P (PLP)

The facts of the case, as alleged by the prosecution are that Bangal Khan, a milk-seller of Quetta approached the respondent Mir Afzal, who was an employee of the Railway in the Goods Office at Quetta, for booking certain buffaloes to Sibi. It is alleged that the respondent demanded a sum of Rs. 50 from Bangal Khan which was intended to cover the cost of Railway Freight estimated at Rs. 40 while the balance was for the respondent for his sweets or, in other words, as illegal gratification. The complainant Bangal Khan mentioned this matter to Malik Baz Muhammad who took him to the Special Police where a report was lodged. Captain Saleh Muhammad, the City Magistrate of that time, permitted investigation to be made and also accompanied the Special Police who had laid a trap against the respondent. A sum of Rs. 50 was given to Bangal Khan and he was directed to give this to the respondent upon which a signal would be given to the Special Police and the City Magistrate. This was done, and, upon the arrival of the Special Police and the City Magistrate, Rs. 50 were recovered from the respondent. In his defence the respondent has alleged that the money recovered from him was given to him by one Saeed Muhammad, a Railway Seal Man who has given evidence. His evidence is supported by that of Manjawar who alleges that this money was given by Saeed Muhammad to the respondent in his presence. In perusing the judgment of the trial Magistrate and the record it appears that the City Magistrate has given no consideration to the fact that, in laying the trap, the numbers of the notes which were given by the complainant Bangal Khan to the respondent, as alleged by the prosecution, had been noted and that the same notes were recovered from the respondent immediately after the trap had been laid. Much confusion seems to have been caused in the mind of the City Magistrate by the evidence about other money being found in the office and that the Cash Box was broken. It seems immaterial to me whether or not other money was found at the time when these particular notes were recovered from the respondent ; or whether the respondent was keeping on his person other money also. The simple fact is that the complainant Bangal Khan was given certain notes which could be identified and these very notes were' recovered from the respondent. I am, therefore at pains to appreciate the conclusion at which the City Magistrate has arrived in this respect, for in his judgment he states that the complainant had gone to see the Goods Clerk and in order to see that the money was accepted by the accused "somehow or other the complainant with the help of Baz Muhammad may have been able to induce Saeed Muhammad in getting the, money delivered'. I consider this is a presumption totally unwarranted in any respect by the evidence recorded in this case. In so far as the receipt of the identified notes is concerned by the respondent, there are only two versions in evidence. One is the version of the prosecution in the evidence given by such witnesses as the former City Magistrate and the Police Sub‑Inspector as well as by the complainant Bangal Khan ; while the opposite version is that produced by certain defence witnesses namely Saeed Muhammad, supported by the evidence of Manjawar. In reaching the conclusion he did, the City Magistrate has accepted the version of the defence. But, in my view, the reasons he has given are totally illogical, since he has made an unwarranted assumption not only that, as he described it, somehow or other the complainant induced Saeed Muhammad to deliver the money to the respondent, but in so doing he has automatically discarded the evidence of all the witnesses for the prosecution on this point without assigning any reasons. The evidence of the recovery of the money from the respondent, and the evidence as to the method by which the trap was laid is, in my view, overwhelming. While, as I have stated above, I would be reluctant to substitute an opposite view of the facts I can find no reason or justification for disbelieving the evidence of such important prosecution witnesses as Captain Saleh Muhammad, at that time the City Magistrate, the Sub Inspector Police and indeed the evidence of the complainant himself and that of Malik Baz Muhammad. In my view, therefore, the prosecution evidence in this respect is not only reliable but must be the true version of what occurred. I can see no possible reason for disbelieving that a sum of Rs. 50 was given to the complainant Bangal Khan in notes which could be identified and that these very notes were recovered from the respondent after the trap bad been laid. I have, therefore, no alternative but to come to the conclusion that the view taken by the City Magistrate in so far as this aspect of the case is concerned, was not only wrong on the evidence but it was a perverse view. It follows therefore that the evidence led in this respect by the defence is a fabrication since there is no reliable evidence at all that Bangal Khan ever handed the notes to Saeed Muhammad who is unable to identify the complainant as the man who had given him the notes. It would be impossible to believe the evidence of this witness when he states that two strangers came to him and gave him Rs. 50 to give as Railway Freight to the respondent. He had nothing to do with the booking of the goods on the Railway and yet he expects the, Court to believe that two strangers were willing to give him a sum of Rs. 50 to pass on to the Railway Clerk concerned: He further states that he knew why the Magistrate was there, but he makes no effort to volunteer this vital piece of information to the police about the delivery of the money which, if true, would then and there have ended the proceedings against the respondent. The only conclusion at which I can arrive is that' the' evidence of this witness is a complete issue of lies. I now come to the other aspects of the case. The City Magis trate has criticised the evidence of the complainant mainly on the ground that his statement in the F. I. R: differs from the statement he made before the Court. But it is clear that the complainant is illiterate since he only places his thumb impression to the report made to the 'police. It would, therefore, not be proper to discard completely the evidence of this witness because certain discrepancies had appeared in the F. I. R. which was a report not; prepared by the complainant himself and which, in any case, he could not read. It follows that lie must have been ignorant of what the contents of this report were. I observe that the City Magistrate in his judgment argues that since the respondents duty was that of a Receipt Clerk he was not responsible for accepting the money until he had received the Forwarding Note from the Outward Incharge. He therefore, comes to the conclusion that since the laid down procedure was not followed, this point is in favour of the respondent. I am unable to follow the logic of his argument for whether a certain procedure which was laid down was followed or nor seems to me to be entirely immaterial to the question in issue. The Magistrate seems to infer that unless the procedure was followed it was not possible ' for the respondent to accept a bribe. It must surely be apparent that a corrupt official will be open to the acceptance of a bribe at any time or stage of his official duties and that it would hardly be a point in favour of the respondent that since the forwarding note had not been received he could not accept illegal gratification. Another reason given by the City Magistrate for rejecting the prosecution evidence is that Captan Saleh Muhammad and the Sub‑Inspector Police did not actually see the money paid by the complainant to the respondent. Again, I am unable to follow the reasoning of the City Magistrate in this respect for it is abundantly clear that the actual notes given to Bangal Khan were recovered from the respondent very shortly after he had given them to him. There was, therefore, no necessity for further corroboration of the evidence of Bangal Khan that he had in fact given the notes to respondent since. Except for the defence version which I have discarded, there is no other version of the transaction. Arguments adduced before me in favour of the respondent were mainly that the trial Magistrate has believed the evidence of the defence and has disbelieved the evidence of the prosecution. Since this case was only one of appreciation of evidence and not of any law point involved, this Court should not interfere. It was further argued that the Magistrate was in a better position to weigh the evidence since it has been led before him and since he had had full opportunity of judging the demeanour of the witnesses. The principles set forth are, to some extent, consistent with the judgment given in the Allahabad ruling to which I have referred above and with which I have already stated I am in agreement. But an equally important principle not mentioned is the fact that the view of the evidence taken by the trial Court must be a reasonable view. I have already stated that I consider the view taken of the prosecution evidence is not only unreasonable but, is wrong and I am therefore unable to accept this argument in favour of the respondent. It was further alleged that the complainant Bangal Khan was only an instrument of Malik Baz Muhammad who was an employee of the Special Police and he was also the Malik of the village in which the complainant lives. I have no reason to disbelieve the evidence in this respect, but the inference so drawn from it would be a dangerous one if it was accepted to the extent that the entire prosecution story should 'be disbelieved. There is no denying the fact that Malik Baz Muhammad is an employee of the Special Police ; but equally there is no reason to assume that he had hatched some sort of conspiracy against the respondent by making use of the complainant. There is no evidence what soever to show that Malik Baz Muhammad had any personal feelings against the respondent, or that he was trying to involve him in some fictitious case ; or that he had trumped up this case in order to justify his employment in the Special Police. The only possible and logical conclusion on this case therefore is that the City Magistrate has taken a completely perverse view of the prosecution evidence and he has come to certain conclusions which are definitely wrong. He has gone further and has made certain assumptions which are not justified by the evidence on the record. The truth of this case, in my view, is that the complainant Bangal Khan was asked by the respondent to give him a bribe; he duly reported this matter to the Special Police ; the Special Police, with the assistance of Captain Saleh Muhammad, made a list of the number of certain notes which were handed over to the complainant ; the complainant, in accordance with the instructions he received, gave these notes to the respondent and they were recovered from him very shortly afterwards. It is in evidence that the actual Railway Freight was only Rs. 39‑4‑0 and it follows, therefore, that the balance received by the respondent was illegal gratification. The circumstances of the case permits of the use of the presumption appearing in section 4 of Act II of 1947. In the light of these circumstances, I consider that the prosecution has proved beyond any question of doubt that the respondent is guilty of an offence under section 1.61 Pakistan Penal Code. Since I have also held that the City Magistrate's views are both wrong and perverse I accept the appeal and set aside the order of acquittal. It remains to consider how the accused should be punished. His position was, to some extent, one of trust and he has clearly abused that position. In all the circumstances, and after careful consideration, I convict the accused under section 161 Pakistan Penal Code and sentence him to a term of rigorous imprisonment for one year and in addition to a fine of Rs. 50 or in default of payment of fine to further rigorous imprisonment for a period of one month. In reviewing the case at large I am concerned with the fact that much of the defence evidence is not only unreliable but in my view is false. It would be difficult to pursue a case of perjury against any of the defence witnesses since proof would be difficult to obtain. But since the majority of these defence witnesses are Government employees I direct that a copy of this judgment be sent to the proper authorities for such action as may be deemed proper. In particular I invite attention to the evidence of Seal Man Saeed Muhammad. He is a Government servant and it was his duty to appear in the Court to tell the truth for the ends of justice. His failure to do so is a very serious matter. I also consider that the evidence of Taj Muhammad Khan Chief Goods Clerk indicates a lack of responsibility in his position as a Government servant. From his evidence he held an inquiry of his own by recording the statements of all the Clerks concerned, but he failed to make a report to the higher authorities and simply waited for a report to be called for from him. If the evidence of Saeed Muhammad is true where he states he reported to the Chief Goods Clerk that at was he who gave the notes to the respondent, then Taj Muhammad Khan's failure to report this vital evidence either o his superiors or to the police was most reprehensible. K.M.A Appeal accepted.