' This appeal has been brought against the judgment dated 8-2-1974 deliverd by the learned Special Judge Anti-Corruption at Lahore. The learned Special Judge had tried the appellant on charges under section 161, P.P.C.,,,read with Section 5(2) of the Prevention of Corruption Act, 1947.
The trial concluded in the conviction of the appellant on the aforesaid charges and the appellant was sentenced to undergo R.I. for a term of two yeaRs, On the admission of the appeal, the sentence was suspended by this Court vide its order dated 11-2-1974. The facts giving rise to the prosecution of the appellant on the charges afore mentioned are as follows:-
2. The appellant was serving in the capacity of a Clerk in the Excise & Taxation Department at Lahore, vide F.I.R. dated 24-6-1971, one Abdul Rehman complainant who appeared as P.W.3 at the trial reported, that he was living with his father-in-law, namely, Muhammad Ibrahim who appeared as P.W.9 and two or three months before the lodging of the F.I.R. the official from the Excise & Taxation Department visited the aforesaid house for preparing a fresh assessment of the rental value, on the basis of which the property tax had to be levied. The complainant further disclosed that his father-in-law Muhammad Ibrahim was away to Karachi in those days, and the aforesaid official had visited the house in his absence. The complainant had informed his father-in-law at Karachi about the proposed assessme nt and his father-in-law Muhammad Ibrahim returned from Karachi on 6th of June, 1971. Thereafter, it was stated that the complainant and his father-in-law visited the office of the Excise & Taxation Department and came into contact with the appellant.
The appellant allegedly informed the complainant and his father-in-law, that the limitation for assailing the assessm ent by way of an appeal objection petition has expired, but the appellant promised to help them by getting this appeal entered in the register of appeals in time, provided the complainant pays Rs, 100 as illegal gratification. Accordingly the complainant allegedly got an appeal drafted on 14-6-1971 and affixed two annas Court Fees thereon. According to the complainant the appellant interpolated and converted the date on the petition to 14-4-1971, which is Exh. P.W. 2/A similarly on the Court fee stamp the date was also interpolated into 14-4-1971 and the appeal was entered into the register of the appeals. The complainant allegedly paid Rs, 50 to the appellant and promised to pay the remaining Rs, 50 in future. According to the complainant he again contacted the appellant on 23-6-1971 and the appellant told the complainant to bring affidavit of the tenants, alongwith the balance of the illegal gratification on 24-6-1971 on which date the assessm ent will be reduced.
3. On the disclosure of the information lodged by the complainant with the Anti-Corruption Police, a raiding party, consisting of P.W.5 Raja Kalimullah Magistrate 1st Class, the complainant P.W.7 Syed Irshad Hussain, Sub-Inspector Anti-Corruption, Police and Foot Constables was formed. The raiding party proceeded to the Excise & Taxation Department but on account of the absence of the appellant from the office the party returned. On 25-6-1971 P.W.6 Mr. Sajad Javed Akbar a Magistrate was deputed to supervise the raid because of the non-availability of P.W.5 Raja Kalimullah. The raiding party again proceeded to the office of the Excise & Taxation Department, and the complainant was sent to contact the appellant, who brought the appellant near the main gate of the office, where the other members of the party were also present. In view of the Magistrates and the Sub-Inspector Police, tainted currency notes were passed on to the appellant, who held the same in his hand. The Magistrate P.W.6 proceeded ahead, and introduced himself to the appellant and the tainted currency notes were recovered from the hand of the appellant and were taken into possession.
4. The appellant soon after the raid and recovery, stated that the complainant called him outside, and when he came out the money was passed on to him and the appellant enquired about the money, and at once the Magistrate caught hold of him and recovered the amount. In his statement recorded under section 342, Cr.P.C. the appellant made the following statement:- "The objection petition was given to me which was duly entered in the relevant register. Thereafter it was not my duty to deal with the matter. The owner of the property wanted me to get his case disposed of earlier, I told him that it was not my duty. He lost temper. I pushed him out of my office.
He threatened me. Then Abdur Rehman complainant turned up and apologised. On the day of raid, the complainant took me aside as he wanted to have a private talk. He thrusted some currency notes in my hand. I asked him, the purpose of that. The process was still continuing when the raiding Magistrate arrived and made recovery".
' The learned counsel for the appellant argued that the statement of the appellant reproduced above if placed in juxta position with the prosecution case reacts upon the prosecution story creating doubt therein, to the benefit of which the appellant is entitled.
5. I have very carefully examined the evidence on the record, and after anxious consideration of the same, I am of the view, that the prosecution has proved its case beyond any shadow of doubt. The statement of the complainant P.W.3 and his father-in--law Muhammad Ibrahim P.W.4 is consistent and despite lengthy cross-examination these witnesses could not be shaken. Similarly P.W.6 Magistrate and P.W.7 Sub-Inspector supported prosecution case in all material respects. No doubt P.W.6 did not hear the conversation, between the complainant and the appellant but saw the passage of the tainted currency from the complainant to the appellant P.W.7, neither heard any conversation nor viewed the passage of the tainted currency but witnessed its recovery, but there is strong piece of corroborative evidence on the record of the case in the form of the appeal and the register of appeal. In both these documents i.e, in the memorandum of appeal interpolation naked to eye has been made by converting 14-6-1971 into 14-4-1971. Similarly in the register of appeal the appeal has been entered at Sr. No, 155-A showing it to have been presented in the month of April, 1971. The factum of the interpolation was disclosed by the complainant at his earlist i.e, at the time of the lodging of the F.I.R. Obviously this must not have been done, nor could have been done by the complainant on his own. I am, therefore, of the view that the time barred appeal was converted into an appeal within time,with the active connivance of the appellant for which half of the illegal gratification amounting to Rs, 50 had been received by the appellant. The appellant himself admitted that he got the said appeal entered in the relevant register. This corroborative piece of evidence definitely tends to connect the appellant with the crime. In anxiety to get the tax reduced the complainant did approach the appellant and on such occasion the demand of the payment of the balance amount of bribe was natural.
6. Furthermore in view of the cogent and un-shakeable prosecution evidence, I am bound under section 4 of the Prevention of Corruption Act, to draw a presumption of law with regard to the motive as contained A in section 161 of the P.P.C. The onus to rebut such presumption was on the appellant, but the appellant has miserably failed to prove to the contrary for discharging such onus.
Learned counsel next contended, that the occurrence took place in 1971, and the appellant was convicted on 11-2-1974. After having faced protractd trial, and since the sentence had been suspended after three days of the conviction, therefore, the sentence of imprisonment should be reduced to one already undergone. The learned counsel further argued that it will be too harsh to send back the appellant to jail after 10 years of the recording of conviction by the trial Court. I am conscious of the facts that delay in criminal law does not give rise to equities, as laid down by the Supreme Court in M.S. Khawaja v. The State PLD 1965 SC 287, but one cannot help to take into view the surrounding circumstances. In my view agony of 13 years beginning from the tria to the decision of this appeal is also a relevant circumstance while awarding punishment in such like case. I have therefore, decided that the sentence of imprisonment already undergone would suffice to meet the ends of justice, but I will impose fine which the trial Court had not imposed. Accordingly I would reject this appeal by reducing the sentence of imprisonment to one already undergone, but I would sentence the appellant to pay a fine of Rs, 3,000 within one month of the passing of this order, failing which the appellant shall have to undergo R.I. for a term of six months.