P L D 1956 Federal Court 27 (PLP)

S. A. RAHMAN, J.‑

Muhammad Sharif and Shamim Ahmad were tried by a Special Magistrate at Lahore for an offence under section 5 (2) of the Prevention of Corruption Act, 1947. Along with them Muhammad Ramzan and Muhammad Ashraf were placed on trial for abetment of the principal offence said to have been committed by the first‑named two persons. The trial Court convicted all the accused, sentencing Muhammad Sharif and Shamim Ahmad to rigorous imprisonment for five years and a fine of Rs. 1,000 each, and Muhammad Ramzan and Muhammad Ashraf to rigorous imprisonment for two years and a fine of Rs. 2,000 each. In case of default in the payment of fine, a further period of one year's rigorous imprisonment was to be undergone by every one of the convicts. On appeal, a learned Single Judge of the Lahore High Court maintained the convictions, but reduced the sentences of the convicts. The sentences of Shamim Ahmad and Muhammad Sharif were reduced to one year's rigorous imprisonment only and their fines were remitted. In the case of Muhammad Ramzan and Muhammad Ashraf the sentences of fine were maintained intact, but their terms of imprisonment were reduced to nine months' rigorous imprisonment each. Special leave to appeal was granted by this Court to Muhammad Ashraf by order, dated the 1st of December, 1953. The material facts are that two wagons, containing millstones, were booked from Amratsar to Mughalpura Railway Station, at the instance of Arora Brothers of Amritsar. The original consignees mentioned in both the railway receipts were the consignors themselves, but later the two receipts were endorsed, one in favour of Muhammad Ramzan and the other in favour of Muhammad Nasim, a minor son of Muhammad Ashraf. There was delay in getting the wagons cleared through the customs, as import licences had to be applied for and granted before the clearance. The wagons had arrived at Moghalpura on the 21st of June 1950. No application for an import licence was put in till the 29th of June 1950. On that date, two applications were presented to the Customs authorities through a clearing agent, Sardar Ali, on behalf of Muhammad Ramzan and Muhammad Nasim, son of Muhammad Ashraf. The millstones were prohibited articles for the purpose of import and the customs authorities, therefore, levied a fine of Rs. 150 in the case of Muhammad Ramzan and Rs. 100 in the case of Muhammad Nasim, before they granted the licences. The wagons were released by the Customs authorities on receipt of the customs dues on the 12th of July 1950. Under the Railway rules, demurrage had been incurred to the tune of Rs. 830‑8‑0 in respect of each wagon. The prosecution case was that, to avoid payment of this demurrage, the two principal accused, who were railway servants, at the instigation of Muhammad Ramzan and Muhammad Ashraf, diverted the two wagons to Badami Bagh Railway Station instead of re‑booking them to that station. The result was that the consignees took delivery of the contents of the two wagons at Badami Bagh on payment of diversion fee of Rs. 5 per wagon only. The demurrage charges, which amounted to Rs. 1,660‑6‑0 remained unpaid. The prosecution alleged that in fact the two principal accused obtained orders from their superior officer, for permission to re‑book the two wagons to Badami Bagh, but they destroyed the original orders and made endorsements on the railway receipts to the effect that they were merely being diverted to 13adami Bagh. If there had been re‑booking,' demurrage would lave been realized at Lahore main station itself or in the alternative at Badami Bagh. No note was made on the railway receipts to the effect that any demurrage had been incurred. It was suggested that the two principal accused, as public servants, had abused their position in order to obtain a pecuniary advantage for the other two accused due to a corrupt motive. The learned Judge of the High Court, who heard the appeal, held that there was evidence of association between the principal offenders and the abettors. Special leave was granted in this case on the plea that there was no evidence of such association on the record and that the mere fact that the action of the principal accused resulted in an advantage to the appellant, Muhammad Ashraf, was not sufficient to connect him with the crime. We have been taken through the relevant evidence in this case by the learned counsel for the appellant, Mr. Iftikhar‑ul‑Haq Khan. Sardar Ali (P. W. 3), a clearing agent, deposed that his services had been utilized by both Muhammad Ramzan and Muhammad Ashraf for clearing the two wagons through customs and for obtaining import licences for the millstones. Muhammad Ramzan accused gave him the railway receipt ‑ (Exh. P. C.) along with the sales‑tax certificate arid he then filled up the import application (Exh. P. S.) under his direction. He also paid him the sum of Rs. 555‑2‑0 which included Rs. 405‑2‑0 on account of customs duty and Rs. 150 imposed as fine by the Customs Department. Similarly, the import application (Exh. P. S./1) was prepared by this witness on behalf of Muhammad Ashraf accused, though it purports to bear the signature of Muhammad Nasim, in respect of railway receipt (Exh. P. D.). Muhammad Ashraf had given him a sales‑tax certificate No. 38 C/2, dated 29th May 1950, together with the railway receipt (Exh. P. D.) and a sum of Rs. 506 8‑0 to cover the customs duty amounting to Rs. 406‑8‑0 and the fine levied by the customs authorities. He clearly stated that Muhammad Ramzan and Muhammad Ashraf had come to him together on the same day and he was not sure if the money requisite for the two wagons had been handed over to him by one or the other accused. Apparently the two accused were acting in concert from the start. Cash registers seized from the two accused contained entries which corroborate the statement of Sardar Ali. The receipts given by the Customs Department were also recovered from the possession of these accused. there was further the evidence of Muhammad Ishaq (P. W. 2) that he had seen Muhammad Kamzan at the railway platform Moghalpura talking to Muhammad Sharif and Shamim Ahmad accused in the month of June or July 1950. He had overheard Shamim Ahmad telling Muhammad Ramzan that he should leave the railway receipts with him and that he would see to the rest. Evidence was also led to show that the delivery was taken at Badami Bagh Railway Station, of the wagon booked for Muhammad Nasim, by a person who signed as Muhammad Nasim. The defence of the appellant was that he had no concern with the contents of the wagon and that his firm's name was utilized by the Hindu consignor's agent, named Hari Ram, to clear the goods through the customs and that he received the goods by sale from Hari Ram, at his shop, without contacting either the clearing agent or the railway authorities, after delivery had been taken from the railway. This defence has, been negatived by the trial Court as well as by the High Court and it is clearly inconsistent with the disinterested testimony of Sardar Ali as well as the documentary evidence seized from the possession of the appellant himself. Mr. Iftikhar‑ul‑Haq Khan has contended before us that the explanation given by his client may have been false, but that this did not establish the case against him. Learned counsel does not contest the finding of the High Court that the two principal accused did divert the two wagons to Badami Bagh with the object of avoiding the payment of demurrage by the consignees. The question appears to have been raised in the High Court as to who was liable to pay the demurrage in case there was a delay in issuing the import licence on the part of the Customs authorities. It was found; however, (and the finding has not been assailed before us) that eventually a consignee will have to pay any demurrage himself, although the practice in the past had been for the Railway authorities to raise a debit against the Customs Department in the first instance. From the 1st of July 1950, orders had been received by all subordinates that for the future the consignees were to be called upon to pay the demurrage direct to the Railway authorities. Learned counsel was also constrained to concede that his client had gained a pecuniary advantage inasmuch as he had not been required to pay the demurrage, amounting to Rs. 830‑8‑

0. He, however, suggested that the whole thing may have been manag?ed for the benefit of Muhammad Ramzan by the two principal accused and, as the two wagons had arrived together at Moghalpura from Amritsar, they were both diverted at the same time to Badami Bagh, so that, incidentally, the appellant also received a benefit without arranging for it himself. After considering the material on the record, we are unable to accede to the contention raised by the learned counsel. In our opinion, the admitted privity of profit was a very strong circumstance indicating that Muhammad Ashraf had also been actively instigating the two principal accused to resort to the stratagem of diverting the wagons to Badami Bagh instead of re‑booking them. It is unthinkable that Muhammad Ramzan should have gratuitously conferred a benefit on Muhammad Ashraf if the latter had not been interested in the transaction, there should have been no difficulty in retaining his wagon at the Moghalpura Railway Station and diverting the wagon of Muhammad Ramzan only to Badami Bagh, Moreover, as has been observed above the story of the appellant that he did not com into the transaction at ail till after the delivery had been taken, is wholly falsified by the testimony of Sardar Ali and the documents that were exhibited in this case. Even if Muhammad Ashraf had not himself been seen talking to the two principal accused along with Muhammad Ramzan, as the learned Single Judge of the High Court appears to have erroneously assumed, it would not detract from the value of the other evidence that suggests a strong link between him and the crime. He could have moved through Muhammad Ramzan. The mere fact that tote railway receipt and the application for an import licence were in the name of Muhammad Nasim, a minor son of Muhammad Ashraf, cannot be allowed to derogate from the fact that it was Muhammad Ashraf who had interested himself from the very start in getting the wagon cleared through Sardar Ali and had made payments to him to achieve his object. We hold that there was good evidence on the record on the basis of which the High Court was justified in up?holding the conviction of Muhammad Ashraf. The definition of "criminal misconduct" in section 5 of the Prevention of Corruption Act, 1947, is very wide. A public servant is said to commit the offence of criminal misconduct, inter alia, if he, by corrupt or illegal means or otherwise abuses his position as public servant and obtains for himself or for any other person any valuable thing or pecuniary advantage. Undoubtedly, in this case, pecuniary advantage was gained by Muhammad Ashraf due to the e illegal means adopted by the principal offenders. The circumstance point to the irresistible conclusion that Muhammad Ashraf must have abetted Muhammad Sharif and Shamim Ahmad to resort to that illegal means. This is not a case in which it could be said that failure of justice had been occasioned by any error of law or procedure or the violation of any principal of natural justice. We see no force in this appeal which is hereby dismissed. A.H????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.