1984 P Cr (PLP)

The appellant above-named, being aggrieved by Judgment dated 31st August, 1978 of the learned Special Judge-cum-enquiry officer/ Hyderabad Sind, in Case No. 62/75, by which appellant has been convicted under section 161, P. P. C. read with section 5 (2) of the Prevention of Corrup tion Act, 1947 and sentenced to suffer R. I. for two months and a fine of Rs. .300 or in default to suffer further R. I. for 1 month, has preferred the above appeal, on the following facts and grounds The prosecution story in brief is as under Complainant Ghulam Bahadur (hereinafter to be referred to as the complainant) applied for issue of domicile certificate in February, 1974 to the District Magistrate, Hyderabad and his application was forwarded to City Mukhtiarkar Hyderabad for his report and after the latter's report the papers came back to the D. M.'s office. The complainant then con tacted clerk Ghulam Muhammad of the D. M.'s office who was dealing with such files. He told the complainant, that there was some mistake in the application and the documents and that he should, therefore, meet appellant clerk Muhammad Sadiq of the same office about it. : The com plainant therefore, contacted the appellant, who told him that there was mistake in the certificate of his son and if he paid him Karachi (bribe) of Rs. 200 he would be able to get him the required domicile certificate. The complainant paid him Rs. 150 there as he had that amount with him and promised to pay him the balance of Rs. 50 when the certificate was actually issued to him. Peon Husain Bux since deceased who was present in that office also demanded Rs. 30 for himself and that also the com plainant promised to pay to him, when he had brought the balance of Rs. 50 for the appellant. The appellant asked the complainant to meet him after 3-4 days, but he went to him after 4-5 days and on enquiry the appellant told him that the domicile certificate was ready and when he wanted to pick it up he might pay him the balance of the bribe amount. He asked him to meet him on the next day. On the next day namely 18th February, 1974 in the morning the com plainant lodged report with Anti-Corruption Police Hyderabad and Circle Officer Fakir Muhammad of Anti-Corruption Police registered the crime and arranged a trap with the help of Head Munshi and IIIrd Class Magistrate Ghulam Nabi of Hyderabad and mashir Muhammad Aslam in whose presence he paid Rs. 50 to the complainant for payment to this appellant. A separate F. I. R. was also registered, through Additional Circle Officer, Hyderabad, regarding payment of bribe of Rs. 30 to peon Husain Bux and Rs. 30 in that connection were also paid to the complainant in the presence of the same Magistrate and the mashir The complainant and the mashir were then asked to go to the office of D. M. Hyderabad, while the trap party including the Magistrate followed them and waited outside in the verandah mixed up with the public. The complainant contacted the appellant in his office and demanded the domicile certificate He asked him to go and meet the peon Husain Bux, as the papers lay with him. When the complainant and the mashir went and met Husain Bux he demanded Rs. 50 for passing the papers to them. They offered him Rs. 30 which he did not accept. The complainant and mashir then came back to appellant Muhammad Sadiq and all of them then went to the peon. On the remonstration of the appellant the peon accepted Rs. 30, but he passed on the same to the appellant clerk, who put that amount in his pocket. He also put Rs. 50 which he accepted from the complainant for himself in another pocket. When the appellant reached near his table, the mashir signalled the trap party as arranged and they rushed in and searched the person of the appellant and recovered from his left pocket Rs. 30 and from right pocket Rs. 50 meant for himself. He was arrested by the trap-party, who secured the domicile certificate file from the deceased peon. Necessary mashirnamas were prepared and statements of tthe witnesses were recorded. The Magistrate gave his raid report. After phi investigation was completed the Circle Officer obtained sanction for prosecution of the appellant and challaned him. By the time this appellant has challaned the peon appellant had died. The present appellant has aced the trial in this case separately. The appellant on the other hand admitted, he was clerk in Visa Passport and Domicle Section of the Office of the Deputy Commissioner Hyderabad and as such a public servant and stated that he was those days under suspension and was not on duty. He further stated that he was involved in this case on the day of the trap, but has been falsely involved in this case. He had examined in his defence clerk Abdul Rashid of D.C.'s office to show, that he was suspended on 2nd January, 1974 from his office and was reinstated on 29th August, 1974 and Head Constable Sardar Khan to show that in a subsequent summary military Court case challaned by the Anti-Corruption Police, complainant Ghulam Bahadur figured as a prosecution witness. The learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal. The learned Advocate for the appellant in support of the above appeal submitted as under

(a) that there are material contradictions in the statement of the prosecution witnesses inter se and as such the conviction of the appellant on their statements cannot be maintained. (b) that the appellant on the relevant date was under' suspension and consequently he was not in a position to help the complainant. In view of the above submissions the learned Advocate for the appellant submitted, that the prosecution has failed to establish its case beyond reasonable doubt. In the alternative the learned Advocate for the appellant submitted, that this is as an old case of 1974 and appellant also has remained in custody for some time as -under-trial prisoner and further more has been facing trial right from 1974 till today and therefore the sentence of imprisonment awarded to him be reduced to the period already undergone by him. In view of the law laid down by Hon'ble Supreme Court in case P L D 1974 S C 48 and P L D 1978 Lah.

963. The learned Advocate for the State on the other hand submitted that he fully support the impugned judgment as prosecution by the statement of these prosecution witnesses and the recovery of the tainted money from the possession of the appellant in the presence of the Magistrate and the mashir has established its case beyond reason able doubt. The learned Advocate further submitted, that the appellant has alleged no personal enmity against the prosecution witnesses, whose statements are straightforward and were not shaken in their cross -examination. As far as the sentence of imprisonment is concerned, the learned Advocate for the State submitted, that in view of the law laid down by the Hon'ble Supreme Court in PLD 1974 S C 4 8 ends of justice will be frilly met, if the period of imprisonment awarded to the appellant is reduced to the one already undergone by him, as he has been facing trial right from 1974 and was released on bail by this court as far back as on 7th October 1978. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocate for the State. I find that the prosecution by the statement of complainant, the Magistrate and other P. Ws. have established beyond reasonable doubt, that the tainted money was recovered from the possession of the appellant by the raiding party and since appellant has only denied said recovery without leading any other evidence in support thereof, I see no reason to disbelieve the statement of the prosecution witnesses in this connection, as I find their statements straightforward and convincing and have not been shaken at all in their cross-examination. It may be noted, that appellant has alleged no enmity whatsoever against the prosecution witnesses and as such the reliance placed by the learned trial Court on their statements was fully justified and is based on cogent reasons and there fore I see no reason to disagree with the conclusions and findings of the learned trial Court. As far as the sentence of imprisonment awarded to the appellant is concerned, I see great force in the contention of the learned Advocate for the appellant, that ends of justice will B be fully met if the said sentence is reduced to the period already under-gone by him, as the appellant has been facing trial right from 1974. Therefore in view of the above discussions, while dismissing the above appeal on merits, I reduce the sentence of imprisonment awarded to the appellant from period of two months to the one already undergone by him. However I maintain fine of Rs. 300 imposed on the appellant and in default to suffer further R. I. for one month. Since appellant is on bail, I give one month time to the appellant to pay the fine by depositing the same before the learned trial Court and in case appellant fails to deposit the same within 'one month from today, his bail bonds shall stand cancelled and the learned trial Court is directed to issue Non-Bailable warrants for his arrest and on his arrest to remand him back to judicial custody to serve out sentence in lieu of fine only. The above appeal stands disposed of in terms of the above order M. Y. H. Appeal parts accepted.