1969 P Cr (PLP)

Penal Code (XLV of 1860), Ss. 161 & 65‑Sentence in default of fine for more than 9 months cannot be imposed. Shah Muhammad Rahman Ansari, Advocate Supreme Court instructed by Virasat Hussain Naqvi, Attorney for Appellant (in Criminal Appeal No. 33/58). M. Z. Kitchlew, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State (in Criminal Appeal No. 33/58). M. Z. Kitchlew, Advocate Supreme Court instructed by Ijaz Ali, Attorney for Appellant (in Criminal Appeal No. 34/58). Shah Muhammad Rahman Ansari, Advocate Supreme Court instructed by Virasat Hussain Naqvi, Attorney for Respondent (in Criminal Appeal No. 34/58). Date of hearing : 2nd December 1958. AMIRUDDIN AHMAD, J.‑These are two appeals by special leave of this Court from an order of the High Court of West Pakistan, Karachi Bench, allowing the appeal of Muhammad Ali, who is the appellant in Appeal No. 33 of 1958, and respondent in Appeal No. 34 of 1958, in part, by which it upheld his conviction but reduced the sentence of fine imposed on him from Rs. 500 to Rs. 50, Muhammad Ali questions his conviction and the State has appealed for enhancement of the sentence. The appellant in Appeal No. 33 of 1958 was tried on a charge of accepting an illegal gratification of Rs. 50 from one Rehmat as a reward for having shown him favour in getting his arrears pay bill of Rs. 962.15 passed and paid to him early. This appellant was the Sub‑head in the arrears section of the Accounts Branch under the Divisional Accounts Officer, North Western it Railway, Karachi. The duty of the appellant was to pass supplementary bills of the employees. On the 16th or 17th July 1955, Rahmat complained to the Divisional Personnel Officer that his bill was not being passed by the dealing clerk and the Sub‑head and that they wanted bribe from him. The matter was then reported to the Railway Magistrate, who agreed to witness the passing of the money. A trap was proposed to be laid for the purpose, but money was promised to be paid after the amount of the bill was received. As on account of some slight error the bill could not be passed before 26th July on which date the officers could not contact the Magistrate, Mr. Asad, the Superior Officer, agreed to supervise the trap. It was arranged between Rehmat and the appellant Muhammad Ali and the clerk, his companion, that the money would be paid in a particular Restaurant known as the Crystal Cafe. It was arranged that one Sarwar should be present inside the Cafe to watch the proceedings and one Muzaffar, a Railway employee, would be waiting on the road near the Restaurant to watch the movements of the accused, and when told by Sarwar and Rehmat that the money was accepted by the accused, to inform the two Superior Officers of the Railway, who would be waiting for him. Five ten‑rupee notes were marked and made over to Rehmat for the purpose of payment to the accused. At the appointed time the appellant Muhammad Ali along with the clerk was seen coming to the Crystal Cafe where he was joined by Rehmat and all of them sat down at one table to take tea together. Then Rahmat brought out the envelope which was also initialled by the officers containing the marked notes and made it over to Muhammad Ali, who opened the envelope and found Rs. 50 in it. He kept three G. C. notes himself and gave two notes and the envelope to Chughtai, his companion. Chughtai put the two G. C. notes in the pocket of his trousers and tore the envelope into pieces and threw it on the floor. Muhammad Ali kept three notes in his pocket. This was seen by the witness Sarwar, who informed Muzaffar and after a short time the two officers came into the Restaurant. According to Rehmat, Muhammad Ali on seeing the officers in the Restaurant got up and threw the notes on the floor under neath the table. One of the officers and picked up the notes and the torn pieces of the envelope and took the accused to his office, where the remaining two marked notes were recovered from the pocket of the companion of Muhammad Ali. After considering the evidence the Special Judge of Karachi convicted both the appellant Muhammad Ali and his companion under section 161 of the Pakistan Penal Code and sentenced the former to one day's imprisonment and a fine of Rs. 500, in default to twelve months' rigorous imprisonment. On appeal by the appellant Muhammad Ali and his companion, the clerk, the High Court after considering the evidence, upheld the conviction of Muhammad Ali but reduced his sentence to a fine of Rs. 50 only, while the other accused was acquitted having been given the benefit of doubt. In support of the appeal of Muhammad Ali it was urged that the evidence against him has not been properly appraised and discrepancies in the evidence have not been properly consider ed. Both the Courts below have dealt with the evidence fully and so far as the conviction of appellant Muhammad Ali is concerned it is concluded by findings of fact, and we are not disposed to interfere with it. The learned Advocate appearing for the State in Appeal No. 34 of 1958 asked for an adequate sentence to be imposed on Muhammad Ali and submitted that a fine of Rs. 50 for the receipt of a bribe of Rs. 50 was a ridiculous sentence. We agree with him but in view of the fact that in the petition of appeal by the State there way a prayer for the restoration of the sentence imposed by the trial Court, we do not think we need go beyond that. There, however, appears to be an error in the defaulting hence of 12 months rigorous imprisonment imposed by the Special Judge, which is hit by section 65 of the Pakistan Penal Code. The maximum punishment under section 161 of the, Pakistan Penal Code being three years, a sentence in default of fine for more than nine months could not be imposed. We, therefore, restore the sentence of fine of Rs. 500 but reduce the period of imprisonment in default of fine to nine months' rigorous imprisonment. The Appeal No. 33 of 1958, is therefore, dismissed and the Appeal No. 34 of 1958 is allowed as above. Appeal dismissed.