1980SCMR3 (PLP)

DURAB PATEL, J.‑The appellant was the Patwari (Consolidation) for village Tibba Chandia Kalan in Dera Ghazi Khan District in November, 1966. He was tried with one Muhammad Shafi under section 161/165(a), P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947, and by his judgment dated 31‑10‑1969 the learned Additional District Magistrate/ Anti‑Corruption Special Judge, Dera Ghazi Khan convicted both the appellant and the other accused, and as we are only concerned in this appeal with the case of the appellant, it would be sufficient to state that the appellant was sentenced to one and a half years' R. 1. and a fine of Rs.

500. Both the appellant and the other accused challenged their conviction in an appeal in the West Pakistan High Court. In the events that happened, this appeal came up for hearing, after a delay of nearly five years, before a learned Judge of the Lahore High Court, who by his judgment dated 4‑2‑1975 dismissed the appellant's appeal against his conviction but reduced the sentence of imprisonment to the sentence undergone. The appeal of the other accused was also dismissed, but only the appellant challenged his conviction in a petition for leave in this Court and as leave was granted, we have now heard Mr. Awan on behalf of the appellant. One Janan and members of his family were landlords in village Tibba Chandia Kalan and according to the prosecution, Janan went to the appellant on 11‑7‑1966 and asked him for a copy of the khatund about the properties of hia family. Mehr Muhammad Afzal, Qanungo was also present, yet the appellant demanded a bribe of Rs. 20 for supplying a copy of the khatuni. As Janan did not want to pay a bribe, he apparently discussed the matter with his uncle, who informed him that there was an office of the Anti‑Corruption Department in Dera Ghazi Khan. Therefore, Janan went to Dera Ghazi Khan and informed Malik Wabid Bakhsh, an Inspector of the Anti‑Corruption Department, about the appellant's demand for a bribe. Malik Wahid Bakhsh decided to lay a trap, therefore, he sought the Magistrate's permission for organizing a raid and after obtaining the requisite permission, Malik Wahid Bakhsh went with Janan and a foot constable by the name of Habibullah together with Haji Abdur Rahim (the Tehsildar and 2nd Class Magistrate) to Jampur where the appellant had his office. Before going Janan was supplied two ten‑rupee notes of which the numbers were noted, and he was to hand over these notes to the appellant. The raiding party went to the appellant's office in Jampur, but they were informed that he had gone to the dera of Hafiz Muhammad Shafi, therefore, the raiding party drove to the said dera. Janan and the foot constable went into the dera whilst the Inspector Malik Wahid Bakhsh. and Haji Abdur Rahim, the Magistrate, waited for the signal from Habibullah on which they were to proceed inside the dera. Janan claims to have given the two ten‑rupee notes to the appellant and repeated his request for a supply of a copy of the Khatuni and, according to Janan, the appellant told him that the copy would be supplied to him. The appellant then passed on the currency notes to the other accused, Muhammad Shafi, who was sitting with him. Janan then made the pre‑arranged signal to the foot constable Habibullab, who in turn gave the pre‑arranged signal to the two other members of the raiding party. Haji Abdur Rahim and the Inspector then arrived and Haji Abdur Rahim disclosed his identity, and called upon the appellant to produce the notes he had received from Janan. Then in the words of the Magistrate "Ahmad Bakhsh showed reluctance, but when his person was being searched, Muhammad Shafi, Commission Agent produced the currency notes Exhs. P/1 and P/2 from his pocket. I seized the currency notes vide Memo Exh. P. C. I recorded the statement Exh. P. D. of Janan P. W. Muhammad Shafi accused was present when I asked Ahmad Baksh accused to produce the currency notes which be had received as illegal gratification". After completing the usual investigations, the appellant and the co‑accused were tried by the learned Additional District Magistrate/Anti‑Corruption Special Judge and in order to prove its case, the prosecution examined Janan, Malik Ahmad Bakhsh, the Inspector of the Anti‑Corruption Depart ment, who had laid the trap and Haji Abdur Rahim, the Magistrate, who had secured the notes which had been paid by Janan as a bribe to the appellant. These three witnesses fully supported the prosecution case. However, the appellant and his co‑accused both denied all the allegations against them and as we are concerned only with the case of the appellant, we would only observe that he put up a rather complicated story to explain the possession of the two ten‑rupee notes, which had been secured by the Magistrate vide the Memo Exh. P. C. According to the appellant, Hafiz Muhammad Shafi, the owner of the dera, where the raid took place, was his friend and had given him an advance of Rs. 20 for the purchase of some goods for some one in Karachi. And, according to the appellant, it was this money which he had returned to the co‑accused, because the co‑accused was a servant of the said Hafiz Muhammad Shafi. Although this plea turned on the evidence of Hafiz Muhammad Shafi, the appellant did not examine him. Instead, he examined two persons by the name of Amir Bakhsh and Ghulam Sarwar. Amir Bakhsh gave evidence about enmity between Janan and the appellant, whilst the other witness claimed to have been present at the time of the raid, and he said that he was sitting with the appellant and smoking huqa, taut that the co‑accused was not there. Further, according to Ghulam Sarwar, after some time, the Tehsildar and Thanedar came there in civil dress. Another man was also with them. The Tehsildar asked Ahmad Bakhsh accused to produce the amount which he had received from the complainant. The accused denied having received any such amount and expressed his ignorance. His personal search was carried out, but nothing was recovered. My personal search was also carried out and nothing was recovered. Although Ghulam Sarwar's evidence is fatal to the prosecution case, the appellant had not dared to cross‑examine either the raiding Magistrate, Haji Abdur Rahim, or the Inspector, Malik Wabid Bakhsh or Janan about the presence of Ghulam Sarwar at the time of the raid. And, similarly, the appellant did not refer to this witness in his statement to the Court, therefore, it is not surprising that the learned Additional District Magistrate/Anti‑Corruption Special Judge was not impressed by the evidence, of this witness. Next, as to Amir Bakhsh's evidence, Janan denied that he had any enmity against the appellants and in these circumstances the learned District Magistrate/Anti‑Corruption Special Judge who had the advantage of watching the demeanour of the witness reached the conclusion after examining the entire evidence, that the evidence of the defence witnesses did ,rot inspire confidence and that the witnesses examined by the prosecution were witnesses of truth, therefore. he convicted the appellant. And, as the learned Judge of the Lahore High Court agreed with this appreciation of evidence, he dismissed the appellant's appeal against his conviction, but reduced the sentence only on compassionate ground because of the delay in the bearing of the case. Mr. Awan submitted that the appellant's conviction could not be sustained, because it was based on the uncorroborated testimony of a decoy witness. Neither of the Courts below were impressed by this plea, because Janan's evidence is supported by the evidence of the two other witnesses therefore, the submission that the prosecution case is based on the uncorroborated testimony of Janan is not correct, Secondly, both the Courts reached the conclusion after carefully examining the evidence, that the prosecution had proved that the currency notes recovered from the co‑accused vide the Memo. Exh. P. C. were the currency notes which had been supplied to Janan, for the purpose of making the payment of the alleged bribe to the appellant. Having re‑examined the evidence with the' assistance of the learned counsel, we are satisfied that the view thus taken by both the Courts is correct. In any case, this concurrent finding is amply supported by evidence, therefore, learned counsel's submission that the appellant has been convicted on the uncorroborated testimony of a decoy witness does not merit examination. Additionally, Mr. Awan was not able to explain how the currency notes secured by the Magistrate, Haji Abdur Rahim, vide Memo. Exh. P. C., had been passed on by the appellant to Muhammad Shafi, the co‑accused. He tried very hard to persuade us to believe the rather involved story of the payment that he had merely returned to Muhammad Shafi, the money which Hafiz Muhammad Shafi bad given to him for buying goods. In the first, place, the story does not inspire confidence. Secondly, it was for the appellant to, have examined Hafiz Muhammad Shafi and as he did not, like the Courts below, it is impossible for us to accept the appellant's explanation. Therefore, we are satisfied that the currency notes secured vide the Memo Exh. P. C. were the currency notes which had been supplied to the witness, Janan, for the purpose of trapping the appellant. Mr. Awan then submitted that Janan's evidence was not fit to be believed because admittedly the Consolidation proceedings had not been completed in November, 1966, therefore according to learned counsel, Janan could not have had any occasion to ask for a copy of the khatuni nor could the appellant or indeed any Patwari have asked for a bribe for the issue of a copy of the khatuni in these circumstances. And, in support of this plea, learned counsel stated that an adverse inference should be drawn against the prosecution for not examining Janan's uncle and for not examining Mehr Muhammad Afzal, Qanungo, in whose presence the appellant was alleged to have demanded a bribe. These and other arguments of Mr. Awan relate solely to the appreciation of evidence, and both the Courts below were of the view that Janan's evidence was sufficient to prove that the appellant had demanded bribe. As the appellant failed to prove that Janan was an inimical witness, it was open to the Court to hold hat Janan's evidence was sufficient to prove the appellant's demand for a bribe, the more so, as the prosecution has proved that the currelicy notes secured by the raiding Magistrate vide Memo. Exh. P. C. were the currency ;totes which had been supplied to Janan for the purpose of trapping the appellant. We, therefore, see no error of law in the concurrent findings of the two Courts, and learned counsel has also not been able to show that the Courts have misread evidence or ignored it. Putting the case of the appellant at its highest, on the submissions of learned counsel, it would have been open to the first appellate Court to take a different view and to acquit the appellant, but the High Court agreed with the trial Court's appreciation of evidence and as this concurrent finding is supported by evidence, the appeal fails and is dismissed. Appeal dismissed.