P L D 1965 (W (PLP)

2. On the date when this case first came up for hearing before me, a preliminary point was taken that the learned Sessions and Senior Special Judge, Karachi had no jurisdiction to try the appellant. The appellant was challaned before the Court of Special Judge, Karachi (Mr. Ghulam Hyder K. S. Pir) on the 28th of November 1961. On the 28th of August 1962, he passed an order transferring the case to the file of the Sessions and Senior Special Judge, Karachi (Mr. Kadir Nawaz Awan) as he had ceased to have the jurisdiction to try the appellant. The point taken is that Mr. Ghulam Hyder K. S. Pir had no power to pass an order by which he could transfer the case from his file to the file of Mr. Kadir Nawaz Awan. On this point a reference was made by me to a Division Bench. I was one of the members of the Division Bench who heard the reference and the view taken by us was that the order of Mr. Ghulam Hyder K. S. Pir dated the 28th of August 1962 did not amount to an order of transfer and as such did not affect the jurisdiction of Mr. Kadir Nawaz Awan. The matter has now come up for hearing on merits.

3. The relevant facts on which this case is founded are that Abdul Aziz was a proprietor of the firm Abdul Majid Abdul Waheed and had his office in Bombay Bazar, Karachi. He was approached on the 30th of June 1961 by the appellant and told that he was required by Wajih‑ul‑Hassan, Inspector of Police, in connection with an inquiry pending against him. Abdul Aziz accompanied the appellant and one Head Constable and met Wajih‑ul‑Hassan on the same day. He was called upon to produce his income‑tax books which he did. He was subsequently called and told to produce other books of account. He also produced those books. On or about the 15th of July 1961, he was again approached by the appellant and told that the matter could be amicably settled if he paid Rs. 10,000 to him for being paid to Wajih‑ul‑Hassan. He also threatened Abdul Aziz that in case the money was not paid he would be arrested. Abdul Aziz told the appellant that he had no money at that time to be paid. He was then asked by the appellant to arrange for Rs. 10,000 for being paid to him in the Khori Garden Mosque on that day in the evening. Abdul Aziz therefore made an application Exh. 2/A on the 15th of July 1961 to the Anti‑Corruption Depart ment giving the details of the demand made from him. This application was subsequently incorporated as first information report Exh. 7/A.

4. Abdul Aziz, after he made the application, arranged for Rs. 10,000 and took them to Muhammad Naim, Inspector Special Police. After his search was conducted, Muhammad Naim gave him Rs. 10,000 to be paid over to the appellant. Mashirnama for the entrustment of this amount to Abdul Aziz Exh. 2/B was made. In this mashirnama the numbers of the currency notes were incorporated. Muhammad Naim, the mashirs Muhammad Unis and Muhammad Rahim, and Abdul Aziz thereafter went to Khori Garden Mosque where they found the appellant sitting. Abdul Aziz after some preliminary talk with the appellant passed on Rs. 10,000 to him. After handing over the money to the appellant Abdul Aziz told him within the hearing of the mashirs that he should see that the inquiry was successfully finalised against him. The appellant assured Abdul Aziz that he would have the matters finished. Abdul Aziz immediately thereafter gave the appointed signal to the Inspector, Muhammad Naim. Muhammad Naim came up to the appellant and after disclosing his identity to him took Rs. 10,000 from him mashirnama for the recovery of Rs. 10,000 from the appellant Exh. 4/A was made in the presence of the mashirs. The numbers on the currency notes secured from the appellant tallied with the numbers mentioned in the mashirnama Exh. 2/B. After the usual investigation was completed, the appellant was challaned in the Court of the Special Judge as mentioned above.

5. The appellant, when questioned, denied the allegations made against him and stated that it was he who had made an application to the Deputy Superintendent of Police, C. I. A., mentioning therein that Haji Muhammad Karim, the proprietor of Karim Silk Mills was committing fraud and was importing goods under fraudulent licences through Abdul Aziz and Umar Shakoor. He also stated that it was on account of this application that. he was falsely implicated by Abdul Aziz. According to him; Rs. 10,000 were foisted on him just to create evidence. He has examined no witness in defence.

6. The case of the prosecution is based in main upon the evidence of 'Abdul Aziz P. W.

1. He has stated that the appellant had gone to him on the 30th of June 1961 accompanied by a Head Constable of Police and informed him that he was wanted by Wajih‑ul‑Hassan, Inspector, C. I. A., in connection with an inquiry pending against him. He has also stated that he went there and was called upon to produce income‑tax returns. He has also stated that after he produced the income‑tax returns he was again taken by the appellant to Wajih‑ul‑Hassan, Inspector, and was asked to produce several other books of account. After having produced those books of account, he states that he was again approached on the 15th of July 1961 by the appellant and asked to pay Rs. 10,000 for Wajih‑ul‑Hassan or else he would be arrested. He has further stated that Abdul Ghaffar P. W. 2 was present on his shop on both the occasions when the appellant went there. He admits having made an application Exh. 2/A to the Anti‑Corruption Police pursuant to which a trap was laid in which Rs. 10,000 paid by him to the appellant were recovered by Muhammad Naim, Inspector, in the presence of the mashirs. The evidence of Abdul Aziz is supplemented by the evidence of Abdul Ghaffar P. W. 2 who has also word for word supported him on what transpired on his shop on the 30th of June 1961 and 15th of July 1961. Abdul Ghaffar has stated that it was the appellant who had taken Abdul Aziz to the police on being told that he was wanted by the Inspector, C. I. .A. He also stated that on the 15th of July 1961, the appellant asked Abdul Aziz to arrange for Rs. 10,000 for being paid to Wajih‑ul‑Hassan or else he would be arrested.

7. The evidence of these witnesses is further supported by the evidence of Muhammad Unis P. W. 3 and Muhammad Rahim P. W. 4 who have both stated that an amount of Rs. 10,000 was entrusted to Abdul Aziz for being paid to the appellant on the 15th of July 1961 for which mashirnama Exh. 2/B was made by the Inspector Muhammad Naim. These witnesses also state that the numbers of the currency notes were mentioned in mashirnama Exh. 2/B. They have also stated that they accompanied Abdul Aziz and the Inspector of Police to Khori Garden Mosque where they found the appellant sitting. They have also stated that the amount of Rs. 10,000 was entrusted to Abdul Aziz and was paid over by him to the appellant within their sight. They have also stated that they heard Abdul Aziz telling the appellant that he should have the inquiry against him wound up as he had .paid Rs. 10,000 to him. They have also stated that the appellant, within their hearing, assured Abdul Aziz that the needful would be done. Their evidence also is to the effect that the Inspector, Muhammad Naim, there after on getting the appointed signal came up to the. appellant and recovered Rs. 10,000 from him after disclosing his identity. Mashirnama Exh. 4/A for the recovery of money was made by Muhammad Naim on which they put their signatures. The numbers of the currency notes recovered from the appellant were found to tally with the numbers of the notes mentioned in the mashirnama Exh. 2/13. All this evidence also stands fortified by the evidence of Wajih‑ul‑Hassan who states that the application Exh. 6/A on which the inquiry against Abdul Aziz had started was made to the Deputy Superintendent of Police, C. I. A., and was handed over to him for inquiry. This application does not bear anybody's signature but Wajih‑ul‑Hassan states that at the time when this application was given to him he came to know that it was made by .the appellant. His evidence also discloses that it was the appellant who had brought Abdul. Aziz to him on the 30th of June 1961 and thereafter. The fact that the appellant made that anonymous application and then pursued the inquiry and concerned himself with taking Abdul Aziz to the Inspector of Police would in itself establish that the appellant had made this application either with a view to coerce Abdul Aziz into paying him money or that he made that application at the instance of some officer for whom probably he acted as a broker. Whatever may have happened the evidence discussed above and the circumstances on the record establish beyond doubt that the appellant had created an atmosphere of putting Abdul Aziz in a position where he would get coerced into making payment of the money. The evidence also establishes that an amount of Rs. 10,000 was in fact paid to the appellant for the purpose of getting the inquiry pending before Wajih‑ul‑Hassah hushed up illegally. The witnesses who have given evidence against the appellant appear to be disinterested in that they have no grievance of any kind against the appellant. The fact of Haji Muhammad Karim, the proprietor of Karim Silk Mills, having manoeuvred this. case against the appellant as stated by the appellant is not substantiated on the record. Even otherwise it will not be possible to believe that Haji Muhammad Karim or any one else would know that the application on which inquiry against Abdul Aziz had been initiated was made by the appellant, the application Exh.6/A on which the inquiry had started was anonymous. The conduct of the appellant in ostensibly supporting Abdul Aziz‑and trying to show that he was his well‑wisher would have also kept Haji Muhammad Karim or anyone else off guard. Keeping in view the conduct of the appellant they would have least suspected the appellant what to talk of knowing that he was responsible for dragging them before the police. Under these circumstances, I am convinced that the evidence on the record has brought home to the appellant the offence with which he has been charged. Looking at the conduct of the appellant and the gravity of the offence think the sentence of imprisonment imposed upon him is not excessive.

8. The only question that remains to be considered is the question of sentence of fine imposed upon the appellant. The fine imposed upon him as stated above is Rs. 5,000 in default of payment whereof he has been ordered to suffer, rigorous imprison ment for two years. The sentence of fine has to be imposed keeping in view what is contained in section 9 of the Pakistan Criminal Law Amendment Act, 1958. Section 9 of this Act reads as under "

9. Punishment of offences When any person charged before a Special Judge with an offence triable under this Act is found guilty of offence, the Special Judge, shall, notwith standing anything contained in any other law, whether or not he imposed a sentence of imprisonment, impose a sentence of fine which shall not be less than the gain found to have been derived by the accused by the commission of the offence." This section clearly envisages that the sentence of fine has necessarily to be imposed on the person found guilty for any of the offences mentioned in the Schedule. This section also makes it imperative that the fine that has to be imposed on an accused under this section is not to be less than the gain found to have been derived by him. The gain in this case that has been found on the evidence to have been derived by the appellant is Rs. 10,

000. It is this amount which on the evidence has been proved to have been given over to the appellant. Section 9 makes the imposition of fine as stated above imperative regardless of whether the gain derived by the accused is temporary or permanent. In this case the gain derived by the appellant consists in having received a sum of Rs. 10,000 although it had been received by him for a short time. If the temporary gains of the type which are inherent in the trap cases were not to fall within section 9 of the Act, then there would be no fine imposed at all in such cases. In my opinion, in the cases of traps at least the gain derived by the accused has to be the gain which consists of the total money that is passed on to him. I am supported in my view by State v. Naair Hussain (P L D 1964 Lah. 73), decided by Mr. Justice Ortcheson.

9. The view taken by Mr. Justice Inamullah, however, in Criminal Appeals Nos. 29 and 37 of 1963 is different from the view taken by. Mr. Justice Ortcheson. The view taken by Mr. Justice Inamullah is that section 9 must be liberally con strued in favour of the litigant so as to avoid hardships According to him, in the cases of misappropriation by several accused persons if it is not known definitely as to how much gain has been derived by each of the accused, the Court must decide the gain derived by the accused before fine can be imposed upon him. Mr. Justice Inamullah has however been clearly of the view that in the event of a finding being reached that an accused person has derived gain of a particular amount of money that the fine not less than that amount has to be imposed upon him. He has, however, neither discussed the cases of bribes nor has he discussed the cases of traps in his judgment. Under these circumstances, the case decided by Mr. Justice Inamullah will have no bearing on the instant case.

10. In view of what I have stated above, my view is that the fine that should have been imposed upon the appellant should have been not less than Rs. 10,000 the amount which had been passed on to him. The learned Sessions and Senior Special Judge, Karachi, was wrong in imposing a fine of Rs. 5,000 only. Under these circumstances, I enhance the sentence of fine from Rs. 5,000 to Rs. 10,000 in default of payment whereof the appellant shall suffer rigorous imprisonment for two years more. The notice given to the appellant in respect of enhancement of sentence of fine was heard along with this appeal as Criminal Reference No. 446 of 1962. The notice of enhancement and the consequent reference are therefore accepted.

11. The result is that the appeal filed by the appellant stands dismissed and the sentence passed on him is enhanced from three years rigorous imprisonment and a fine of Rs. 5,000 to rigorous imprisonment for three years and fine of Rs. 10,000 or in default rigorous imprisonment for two years more. The appellant is on bail and is not present in Court. Warrants of arrest should be issued against him and sent to the lower Court for execution on him to serve out the un expired portion of sentence. S. A.H. Appeal dismissed.