P L D 1973 Lahore 377 (PLP)

Date of hearing : 18th June 1971. The appellant Muhammad Hussain was Revenue Patwari of Islampur Circle in Tehsil Okara, District Sahiwal. He was con victed under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, and was sentenced to under go rigorous Imprisonment for four months. In addition a sentence of fine of Rs. 100 was imposed on him. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of one month.

2. The evidence is that Ghulam Muhammad (P. W. 3) wanted the appellant to enter a mutation with regard to the land which the mother of the witness had inherited through her brother. The appellant demanded RF. 100 in the first instance and ultima tely agreed to accept its.

40. Ghulam Muhammad was not willing to pay the bribe and he approached Mr. Dil Muhammad (P. W. 5), Circle Inspector, Anti‑Corruption at Sabiwal on Ist of December 1967, and told him that the appellant was demanding bribe from him. He was produced before Mr. Mahmoodul Hassan, Magistrate at Sahiwal. The learned Magistrate recorded the statement of Ghulam Muhammad wherein he stated that the appellant had agreed to accept Rs. 40 for entering the mutation in the name of his mother. The learned Magistrate took four currency notes of the denomination of Rs. 10 each and noted their numbers. The raid party then proceeded to Okara where the appellant was present in the Tehsil compound. Muhammad Yusaf (P.W.4) who is a nephew of Ghulam Muhammad complainant also accompanied the raid party. The Magistrate and the Circle Inspec tor stood behind and Muhammad Yusaf and Ghulam Muhammad proceeded to tic place where the appellant was present. Ghulam Muhammad took him aside and passed, on the money. Muhammad Yusaf gave the appointed signal. The Magistrate and the Circle Inspector came to the soot, revealed their identity and took posses sion of the tainted money from the left hand of the appellant. The appellant at the time of the recovery made a statement that the money bad been forcibly thrust on him. This statement was not exhibited nor was the appellant confronted with it during the trial.

3. At the trial, the prosecution case was supported by all the members of the raid i.e. Mr. Muhmoodul Hassan, Magistrate (P. W. 2), Ghulam Muhammad complainant (P. W. 3), his r nephew (P. W. 4) and Dil Muhammad, Circle Inspector (P. W. 5). The learned Magistrate categorically stated that the appellant was holding the money in his left hand in the closed fist. Muhammad Yusaf stated that the money had been passed on to the appellant in his presence.

4. The plea of the appellant at the trial was that he was in volved on account of enmity of Ghulam Muhammad. It was also his plea that the mutation on account of which money was sought to be passed, had already been entered. With regard to the passing of the money, his defence was that the complainant had shaken hands with him with both his hands and had put the tainted money which he was holding in his left hand, on the back W his right hand. The suggestion in the cross‑examination was that while the two persons were shaking bands, the learned Magistrate took hold of the money. In support of his defence plea, the appellant produced documents Exhs. D. A., D. D., D. F. and D. G. Exh. D. A. is an order dated 30th of June 1962 passed by the Collector, Sahiwal, to the effect that the land left by Mst. Ramai should be entered in the names of his heirs according to Shariat. Exh. D. C. is a written statement filed by the appellant in the trial Court. Exh. D. D. is copy of R. L. II which shows that (sic) purchased some land on the basis of some units purchas ed by them. The other documents i.e. Exhs. D. E., D. F. and D. G. show that there was some litigation with regard to this land and Ghaffar Shah and others had succeeded to obtain an order in their favour regarding cancellation of the allotment of the same. The case of the appellant in his written statement Exh. D. C. was that after unsuccessfully contesting the case in all the lower Courts, Ghulam Muhammad had decided to approach the Board of Revenue and had asked the appellant not to make any entry regarding the decision of the Courts below till he brought a stay order from the Board of Revenue. According to the appellant, Ghulam Muhammad was not able to bring any stay order from the Board of Revenue and the Tehsildar Okara after summoning Ghulam Muhammad on 28th November 1967, proposed the land In dispute to Ghaffar Shah and others. It was his case that he had been involved by Ghulam Muhammad for this reason. The fact that such a proposal was made by the Tehsildar is borne out by the copy of the order Exh. D. G.

5. The appellant had also produced two witnesses in his defence. Mazhar Qayyum Qanungo (D. W. 1) testified to his good character. Abdul Haq Shah (D. W. 2) supported the story of the appellant that the money was tried to be thrust on him during the hand‑shake and it was taken into possession by the learned Magistrate in that condition. This witness belongs to another village and it was not suggested to any one of the prosecution witnesses that he was present when the occurrence took place. Abdul Haq Shah claimed to have interceded on behalf of the appellant with the Magistrate and the Circle Inspector but surprisingly enough they were not confronted with this fact during their cross‑examination. The appellant did not mention this fact in his first statement made soon after the raid nor in his statements made before the Court. This defence, in my view, was rightly rejected by the learned Special Judge.

6. The question which falls for determination Is whether then offence has been brought home to the appellant on account of the oral testimony of the complainant and the other prosecution witnesses. Ch. Rafiq Ahmad Chauhan, the learned counsel appearing in support of this appeal, submits that there is no evidence to show as to under what circumstances the money was passed on to the appellant. It is not alleged by Muhammad Yusaf that be had heard any conversation between the complainant and the appellant. The learned Magistrate and the Circle Inspector were not in a position to see the appellant and the complainant when the money was passed. It is his contention that the prose cution has not proved that this money was passed on as a bribe. He also submits with reference to the order of the Collector Exh. D. A., referred to above, that direction had been issued for entry of a mutation by the Collector and mutation must have been entered in compliance with his directions. He had also referr ed to the documents placed on record to prove that the com plainant was inimical to the appellant.

7. It is true that none of the witnesses claim to haves heard any conversation between the complainant and the appellant. According to Ghulam Muhammad complainant, the matter had already been settled between the appellant and himself and there appears hardly to be any need for conversation between the two. There were other Patwaris present. The appellant was taken aside by Ghulam Muhammad, and was given the money. The plea of the appellant that the money was put on the back of his right hand, does not carry conviction in view of the uniform statements of all the witnesses including the Magistrate himself that the appellant was holding the money in his hand. This clearly indicates acceptance of the money. The appellant has not explained that he accepted the money in some other connection. The rule that onus is always on the prosecution to prove their case, has been slightly modified by the provision of the Prevention of Corruption Act, 1.947, and Criminal Law Amendment Act, 1958. Under section 4 of the Act of 1947 and section 7(2) of the latter Act, if an accused person is found in possession of a valu able thing which does not form part of his legal remuneration a presumption is to be drawn against him that he has accepted it as a bribe, and it is for him to prove the contrary. The appellant in this case has not been able to rebut the above presumption.

8. As regards the plea of enmity, there is hardly any basis to accept it. No doubt there was litigation between Ghulam Muhammad and his brother on one aside and Ghaffar Shah and others on the other, but there is noting on the record to show that during this litigation the complainant had reasons to become inimical to the appellant.

9. The assertion of the learned counsel that the mutation in question had already been entered, has not been substantiated from the record. The Collector had said in his order (copy Exh. D. A.) that the mutation shall be entered with regard to the in heritance of Mst. Ramai but it is not established on record that this direction was acted upon. The appellant could very well have placed a copy of that mutation on record if it had already been entered. It cannot, therefore, be said that the story of the complainant that money was being demanded from him in return for entering a mutation was incorrect.

10. The offence has been completely brought home to the appellant. I find no force in this appeal which is, hereby dismissed. S.Q. Appeal dismissed.