1. The appellant was a clerk in the office of the Barrage Mukhtiarkar, Nawabshah in 1977 and from the statement of P. W.-1 Mehar Khan and his F.I R. The story appears as under:-- "The complaint is that one year back. I had settled bargain of 24 acres of land out of Survey No. 143 with Sultan son of Deena, General Attorney of Mohammad Siddiq and Hakim Ali son of Deena and Sultan Bux submitted affidavit and statement to Barrage office, on the strength of which the land was to be transferred in my name. My friend Chiraghdin also purchased land from Sultan Bux and Barkat Ali is the same, who also gave statement in the Barrage office. From time to time we went on enquiring from Barrage Office regarding the transfer of our land but we did not get any satisfactory reply. Now 5-6 days back, we went to Barrage Office and met the Barrage Mukhtiarkar requested that (he) should do work referring our land, who told to talk to Raza clerk of Taluka Kandiaro. So
(we) met him and he asked to get the papers taken out from the Colonization Officer, Sukkur Barrage, Hyderabad and said that he would take Rs. 1,600 from both for getting the papers prepared. We made a lot of requests whereupon he said that share was also to be given to the Mukhtiarkar and so they cannot be decreased and so we paid Rs. 800 to aforesaid Raza clerk saying that he should get the papers prepared and see my work done from the Head Office and we would pay the balance of Rs. 800 before receiving the papers. So, today we again met the aforesaid clerk in the office and asked about our work, whereupon he replied that my papers had arrived and (he) would also get papers of my friend Chiraghdin and would send the same to the Head Office and so should bring Rs. 400 tomorrow after Juma prayers to his house in Muhallah Gharibabad, Nawabshah and take my papers and he would receive the balance of Rs. 400 from Chiraghdin after his papers are received from the Head office.
2. I lodge report that Raza clerk, being a Government Servant has taken bribe for illegal work and shall receive the balance of Rs. 400, Therefore action should be taken."
3. On the basis of report dated 2nd July, 1971 a trap was organized by the police on the same day in the presence of a Magistrate and the complainant was given Rs. 400 and he and Chiraghdin and one mashir were required to go to pay the amount to the accused while the Anti---Corruption Inspector and the Magistrate were waiting. The complainant then went to the accused, but he stated that he would not accept the amount as the work was not yet done.
4. About one month thereafter, the complainant and Chiraghdin again went to the accused who told him that the papers of the complainant were ready and thereupon complainant paid Rs. 400 to the accused and he gave the papers about the transfer of land in the name of the complainant.
5. Accused told the complainant to contact him at his house and pay Rs. 400 with regard to the transfer of the land in the name of Chiraghdin. The complainant and Chiraghdin agreed to pay the remaining amount of Rs. 400 in the evening and then they informed the Anti-Corruption Inspector who again sent for the Magistrate Mr. Abdul Razzak P. W.2. The complainant was given Rs. 400 and the numbers of the notes were noted down in a memo in the presence of a Magistrate and mashir and the party then proceeded to the house of the accused while the Magistrate and Anti- Corruption Inspector waited nearby. The complainant and Chiraghdin were told that if accused accepts money then Chiraghdin may give signal to the mashir who would convey the same to the Police and the Magistrate. The complainant went to the house of the accused and knocked at his door and the accused came out. The complainant and accused sat on the cot outside the house, while Chiraghdin was standing nearby and the mashir was also standing 4 or 5 paces away.
6. Accused required the payment of Rs. 400 for doing the work of P. W. 4 Chiraghdin The complainant handed over Rs. 400 to the accused which had been given to him by Anti-Corruption police. The accused took the amount and was holding it in his hand when Chiraghdin gave the signal and the Anti-Corruption Police and the Magistrate immediately reached there and on seeing them approaching the accused threw the notes upward and the tainted notes fell down on the ground and one or two notes fell on the cot where the accused was sitting. Ali Mohammad Mashir collected the currency notes and the numbers of those notes were checked and the same were mentioned in a mashirnama. That concludes statement of complainant in examination-in-chief.
7. The case against the accused was duly challaned after usual formalities. The prosecution had examined Mehar Khan P W.-1, the complainant whose deposition has been detailed above. In cross-examination, the complainant asserted that Chiraghdin had been with him on all occasions and had heard the talks. He had denied hat the same mashir Ali Mohammad was also the mashir on the previous occasion when the trap had failed. He further stated that Chiraghdin was with him when he paid Rs. 800 on first occasion and Rs. 400 on second occasion. His statement had been recorded by the Police. He denied the suggestion that the accused had refused to accept the last amount of Rs. 400 and in struggle the currency notes had fallen. He further admitted that he and the accused were visible to the Magistrate and the Inspector when he paid the amount to the accused. He further stated that mashir had seen the accused accepting the money from him and Chiraghdin. He admitted that the Magistrate would have taken about 10 minutes to reach the vardat after the accused had accepted money from him and during this period the accused were holding the tainted money in his hand. He denied that accused had spoken harshly with him and told him not to worry him every night and then on that account the complainant had falsely implicated. He admitted that correspondence regarding transfer of property was pending for last 6 months. He further stated that the Magistrate and the Anti---Corruption Inspector were about 20 paces away when the accused threw the notes.
8. The statement of Mehar Khan complainant was supported by P, W.-4 Chiraghdin who. Was a friend of the complainant and who wanted the transfer in his favour to be approved. The complainant was further supported by P. W.-2 Mr. Abdul Razzak who was Head Munshi and IInd Class Magistrate, Nawabshah and who had accompanied the complainant on the raid on 2nd July, 1971 when the trap failed and again on 17th August 1971 when the trap succeeded. He specifically confirmed the story given by the complainant and stated that they had sat at the shop of Abdul Karim tailor about half furlong away from the house of the accused and after about 1/2 hour, mashir Ali Mohammad gave signal to them and thereupon they rushed and found that accused Ghulam Raza was sitting on a cot with complainant Mehar and Chiraghdin was standing near the cot and mashir was also standing nearby. He continued to say that when their party was about 8 paces from the accused, the accused noticed them and threw the currency notes in the air and mashir Ali Muhammad was directed to collect the currency notes and the mashirnama was prepared Exh.
9. 3-C. In cross-examination he had admitted that Ali Mohammad was also the mashir on the first occasion when the trap failed and Ali Mohammad has acted as mashir in two other cases besides the present one. He admitted that the place where the accused was sitting was not visible to them from the shop of Abdul Karim and he had not seen the Accused accepting the tainted money. He denied the suggestion of the defence that when they approached the accused, the accused was telling the complainant that he should not give him any amount and he would not accept anything from him. He further denied the suggestion that the currency notes were in the hand of the complainant when the Police party approached them and then the accused gave a push to the hand of the complainant as a result of which the currency notes fell down. He asserted that he had seen the accused throwing the currency notes in the air which were in his hand. He stated that they would have taken hardly 3 or 4 minutes in reaching the accused from the shop of the tailor. He admitted that there was some voice being raised by the accused and the complainant but he did not remember what they were saying. He produced metro Exh. 3-A where the numbers of the currency notes were mentioned before the start of the trap and Exh. 3-B where those currency notes were shown to have beets handed over to the complainant, and Exh. 3-C. Which showed that the accused had thrown the notes and their numbers tallied with the numbers in Exh. 3-B. All the mashirnamas were signed by the P. W.-Abdul Razzak as well as mashir Ali Mohammad and another mashir.
10. The mashir Ali Mohammad P. W.-3 supported the statement of, the complainant as well as of the Magistrate Mr. Abdul Razzak. He denied the suggestion that the accused had not accepted the tainted money. The complainant was further supported by P. W. 4 Chiraghdin, and there is nothing in his cross-examination which could put any doubt on his testimony. He denied the suggestion that the accused had not demanded the illegal gratification or that he had not accepted the amount of Rs. 400.
11. P. W.-4 Safdar who was a clerk in the office of the Colonization Officer Sukkur Barrage at Hyderabad stated that the accused was clerk in the office of Barrage Mukhtiarkar at Nawabshah in 1971 and particular land was transferred in the name of Mehar Khan by Colonization Officer. Exh. 6-A was taken by hand by accused Ghulam Raza and his signature is on the hand book. He stated that the hand--book bears the signature of Ghulam Raza as Exh. 6-B but later on hr stated that he was not conversant with the signature of accused Ghulam Raza and could not say if the entry bears his signature. This witness in particular is an important independent witness who has proved the conduct of the accused and his eagerness to leave his place of duty at Nawabshah and taking the trouble of going to Hyderabad to secure the papers of transfer by hand.
12. The last witness to be examined by prosecution was the Inspector, Anti-Corruption Mohammad Anwar I. O. Who had supported the: deposition of the complainant fully. He had stated in cross- examina--tion that mashir Ali Mohammad had come in the case first time. He denied the suggestion that Chiraghdin and Mehar were known to him. Previously. He asserted in cross- examination that mashir Ali Mohammad had come in the case for the first time but later on corrected himself and stated that he was mashir in another case. He was asked if his and is cancelled for non-payment of instalment to which he replies: that only 6 acres out of 100 acres were cancelled for non-payment of instalment in 1963 but it was regranted in 1971. In reply to a question: in re-examination he stated that his land grant was in Taluka Nawabshah and accused was clerk in Taluka Kandyaro, therefore, he had no concern with his land grant. He further stated that accused had no charge of Taluka Nawabshah. He had denied that he had concocted a false case against the accused. He produced the order of sanction e: prosecution Exh. 9, issued by Colonization . Officer Sukkur Barrage., Hyderabad dated 2nd March, 1974.
13. The accused in his statement under section 342, Cr. P. C. Admitter that he was a clerk in the office of Barrage Mukhtiarkar, Nawabshah. He denied to have accepted Rs. 800 and Rs. 400 on 1August 1971 from complainant Mehar Khan and Chiraghdin for transferring the land in their favour. He further denied to have accepted Rs. 400 or, 17th August, 1971 from the complainant and denied that it was recovered from him and stated that he was the victim of the enmity, between him and Circle Officer, and they hatched conspiracy against him. He further stated that complainant used to approach him for sanction of transfer of grant and used to pressure him so that he lost control once and used harsh word' against the complainant. He also asserted that the Circle Officer bore grudge against him as a grant in .Is father's name was previously cancelled and the Circle Officer had, approached the appellant 5 months before the alleged trap and ,:eked he appellant to help but the appellant refused and at that time the appellant was holding dual charge both Nawabshah and Kandyaro Taluka and, therefore, the Circle Officer have threatened him with dire consequences. In respect of the incident he stated that complainant lad approached him at his house and pressed him to take money but he refused and rebuked him loudly and the complainant tried to foist the money upon him, but he threw the money from his hand away and accused the complainant and the money had fallen on the ground from the hand of the complainant and the complainant was collecting the same when the trap party came. He further asserted that many persons gathered when he had spoken loudly. The appellant had filed Exh. 10-B which showed that some land had been regranted to one Allah Ditta Mohammad Bux by Additional Commissioner Khairpur Division on 28th December, 1971 subject to payment within 3 months. This document does not conform to the date of approach by Circle Officer as given by the appellant as it shows that 8 months before the trap the land of Allah Ditta had been restored to him, and therefore the allegation against the Circle Officer having approached the appellant 5 months before the date of trap appears to be incorrect.
14. The appellant had examined P. W.-1 Sain Dino Senior Clerk in A. R. O. Office to show that there was an altercation between Mehar Khan complainant and Ghulam Raza appellant and that Mehar had threatened the accused. The altercation took place in July, 1971. P. W. 2 Ghulam Nabi, Tapedar in Barrage Office also deposed that here was exchange of harsh words between the complainant and the appellant in July, 1971. D. W.-3 Karam Ali a Zamindar stated that at about 6 p.m. He had seen a green-eyed man offering some money to accused which he was refusing to accept and accused threw away the money and green-eyed man collected the money and then Head Munshi and some Ethers came and arrested the accused. He had stated in cross that he had informed the Head Munshi then and there that the accused was not accepting money and even other persons informed him so.
15. D. W. 4 Dhani Bux a cultivator stated that he saw 2 or 3 persons at the Otaq of the accused and one man was trying to give money to accused who stated as to why he should take it. That man tried to force money in the pocket of the accused, but accused gave slap on that man's band and the money fell on the ground. At that time 3 or 4 persons came and arrested the accused. He also stated that he informed the Head Munshi as to what he had seen. In respect of the statement made by these D. Ws., I may state that the first 2 of them are merely deposing about somest altercation in the office between accused and the complainant but in spite of that altercation the accused had not refused to see complainant when the complainant had gone to his house and, therefore, the story of altercation is merely a made-up affair. Moreover if there had been altercation then accused would not have gone to Hyderabad to receive papers. The other 2 D. Ws.
16. Stated hat they had informed the Head Munshi what they had seen and since this information that these two D. Ws. Conveyed to the Head Munshi was in the presence of the accused, therefore, the accused knew this position but vet be did not instruct his counsel to put any such question the Head Munshi Abdul Razaq P. W.-2 and, therefore these two D. Ws. Have stated something which even the appellant did not know.The Head Munshi was never questioned that the D. Ws. Told him any different story at the vardat, therefore, the story of these D. Ws. Is merely an afterthought.
17. Mr. Mohammad Ali Shaikh, learned counsel for the appellant wanted me to acquit the accused as according to him the Head Munshi could not be treated as providing any corroboration to the statement of P. W.-Mehar Khan or Chiraghdin as the Head Munshi had not stated that he had seen the tainted money being passed. I do not agree with this submission, the Head Munshi Mr. Abdul Razaq was very clear that the accused had the tainted currency in his hand and it was only after he had seen the trap party approaching him that he threw the notes in the air. Therefore, he provides sufficient independent corroboration to the statement of the complainant and Chiraghdin, if corroboration was noted.
18. But I do not find corroboration very necessary in this case. I find that P. W. Mehar Khan can hardly be regarded as an accomplice and the same applies to Chiraghdin. These persons had approached the police on 1August, 1971 and then again on 17th August, 1971 they had informed the Police that a demand of Rs. 400 was being made .By the accused. These two persons have clearly proved the illegal demand of the appellant and the acceptance of illegal gratification of Rs. 400 by the appellant on 17August, 1971. However if the view requiring of corroboration could be correct then corroboration is provided by P. W.-Abdul Razaq as well as the Circle Officer P. W.-4 Mohammad Anwar who investigated the case. In fact P. W.-Ali Safdar also provides sufficient corroboration when he has deposed that Ghulam Raza had gone from Nawabshah to the office of Colonization Officer Hyderabad to take the papers in respect of the sanction in favour of Mehar Khan. This was an extraordinary thing to do by a person who was not interested in the matter of at least a person who claimed that he had an altercation with complainant Mehar Khan. This aspect of the case shows that in fact there was no altercation between the appellant and Mehar Khan and the appellant had shown extraordinary interest in getting papers of sanction in respect of the transfer of land in-favour of Mehar Khan while leaving his place of work in Nawabsh and securing the sanction personally from the Office at Hyderabad. I am therefore of the opinion that the conviction of the appellant under section 161, P. P. C. Read with 5(2) Act II of 1947 was justified it the circumstances of the case.
19. Notice for enhancement of sentence had been issued to the applicant as he was sentenced to pay only a fine of Rs. 4,000 or in default to suffer S. I, for 4 months. The reasons of this lenient sentence was that, the appellant had been undergoing the trial for 3 years and he hat also remained in custody for some time. The fact that the torture of long trial coupled with the excepted loss of Government service, which, the conviction may entail, was more than a sufficient punishment to him. I do not want to interfere in the judgment and to award a substantive sentence now when the appellant has had the benefit of liberty for about 6 years. Even otherwise I am of the opinion that the learned special Judge had given reasonable grounds of awarding a sentence of fine only and I would, therefore, discharge notice of enhancement of sentence But appeal is dismissed. st th