P L D 1967 Lahore 923 (PLP)

SHAUKAT ALI, J.‑Akhtar Hassan Khan, Building Inspector, Municipal Corporation, Lahore, was tried for offences under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act (II of 1947) and sections 332 and 353 of the Pakistan Penal Code, by Mr. Salah‑ud‑Din Hanif, Special Judge, Anti‑Corruption Establishment, West Pakistan, Lahore. The learned Special Judge, who tried him, found him guilty of an offence under section 161, P. P. C. read with section 5 (2) of the Prevention of Corruption Act and sentenced him to imprison ment till the rising of the Court with a fine of Rs. 300 or in default of payment of fine to undergo one month's rigorous imprisonment. He was acquitted on the other two counts. The convict has filed Criminal Appeal No. 342 of 1963 against his conviction and sentence. The Public Prosecutor, West Pakistan, under the order of Provincial Government, has filed Criminal Appeal No. 604 of 1963, against the acquittal of Akhtar Hassan Khan of the offences under sections 332 and 353 of the Pakistan Penal Code. A revision petition (Criminal Revision No. 889 of 1963) has also been filed by the Public Prosecutor, for the enhancement of sentence awarded under section 161, P. P. C. read with section 5 (2) of the Prevention of Corruption Act. We propose to dispose of the appeals and the revision petitions by this judgment.

2. The case of the prosecution, briefly narrated, is that Muhammad Ishaq (P. W. 4) and Iqbal Hussain (P. W. 5), who were brothers, purchased a plot of land measuring ten Marlas and 135 square feet situate in the area of Ram Garh from one Mst. Noor Jehan on 18th June 1962, for a consideration of Rs. 5,000 vide registered sale‑deed Exh. P. E. After this transac tion it was found by the vendees that the site in fact was in possession of one Labhoo Potter, who had made illegal construc tion on the site. The vendees were desirous to get to the demolition of this illegal construction. In that connection they called at the office of the Municipal Corporation and met the appellant, on 8th August 1962. The appellant told them that the illegal construction would be removed if they paid him Rs.500 as gratification other than legal remuneration. Muhammad Ishaq P. W. entreated that he was a poor man and could not pay Rs.

500. There was some haggling and ultimately the bargain was struck at Rs.

330. Muhammad Ishaq P. W. paid Rs. 100 then and there. The appellant entertained the application for demolition of the house. He asked Muhammad Ishaq P. W. to make the payment of the balance amount at his house at 7 p. m. the same day. Muhammad Ishaq P. W. after promising to do the needful went to the office of the Director, Anti‑Corruption Department, where he met Muhammad Ikram‑ul‑Haq, Inspector (P. W. 7). The Inspector requested the Additional District Magistrate, Lahore, to 'depute a Magistrate to supervise the raid. The Additional District Magistrate nominated Mr. Hamad Ilahi, Magistrate 3rd Class (P. W. 6), for this purpose. Muhammad Ishaq P. W. was produced before the Magistrate and his state ment Exh. P. F. was recorded. Mr. Ikram‑ul‑Haq, Inspector then gave currency notes of Rs. 230 to Muhammad Ishaq P. W., after their numbers having been noted by the Magistrate. The raiding party comprising Muhammad Ishaq (P. W. 4), his brother. Iqbal Hussain (P. W. 5), Hamad Ilahi, Magistrate (P. W. 6), Ikram ul‑Haq, Inspector (P. W. 7), and two constables and one Muhammad Hussain (not produced) proceeded to the house of Akhtar Hassan Khan and reached there at 7‑30 p. m. It is alleged that Hamad Ilahi, Magistrate and Muhammad Ishaq P. W. went to the house of the appellant, while their companion stood on the other side in front of the house of the appellant. Muhammad Ishaq, P. W. called the appellant, who came from his house with a book in his hand. The appellant sent for the chairs from the upper storey through some of his men and made the Magistrate and Muhammad Ishaq P. W. to sit there. Muhammad Ishaq introduced the Magistrate as his uncle. Muhammad Ishaq P. W. handed two currency notes of the value of Rs. 100 each to the appellant in the presence of the Magistrate and within the sight of the Inspector. He told the appellant that he was a poor man and that the appellant should let him off the sum of Rs. 30, but the appellant refused to accept a penny less. Muhammad Ishaq then gave two notes of the denomina tion of Rs. 10 each to the appellant saying that it was all that he could pay. The appellant demanded Rs. 10 more but Muhammad lshaq beseeched that Rs. 10 was the only money he had and that he needed it for the return journey. The appellant agreed to it and placed Rs. 220 in the note book which he was carrying. At this stage, the Magistrate disclosed his identity. The appellant caught hold the Magistrate by his throat and began to give him‑fist blows and also abused him. The Inspector came to the rescue of the Magistrate, but he was also assaulted. In the meantime the appellant threw the tainted money on the ground and an unidentified person came out of the house of the appellant and in the melee that followed he managed to pick up the currency notes and disappeared. An Assistant Sub Inspector of Policy, Station Civil Lines, also reached the spot The Magistrate searched the person of Muhammad Ishaq and recovered one currency note of the denomination of Rs. 10 which was taken into possession. The appellant refused to make a statement to the Magistrate. The Magistrate prepared his raid report Exh. P. J. Both Hamad Ilahi, Magistrate and 1kram‑ul Haq, Inspector got them medically examined for their injuries, but Doctor Ghulam Haider Shah (P. W. 3). who examined them, did not find any injury on their persons. Ikram‑ul‑Haq, Inspector took into possession torn shirt and vest of the Magistrate. The appellant was arrested at the spot.

3. The appellant pleated not guilty at the trial and denied the prosecution allegations. He stated that he had been falsely implicated by Abdur Rahman, Building Inspector, with the help of Municipal Engineer in connivance with Muhammad Ishaq P. W., who was a friend of Abdur Rahman, and that he was not a Demolition Inspector and that the land in question was not within his circle and also made the following statement from the dock:‑ "I live in the ground‑floor of house No. 5, Temple Road, Lahore, as shown in the photographs Exhs. D. A. to D. C. with my family. Ishaque and Iqbal entered my house along with Muhammad Hussain. I pushed them out on which I was beaten by them along with the Magistrate and Inspector and my shirt was torn. I have been implicated at the instance of one Abdur Rehman in whose place I was posted as Building Inspector of Misri Shah. Abdur Rehman had the help of the Municipal Engineer. Charge was given to me after 20 days under the orders of the Chief Engineer. Ishaque P. W. was a friend of Abdur Rehman and they falsely implicated me. I was not Demolition Inspector and the kotha in dispute, was not within my circle. I did not demand any bribe."

4. Before we proceed to discuss this case on merits, we think the first question that falls for determination is as to whether the offences under sections 332 and 353 of the Pakistan Penal Code could be jointly tried with the offences under section 1.61, P. P. C. read with section 5 (2) of the Prevention of Corruption Act at one trial and whether the learned Special Judge could try the appellant for offences under sections 332 and 353 of the Pakistan Penal Code.

5. The appellant committed these offences in the course of the same transaction. Therefore, a joint trial is permissible in view of the provisions of section 235 (1) of the Criminal Procedure Code and the Special Judge could also try the other offences, not so triable in view of the provisions of section 5 (7) of Pakistan Criminal Law (Amendment) Act, 1958.

6. Reverting to the facts of the case, we are of the view that on merits the prosecution case in so far as the passing of the bribe money is concerned, is clearly proved. The learned Special Judge, who tried this case, was of the view that there was nothing on the record to show that Muhammad Ishaq or Iqbal Hussain P. Ws. had any personal enmity with the appellant or they were under so much influence of Abdur Rehman that they would be prepared to go so far as to implicate an innocent person in a serious case at his instance. Similarly, the Magistrate and the Inspector had no previous grudge against the appellant and there was no motive for them to enter into conspiracy with Muhammad Ishaq and Iqbal Hussain before the occurrence and to form a raiding party if there was no substance in the prosecution version about the acceptance of the bribe by the appellant. He further held that the alleged assault took place after the Magistrate and the Inspector had gone to the house of the appellant and this could not form a motive for implicating the appellant in the bribe case. He held that the statements of Muhammad Ishaque, Iqbal Hussain, Hamad Ilahi, Magistrate and Ikram‑ul‑Haq, Inspector P. Ws. were consistent about these facts and was of the view that the statements of Muhammad Iqbal (D. W. 1) and Muhammad Ibrahim Siddiqui (D. W. 2) on this point were not convincing and that it was difficult to discard the testimony of the four prosecution witnesses about the acceptance of the bribe by the appellant. Furthermore, he held that the statements of Muhammad Ishaq and Iqbal Hussain P. Ws. about the payment of Rs. 100 to the appellant in the compound of the Town Hall were not corroborated by indepen dent evidence.

7. We find in the statement of Hamad Ilahi, Magistrate that he over‑heard the entire conversation that transpired between Muhammad Ishaq P. W. and the appellant. He stated that Muhammad Ishaq P. W. began to talk about the business for which he had come and enquired from the accused as to who would be responsible if his work was not done, to which the accused replied that he would do the work, because he had promised, otherwise he would not talk to persons like Muhammad Ishaq even if he was paid Rs. 1,

000. It was after this talk that Muhammad Ishaq P. W. gave Rs. 200 to the accused. Thereafter, the accused demanded the remaining amount and Muhammad Ishaq P. W. gave Rs. 20 and said that he had no money with him, where after the accused kept the currency notes in his book and told Muhammad Ishaq P. W. to see him after two days for his work. To a like effect is the statement of Muhammad Ishaq P. W. Apart from that the conduct of the appellant at the time of the raid tells very heavily against him. We have the evidence of the Magistrate that he heard the conversation which took place between Muhammad Ishaq P. W. and the appellant and that the money was passed within his view and that of Ikram‑ul‑Haq and Iqbal Hussain P. Ws. It is a clear case of demanding and then accepting bribe and the mere fact that the tainted money was removed and not found, does not negative the factum of acceptance. The contention of the learned counsel for the appellant that the case was maneouvred by Abdur Rehman in connivance with Muhammad Ishaq P. W. seems to be devoid of force. No doubt, in evidence of Khadim Hussain (P. W. 2), Fateh Khan (D. W. 3) and Muhammad Latif (D. W. 4) there are admissions in favour of the appellant which indicate that Muhammad Ishaq P. W. was on visiting terms with Abdur Rehman and that Abdur Rehman and the appellant were not on good terms with one another, but these admissions are from the colleagues of the appellant, who had tried to help the appellant at the trial. As regards the actual passing of the money and the purpose for which it was passed, we find that there was no ill‑will on the part of Muhammad Ishaq, Iqbal Hussain, Hamad Ilahi, Magistrate and Ikram‑ul‑Haq, Inspector, P. Ws. who had deposed against the appellant.

8. The learned Special Judge was of the view that the evidence of assault is discrepant. We are afraid, it would not be possible for us to subscribe to his finding. It is true that Doctor Ghulam Haider Shah (P. W. 3) did not notice any mark of violence on the persons of the Magistrate and the Inspector, but that does not mean that they were not assaulted or that there was no scuffle between the appellant on the one side and the Magistrate and Inspector on the other. The fact that the tainted money was removed from the spot also lands support to the claim of the Magistrate and the Inspector that there was a scuffle between the Magistrate and the Inspector on the one side and appellant on the other. The evidence of Muhammad Iqbal (D. W. 1) and Muhammad Ibrahim Siddiqui (D. W. 2) also show that there was a scuffle between the raiding party and the appellant, though they have given a different account of the incident. Therefore, the evidence on the file no doubt establishes that the appellant assaulted the Magistrate and the Inspector, who were public servants and thereby interfered in the execution of their duty. As already indicated, no injury was found on the persons of the Magistrate and the Inspector, therefore, the appellant cannot be held guilty under section 332 of the Pakistan Penal Code, but he is guilty of an offence under section 3 53, P. P. C.

9. For the aforesaid reasons we accept Criminal Appeal No. 604 of 1963, to the extent that we set aside the acquittal of the appellant under section 353, P. P. C. and order him to suffer one year's rigorous imprisonment.

10. The sentence awarded by the learned Special Judge under section 161, P. P. C. read with section 5 (2) of the Prevention of Corruption Act, is merely a flea‑bite and is manifestly inadequate. No doubt, the appellant had lost his job as a result of this conviction and had undergone the ordeal of the trial and is under suspension for the last four years, but the acceptance of bribe is so rampant amongst the public servants that the suppression of this crime is called for with a stronger hand. To our mind, the proper way of putting down this evil is to award the offender a deterent punishment.

11. In the entire circumstances of the case, we are of the view that there has been a miscarriage of justice, and this Court should substitute its own discretion for the discretion of the Special Judge in the matter of awarding the sentence. In this view of the matter, while maintaining the conviction of the appellant under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, we sentence him to three years' rigorous imprisonment and a fine of Rs. 300 or in default of payment of tine to undergo further rigorous imprisonment for a period of three months, Criminal Revision No. 889 of 1963, is accepted accord ingly. The sentence awarded under section 353, P. P. C. and section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, shall run concurrently. The appellant is on bail. His bail bonds are cancelled and he is ordered to be taken into custody forthwith. Criminal Appeal No. 342 of 1963 is dismissed accordingly. K. M. A. Appeal dismissed.