1988 PLP 158(2) (MLD)

Abdul Qadir Halepota for Appellant. Hayat Qureshi for the State. The appellant was charged under section 161, P.P.C. read with section 5(2) of Act II of 1947 and was tried before the learned Special Judge Anti -Corruption, Hyderabad, who has convicted and sentenced him to suffer S.I. for two months, and to pay fine of Rs.1,000 and in case of default in payment of fine to suffer further S.I. for one month vide judgment dated 18‑2‑1987. The brief facts of the prosecution case are that on 15‑3‑1983 one Wahid Bux lodged a report before the Anti‑Corruption Police Dadu, inter alia, alleging therein, that he owns land measuring 16 acres 11 ghuntas situated in Deh Jhandhani, Taluka Schwan, which is irrigated from water‑course No. 1‑A.R. Bhambha Distributory, Sub‑Division, Schwan. Muhammad Sadiq Rodhani who is "Abdar" of their beat came in the morning and served a notice on him, according to which he was penalised for tampering with module of the watercourse. He requested the accused that he was a poor man, and as to why fine was being imposed upon him. On this accused demanded illegal gratification of Rs.300 from him. The complainant told him that he will pay the amount. This all happened in presence of Wadero Muhammad Hussain and Muhammed Achar. The accused asked him to pay the above amount at the `Otaq of Wadero Muhammed Hussain. The above F.I.R. was recorded by S.I.P. Rahim Bux, and the F.I.R. has been produced as Exh.

11. S.I.P. Rahim Bux then wrote a letter to A.D.M. Dadu, requesting him to depute a Magistrate to supervise trap. Mr. Muhammad Azeem Channa, R.M. was deputed by the A.D.M. to supervise trap. Thereafter trap party went to Bhan. The' S.I.P. gave Rs.300 to the complainant in the presence of Magistrate under Mashirnama Exh.

12. The numbers of the notes were mentioned in the above Mashirnama. They waited outside in the street, while complainant and Mashir went inside the Otaq. At about 4‑30 p.m. the Mashir came out and informed them that the complainant had passed the money to the appellant. Thereafter they went inside the Otaq and secured Rs.300 from the accused. After necessary investigation the accused was challaned. A formal charge was framed against the accused/appellant to which he pleaded not guilty. At the trial prosecution examined complainant Wahid Bux P.W. 1, he has produced the F.I.R. as Exh.

11. Mashir Muhammed Usman P.W. 2, he has produced the Mashirnama regarding payment of Rs.300 to the complainant as Exh. 13, he has also produced Mashirnama of arrest of the accused as Exh. 15, one hand bag containing documents was secured from the motorcycle under Mashirnama which has been produced as Exh. 16, police had secured notes from the complainant and prepared such Mashirnama which has been produced as Exh. 17, he has also produced his 164 Cr.P.C. statement as Exh. 18, Khair Din, Canal Assistant P.W. 3, Muhammad Azim the then resident Magistrate and A.C.M. P.W. 4, Muhammad Acher in whose presence the demand was made P.W. 5, he has also produced his 164, Cr.P.C. statement as Exh. 26, Muhammad Hussain another witness of demand P.W. 6, he has produced his 164 Cr.P.C. statement Exh.28, S.I.P. Rahim BUY, A.C.E., Dadu P.W. 7, Khuda Bux, the then Circle Officer, A.C.E. Dadu P.W. 8, he has produced Sanction Order as Exh.32, Mashir Haji Abdullah in whose presence motorcycle of the accused was secured. After the close of the prosecution case, statement of the appellant was recorded under section 342, Cr.P.C. in which he denied the allegations and has further stated that the case was false, the amount was paid to him for keeping as Amanat" to be delivered to Stamp Vendor Din Muhammad of A.C.E. Office, Schwan. That the P.Ws. were his Khatedars. They heard grievance against him and some of them were penalised on his complaint for tampering with the water course. He has examined two witnesses in defence namely Din Muhammad, Stamp Vendor and Habibullah, Canal Assistant, Sehwan. The learned Special Judge did not accept the plea of the appellant and discarded the defence evidence as being interested, while relying upon the evidence produced by the prosecution, the appellant was convicted as described above. The present appeal is directed against the above judgment of conviction. I have heard Mr. Abdul Qadir Halepota, learned counsel for the appellant, Mr. Hayat Qureshi, learned counsel for the State and have gone through the R & P of the case. As far as the evidence produced by the prosecution was concerned, it was not seriously challenged by the learned counsel appearing for the appellant. Even otherwise the evidence produced by the prosecution on the point of demand and acceptance of illegal gratification appears to be straight forward, natural and reliable. In spite of searching cross‑examination the same has not been shaken in any way. The defence version appears to be afterthought and the learned Special Judge has rightly discarded the evidence of two defence witnesses as interested. The prosecution had proved its case against the appellant‑ beyond rewnable doubt and the appellant was rightly convicted However, it was contended by Mr. Halepota, learned counsel for the appellant that the appellant was an aged person being more than 55 years of age, he had lost his service, and has also suffered agony of protracted trial for more than three and a half years and, therefore, lenient view may be taken as far as the question of sentence was concerned. In this connection he has relied upon the cases of Abdul Hameed and another v. The State P L D 1963 (W.P.) Kar. 363, and M. Habibullah v. The State P L D 1985 Kar.

680. Mr. Hayat Oureshi, learned State counsel has conceded that in view of the fact that the appellant was above 55 years of age which is clear from the age mentioned in his statement and that he had suffered agony of protracted trial for more than three and a half years, and that he had also lost his service, the sentence awarded to the appellant may be reduced. I have given my anxious consideration to the question. of Sentence. It is an admitted position that the appellant was more than 55 years of age, he has suffered the agony of protracted trial for more than three and a half years, and has also lost the service. The above two cases also support the contention of the learned counsel for the appellant. I, therefore, reduce the substantive sentence from two months' S.I. to till rising of the Court, and the sentence of tine is also reduced from Rs.1,000 to Rs.500 and in default of payment of fine the appellant shall suffer S.I. for ten days. The fine shall be paid within one month. With this modification the appeal is dismissed. S.G,D./M‑547/K Order accordingly.