This appeal leas beep preferred by Shahab-ud-Din, sign of Muhammad Yusuf and Rasul Bakhsh, son of Mehar Khan, who hove been convicted of tin offence punishable tanner section 161, P; P: C.
Read with section 5(2) of the Prevention of Corruption Act (Act II of 19471 and have been sentenced by Mr. Aziz Ullah M. Memon, Special Judge, as indicated below: Appellant Shahab-ud-Din-- Has been sentenced to undergo rigorous imprisonment for seven years and to pay a fire of Rs. 2,000 and in default of payment of this fine to suffer rigorous imprisonment for one year more.
Appellant Rasul Bakhsh Has bean sentenced to suffer rigorous imprisonment fear to years and to pay a fine of Rs. Sea and in default of payment of this fine to stiffer rigorous, imprisonment for three months more.
2. The prosecution case in brief is that a challan under sections 148 and 342, P. P. C. Had been sent up on the 19th of August 1961. To the Court of appellant Shahab-ud-Din, who was at the; the serving as Sub-Judge and Ist. Class Magistrate, Warrah, against complainant Fazal Muhammad, a resident of village Baddah, Taluka Dokari, District Larkatta, and four of his haris. Their case was fixed up for hearing before him on the 26th of September 1961. It could not however, be taken up by him, as one of the accused viz. Fazal Muhammad, had not surrendered himself to the Court. Appellant Rasul Bakhsh, who was at that the serving as a peon in the Court of appellant Shahab-ud-Din, approached Fazal Muhammad on the same day at about 12 noon and informed him that Muhammad Jamil of Nasirabad, who was the complainant in his case, had already paid Rs. 400 to the Magistrate in order to get him (Fazal Muhammad) and other accused convicted and suggested that he (Fazal Muhammad) should pay him (appellant Shahabuddin) a bigger sum so that the decision should go to his favour.
3. Thereupon, Fazal Muhammad requested appellant Rasul Bakhsh to discuss the matter with appellant Shahab-ud-Din and persuade him to accept a reasonable sum, as he, along with the other accused, who were his haris, had been falsely implicated. At this stage, appellant Shahab- ud-Din came out of his office and started moving towards his residence. Appellant Rasul Bakhsh joined him, followed by Fazal Muhammad at safe distance. He could however, over hear the talk of the appellants while following him in this manner. Appellant Shahab-ud-Din in course of his talk with appellant Rasul Bakhsh, according to him, said that he would discharge Fazal Muhammad and his co-accused if Rs. 1,500 would be paid to him. Over hearing this, Fazal Muhammad approached appellant Shahab-ud-Din and requested him to reduce his demand as he and his co-accused were poor persons. Appel--lant Rasul Bakhsh at this stage intervened and asked Fazal Muhammad to go and bring some money, saying that the exact sum would be settled later on.
4. Fazal Muhammad, however became disgusted with this talk and decided to report the matter to the Anti-Corruption Establishment Police. He could not, however, contact the Circle Officer, Anti- Corruption Establishment at Larkana, as he happened to be away. Therefore to or three days later, Fazal Muhammad went to Hyderabad, approached the Anti-Corruption Officer and informed him of what had happened After ascertaining the position from Fazal Muhammad, he directed Mr: Moin-ud-Din, Circle Officer, Hyderabad, to arrange for the trap in this case.
5. It was on the 4th of October 1961, that Mr. Moin-ud-Din, Circle Officer, accompanied Fazal Muhammad to Larkana and approached the District Magistrate and requested him to direct a Magistrate to supervise the proposed trap. The District Magistrate ordered Mr. Jamal-ud-Din, Sub- Divisional Magistrate, Kambar, to do the needful in the matter. Accordingly, Mr. Jamal-ud-Din, Sub- Divisional Magistrate, Kambar? Accompanied by Mr. Moin--ud-Din, Circle Officer Anti-Corruption Establishment clad in burqa, Muhammad Ibrahim mashir, one Rashid Ahmad and a Police constable, started in a taxi for Warrah on the same day in the afternoon in order to lay the trap for the appellants. On their way to Warrah they stopped for a while at a certain spot where the statement of Fazal Muhammad (Exh. 2/A) was recorded by Mr. Jamal-ud-Din acid the numbers of currency notes produced by him were noted down in the mashirnama (Exh. 3/A). These notes were ten in number eight of them `of Rs. 100 each and to of Rs. 10 each. After their numbers had been noted down they were given back to Fazal Muhammad for being passed on to the appellants (eight notes of Rs. 100 each to appellant Shahab-ud---Din and to notes of Rs. 10 each to appellant Rasul Bakhsh).
Thereafter all of them proceed further and stopped again at about 5 p.m. While they were at a short distance from Warrah At this stage, Fazal Muhammad, accompanied by mashir Muhammad Ibrahim, leaving in Mr. Ismal-ud-Din, Sub-Divisional Magistrate. Kambar. Mr. Moin-ud-Din, Circle Officer, Anti---Corruption Establishment. Rashid Ahmad and the Police constable behind, proceeded further in order to contact the appellants and do the needful according to the plan.
6. At about 5-30 p.m. Fazal Muhammad, along with mashir Muhammad Ibrahim, met appellant Rasul Bakhsh at his residence and. Informed him that he had brought some money as had been suggested by him and asked him to go and contact appellant Shahab-ud-Din requesting him to get his demand reduced and promising to pay something to him. Appellant Rasul Bakhsh agreed to do so and proceeded towards the residence of appellant Shahab-ud-Din, asking Fazal Muhammad to wait for his return, Soon afterwards he came back and informed that appellant Shahab-ud-Din had gone out for Shikar and would be returning at about 7 p.m. This development was communicated to the rest of the party through Rashid Ahmed who had, in the meanwhile, joined Fazal Muhammad near the residence of appellant Rasul Bakhsh.
7. After about an hour Fazal Muhammad again contacted appellant Rasul Bakhsh leaving behind mashir Muhammad Ibrahim near a small culvert on the watercourse which was at a short distance away from the house of appellant Shahab-ud-Din. While going away he asked mashir Muhammad Ibrahim to follow him when he should see him passing by along with the appellant Rasul Bakhsh.
Accordingly. Fazal Muhammad saw appellant Rasul Bakhsh and persuaded him to accompany him to the house of appellant Shahab-ud-Din. On their way to his house they passed by the culvert where mashir Muhammad Ibrahim was sitting. Seeing them passing along, he followed them as desired by Fazal Muhammad. Shortly after they had thus proceeded further towards the house of appellant Shahab-ud-Din, Fazal Muhammad handed over to notes of Rs. 10 each to appellant Rasul Bakhsh, requesting him to recommend) his case to appellant Shahab-ud-Din".
8. On their arrival at the house of appellant Shahab-ud-Din, appellant Rasul Bakhsh went in and brought him out. Fazal Muhammad, who had in the meanwhile joined mashir Muhammad Ibrahim, explained his position in the case to him and requested him to accept Rs. 800 and not to press for any more as he had been falsely implicated therein. Appellant Shahab-ud-Din accepted the eight notes of Rs. 100 each thus offered by Fazal Muhammad and put them in one of the pockets of his pants, saying that he should pay him Rs. 200 more. Having talked to Fazal Muhammad for a few minutes, appellant Shahab-ud-Din went back in his house saying that he was feeling tired and would like to have some rest. In the meanwhile, mashir Muhammad Ibrahim had quietly slipped away and gone to the place where Mr. Jamal-ud---Din and others were waiting for him and informed them of what had taken place. After appellant Shahab-ud-Din had gone back in his house, appellant Rasul Bakhsh suggested to Fazal Muhammad that he should go back to the town as his work had already been done. Thereupon, Fazal Muhammad accompanied by mashir Muhammad Ibrahim who had already come back, moved away from the place where he had been talking to the appellants and waited for the arrival of Mr. Jamal-ud-Din and others. On their arrival there, shortly afterward, he informed them of his having passed the money to the appellants. On being thus informed by him, all of them proceeded towards the house of appellant Shahab-ud- Din.
9. At the the when they arrived there, the door of his house was closed from inside. The Police Constable knocked at the door which was opened by Salim (appellant Shahab-ud-Din's son, aged about 11 years). Thereupon, Mr. Moin-ud-Din followed by Mr. Jamal-ud-Din, the Police constable, mashir Muhammad Ibrahim and complainant Fazal Muhammad, one after the other rushed in. As soon as they got in Mr. Moin-ud---Din disclosed his identity. Seeing them coming in this manner, appellant Shahab-ud-Din took out the currency notes from the pocket of his pants (the eight Rs.
100 notes which had been passed on to him by Fazal Muhammad) and threw them towards the southern wall. Three of them fell or the cot and five on the ground after striking against that wall.
10. A mashirnama was prepared of the scene of offence and, the said notes were collected and secured. Thereafter, the state--ment of appellant Shahab-ud-Din was recorded by Mr. Jamal-ud- --Din (Exh. 3/D).
11. In the meanwhile, Mr. Moin-ud-Din -accompanied by Fazal Muhammad and mashir Muhammad Ibrahim went out towards the culvert where appellant Rasul Bakhsh was sitting at that the and brought him to the house of appellant Shahab-ud---Din. But the to notes of Rs. 10 each that had been given to him by Fazal Muhammad earlier, were not with him in course of his personal search.
His statement was also recorded by, Mr. Jamal-ud-Din (Exh. 3/E), soon after he had been personally searched in his presence.
12. Soon afterwards, a case was registered against both the appellants-and the investigation started. After the investigation was over, both the appellants were prosecuted for the offence they have been convicted of in this case.
13. According to his version, Fazal Muhammad approached appellant Shahab-ud-Din at Warrah a few days before the occurrence under consideration arid requested him to help him out of the situation in which he, along with his companions, had been placed by his opponents. Appellant Shahab-ud-Din replied to him that his case will be decided on its own merits and he could do nothing for him in that connection. On getting the reply Fazal Muhammad went away and accompanied by his counsel Mr. Amanullah, approached appellant Shahab-ud-Din again at Larkana and invited him to have a lunch with him But appellant Shahab-ud-Din refused it accept this invitation.
14. On the day of the occurrence in the evening Fazal Muhammad accompanied by another man called at appellant Shahab-ud-Din's house while he was playing bagatelle. When, he came out on being informed by appellant Rasul Bakhsh about his visit, Fazal Muhammad along with his companion, congratulated appellant Shahab-ud-Din on the birth of his son. He (appellant Shahab-ud-Din) replied that it was unnecessary for them to do so. Nearly at the same the Fazal Muhammad took out a cheque and showed it to appellant Shahab-ud-Din saying that it was a false cheque for Rs. 9,500 and had been passed oil to him by his partner, whose whereabouts were not known to him, and requested him (appellant Shahab-ud-Din) to call the brother of his partner and question him about his (Fazal Muhammad's partners) where--abouts and thus help him in getting hold of him. While making this request Fazal Muhammad offered to pay 1/3rd of the amount of the cheque to appellant Shahab-ud-Din in case he should succeed in recovering it with his help.
Appellant Shahab-ud-Din, however, turned down this suggestion and refused to help him.
Thereupon, Fazal Muhammad requested him to- accept the bail of the absconder (referring to himself) in his case if he should appear in this Court on the following day. Appellant Shahab-ud- Din again refused to listen to him. At this stage, Fazal Muhammad said that he was being harassed by his opponents and, therefore, would like to give him some chaie pani and kharche so that he (appellant Shahab-ud-Din) should help him in course of his trial: Appellant Shahab-ud-Din again turned down this suggestion to, and asked him to go and seek the advice of his counsel in regard to his case.
15.After this conversation appellant Shahab-ud-Din sent away Fazal Muhammad and went back in his house and started playing bagatelle with his friends Daud Sh. Shaukat Ali and Ghaffar Khan Sarwart. Shortly afterwards someone knocked at his door. Thereupon, appellant Shahab-ud-Din's son Salim opened the door, as his servant was busy otherwise. Nearly at the same the someone threw some notes in his house and the Police party came in, and got him falsely trapped in this case.
16. Appellant Shahab-ud-Din denied like appellant Rasul Bakhsh that he had at any the received any money from Fazal Muhammad as alleged by the prosecution. According to him, appellant Shahab-ud-Din, along with his peon appellant Rasul Bakhsh, had been falsely implicated in this case by and at the instance of Mr. Jamal-ud-Din (Sub-Divisional Magistrate, Kambar) who was his enemy and had otherwise been harassing him for some the.
17. The case for the prosecution against appellant Shahab-ud-Din is mainly based upon the evidence of Mr. Jamal-ud-Din, Mr. Moin-ud-Din, Fazal Muhammad and mashir Muhammad Ibrahim. So far as appellant Rasul Bakhsh is concerned, the prosecution relies on the evidence of Fazal Mu6ammad and mashir. Muhammad Ibrahim only. On the other hand, Dr. Asan Das Tapedar Faiz Muhammad and. Sh. Shaukat Ali have been examined in defence.
18. According to his version, referred to above, appellant Shahab-ud-Din had been falsely implicated in this case by the prosecution witnesses named above for one reason or the other.
Complainant Fazal Muhammad is said to have implicated him falsely because he belonged to a different religious sect and had been inbouring under the impression that he (appellant Shahab- ud---Din) was hostile to him. This view, however, does not appear to be well-founded. Even if Fazal Muhammad had some religious differences with appellant Shahab-ud-Din, like so many others, it could hardly be believed that on that account he had particularly chosen to victimise appellant Shahab-ud-Din in such a case. Moreover, there is nothing to show that in course of the proceed-- ings of his case appellant Shahab-ud-Din had done anything which could have created an impression in the mind of Fazal Muhammad that he was against him, and, therefore, would not treat him fairly and impartially in course of his trial.
19. Fazal Muhammad's evidence against appellant Shahab---ud-Din is supported by Mr. Jamal- ud-Din, (Sub-Divisional Magistrate, Kambar), Mr. Moin-ud-Din (Circle Officer, Anti---Corruption Establishment) and mashir Muhammad Ibrahim. According to his version appellant Shahab-ud- Din had been falsely implicated in this case by Mr. Jamal-ud-Din on account of certain remarks made by him in course of his official correspon--dence with him some titre before the occurrence under conside--ration. It is, however, unbelievable that Mr. Jamal-ud-Din had gone so far as to implicate him in such a case, simply because he bad annoyed him earlier by making some unpleasant remarks in course of his correspondence with him.
20. So far as mashir Muhammad Ibrahim is concerned, it is urged by the learned counsel for the appellants in course of his arguments that his version should not be accepted, as he was an employee of one Abdul Aziz, a retired Anti-Corruption Inspector, and had, it appears, given false evidence against them at the instance of Mr. Moin-ud-Din. This contention again is obviously untenable. It could hardly be believed that Mr. Moin-ud-Din was, in any way interested in getting either of the to appellants falsely implicated in this case and that is why lie had secured the services of mashir Muhammad Ibrahim through the influence of Mr. Abdul Aziz so as to support the prosecution case against them. As observed by the learned Special Judge, it was in order to ensure the secrecy of the arrangements for the trap that he had chosen to bring mashir Muhammad Ibrahim from Larkana when he had come-over along with Mr. Jamal-ud-Din. There was apparently nothing wrong in his doing so even through the influence of Mr. Abdul Aziz who was apparently known to him being a retired Anti-Corruption Inspector.
21. Mashir Muhammad Ibrahim has supported the prosecu--tion case throughout against both the appellants. As pointed out by the learned Special Judge, "no malice or bias is suggested against him. He is a member of Jamait Islami and as such, he would claim to belong to the opposite- religious sect of the complainant.
He has deposed in a straight forward manner and there is no reason to disregard any portion of his sworn testimony at all."
22. So far as Mr. Moin-ud-Din is concerned, it is urged by the learned counsel for the appellants that he had falsely implica--ted them in this case, as he was an Anti-Corruption Officer. Merely because he was interested in the success of the trap it could not possibly be presumed that he had tried to implicate either of the to appellants falsely in this case. There is no reason whatso-- ever to disbelieve his evidence against them.
23. Both Mr. Moin-ud-Din and Mr. Jamal-ud-Din have deposed to the effect that they had seen appellant Shahab-ud-Din taking out the notes from his pocket and throwing them away.
According to their version, they had struck against the wall and were scattered on the ground and on the cot lying near-by. At the the when he had done so, a petromax lamp was burning and there was enough light at the scene of offence to enable them to watch what he had done. It is, no doubt, true that mashir Muhammad Ibrahim had' stated to the effect that he had not actually seen appellant Shahab-ud-Din taking out the notes from his pocket and throwing them away, because he had lagged behind and Mr. Moin-ud-Din, Mr. Jamal-ud-Din and the Police Constable were in front of him at that moment. He had, however, noticed them (the notes) lying scattered at the scene of offence when he had gone in along with the party. Moreover, he has stated that he had seen Fazal Muhammad handing over eight Rs. 100 notes to appellant Shahab-ud-Din some the before the raid was made.
24. As already pointed out, three witnesses have been examined in defence in this case. One of them is Dr. Asan Das, Medical Officer, Civil Hospital, Larkana, who had examined appellant Rasul Bakhsh. He did not, however, find any mark of violence on his person; although he had noticed a few hair of his moustaches on the right side missing. He could not, however, say when it had been done. Appellant Rasul Bakhsh had been produced after his arrest before a Magistrate for remand.
He does not appear to have complained to him of any maltreatment at- the hands of the Police. If he had, in all probability, he would have straightaway been sent by him to the Medical Officer for examination. In any case, this fact in itself would not go to show that he had been falsely implicated in this case by Fazal Muham--mad and mashir Muhammad Ibrahim.
25. Another witness examined in defence is Tapedar Faiz Muhammad. According to him, the southern wall of appellant Shahab-ud-Din's house was so low that a man standing outside could have thrown in the notes in question. His evidence again does not show that the notes in question had actually been thrown in appellant Shahab-ud-Din's house by someone standing outside.
26. Sh. Shaukat Ali is the last witness who has been examined in defence. He has supported the case of appellant Shahab-ud-Din throughout, But he is admittedly his friend and playmate and, therefore, naturally interested in supporting his version. His evidence in support of his case could not possibly be accepted as true, in view of what reliable prosecution witnesses, such as, Mr. Jamal-ud-Din, (Sub-Divisional Magistrate, Kambar), and Mr. Moin-ud-Din, (Circle Officer, Anti- Corruption Establish--ment) have deposed, to.
27. As bas already been pointed out, none of the witnesses examined for the prosecution in this case appears to be having any grudge or ill-feeling against either of the to appellants. None of them had, therefore, any reason to implicate either of them falsely in this case. Their version against the appellants appears to be natural and reasonable. Their evidence, on the whole, goes to show that Fazal Muhammad had produced eight notes of Rs. 10 each and to notes of Rs. 10 each before Mr. Jamal-ud-Din and others while the raid was being arranged. The numbers of these notes had been noted down in a mashirnama and they were returned to Fazal Muhammad for being passed on to the appel--lants. Two notes of Rs. 10 each were according to the plan, to be given to appellant Rasul Bakhsh and eight notes of Rs. 100 each were to be handed over to appellant Shahab-ud-Din. This was accordingly done and later on, eight notes of Rs. 100 each were seen being thrown out by appellant Shahab-ud-Din and were picked up from the scene of offence.
The to notes of Rs. 10 each, that had been passed on by Fazal Muhammad appellant Rasul Bakhsh in the presence of mashir Muhammad Ibrahim, could not, however, be recovered, as he had, in all probability, disposed them of before he was caught hold of by Mr. Moin-ud---Din and taken to the scene of offence. But there is no reason to disbelieve Fazal Muhammad and mashie Muhammad Ibrahim on this point.
28. In view of these facts and circumstances, I find that the convictions of both the appellants are warranted by the evidence produced for the prosecution in this case.
29. As already pointed out, appellant Shahab-ud-Din has been sentenced to suffer rigorous' imprisonment for seven years and to pay a fine of Rs. 2,000 or in default of payment of fine to suffer rigorous imprisonment for one year more, while appellant Rasul Bakhsh has been sentenced to undergo rigarous imprison--ment for to years and to pay a fine of Rs. 50 or in default of payment of this fine to suffer rigorous imprisonment for three months more. The learned counsel for the appellants has strongly urged that these sentences are to severe and may be substantially reduced even if the convictions of the appellants are maintained. Considering the facts and circumstances referred to above, I at inclined to agree with him and accordingly reduce the sentences of bo!h the appellants as indicated below :-
(1) Appellant Shahab-ud-Din's sentence of rigorous imprison--ment for seven years is reduced to rigorous imprisonment for to years. His sentence of fine of Rs. 2,000 is, however, maintained. He will suffer rigorous imprisonment for six months more in case of default and not for one year as ordered by the learned Special Judge.
(2) Appellant Kasul Bakhsh's sentence of rigorous imprison--ment for to years is reduced to the period already under gone --by him. His sentence of payment of fine of Rs. 50 is, however, maintained and in case of default he will suffer rigorous imprisonment for three months more, as ordered by the learned Special Judge.