1985 PLP 1488 (SCMR)

SHAFIUR RAHMAN, J.‑‑The petitioner, a convict under section 161, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced to imprisonment till the rising of Court and a fine of Rs.300 seeks leave to appeal against the judgment of the Lahore High Court, dated 23‑9‑1981 whereby his appeal against conviction and sentence was dismissed.

2. The petitioner was at the relevant time a Constable as Naib Court (Tamili) in the Court of Corporation Magistrate, Lahore. Muhammad Latif was being prosecuted for operating a Lathi without a license and was required to be served for attending the Court of Corporation Magistrate. The petitioner was entrusted with his bailable warrants for service for 17‑9‑1973 and he got his service effected Latif failed to appear on that date. Hence Court issued non‑bailable warrants of his arrest for 10‑10‑1973. According to the complainant Muhammad Latif (P.W.4) the petitioner demanded money for getting the case against him disposed of and for that realized rupees twenty when he came to effect service for 17‑9‑1973. He demanded more money when he came to serve for 10‑10‑1973. He was paid Rs.5 and promised Rs.20 more later. Latif reported the matter to Anti‑corruption whereupon a case was registered a raid was organised which was to be supervised by Mr. Bashir Ahmad, a Magistrate. As Mr. Bashir Ahmad got pre‑occupied with some urgent work relating to political detenu. Mr. Khalid Hayat P.W.2 Inspector and Ch. Ghulam Rasul, Inspector supervised the raid, actually witnessed the passing of the tainted currency notes of Rs.20 and its recovery from the pocket of the petitioner whereupon he was sent up for trial.

3. The plea of the petitioner was that Muhammad Latif P.W.4 was avoiding service and falsely implicated him in the case. Neither he received any bribe nor were the‑tainted currency notes recovered from his pocket. He produced two witnesses in defence. Muhammad Siddique D.W.1 stated that the petitioner was not receiving the amount which fell on the ground from where the Anti‑corruption police recovered. Allah Rakha Peon D.W.2 also stated so.

4. The Special Judge trying the petitioner believed the prosecution case, found explanation for the absence of the Magistrate plausible and the defence version without merit. However, he took a lenient view in the matter of sentence and awarded imprisonment till the rising of the Court and a fine of rupees 300.

5. In the High Court, the petitioner took up the ground that the evidence of the two police officers coupled with that of the complainant should not have been considered sufficient to record his conviction. The High Court considered the evidence on record credit worthy and the defence of the petitioner implausible. Hence it maintained the conviction and sentence.

6. The contention of the learned counsel for the petitioner is that the premises of a Court of Magistrate between 9 a.m. to 10 a.m. when the raid took place are so crowded that it would not have been, possible for the raiding party to hear the conversation. Besides, at such a place in full view the tainted money could not be accepted. In any case the petitioner had not accepted the money. It was found dropped on the ground.

7. The prosecution witnesses stated that the petitioner had pocketed the money and it was from his pocket that it was recovered. Khalid Hayat P.W. 2 stated as follows:‑‑ "In our hearing and sight, the accused told the complainant that he kept on waiting for him but he did not turn up on the previous and today he was also waiting for him. Now the accused said pay him the Rs.20 which is the price of the cancellation of the challan and in our sight the complainant brought out Rs.20 and handed them over to the accused, the accused accepted both the GC notes and then kept them in the left pocket of his pant. At that time the accused was in plain clothes. The accused went towards his cycle to move off but under the order of Ch, Ghulam Rasool moved forwarded and stopped the accused and recovered Rs.20 from the left pocket of the accused's pant'".

8. The tainted money was accepted at the back of the Corporation Magistrate's Court room where some cars were parked. Such a place would not have been so exposed as to deter him from receiving the amount, which he in fact received.

9. We find that the evidence on record has been believed by the, two Courts and it present no peculiar feature to require further appraisal, at our level. Leave to appeal is, therefore, refused. M.I. Leave to appeal refused.