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Criminal Appeal No. 25 of 1985, decided on 9th February, 1987.

---S. 161--Prevention of Corruption Act (II of 1947), S. 5(2)--Illegal gratification--Complainant and prosecution witnesses having no previous acquaintance or enmity with accused--First information report lodged without delay--Prosecution case fully supported by evidence--No explanation offered by accused in regard to recovery of tainted money from his possession--Evidence of Mashir supported by that of other witnesses in all material respects--Conviction and sentence of imprisonment maintained in circumstances.

Muhammad Rafique Khanzada for Appellant.

Murtaza Hussain for the State.

Date of hearing: 21st January, 1987.

The appellant has been convicted for committing offences under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo R.I. for four months together with a fine of Rs.3,000, in default to undergo further R.I. for three months. The appellant has now filed this appeal against his conviction and the sentence.

According to the facts of the case as stated in the F.I.R. on 2-5-1983, one Ali Akbar Shah, President Chhachhi Flah Society, the complainant in this case, had gone to the office Fe- -Assistant -Registrar, Joint Stock Companies Sind, situated in Block No. 25 Old Secretariat, for registration of the Society. There he was accosted by the appellant who was serving as a peon in the said office, who promised to help him in getting the society registered through co-accused Mohammad Shafiq, an office Superintendent in the said office on payment of Rs.700 by the complainant as illegal gratification. Consequently, the complainant was given a challan for depositing Rs.50 as registration fee in the National' Bank of Pakistan and was also asked to bring all the relevant papers together with Rs.700 demanded as illegal gratification.

The complainant thereafter, went and lodged F.I.R. with the Anti Corruption police on the same day which was recorded by Inspector Faqir Mohammad. According to the arrangement made with the police, the complainant after depositing Rs.50/- in the National Bank of Pakistan the next day went to the office of the Anti-Corruption Inspector where the latter gave him tainted currency notes amounting to Rs.700 in presence of Mr. Shankar Lal, A.C.M., South Karachi (P.W.1). A Mashirnama of the currency notes were prepared in presence of the Mashirs on which the numbers of currency notes were noted. Thereafter, Inspector Faqir Mohammad accompanied by the complainant, the Magistrate and the Mashirs and other police staff went to a canteen situated near Block No. 25 of the Pakistan Secretariat. The raiding party then waited inside the canteen while the complainant was sent to bring the appellant to the canteen. Shortly thereafter the complainant brought the appellant to the canteen and gave him an application alongwith a copy of challan and the tainted currency notes amounting to Rs.700. Thereafter, the appellant and the complainant left the canteen and while they were standing at a Pan shop outside the canteen they were surrounded by the raiding party and the tainted currency notes amounting to Rs.700 together with a copy of challan and the application was recovered from the possession of the appellant. The appellant was then arrested at the spot and brought to the Anti-Corruption Office where further statement of the complainant and the Mashirs was also recorded. On 8-5-1983 Inspector Faqir Mohammad also arrested co-accused Mohammad Shafiq and after obtaining necessary sanction for prosecution of the appellant and the co-accused they were challaned before the learned Special Judge, Anti-Corruption to stand their trial.

The appellant in his statement denied allegations against him as according to him the case had been falsely set up against him by the police.

The learned Special Judge after extending benefit of doubt to co- accused Mohammad Shafiq acquitted him but he found the appellant guilty of the offence charged and convicted and sentenced him as pointed out above.

I have heard Mr. Rafiq Khanzada learned counsel for the appellant and Mr: Murtaza Hussain, learned counsel appearing on behalf of the State.

The contention raised by Mr. Rafiq Khanzada is that the prosecution has failed to establish any case against the appellant beyond a reasonable doubt. According to him, the conversation which took place between the appellant and the complainant P.W Ali Akbar Shah had not been heard by the raiding party, P.W. Faqir Mohammad the Mashir of the recovery of tainted money from the possession of the appellant was an interested witness as he was also Chhachhi, the requirements of section 103, Cr.P.C. were not fully complied wit as Mashirs were not taken from the same locality, and there were contradictions in the statements of the prosecution witnesses.

I find these contentions to be completely devoid of force. First of all there is no reason to doubt the evidence of the complainant who admittedly had no previous acquaintance or enmity with the appellant The F.I.R. was lodged by him on the same day and the next day the raid was arranged which ultimately resulted in the recovery of the tainted money from the possession of the appellant together with the copy of challan and the application. The case of the prosecution is fully supported by the evidence of P.W.1 Shankar Lal, A.C.M. South Karachi P.W.3 Faqir Mohammad the Mashir of recovery of tainted money and P.W.4 Faqir Mohammad the I.O., in the case besides the complainant. No previous enmity has been attributed by the appellant to any of these witnesses and I find no reason why the testimony of these witnesses should be disbelieved. The argument advanced by Mr. Rafiq Khanzada that the conversation between the appellant and the complainant was not heard by the raiding party can hardly be of avail to the appellant as no explanation has been offered by the appellant is regard to the recovery of tainted money from his possession. His statement that he tainted money was not recovered from his possession cannot be believed in view of the evidence given by the prosecution witnesses. The next argument of Mr. Rafiq Khanzada that the Mashirs of recovery were interested witnesses therefore, the evidence of recovery of tainted money from the possession of the appellant was not reliable and that the provisions of section 103,Cr.P.C were not complied with is also not tenable as the evidence of P.W.3 Faqir Mohammad who was the only Mashir examined by the prosecution been fully supported by that of the other witnesses. The question, it appears, does not relate so much to the non-compliance of the provisions of section 103, Cr.P.C but the credibility to be attached to the evidence of P.W. 3 Faqir Mohammad. Since the evidence of P.W.1 Faqir Mohammad finds full corroboration in all material respects from that of the other witnesses there is no reason to doubt the evidence of this witness. The next contention of Mr. Rafiq Khanzada in regard to the contradictions in the statements of the witnesses also cannot be accepted as the learned counsel has failed to point out any material contradictions in the evidence of the witnesses.

I, therefore, find that the case of the prosecution has been fully proved against the appellant and no reason exists for setting aside the conviction of the appellant in the case. However, I find that the sentence of fine Rs.3,000 imposed by the learned Special Judge is harsh in view of the fact that the fact amount of illegal gratification alleged to have been taken by the appellant is not very large. Moreover, the appellant being a peon may find it hard to pay the fine of Rs.3,000 with his limited means. Under the circumstances the sentence of fine is reduced to Rs.1,000 and so is the sentence of imprisonment awarded to the appellant in case of making default in payment of fine which shall be one month instead of three months. The sentence of imprisonment already appears to be reasonable and the same is maintained. With this modification the appeal filed by the appellant is dismissed.

M.Y.H./M-141/K Appeal dismissed.

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