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Criminal Appeal No. 388 of 1974, decided on 22nd April, 1986.

‑‑‑S. 161‑‑Sentence, reduction in‑‑Accused suffering agony of protracted trial and remaining in jail for a month and a half after conviction‑‑Appeal heard after more than ten years‑‑Remaining sentence of imprisonment reduced to a fine of Rs.4,000 in circumstances.

S. Mumtaz Ali Zaidi for Appellant.

Mrs. Tasneem Akbar for the State.

Date of hearing: 22nd April, 1986.

This Criminal Appeal arises from the judgment of learned Special Judge, Anti‑Corruption, Multan, whereby he on 31‑5‑1974 convicted Ali Mazhar Shah appellant under section 161, P.P.C., and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to four months R.I. on each count and a fine of Rs.200 or in default thereof two months' R.I. on each count, with the direction that the sentences shall run concurrently.

2. The appellant was a Licence Clerk, Municipal Committee, Multan. The charge against him was that he demanded Rs.600 as illegal gratification but accepted Rs.100 for issuing certificate for the completion of the supply of licence covers. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined 3 witnesses. Bashir Hussain, complainant, P.W. 1 appeared to prove demand as well as acceptance of Rs.100 as illegal gratification from him by the appellant. Mian Ihsanul Haq, A.C., P.W. 3, Khan Muhammad Jehangir A.S.I., P.W. 4 and Ch. Nemat Ullah, D.S.P., P.W. 5, appeared to prove the recovery of tainted currency notes from the appellant. They supported the prosecution case. The rest of the evidence is of formal nature.

4. When examined under section 342, Cr. P.C., the appellant denied all tire incriminating circumstances. He raised the plea of false implication. He explained that Bashir Hussain Contractor had failed to supply 5,500 licence covers out of 10,000 covers and he induced and forced him to show the receipt of entire stock in the Wheel Tax Branch Register. Since he did not act as desired by Bashir Hussain Contractor, therefore, the latter, in collusion with Muhammad Sharif Storekeeper C.W. 2, got the entry of receipt of all licence covers in the stock register and falsely implicated him in the case. In defence he produced five witnesses. Ghulam Mustafa D.W. 1 was Assistant Accountant Municipal Corporation, Multan. He stated that Bashir Hussain Contractor had to supply 10,000 licence covers brut he actually supplied 4,500 covers. On this he (the witness), issued notice to the Contractor for the supply of remaining licence covers but he did not know whether the remaining 5,500 were supplied by the Contractor or not. Malik Saifullah D.S.P., Anti Corruption Establishment, Multan D.W. 2 appeared to prove letter D.W. 2/A which was signed by him. Muhammad Siddiq D.W. 3 stated that he was working as Office Superintendent, Municipal Corporation, Multan for the last 25 years and no raid was conducted on the wheel tax branch officials in this period. He also proved letter Exh. D.A. Shabbir Ahmad D.W. 4 and Ayyaz Khan D.W. 5 stated that at the time of raid they were present at the shop where Ali Mazhar Shah appellant was present with others and that three persons came there and took the appellant with them although no tainted money was recovered from him. The witnesses stated that the appellant had not thrown any currency notes on the ground nor the same were picked up by any of those three persons.

5. The trial Court also examined Zahoor Ahmad Tareen and Muhammad Sharif Storekeeper as C.Ws. 1 and 2 respectively. Zahoor Ahmad Tareen C.W. 1 had granted sanction for the prosecution of the appellant. Sanction order is Exh. C.A. signed by him. Muhammad Sharif C.W. 2 stated that the appellant was working as licence clerk in the wheel tax branch of Municipal Corporation, Multan in the days of occurrence and the Contractor had actually supplied 10, 000 licence covers which were received by the appellant who also made entry of receipt in the stock register.

6. The learned counsel for the appellant submitted that prosecution has failed to prove its case beyond reasonable doubt inasmuch as Mian Ihsanul Haq, Assistant Commissioner P.W. 3 and the Police officials namely, Khan Muhammad Jehangir A.S.I. P.W. 4 and Ch. Nemat Ullah, D.S.P. P.W. 5 had not seen the passing on of the tainted currency notes by the complainant to the appellant; that they had not heard any talk between the complainant and the appellant at the time of raid that the appellant had falsely been involved in the case; that the money was not recovered from the physical possession of the appellant; that the plea of the appellant that the tainted currency notes were not received by him is very much established by the evidence of defence witnesses and that the appellant was exonerated in departmental inquiry conducted against him. Conversely the learned counsel for the State has supported the judgment of the trial Court.

7. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellant. I find that Mian Ihsan‑ul‑Haq Assistant Commissioner, P.W. 3, Khan Muhammad Jehangir A.S.I., P.W.4 and Ch. Nemat Ullah D.S.P. P.W.5 had seen the appellant taking out the tainted currency notes from the pocket of his Pent and throwing the same on the ground wherefrom the same were picked up by the Magistrate. They are quite independent witnesses. They had no enmity with the appellant to involve him falsely in the case. They have successfully faced the test of cross‑examination. Their statements do not suffer from infirmities such as material contradictions, major discrepancies and dishonest improvement. I do not see any legal infirmity in their statements. The conduct of the appellant of throwing the currency notes on the ground on seeing the raiding party is very much relevant and speaks volume. The complainant, Bashir Hussain has stated that the tainted currency notes were received by the appellant as illegal gratification. The conduct of the appellant of throwing out the tainted currency notes also shows that the tainted currency notes were received by the appellant as illegal gratification otherwise he would not have thrown the same on the ground on seeing the raiding party. In view of the statements of the Magistrate and the police officials which have been believed by me, there is no reasonable possibility of the statement made by the two defence witnesses that nothing had happened at the time of occurrence being true. The defence evidence does not rebut prosecution case and its evidence. The statement made by Muhammad Sharif C.W. 2 also lends support to the prosecution case. For all these reasons, I am convinced that the trial Court as rightly convicted the appellant.

8. This brings me to the question of sentence. In the circumstances that the occurrence took place in the year 1970; that the appellant has suffered agony of protracted trial and that he remained in jail for about 1 months after his conviction, I feel inclined to alter the remaining sentence of imprisonment to a fine of Rs.4,000 or in default thereof R.I. for 3 months. The fine of Rs.200 or imprisonment in default thereof is maintained. Resultantly the appellant shall deposit Rs.4,200 with the learned Special Judge Anti‑Corruption within two months from today, failing which the learned Special Judge shall issue non‑bailable warrants for the arrest of the appellant and on his arrest, he shall be sent to jail for the execution of imprisonment in default of the payment of fine.

S.G.D. Order accordingly.

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