This is tin appeal preferred by Nazar Muhammad, appellant against the judgment dated 29th January, 1977 passed by the Special Judge Anti---Corruption, Multan whereby he was convicted under section 161, P. P. C, read with section 5 (2), Prevention of Corruption Act, 1947 and sentenced to imprisonment till the rising of the Court plus a fine of Rs. 50 or in default of payment thereof to rigorous imprisonment for one month.
2. The appellant was Zilladar, Kathala Section of the then Tehsil Vehari, District Multan. The charge against him was of having accepted Rs. 50 as illegal gratification from Bashir Ahmad (P. W. 1) on 10November, 1973. This Bashir Ahmad, who is a Sarbrah Lambardar of Chak No. 51/W. B., had applied to the Superintending Engineer, Irriga--tion for change of the outlet to Square No. 50 belonging to his uncle. The petition had been sent down to the appellant. When Bashir Ahmad contacted the appellant in the matter, he agreed to do the needful provided he was paid Rs. 200 which amount he later agreed to reduce to Rs.
50. Bashir Ahmad, who did not wish to pay the bribe, contact--ed the Anti-Corruption officials at Multan where his statement Exh. P. W. 1/A) was recorded by a Magistrate. Under orders of the Resident Magistrate, Vehari, a raid was organized and five currency notes of Rs. 10 each were marked and returned to Bashir Ahmad who was asked to contact the appellant. Bashir Ahmad, accordingly, met the appel--lant and told him that he would pay the money when going towards the spot. The appellant fixed 1-30 p. m. For the purpose, whereupon Bashir went back to Vehari and contacted the Magistrate. The raid was then planned and it was arranged that the raiding party would wait in the Mosque of Chak No. 47/WB. And that Bashir would give the signal if the tainted money had been paid to the appellant. Bashir Ahmad then again contacted the appellant and he the appellant Patwari Akbar Ali and peon Muhammadth Ali proceeded on bicycles towards the spot. Two or three squares before the said Mosque, Bashir passed on the tainted money Exh. P. 1-5 to the appellant which he placed in the front pocket of his shirt. On coming near the Mosque, Bashir Ahmad, gave the signal at which the raiding party, consisting of a Magistrate and the police, surprised the appellant and in the course of his personal search recovered the tainted money amounting to Rs.
50. In the meantime the peon made fled the scene. The Magistrate then recorded the statement of the appellant in which he took the plea that he was proceeding to Chak No. 49/W. B. With Patwari Akbar Ali to record statements of persons who wanted change in warahbandi, that Bashir Ahmad had joined them in the way, and that Rs. 50 was the amount which be had given to Akbar Ali for purchase of ghee but as Akbar Ali could not make the purchase he had returned the money to him. The Magistrate also recorded the statements of Bashir Ahmad and Akbar Ali, Patwari.
3. During the trial the prosecution produced Bashir Ahmad (P. W. 1), Akbar Ali (P. W. 2), Ch. Muhammad Sarwar Tehsildar-cum---Magistrate who had been in the raiding party (P. W. 3), S. I.
Muhammad Saleem (P. W. 4) then Sub-Circle Officer, A. C. E., Multan and Rana Aslam, D. S. P. (P. W.
5). The first four witnesses had fully supported the prosecution case. The last witness had only verified the investiga--tion conducted by Muhammad Saleem, S. I. The appellant who bad denied the charge had in his statement under section 342, Cr. P. C. Stated that he bad himself produced Rs. 50 before the Magistrate but that it was the amount which had been returned to him by Akbar Ali to whom he had earlier given it for purchase of ghee. He denied that he had taken the money as bribe or that it had been recovered in the course of his search. He asserted that he was innocent and that Akbar Ali, Patwari had, on account of enmity, falsely involved him in the case. In his defence he examined two witnesses, namely, Muhammad Zubair (D. W. 1) and Dost Muhammad (D.
W. 2) who stated that in their presence in the office of Zilladar, Akbar Ali, Patwari had taken out Rs.
50 in the form of currency notes of Rs. 10 each and passed them on to the appellant saying that he had not been able to obtain ghee for which he had been given the money by the appellant.
4. The learned Special Judge found the prosecution case reliable and consistent. He rejected the defence for the reason that none of the D, Ws. Had been produced during the investigation and that the appellant's statement that he had given money to Akbar Ali for purchase of ghee and that the latter had enmity with him was self-contradictory and as such unsatisfactory. On the question of sentence he had given due consideration to the fact that the appellant who had retired from the job was 60 years old and that the amount involved was small. He had, therefore convicted and sentenced the appellant as aforesaid.
5. Sh. Munir Ahmad, counsel for the appellant, submitted that an illegality had been committed in recording the statements under section 164, Cr. P. C. Of the witnesses and the appellant by a Magistrate not competent to do so. Under that section only a Magistrate of the 1st Class or a Magistrate of the 2nd Class if specially empowered in this behalf, can record the statement. As the Magistrate was a Naib. Tehsildar, it was submitted that he could not be a Magistrate of 1st Class and he bad admitted that "No special powers had been made to me for recording the statement under section 164, Cr. P. C."
I have gone through the impugned judgment but I do not find any such point having been taken before the trial Court. The point, therefore can hardly be raised at the appeal stage. Moreover, the judgment being based on evidence recorded by the Special Judge, the illegality if any, in the recording of section 164, Cr. P. C. Statements cannot be said to have prejudiced the appellant. A similar objection, raised before a Division Bench of this Court in Hassan v. The State (1970 P Cr. L J 598) had been overruled.
6. On the factual plane, it was urged that two earlier raids arranged at the instance of the same complainant Bashir Ahmad against the appellant for the same matter having failed, it was most unlikely that he would accept the bribe. Bashir Ahmad had admitted that 8 days prior to the occurrence, the Anti-Corruption Police had at his instance raided the appellant twice in the company of a Magistrate but both raids had failed because the appellant had refused to receive the bribe. There is, however, nothing to show that the appellant had become aware of such previous raids because the inference from the evidence is that the raiding party had no occasion to surprise the appellant because as he had not taken the money, the pre-arranged signal could not be given to the raiding party. If he had not known of the raids having been organised against him previously, he could accept the amount the third time. The next submission based upon the appellant's statement and the defence evidence is that the money though recovered from the appellant bad not been accepted by him as bribe but had been the money returned to him by Akbar Ali Patwari. Is difficult to accept this version. Firstly, there is a flat denial by Akbar Ali. Secondly, it is difficult to believe that the appellant could give the money for purchase of ghee to Akbar Ali whom he suspected to have borne grudge against him.
7. Learned counsel, then, urged that as neither the money had passed within the seeing of the raiding party nor had that party heard any conversation in regard to the reason for the payment of the money, the conviction was not justified. For this reliance was placed or. Muhammad Sadiq v The State (1975 P Cr. L J 1286). It is true that in the case in hand and that cited, the raiding party had neither witnessed the passing of the money from the complainant to the accused nor had heard the relevant talk, if any between the two to give rise to an inference that the money had been paid and received as bribe, but the cited case is distinguishable because the other features are not similar. In the cited case the complainant had not supported the recovery of the money from the person of the accused for which reason he had been allowed to be cross-examined by the prosecution. He had also admit--ted to have had a quarrel with the accused three days before the occurrence and to have received loan from the accused before the quarrel. In fact it was also not established in the cited case that the complainant required any public duty to be performed by the accused for which the bribe was taken. There is no such shortcoming in the case in hand. Bashir Ahmad, complainant had applied for change of the water outlet which application had been sent down to the appellant who was at the relevant time proceeding to the spot in the company of the patwari and the peon to do the needful. In this background, the recovery of the tainted money from his person raises a strong probability of his guilt particularly when he failed to explain the recovery.
8. In the circumstance, I am satisfied that the conviction of the appellant is well merited. The sentence passed is already lenient and calls for no interference. The appeal is therefore, dismissed.