787 of 1979, decided on 13th October, 1984.

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), Ss.161 & 165‑A‑‑Illegal gratifica tion‑‑Appreciation of evidence‑‑Magistrate hearing conversation and seeing passing of money quite independent witness against accused‑ Other prosecution witness also independent and standing test of cross examination‑‑No major contradiction or inherent infirmity pointed out in statement of Magistrate and other witnesses‑‑Accused not caring to rebut prosecution case and its evidence‑‑Accused, held, rightly convicted by trial Court and sentence awarded to him also not excessive.

M. Saleem Sh. for Appellant.

Muhammad Ali Naqvi for the State.

Date of hearing: 13th October, 1984.

This criminal appeal arises from the judgment of the learned Special Judge Anti‑Corruption, Lahore whereby he on 28‑6‑1979 convicted Muhammad Shaft, appellant under section 165‑A, P.P.C. and sentenced him to 1 year's R.I. and a fine of Rs.5,000 in default thereof to R.I. for 9 months.

2. The appellant is a private person. The prosecution case is that Muhammad Shaft lodged case against Hanif and Bashir which was under the investigation of Javed Ahmad A.S.I. who after the investigation was of the view that accused therein had been falsely involved. On this Muhammad Shafi appellant approached the A. S. I. and offered Rs.1,000 as illegal gratification and also promised to provide fire‑arms for challaning Hanif and Bashir. He gave Rs.500 to the A.S.I. and promised to pay the remaining amount on the following day. The A.S.I. reported the matter and produced Rs.500 Exhs.P.1 to P.5 which had been given to him by the appellant before Malik Muhammad Aslam, Magistrate on 21‑8‑1977. The appellant again approached Javed Ahmad A. S. I. who asked him to pay the amount in Sanam Hotel. To entrap the appellant Muhammad Aslam, Magistrate went in the hotel. He took his position from where he could see the transaction between the appellant and the complainant. Muhammad Shafi appellant paid Rs.200 and promised to pay the rest of Rs. 300 later on. This was done in the hearing and in view of the Magistrate. The appellant also produced carbine P.11 and cartridges P.12/1 to 12/3. The Magistrate then came forward and took into possession the currency notes, carbine and cartridges. The appellant denied these allegations and claimed to be tried.

3. To prove its case the prosecution examined 6 witnesses. Javed Ahmad A.S.I. P.W.3, Malik Muhammad Aslam, Magistrate P.W.6 supported the prosecution case on all material particulars. Naseer Ahmad, Constable P.W.2 was also member of the raid party. The rest of the evidence is of no much importance.

4. When examined under section 342, Cr. P. C. the appellant denied incriminating circumstances. He raised plea of false implication. He stated that:‑

"I got registered the case against Bashir and Hanif which was being investigated by Javid Ahmad A.S.I. He demanded Rs.1,000 as bribe from me for the completion of the case till challan. I refused to give bribe. He in collusion with the other opposite party, by obtaining amount from them, involved me in this case and also got a case against me of Arms Ordinance."

He did not lead any evidence in defence.

5. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubts: that the raid was conducted contrary to the usual practice inasmuch as Muhammad Aslam, Magistrate P.W.6 was not deputed by the District Magistrate or Assistant Commissioner to conduct the raid; that there are discrepancies in the statements of the Magistrate and the A.S.I. that although the raid was conducted in a hotel yet no independent witness was joined to witness the proceedings; that Nazir P.W.2 was joined by the Magistrate from the road and that the prosecution version that the appellant offered or paid bribe to Javed Ahmad A.S.I. is highly improbable. Conversely the learned counsel for the State supported the judgment of the learned trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I find that Muhammad Aslam, Magistrate had not only heard the conversation between the appellant and Javed Ahmad A.S.I. but had actually seen the appellant taking out a Carbine from Dub of his Chadar alongwith 2 cartridges and handed over it to the A.S.I. The appellant also gave Rs.200 to Javed Ahmad A.S.I. in the view of the Magistrate. The Magistrate appears to be quite independent witness. Javed Ahmad A.S.I. had also no ill‑will against the appellant. Both of them have successfully stood the test of cross‑examination. Except for minor and immaterial discrepancies /contradictions here and there learned counsel has not been able to point out any major contradiction in the statements of the Magistrate and the A. S. I. I do not see any inherent infirmity in their statements. The appellant did not care to rebut prosecution case and its evidence. For all these reasons, I am of the view that there is no force in the submission of the learned counsel for the appellant and as such the appellant has rightly been convicted by the trial Court. The sentence awarded to him is also not excessive.

7. For what has been stated above, the appeal is dismissed. The appellant shall surrender himself before the trial Court immediately.

M. Y. H. Appeal dismissed.

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