1981 PLP 961 (SCMR)

DORAB PATEL, J.--The petitioner was convicted for corruption by the Special Judge. Anti-Corruption Labore-1 and sentence to three years' R. I. and a fine. The petitioner challenged his conviction in an appeal in the Lahore High Court. By his judgment dated 25-2-1979, a learned Judge of the Lahore High Court upheld the petitioner's conviction, but reduced the sentence of imprisonment passed against him from three years' R. 1. to one year's R. I. As the petitioner was aggrieved by the fact that his appeal against his conviction has been dismissed, he has filed this petition for leave. In 1977, the petitioner was the Reader in the Court of Sheikh Muzafar Hussain, an Additional District Judge, Lahore, and a rent appeal was pending in May, 1977 in this Court in which the respondent was one Mairaj Din. This Mairaj Din had obtained an order of eviction against his tenant from a Rent Controller, therefore, the tenant had filed an appeal against the Rent Controller's order which had apparently been dismissed by Sheikh Muzaffar Hussain. However, a review. application had been filed, and the prosecution case is that the petitioner realised that Mairaj Din was annoyed over the delays in the proceedings instituted by him and was prepared to pay a bribe in order to expedite the disposal of the proceedings against the Rent .Controller's order. In this background, Mairaj Din's allegation was that the petitioner had demanded a bribe of Rs. 100, from him in or about May, 1977 and he had paid Rs. 50 to the petitioner and promised to pay the balance of Rs. 50 through his son, one Arif. Accordingly, Mairaj Din gave Rs. 50 to his son for the purpose of paying it to the petitioner, but Arif first approached the Anti-Corruption Department and lodged an F. I. R. at 9.00 a.m. on 21-5-1977, therefore, a raiding party was immediately organized for the purpose of lying a trap for the petitioner. Rana Ali Hassan, Inspector Anti-Corruption Establish ment, Mr. Talib Hussain, Magistrate Ist Class and a few constables went with Arif to the District Court. It was arranged that they would wait in the compound of the District Court and that Arif would call the petitioner to the compound and pay the money in the compound in the presence of the raiding party, in accordance with this plan. Arif claims to have persuaded the petitioner to come out with him from the Court room to the compound, and there Arif paid him the tainted money in the presence the raiding party. As soon as the petitioner had been seen to receive they money from Arif, the Magistrate approached him and disclosed his identity. Then, according to the prosecution, the petitioner threw the money on the ground and told the Magistrate that Arif had told him that the money had been sent to him by his father for making some purchases. After completing investigations, the petitioner was tried and evidence was given against him by Arif, by his father, by Mr. Tabbassam Hussain, the Magistrate 1st Class and by Rana Ali Hassan, the Inspector of the Anti-Corruption Department. Both the Courts accepted the evidence of these witnesses and held that it was sufficient to prove the guilt of the petitioner. Turning now to the case of the petitioner, he denied his guilt and said in his statement to the Court that he had not received the currency note from Arif, but Arif had dropped it when the Magistrate arrived. The petitioner also examined some witnesses in his defence. However, the Courts were not impressed by this evidence, therefore the trial Court convicted the petitioner and sentenced him to three years' R. I. and a fine. The petitioner challenged this conviction in an appeal in the High Court both on technical ground and on the ground that the prosecution evidence was not fit to be relied upon. However, the learned Judge, who heard the appeal, held that the defects in the prosecution case were curable under section 537 of the Criminal Procedure Code, and as he also agreed with the trial Court's appreciation of evidence, he dismissed the petitioner's appeal, but reduced the sentence of imprisonment to one year's R. I. Mr. Akram who has argued this case very thoroughly, drew our attention to the defects in the formal charge as well as in the Sanction Order. As to the formal charge it alleges that the petitioner had "demanded Rs. 250 as bribe from Abdul Raoof son of Muhammad Yusuf sometime before 21-5-1977 the petitioner obtained Rs. 100 and then on 21-5-1977 received Rs. 50...." As rightly submitted by learned counsel, the statement in the charge that a bribe had been demanded from Abdul Raoof son of Muhammad Yusuf is not correct. Muhammad Yusaf was the name of the tenant, who had been sued by Arif's father, 'and the learned Sessions Judge confused the tenant's name with that of Arif's father. Although this mistake in the charge was most unfortunate, nothing turns on it, because the petitioner was not convicted on the count of demanding Rs. 250 nor on the count of obtaining Rs. 100 as a bribe. And, on the other hand, as rightly pointed out by the learned Judge, the petitioner cross-examined at very great length the prosecution witnesses on the allegation that he had received Rs. 50 as a bribe on 21-5-1977 from Mairaj Din's son. And, as this was the only charge, for which he was convicted we agree with the view of the High Court that the defects in the charge against the petitioner were curable under section 537 of the Criminal Procedure Code. Learned counsel then drew our attention to the errors in the Sanction Order. Now, it is most unfortunate that errors have crept into the Sanc tion Order, but the learned Judge in the High Court, who examined this submission at length, pointed out that no prejudice had been caused to the petitioner on account of these errors. We agree with this view. and we would turn to learned counsel's able criticism of the evidence[ produced by the prosecution. Learned counsel took us through the evidence of Mairaj Din and of his son Arif and listed the discrepancies in the, evidence of father and son, and submitted that their evidence should, therefore, have been rejected outright. We agree with learned counsel that there are discrepancies in the evidence of father and son, but both the Courts and especially the High Court have taken the view that these discrepancies were not material, because the appellant had not given a satisfactory explanation of the fact that he had received the tainted money from Arif. Mr. Akram, however, complained that even the learned Judge in the High Court had not examined all the discrepancies in the evidence of Mairaj Din and Arif. It is true that the learned Judge has not listed all the discrepancies in the evidence of father and son, but it is not necessary for a Judge to list each and every discrepancy in the evidence of the prosecution witnesses, and the only question is whether the Judge had applied his mind to the evidence and assessed the veracity of the witnesses after examining their evidence. And, by this test, we do not think the criticism of the learned counsel of the evidence produced by the prosecution is justified. It is true that in view of these discrepancies in the evidence of Mairaj Din and his son, the Courts below could have taken a different view of this evidence, the more so, as the petitioner led some evidence to show that Mairaj Din was hostile to him. And it may be that this would have been the better view. But, unfortunately for the petitioner, this is not a Court of first appeal, and this Court does not grant leave merely because it does not agree with the High Court's appreciation of evidence. But, be cause we grant leave whether it is a case. of no evidence or of total misreading of evidence, Mr. Akram submitted that it was a case of no evidence because the discrepancies in the prosecution evidence were fatal to the prosecution case. Now as we observed, the High Court could have rejected the evidence of Mairaj Din and Arif, because of the discrepancies in their evidence, but the High Court went into this aspect of the case and then examined the petitioner's explanation, and it accepted the evidence of Mairaj Din and Arif only because it was satisfied that the prosecution had proved beyond doubt that the petitioner had received the tainted money from Arif. Therefore, learned counsel submitted that the evidence about the receipt of the tainted money by the petitioner was not satisfactory and was not sufficient to prove that the money had been received by the petitioner from Arif. Now in order to prove that the, petitioner had received the tainted money (namely Rs. 50) as a bribe, the prosecution had relied on the evidence of Mairaj Din, Arif and Rana Ali Hassan, the Inspector Anti-Corruption Department. But the evidence of Mairaj Din is only of corroboratory value to the prosecution case, because this witness did not claim to have been present when the bribe was paid. But Rana Ali Hassan was a witness of the occurrence and he went to the length of saying that he had beard the petitioner demanding the payment of the bribe from Arif. But, as the Magistrate, who was with Rana Ali Hassan, did not support Rana Ali Hassan's statement that he had overheard the petitioner demanding the bribe. The learned counsel invited us to reject Rana Ali Hassan's evidence. But even if we reject this evidence, and even if the Courts below erred in relying on this witness's evidence, the fact remains that no argument has been advanced to damage the veracity of Mr. Tabassam Hussain, Magistrate. Now what the Magistrate said in evidence was: - "However I saw the complainant giving Rs. 50 G. C. note to the accused who accepted it in my view. The accused kept the G. C. note in his right hand. I went forward and introduced myself C to the accused after my introduction the accused dropped that G. C. note on the ground and I directed the Inspector A. C. R. who had already come there at the spot, to pick up the G. C. note and I saw the number which tallied with. the number already noted down by me at Exh. P. D." The Magistrate could easily have supported Rana Ali Hassan's claim that the petitioner had demanded a bribe, but the fact that he did not clearly means that he was a witness of truth. Therefore, both the Courts rightly placed reliance on his evidence and this furnishes strong corroboration of the evidence of Arif. Confronted with this difficulty learned counsel invited us to accept the explanation which the petitioners had given to the Magistrate in the compound of the District Courts, Lahore. But the petitioner's explanation which was denied by Arif, has been rejected by both the Courts, and o it cannot reasonably be contended that the Courts acted illegally in rejecting the petitioner's explanation, as the prosecution has proved that the petitioner threw away the money received by him from Arif, when the Magistrate disclosed his identity to him. Learned counsel then drew our attention to the fact that both Arif and his father were bribe-givers and therefore, accomplices and that their evidence should have been rejected on this ground also. But, as far as we can see, the view of the Courts was that the evidence of the two bribe-givers was corroborated by evidence of the petitioner's conduct, and as the conduct of an accused is always relevant under section 8 of the Evidence Act, we cannot see any error of law in the finding that the evidence of the two bribe-givers was corroborated by the conduct of the petitioner. But this means that the concurrent finding of guilt against the petitioner is supported by evidence and it cannot also be said that the Courts below have misread evidence or ignored material evidence, therefore, it is not a fit case for the grant of special leave and the petition is dismissed on this ground. Petition dismissed.