P L D 1960 (W (PLP)

The prosecution case is that the appellant was working as a clerk from 11th May 1957 to 4th July 1957 in the office of the District Magistrate, Hyderabad and used to deal with licences to hotels and shops for late hours. P. W. 1 Rehman Bux (Exh. 2) lodged a report on 5th July 1957 at 11 a.m. with P. W. 4 Dost Muhammad, Anti‑Corruption Inspector, Hyderabad District that the appellant had demanded from him Rs. 10 as reward for obtaining a late licence upto 11‑30 p.m. from the District Magistrate. He alleged that the appellant came to his shop on the 4th of July at 8 p.m. for this purpose, but as he had no money he asked him to come the next day and the appellant was expected to come after office hours on 5‑7‑1957 on his shop and take the money. P. W. 4 Dost Muhammad thereupon obtained the sanction of the City Magistrate and proceeded to investigate the matter. He took P. W. 3 Muhammad Iqbal, Anti‑Corruption Constable and on reaching the house of one Abdul Qayyum in the locality where the complainant was carrying on his business called P. W. 2 Nabi Noor (Exh. 6) to act as a mashir and handed over in his presence two notes of Rs. 5 each after noting their numbers on Mashirnama Exh. 7, to Rehman Bux for payment to the appellant as bribe. Nabi Noor was also asked to keep a watch and give the signal on the payment of the amount to the appellant to P. W. Muhammad Iqbal, Anti‑Corruption Constable, who in turn was to inform P. W. 4 Dost Muhammad for apprehending the appellant. The prosecution version is that the appellant first visited, the shop of Rehman Bux in the company of two persons and after taking pan he went away. He again visited Rahman Bux's shop and demanded from him the money, who after receiving the licence (Exh. 5) paid him a sum of Rs. 10 in the shape of two notes of Rs. 5 each. P. W. 2 Nabi Noor, as arranged, gave the signal to P. W. 3 Muhammad lqbal, who informed P. W. 4 Dost Muhammad. P. W: Dost Muhammad with other prosecution witnesses immediately reached on the scene. The appellant was put under arrest and two notes of Rs. 5 each were recovered from his person. On these allegations the appellant was challaned under section 5 (2) of the Prevention of Corruption Act (II of 1947) in the Court of the Special Judge Hyderabad. The appellant's case before the trial Court was of bare denial. According to him he was falsely implicated in the case on account of longstanding enmity between his family and P. W. 3 Muhammad Iqbal's family. The learned Special Judge after consider; the evidence produced before him, rejected this plea and found m guilty of the offence. Mr. Anwar G. Shaikh, the learned counsel for the appellant has attacked the finding of the learned Special Judge on the grounds (1) that the appellant was falsely implicated in the case at the instance of P. W. 3 Muhammad Iqbal, who was on inimical terms with his family ; (2) that the prosecution evidence is unreliable as the mashir and other witnesses are under the influence of P. W. 3 Muhammad Iqbal and not independent witnesses ; (3) that the appellant on 5‑7‑1957 was functus officio as he was not working in the office of the District Magistrate and could not render any service to Rahman Bux for obtaining the licence ; and (4) that no proper search of Rahman Bux's person and shop was effected before handing over the two notes of Rs. 5 for laying the trap against the appellant. After hearing the learned counsel for the parties and going through the record with the appellant's counsel, I am of the view that the contentions raised before me have no force and the conclusions of the learned Special Judge are fully supported by the evidence on the record and the appellant was rightly convicted. In support of the first contention the learned counsel for the appellant has urged that P. W. 3 Muhammad Iqbal and Abdul Qayyum in whose house the trap was arranged are real brothers and as these two persons are on inimical terms with the appellant's family the prosecution case is not above suspicion. He also contended that P. W. 2 the only mashir examined in' this case was a fellow businessman of Rehman Bux complainant and cannot be relied upon to convict the appellant. The learned counsel for the appellant in this connection referred me to the statements of D. W. 5 Shamshad Ali (Exh. 26) and D. W. 6 Mumtaz Ali (Exh. 27). They stated that P. W. Muhammad Iqbal and his brother Abdul Qayyum were the residents of Alwar and Abdul Qayyum was challaned under section 457, P. P. C. at Alwar, but Shamshad Ali admitted in cross‑examination that there was no dispute between the two families. D. W. 6 Mumtaz Ali, a Bench clerk of the Second Class Magistrate, Alwar in 1933‑34 stated that Abdul Qayyum was challaned in 1933‑34 under section 456 or. 451, P. P. C., but could not say whether Shamshad Ali was responsible for it or the case resulted in con viction. In my opinion these statements do not prove any enmity between the two families. It is difficult even to hold on these statements that Abdul Qayyum was challaned and convicted under sections 451, 456 or 457, P. P. C. at Alwar and D. W. Shamshad Ali was responsible for it. Even if I accept their statements that Abdul Qayyum was challaned by Shamshad Ali, it does not mean that there existed any enmity between the two families which could lead Muhammad Iqbal to falsely involve the appellant in the case under consideration. I am not inclined to give any weight to the alleged enmity as P. W. 3 Muhammad Iqbal not only denied the alleged prosecution of Abdul Qayyum but also denied the enmity between the two families. The learned counsel for the appellant also failed to show that the[a was any enmity between P. W. 2 Nabi Noor and the appellant. The learned counsel has relied on the statement of the appellant in the Special Judge's Court, but no such question was put to Nabi Noor and I am not prepared to hold on the bare statement of the appellant that there existed any enmity between them. There is nothing on the record to come to the conclusion that this witness was under the influence of P. W. Muhammad Iqbal. No such question was put to him or to Iqbal. I may mention at this stage that the statements of P. W. 1 Rehman Bux, P. W. 2 Nabi Noor, P. W. 3 Muhammad lqbal and P. W. 4 Dost Muhammad leave, no doubt in my mind that the appellant was dealing with the application of the applicant P. W. 1 for late hour licence, that this licence was prepared on 4th of July 1957 and that he did receive Rs. 10 on 5th of July 1957 as a reward for preparing the licence in favour of P. W. 1 Rehman Bux. On this view of the matter the contention that the appellant was falsely implicated in the case has no force and must be rejected. It was next contended by Mr. Anwar G. Shaikh that the appellant on the 5th of July 1957 was not in a position to render any service to P. W. 1 Rehman Bux as he had already been transferred to the office of the Deputy Rehabilitation Com missioner and was not working in the office of the District Magistrate. The learned counsel in this connection relied on a judgment of Inamullah, J. reported in Fasihuddin v. The Crown (P L D 1956 Kar. 483). This judgment no doubt supports the contention of the learned counsel but Mr. Muhammad Hayat Junejo, the learned counsel for the State has drawn my attention to a decision of their Lordships of the Supreme Court reported in Muhammad Farooq v. The State (P L D 1956 S C (Pak.) 248) and a decision of the Peshawar Bench reported in Ghani‑ur‑Rahman v. The State (P L D 1959 Pesh166). In both the cases it was held "that it was not necessary that a public servant should in fact have the power to render service; it was sufficient that a public servant had represented himself to be capable of rendering a service for gratification." Mr. Muhammad Hayat Junejo further pointed out that the learned counsel who appeared before Inamullah, J. on behalf of the State did not draw the attention of his Lordship to A I R 1955 S C 70, a later decision on that point by the Indian Courts where a different view was taken and in which the view of the Madras and Calcutta High Courts was not upheld. Under the circum stances the contention of the learned counsel in this respect is not maintainable. Moreover, the question whether the appellant at the relevant time was serving in the District Magistrate's office or not is irrelevant for the decision of this case. There is no doubt that the appellant secured the licence (Exh. 5) from the District Magistrate office at a time when he was working as a clerk there and got later on a, reward for handing it over to the appellant. The reward was given to him for the work done A by him as a clerk in the office concerned. I therefore find no merit in this contention and decide it against the appellant. In such circumstances the appellant clearly committed an offence under section 5 (2) of the Prevention of Corruption Act, 1947. It was also urged by the learned counsel for the appellant that the trap money was not paid to P. W. 1 Rehman Bux by P. W. 4 Dost Muhammad after searching his person. This is not necessary under any provision of law. The fact that P. W. 4 Dost Muhammad handed over two notes of Rs. 5 each to P. W. 1 Rehman Bux is corroborated by the Mashirnama (Exh.7). There is thus no doubt that the trap money was given to Rehman Bux in the presence of Nabi Noor. This con tention also fails. It was lastly urged that the investigation in this case was carried on by P. W. 4 who had no jurisdiction in the matter. According to the learned counsel Mr. Wazir Hussain Shah, who subsequently challaned the case, should have investigated the matter. The learned counsel urged that the District Magistrate has assigned particular areas to particular officers for the investi gation of anti‑corruption cases and as the area in which the alleged offence was committed was not within the jurisdiction of P. W. 4 Dost Muhammad, the whole proceedings are vitiated. But there is no evidence on the record to come to any such conclusion. In any case section 5 (a) of the Criminal Law Amend ment Act only provides that offences under the Prevention of Corruption Act must be investigated by no less a person than a Deputy Superintendent of Police, except where an officer has been specially authorised to investigate the case. In this case P. W. 4 Dost Muhammad was specially authorised by the City Magistrate by an order dated 5‑7‑1957 recorded in Exh.

12. This contention also fails. After careful consideration of the evidence on the record and the arguments advanced before me I am satisfied that the learned Special Judge rightly convicted the appellant. I see no ground to interfere with his finding. Accordingly the appeal is, dismissed. K. B. A./A. H. Appeal dismissed.