P L D 1961 (W (PLP)

2. According to the prosecution case, the appellant, Niaz Ali, during the days of this occurrence, was posted to Chak No. 77/5‑R circle, District Montgomery, as a Canal Patwari. On the night between the 5th and 6th of September 1959, a breach occurred in the watercourse which irrigated the lands of that Chak, and the irrigation water was illegally diverted to the land of one Munshi (P. W. 7), a resident of the same Chak, although it was the turn of Mehr Din (D. W. 3) to have the water for irrigation of his fields on that night. On the next morning, the appellant, Niaz Ali, in the company of Mehr Din, went to the land of Munshi and accused him of having committed mischief as well as breach of Warabandi rules by diverting the water. Munshi denied the charge, but the appellant threatened to make a report against him and get him punished. Munshi entreated him not to do so, on which the appellant demanded a sum of Rs. IUO from him as illegal gratification for not pursuing the matter. Munshi could not meet that high demand, but agreed to pay him a lesser sum of Rs. 40 within a few days. Munshi failed to pay the money in spite of a reminder having been sent by the appellant. Instead Munshi went over to Montgomery and made an appli cation (Exh. P. C.) to the District Magistrate complaining against the illegal demand of the Patwari and the threats that he was holding out to harm him. The District Magistrate marked the application to the Sub‑Inspector, Anti‑Corruption, (P. W. 8) Ch. Asghar Ali. The Magistrate Ilaqa (P. W. 5) Mr. Iqbal Ahmad Mahmood, was directed to conduct a raid for detecting the crime of the Patwari. As usual, the Magistrate marked the four currency notes of the denomination of Rs. 10 each, noting down their serial numbers and gave them to Munshi for payment to the appellant in lieu of his demand. The raid party then started for the Chak. The Magistrate. and the Sub‑Inspector, Anti Corruption, stayed behind in the Chak and Munshi was detailed to meet the appellant. Munshi found him sitting at the grinding machine of one Sher Muhammad near the Patwarkhana. On seeing Munshi, the appellant inquired from him if he had brought the money and on Munshi's affirmative reply, both went aside when Munshi put the notes in the pocket of the shirt of the appellant, which he was wearing. Both returned to the grinding machine. The appellant put off his shirt and placed it on a charpoy. Munshi then gave a signal to his companions of the raid party, which had in the meantime been joined in by Sardar muhammad (P. W. 9) of the same Chak.

3. The prosecution version as to how the money passed and what talk was exchanged between Munshi and the appellant is confined from the prosecution side to the statement of P. W. Munshi alone, as admittedly it did not take place within the hearing or view of anyone else of the raid party, and none of them claims to be a witness to that part of the affair except Sardar Muhammad who stated that he was nearby and saw the passing of the money without hearing the accompanying talk. Since the appellant does not deny the receipt of the money, Sardar Muhammad's witnessing the actual passing of it does not at all advance the prosecution case on that point. However, the story, as narrated by them, although not very consistently, is that they reached the scene after the appellant and Munshi had returned to the grinding machine and the former had taken his seat on the charpoy near the grinding machine with his shirt lying by his side. It was then .that Munshi went there and told the appellant that "Now I have paid Rs. 40 as illegal gratification which I had also put into your pocket. You should not now take any action against me". The Patwari (appellant) replied "I have received the illegal gratification, put it into the pocket of my shirt and you should not now fear". It was at this stage that P. W. Iqbal Ahmad Mahmood, the Magistrate, and Ch. Asghar Ali, the Anti‑Corruption Sub‑Inspector, had introduced them selves. The Magistrate asked him to produce the money which he had received, which the latter took out from the pocket of his shirt and made it over to the Magistrate with a tender of apology.

4. The appellant denied that he .had received the money as illegal gratification and made the, plea that Munshi had agreed to pay this amount to Mehr Din by way of compensation who had been deprived of his turn of water by' his action and that the compensation was decided upon in a Parichayat held at the instance of D. W. 2 Abdur Rahman. He produced the aforesaid Abdur Rahman, Mehr Din and Bashir Ahmad, a son of Mehr Din, in defence, and all these three defence witnesses supported his version.

5. In his judgment, the learned Special Judge has divided the various acts of the appellant in relation to the crime alleged against him under the following heads and has considered the evidence in respect of each one of them :‑ (i) The demand of Rs. 100 as bribe on the threat that in case bribe was not paid, the accused would make a report against Munshi and get a penalty imposed upon him. (ii) The payment of Rs. 40 as bribe by Munshi P. W. to the accused as a reward for not making any report against him regarding illegal diversion of water. (iii) Munshi's telling the accused within the hearing of the Magistrate and the Sub‑Inspector, Anti‑Corruption Police, P. Ws., that he had paid Rs. 40 to him as bribe and that he should not take any action against him and the assurance of the accused that Munshi should not fear. (iv) The confession of his guilt by the accused to the Magistrate and his begging pardon of the Magistrate. As remarked by the learned Special Judge, the first is supported by the evidence of Munshi alone which is not at all safe for conviction as it is not consistent with his previous statements on the subject and is also contradicted by D. W. Mehr Din, who, according to Munshi, was the other witness present when the demand for illegal gratification froth him was made by the Patwari. As regards No. 4, the learned Special Judge did not accept the prosecution case that the appellant had confessed his guilt before the Magistrate and other members of the raid party when he was confronted by them after he had received the illegal gratification, for the reason that the evidence of the Magistrate, Mr. Iqbal Ahmad Mahmood, was not consistent with the evidence of the other witnesses, nor was the Magistrate able to state what exactly were the words used by the appellant in his confession to him. He has, however, accepted the prosecution case against the appellant on sub‑heads Nos. 2 and 3 mentioned above, holding in regard to the second that the appellant's plea that he. had received the money to pay compensation was an after‑thought, and that it appeared unusual that although the amount of money was determined by a Panchayat to be paid as compensation to Mehr Din, it should then have not been paid in the Panchayat or through some member of the Patichayat and that the appellant should have been assigned this job as an intermediary. On the third point, he has referred to the contention of the defence that it was fantastic to believe that Munshi should have within the hearing of the witness reiterated that he had paid the sum of Rs. 40 to the appellant as illegal gratification which he had put into his pocket and that he should not, now be prosecuted, and that the appellant should in turn confirm every part of that statement in his answer by stating that he had taken the bribe and had put it into the pocket of his shirt and that Munshi should not fear any longer, but has all the same accepted it as nothing extraordinary:

6. The learned counsel for the appellant has reiterated before me the fantastic nature of the prosecution story which has been accepted by the Special Judge. I do not see anything fantastic about it, although it may be that the witnesses were not able to correctly pick up what the appellant had stated to P. W. Munshi or they may have put some extra words in his mouth which he may not have uttered. But I feel convinced that after having passed the money to the appellant as arranged with the raid party, Munshi had to pronounce within their hearing that the money had been given to the appellant as illegal gratification, and he must have uttered the words which are attributed to him by the witnesses and in reply the appellant must have told him that he need not fear any further harm, although he may not have stated in detail what the witnesses state that he did. But this exaggera tion in my view does not detract from the veracity of their statements on the main part of the story. The important question, however, arises that it was not the business of the appellant at all to accept the money as‑ compensation for payment to Mehr Din. If money was really fixed as compensation and it was to be paid to Mehr Din as such, it could have been more appropriately done in the Panchayat itself at the time or later by Mehr Din himself or through' any one of the members of the Panchayat who had convened it for that purpose and in no case by the appellant. This was a case of unauthorised irrigation by Munshi as admitted by the appellant himself, for which he was asked to pay com pensation, but the consent of Munshi to pay compensation did not absolve the Patwari to complain about it to the Zaildar, as tinder para, 1.10 of the Revenue Munshi, which has been brought to my notice, the Patwari was under a duty to report every case of unauthorised irrigation to the Zaildar. I have examined the evidence of Mr. Iqbal Ahmad Mahmood and I do not consider that it suffers from any defect to be accepted as true. The Magistrate had stated that before he produced the money the appellant had confessed his guilt and begged his pardon. This part of his statement has not been relied on by the learned Special Judge for the reason that the other prosecution witnesses have not stated About this matter. Ch. Asghar Ali has deposed to this part of the case corroborating the Magistrate; but the other two seem to have omitted to do so. This omission on their part does not necessarily discredit the statement of the Magistrate. I do consider that the prosecution has succeeded in proving that the appellant had actually received the amount of Rs. 40 from Munshi as illegal gratification and his conviction, both under section 161, P. P. C. and section 5 (2) of the Prevention of Corruption ,Act, 1947, has been rightly made.

7. The learned counsel has lastly urged that separate sentences for the two convictions recorded by the Special Judge are illegal, as allegedly the accused had committed only one act constituting one offence, although falling under two enactments, and he cannot be punished twice over for the same. I am of the view that this contention is well‑founded. Section 26 of the General Clauses Act provides a bar to double punishment for the same offence, although a person is liable to be prosecuted and punished for an act of omission constituting an offence and falling under two or more enactments. In other words there is no bar to a trial or a conviction for the same act which is an offence under different enactments, but there is a bar to a punishment being awarded twice for the same offence. In such a case it would be quite in order to record the convictions separately and award concurrent sentences if they are of imprisonment, but in no case can an accused person be made to suffer any exrta punishment by way of duplication for the same offence. In the present case, the punishment is illegal inasmuch as it imposes a fine of Rs. 501 under each of the two enactments making a total of Rs.

100. The extra fine of Rs. 50 for the offence under one or other of the counts is therefore not legal involving, as it does, a duplication o punishment for the same offence.

8. I have considered the propriety of the sentences awarded in this case which is yet another point stressed by the learned counsel for the appellant pleading for leniency and reduction in the sentences. The appellant was released on interim bail by my brother Ortcheson, J. on the 20th of April 1960, after he had served his imprisonment for a fortnight. It is no use sending him back to jail to serve the remainder of his brief period of six months' imprisonment. I have, therefore, proposed to convert his sentence into one of fine only. While maintaining his convictions, I order that he shall pay a fine.of Rs. 500 for either of them but not for both, or in default will suffer. rigorous imprisonment for three months. I have considered the sentence of fine appropriate' for the additional reason that the appellant, after his conviction, will merit dismissal from his service. Order accordingly. K. B. A. Order accordingly.