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Criminal Appeal No. 62 of 1985, decided on 6th October, 1986.

‑‑‑S. 161‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Evidence, appreciation of‑‑Prosecution witnesses, including Raid Magistrate, fully supporting prosecution case‑‑Tainted money recovered from almirah on the pointation of accused‑‑Raid Magistrate not only hearing conversation regarding transactions between complainant and accused but tainted money also given to accused within his sight‑‑ Documents regarding issuance of licence for medical store, for which bribe was demanded, also produced by accused‑‑Conviction maintained in circumstances.

Mrs. Mehjabeen Farzana for Appellant.

Imam Bux for the State.

Date of hearing: 6th October, 1986.

This appeal is directed against the judgment, dated 25th March, 1985 of Special Judge Anti‑Corruption (Provincial) Karachi whereby he convicted the appellant under section 161, P.P.C., 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to undergo R.I. for one month and to pay fine of Rs.1,000 or in default to undergo R.I. for one month more.

Briefly, the facts of the case are that complainant Hussain Abid wanted to open a Medical Store in Rizvia Society, Karachi for which he required a licence. On 20‑2‑1983 he went to the office of District Health Officer, Karachi where he contacted a clerk namely Alam who demanded Rs.1,000 as an illegal gratification for getting him licence issued. Complainant promised to pay the amount on 2‑3‑1983. In the meanwhile he went and filed complaint with the Anti‑Corruption Officer on 1‑3‑1983 and his case was registered. On 2‑3,r 1983 a raid party consisting of complainant, Magistrate, A.C.O. and two Mashirs went to the office of the District Health Officer alongwith complainant and paid Rs.1,000 to the appellant. The Magistrate alongwith Mashirs went inside and secured the money from Almirah at the pointation of the appellant. Such Mashirnama was prepared. The appellant also produced application of complainant alongwith documents and such Mashirnama was also prepared. On 19‑ 6‑ 1983 interim challan was submitted in the Court thereafter, on receiving sanction for prosecution the final report was submitted on 4‑1- 1983.

3: On 2‑11‑1983 charge was framed to which appellant pleaded not guilty.

4. The prosecution in support of the case examined complainant Hussain Abid Exh. 5, as Muhammad Usman Magistrate, First Class Exh. 8 Mashir Azim Khan Exh. 13 and Altaf Hussain Inspector Anti‑Corruption Exh. 15. Appellant in his statement under section 342, Cr.P.C. denied the allegation. He examined one Ali Ahmad Kazi Exh. 20 in his defence.

5. I have heard Mrs. Mehjabeen Farzana, Advocate for the appellant. She contended that in the F.I.R. name of the appellant does not appear as complainant stated that one Alam Clerk of the District Health Officer demanded bribe. She has argued that appellant was not competent to grant licence, therefore, he has committed no offence. It is also argued that there are material contradictions in the evidence of witnesses.

6. Mr. Imam Bux Shaikh, Advocate for the State fully supported the judgment and stated that all the prosecution witnesses have implicated the appellant and he was caught red‑handed on the spot. He has pointed out that appellant has already served out sentence and remained in jail for more than one month.

7. Complainant Hussain Abid has fully supported his First Information Report and stated that appellant demanded Rs.1,000 as illegal gratification. He has stated that he prepared application for the licence and thereafter, alongwith documents including challan of Rs.200 to the appellant. He went and lodged report on 1‑3‑1983 and produced it as Exh. 6. He states that on the next day he went to the Anti‑Corruption Office where Inspector gave Rs.1,000 tainted money in presence of Magistrate and two Mashirs as such Mashirnama Exh.7 was prepared. He then brought the raid party to District Health Officer, Karachi and went inside alongwith two Mashirs. The Magistrate stood at the door of the room where appellant was sitting' while Inspector was in the courtyard of the office. He alongwith Mashirs went to the appellant and told him that he has brought money which he took out from the pocket and handed over to the appellant which he kept in the pocket of his trouser. He then gave signal to Magistrate. Appellant suspected some foul play and took out money from his pocket and kept in Almirah. In the meanwhile the Magistrate and Inspector came. On enquiry appellant pointed out towards Almirah from where Inspector took out tainted money amounting to Rs.1,000 from the Almirah and such Mashirnama Exh.7 was prepared.

8. Muhammad Usman Exh. 8, was A.C.M. Court No. 3, Karachi. He supervised the trap proceedings. He stated that he alongwith Inspector, complainant, two Mashirs and other staff came to the office of the District Health Office. The complainant and two Mashirs went inside the room where appellant was sitting. He has further stated that complainant talked with the appellant and he heard that appellant was demanding Rs.1,000 from complainant on which he took out money from his pocket and gave it to the appellant which he kept in the pocket of his shirt. Mashir gave signal on which he went inside the room where appellant was standing alongwith complainant and Mashirs. The appellant subsequently had taken out the money from pocket of the shirt and put in Almirah. In the meanwhile Inspector, came and they all disclosed their identity to the appellant and told them take out the money and produce the same. The appellant pointed towards the Almirah and such Mashirnama Exh. 9 was prepared by the Inspector which he attested. Thereafter Inspector demanded file of complainant relating to the application for licence. The file containing 9 leaves was produced by appellant and such Mashirnama Exh. 10 was prepared which he signed. On personal search one wrist watch and Rs.10 were recovered from the applicant and such Mashirnama Exh. 11 was prepared. He has stated that he prepared the raid report and handed over to the Inspector.

9. Azim Khan Exh. 13 is Mashir. He stated that he accompanied the Inspector and the Magistrate to the District Health Office. He alongwith complainant went towards the accused where complainant requested him to reduce the amount of bribe as demanded by him to which appellant replied in negative: Then complainant took appellant towards the adjoining room and they followed them and stood at the door which was opened. The complainant took out money from his pocket and gave to the appellant which he counted and put in the pocket of his pant. Thereafter, he took out the money and kept in Almirah. He has stated that Magistrate and Inspector were standing in the Verandah near the door from where they could see appellant and complainant. He gave signal to the Inspector and Magistrate. They came and disclosed their identity and demanded money from the appellant to which he showed his ignorance but subsequently he took the Inspector to Almirah and he told them that he kept money there. Thereafter, Inspector took out Rs.1,000 from Almirah and such Mashirnama was prepared. He has also stated that appellant produced the file of the complainant, and such Mashirnama Exh.10 was prepared. Altaf Hussain Exh. 15 is Anti‑Corruption Inspector. He recorded the F.I.R. and investigated the case. He is also eye‑witness and fully supported the case of prosecution. He has produced the sanction for prosecution of appellant as Exh. 16.

10. D.W. Ali Ahmed Exh. 20 has stated that he was Head Clerk in the Office of District Health Office. He stated that accused used to put up the P.C. before the Accountant and Head Clerk and such applications were received by the Accountant or Head Clerk and they used to issue the receipt. He has stated that no person by name Alam was working in the office of District Health Office.

11. All the prosecution witnesses including Magistrate have supported the case. They have stated that appellant received Rs.1,000 and kept in the Almirah. The tainted money was recovered from there. The complainant and the Mashirs have stated that appellant received the money and this fact has been corroborated by the Magistrate who has stated that he heard the conversation between the complainant and accused and within his sight the tainted amount was given to the appellant. The appellant has not alleged any enmity with the complainant or the witnesses and evidence has not been shaken in the cross‑examination. I have no reason to disbelieve the complainant, the Magistrate and the Mash:irs. The documents of the complainant relating to the licence for Medical Store were produced by the appellant. From which it is clear that he accepted the bribe for getting licence issued in favour of the complainant. In my view the appellant has been properly convicted.

Mrs. Mehjabeen Farzana however, contended that appellant has virtually served out the sentence.

12. So far the sentence is concerned the appellant was convicted by judgment, dated 25‑3‑1985 and remanded to custody on the very day. He was sentenced to suffer R.I. for one month. The appeal came up for hearing and admitted on 18‑4‑1985 and bail was granted but on 5‑5‑1985 another application was moved requesting for reduction of surety amount. It was stated that appellant being poor man has not been able to pay surety. This application was heard on 7‑5‑1985 the amount of surety was reduced from Rs.20,000 to Rs.10,000. From this it is clear that appellant remained in jail upto 7‑5‑1985 after conviction. He has served out the substantive sentence of one month and remained in jail for 15 days more. Which can be counted towards the appellant in payment of fine.

13. In case of default of payment of fine he was remained in jail for one month more. Whereas he has remained in jail for 15 days and it is argued that he has in jail as under trial prisoner for 3 months. In the circumstances I order that sentence already served out will meet ends of justice. With this modification this appeal is dismissed.

S.G.D./M‑53/K Order accordingly.

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