' This is an appeal by Pir Muhammad Girdawar against his conviction under section 5(2) Prevention of Corruption Act, 1947, by Ch. Ghulam Rasool, Special Judge Anti-Corruption, Lahore, who vide judgment dated 28-3-1973, sentenced him to one year's R.I. And a fine of Rs,20,000 or in default one year R.I.
2. The case against the appellant was registered on 14-11-1969, at 2-30 p.m. Regarding an occurrence in July, 1967 on the complaint of Ata Ullah Inspector Police, Anti-Corruption Establishment, Gujranwala. The appellant Pir Muhammad was challaned after completion of the investigation.
3. The Special Judge Anti-Corruption on 1-1-1973 put the allegations to Pir Muhammad appellant to enable him to show cause as to why he should not be convicted on the allegation that in the years 1966 and 1967, being public servant and by abusing his official position he acquired 111 Kanals 7 Marlas of agricultural land for Rs,5,000 in village Akkanwala and 169 Kanals 11 Marlas for Rs,19,333 in village Kot Hara in the name of his wife Mst. Amir Sultan Begum which was disproportionate to the known sources of his income. Pir Muhammad appellant denied the allegations. He pleaded innocence and offered to show cause against the allegations put to him.
4. The prosecution during the trial examined ten witnesses in all.Noor Muhammad Patwari P.W.1 produced copy of Mutation No, 544, dated 15-1-1968 Exh. P.W.1/A. This was a mutation of sale of 35 Kanals 12 Marlas of land for Rs,5,000 by Allah Ditta son of Gehna (father of Pir Muhammad appellant) in favour of Allah Ditta and Peera sons of Raja. This mutation was entered on 10-11-1967 on the basis of registered sale-deed, dated 21-10-1967. In cross-examination, this witness admitted that the accused enjoyed good reputation. Lal Khan Patwari P.W.2 produced a copy of Mutation No, 42, dated 3-6-1968 Exh. P.W.2/A regarding sale of 508 Kanals 19 Marlas of land in favour of Hayat Muhammad and Mst. Amir Sultana (wife of Pir Muhammad accused) for a sum of Rs,58,000. This mutation was entered on 13-9-1967 on the basis of a registered sale-deed, dated 22-7-1967. Out of the total land measuring 508 Kanals 19 Marlas, Mst. Amir Sultana Begum had purchased 169 Kanals 11 Marlas for Rs,19,333. This witness in cross-examination stated that the sale-deed was produced by Hayat Muhammad vendee and that the accused Pir Muhammad was known to him for the last 9/10 years who enjoyed good reputation. Hashmat Ali Patwari P.W.3 produced copy of Mutation No, 56, Exh. P.W.3/A sanctioned on 12-7-1966. This mutation was entered on 1-1-1966 on the basis of registerd sale-deed dated 7-2-1966 regarding sale of 111 Kanals 7 Marlas for Rs,5,000 by Muhammad Hayat son of Mahram to Mst. Amir Sultana (wife of Pir Muhammad appellant).
Hashmat All P.W.3 also produced in evidence Mutation No, 66, Exh. P.W.3/B entered on 11-6-1967 and sanctioned on 11-7-1968 by which Mst. Amir Sultana had sold the land purchased by her vide Mutation No, 56 mentioned above to Rehmat Khan, Ghulam Muhammad and Jahan Khan sons of Lehna. This was based on oral transaction. Hayat Muhammad P.W.4 is a co-vendee of Mst. Amir Sultana in Mutation No, 42 mentioned above. It was stated by him that he and Mst. Amir Sultana had purchased land for Rs,58,000 in Kot Hara vide mutation Exh. P.W.2/A. He further stated that Mst.
Amir Sultana had only 1/3rd share in the entire land. In cross-examination he stated that Muhammad Ashraf was father of Mst. Amir Sultana; that Muhammad Ashraf paid him Rs,15,000 before the registration of the sale-deed; and that the remaining amount was paid to him by Muhammad Ashraf subsequent to the execution of the sale-deed. This witness was declared hostile by the Special Public Prosecutor and cross-examined. He denied the suggestion that he has gone back from his statement to support the accused. Inspector Ata Ullah Khan Dar P.W.5 got the present case registered vide F.I.R. Exh. P.W.5/B after preliminary enquiries which were conducted by him on receipt of application Exh. P.W.5/A submitted by Muhammad Bashir P.W. The complaint Exh.
P.W.5/A was entrusted to this witness by the Directorate of Anti-Corruption Establishment, West Pakistan, Lahore for probe vide order Exh. P.W.5/A-1. After preliminary enquiry, he got the abovementioned case registered and initiated investigation after receiving necessary permission from A.D.M. Gujranwala on 15-11-1969, vide order Exh. P.W.5/C. He also took in possession the copies of the declaration of assets by Pir Muhammad accused Exh. P.W.5/D, Exh. P.W.5/D-1 and Exh.
P.W.5/D-2 pertaining to the years 1967, 1966 and 1965 respectively. After getting sanction for prosecution vide order Exh. P.W.5/E, he challaned the accused. It was admitted by him that Pir Muhammad accused himself by making an application (Exh. P.W.9/A) dated 20-8-1969, had got corrected the entries of his assets statement from Rs,45,000 to Rs,4,500. Muhammad Bashir P.W.6 had made an application Exh. P.W.5/A against Pir Muhammad on the basis of which, after preliminary enquiries, the present case was registered against the appellant. In cross-examination he admitted that the accused Pir Muhammad was known to him; that he had served under the accused as Patwari; that he (accused) had got him charge-sheeted for inefficiency and insubordination. He further admitted that he had written 4 or 5 complaints against the accused and had added portions 'A to A' and 'B to B' in the complaint at the instance of the Investigating Officer. Inspector Muhammad Akram P.W.7 got prepared income Goshwara of Pir Muhammad accused Exh. P.W.7/A in accordance with his service book. In cross-examination, he stated that he did not inquire from the accused about his additional sources of income. Exh. P.W.7/A was prepared by Muhammad Salim Beg P.W.8. According to this witness, the accused was recruited as Patwari on 5-3-1952 and he remained in service till 30-11-1971. According to the Goshwara prepared by him, the accused had received a total sum of Rs, 19,543.97 as his total emoluments during this period. In cross-examination, he admitted that the accused was promoted as Girdawar on 1-4- 1963 and the statement Exh. P.W.7/A contains his total emoluments from the time of his initial appointment till his termination from service on 30-11-1971. Muzaffar Ehsan P.W.9 produced the service record of the accused alongwith the character role which contained declaration of assets submitted by the accused for the years 1966 and 1967, the copies of which were Exh. P.W.5/D, Exh.
P.W.5/D-1 and Exh. P.W.5/D-2. He also produced the original application dated 20-8-1979 Exh.
P.W.9/A filed by Pir Muhammad accused for correction of entries of the assets statement Exh.
P.W.5/D. The correction was allowed and the corrected declaration of assets is Exh. P.W.9/A-1. In cross-examination, he admitted that there was no adverse entry against the accused in his confidential reports. Jahan Khan P.W.10 was one of the vendees of land measuring 130 Kanals 1 Marla vide Mutation No, 56, Exh. P.W.3/B. He testified to the said sale and stated that Muhammad Ashraf father of Mst. Amir Sultana vendor had filed a suit for pre-emption against them which was decreed. This witness was declared hostile and cross-examined by the Special Public Prosecutor.
He denied the suggestion that they had in fact entered in bargain with Pir Muhammad accused husband of Mst. Amir Sultana.
' After close of the prosecution evidence, the accused in his statement under section 342, Cr.P.C., denied the charge. Regarding sale of land vide Mutation No, 56 Exh. P.W.3/A in favour of his wife Mst.
Amir Sultana, he stated that father of Mst. Amir Sultana had purchased land for her in his absence and without his knowledge because in those days he was not on good terms with his wife. He stated that as soon as he came to know of the said sale, he filed declaration to that effect. He expressed ignorance about the re-sale of the said land vide Mutation No,
66. Regarding the sale of land measuring 169 Kanals 11 Marlas vide Mutation No, 42, Exh. P.W.2/A, it was stated by the accused that the father of his wife had purchased that land out of the sale proceeds of the land sold in village Akkanwala. It was further stated by him that the difference was paid by Hayat Muhammad P.W. Who was related to Muhammad Ashraf father of his wife. He admitted the receipt of Rs, 19,543.97 upto 30-11-1971 as his emoluments as indicated in the statement Exh. P.W.7/A. He supported his application Exh. P.W.9/A and correction of his assets statement Exh. P.W.9/A-1. He attributed this case to his enmity with Bashir P.W. Whom he had got charge-sheeted for inefficiency and insubordination. He examined Muhammad Nawaz D.W.1, Syed Jaffar All Shah D.W.2, Ghulam Haider D.W.3 and .Tehsildar Abdul Majid D.W.4 in his defence. All these defence witnesses stated that the accused enjoyed good reputation for his honesty, integrity and efficiency. Tehsildar Abdul Majid D.W.4 stated that there was no complaint against the accused about his dishonesty; that the accused enjoyed good reputation; and that he felt satisfied with his work and conduct.
' The learned trial Judge came to the conclusion that the accused has failed to explain his sources of income justifying the purchase of land by his wife Mst. Amir Sultana. He found that the purchase of land by his wife was disproportionate to the known sources of the income of the accused and convicted him as stated above.
5. I have gone through the entire oral as well as documentary evidence in this case. I have also heard the learned counsel appearing on behalf of the appellant and the State at some length. The learned counsel for the appellant made the following contentions:- ' Firstly: that the prosecution/trial of appellant under section 5(2) of Act No, II of 1947 without first following the procedure laid down in section 5-B of this Act was illegal; secondly, on merits of the case, the prosecution has failed to prove its case against the appellant; thirdly, that there is no evidence on record to bring the case of the appellant within the ambit of section 5(2) of Act No, II of 1947; and fourthly, that the omission to examine Mst. Amir Sultana during investigation or during trial was fatal which makes the prosecution case doubtful. It was finally argued that the appeal is coming up for decision after about 12 years of the conviction and as such, if the above contentions do not find favour with this Court, the appellant be not sent to prison to serve his unexpired sentence. The learned counsel for the State has controverted these contentions.
6.A perusal of section 5 and section 5-B of Prevention of Corruption Act No, II of 1947 would clearly show that these two sections are not inter-dependant. These are two distinct sections providing for two different offences under different situations. Subsection (1) of section 5 of this Act defines criminal misconduct of a public servant punishable under subsection (2) of section 5. Clause (a) of subsection (1) deals with acceptance or agreeing to accept or obtaining or attempting, to obtain from any person for himself or for any other person, any illegal gratification as a motive or reward such as is mentioned in section 161, P.P.C. Clause (b) pertains to acceptance or agreeing to accept or attempting to accept for himself or for any other person any valuable thing without consideration from a person whom he knows to have been or to be, or to be likely to be concerned in any proceedings or business transacted by him or having any connection with his official function. Clause (c) of this subsection pertains to criminal misconduct by a public servant if he himself dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him as a public servant. And clause (d) defines criminal misconduct of a public servant if he by corrupt or by illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. If a public servant is found guilty of criminal misconduct as defined in subsection (1), he was liable to punishment under subsection (2) of section 5 of this Act. Subsection (3) of section 5 lays down that in any trial of an offence punishable under subsection (2), the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary sources or property disproportionate to his known sources of income may be proved and on such proof, the Court shall presume that the accused was guilty of criminal misconduct. A close scrutiny of this section would show that it relates to criminal misconduct as defined in clauses (a) to (d) of subsection (1). Secondly, only possession of property is required to complete the criminal misconduct of a public servant and that on proof of the said criminal misconduct, a presumption of guilt against the accused will be raised. On the other hand, a perusal of section 5-B would show that it pertains to declaration of assets only and not to the criminal misconduct. According to this section, if on any information, the Provincial Government requires any public servant to furnish in the prescribed manner and within the prescribed time a statement of his property and liabilities and if such public servant upon being so required fails to furnish the said statement/ information, he will be liable to be punished under this section. It will be, therefore, clear that section 5-B of Act No, II of 1947 will be applicable only if firstly, the Government requires a public servant to furnish a statement of his property and liabilities and secondly, the said public servant upon being so required fails to furnish the statement or information. The penalty will be imposed on account of the failure to furnish statement/information. It has, therefore, nothing to do with the criminal misconduct as defined in subsection (1) of section 5 of Act No, II of 1947. As stated above, these are two distinct offences and they have nothing to do with each other. It is, therefore, not necessary that every public servant should be required to furnish statement of his property and liabilities before launching prosecution against him under section 5(2) of Act No, II of 1947. Section 5(2) of Act No, II of 1947 punishes a public servant for possession of property disproportionate to the known sources of his income. On the other hand, a public servant under section 5-B of Act No, II of 1947 cannot be punished for possession of property beyond known sources of his income. This section makes a public servant liable only if he fails to furnish, upon being so required by the Provincial Government a statement of his property and liabilities. In view of the above I am of the view that the first contention of learned counsel for the appellant is without any substance. In the instant case, Pir Muhammad appellant had filed statement of his assets according to his service rules. He was never required nor was it necessary for the Provincial Government to require him to furnish, in prescribed manner and within the prescribed time, a statement of his property and liabilities.
7. Coming now to merits of the case, it will be observed that the prosecution has brought on record two mutations through which Mst. Amir Sultana wife of Pir Muhammad appellant had purchased property. Mutation No, 56, Exh. P.W.3/A was sanctioned on 12-7-1966. This was entered on the basis of a registered sale-deed, dated 7-2-1966 by which one Muhammad Hayat son of Mahram had sold 111 Kanals 7 Marlas of land in village Akkanwala for Rs,5,000 to Mst. Amir Sultan daughter of Muhammad Ashraf (wife of Pir Muhammad appellant). She sold this land orally to Rehmat Khan, Ghulam Muhammad and Jahan Khan for Rs, 13,000 vide Mutation No,66 entered on 11-6-1967 and sanctioned on 11-7-1968. The second sale in favour of Mst. Amir Sultana was also by a registered sale-deed, dated 22-7-1967 on the basis of which Mutation No, 42, Exh. P.W.2/A was sanctioned. A total of 508 Kanals 19 Marlas of land was jointly purchased for Rs, 58,000 by Hayat Muhammad son of Piran Ditta and Mst. Amir Sultana Begum daughter of Muhammad Ashraf. The share of Mst. Amir Sultana Begum was 169 Kanals 11 Marlas in the total land measuring 508 Kanals 19 Marlas and she paid Rs, 19,333 as its price. The accused in his statement under section 342, Cr.P.C. In answer to question No,4 stated that father of Mst. Amir Sultana had purchased land for her in his absence and without his knowledge. In answer to question No,6, Pir Muhammad accused stated that the father of his wife had purchased land measuring 169 Kanals 13 Marlas for Mst. Amir Sultana out of the sale proceeds of the land sold in village Akkanwala. He added that the difference was paid by Hayat Muhammad P.W. Who was a relative of Muhammad Ashraf father of Mst. Amir Sultana. A perusal of the statement of the accused would show that he had admitted the two sales vide Mutations Exh. P.W.3/A and Exh. P.W.2/A in favour of Mst. Amir Sultana though he added that the land was got purchased in her name by her father. Thus, it will be clear that the purchase of property in the name of his wife is not disputed by Pir Muhammad appellant. The prosecution has placed on record a statement of total emoluments Exh. P.W.7/A, received by the appellant from the date of his initial appointment on 5-3-1952 till termination of his service on 31-11-1971. The total amount received by him during his entire service was Rs, 19,543.97. This amount, as is clear from the statement, was received by the appellant in about 20 years period. Thus, it is clear that the accused did not have enougn means to purchase property in the name of his own wife. The plea of the accused that the property in the name of his wife Mst. Amir Sultana was purchased by her father Muhammad Ashraf is not supported by any evidence or circumstance in this case. The accused Pir Muhammad did not examine his own father named Allah Ditta or his father-in-law Muhammad Ashraf to substantiate his plea of defence. A perusal of the declarations of his assets Exh. P.W.5/D as modified in Exh. P.W.9/A-1, Exh. P.W.5/D-1, and Exh. P.W.5/D-2 would show that in the year, 1965, the accused had declared his assets as "Nil". In the year, 1966, he again showed his assets as "Nil". In the year 1967, he declared the purchase of 121 acres of land for Rs, 45,000 in the name of his wife. It was stated in this declaration that the father of his wife had paid her Rs, 4,000 with which she had purchased the said property. It was further stated in the declaration of assets Exh. P.W.5/D that his wife sold the said land for Rs, 13,000. In the column of description of property he gave 21 Acres as the property in his declaration of assets. This declaration was later amended vide declaration Exh. P.W.9/A-1. After this modification, the figure "45,000" appearing in the declaration Exh. P.W.5/D was changed to Rs, 4,500. The declaration Exh. P.W.5/D was signed by Pir Muhammad on 4-12-1967 i,e, after his wife had purchased land measuring 169 Kanals 11 Marlas vide registered sale-deed, dated 22-7-1967. This sale-deed or Mutation No, 42 Exh. P.W.2/A was not mentioned by Pir Muhammad in the declaration of his assets Exh. P.W.5/D. It would, therefore, be clear that the appellant deliberately concealed the said sale and only mentioned in a vague manner 21 Acres of land without elaborating as to who was the owner of this land and by which deed the said land had been purchased. There is nothing to show that Muhammad Ashraf father-in-law of Pir Muhammad accused was a man of means. It was argued by the learned counsel for the appellant that the sale in favour of Mst. Amir Sultana vide mutation Exh. P.W.2/A had been financed by his father Allah Ditta who had sold land vide mutation Exh. P.W.1/A on 21-10-1967. This argument is without any substance. The purchase of 169 Kanals 11 Manias of land by Mst. Amir Sultana vide mutation Exh. P.W.2/A was made on 22-7-1967. The mutation of sale by Allah Ditta father of Pir Muhammad accused is dated 21-10-1967 i,e, after about three months of the purchase of land by Mst. Amir Sultana. In fact the mutation Exh. P.W.1/A, dated 21-10-1967 was not relevant for decision of this case. The two mutations concerning the allegations against Pir Muhammad appellant are Exh.
P.W.3/A (mutation No, 56) and Exh. P.W.2/A (mutation No, 42). Land measuring 111 Kanals 7 Marlas was the first transaction of sale in favour of Mst. Amir Sultana. She purchased 111 Kanals 7 Marlas of land for Rs, 5,000. This sale was mentioned in the declaration of assets Exh. P.W.5/D filed by Pir Muhammad accused in the year, 1967. There is no explanation as to wherefrom the wife of the appellant got Rs, 5,000. In his statement under section 342, Cr.P.C. It was pleaded by the accused that this sale was financed by.Muhammad Ashraf father of Mst. Amir Sultana. In the declaration filed in the year, 1967 the value of this land was disclosed as Rs, 45,000. After about 12 years of the filing of the declaration, an application Exh. P.W.9/A was filed on 20-8-1979 for correction of this declaration. The amount was reduced from 45,000 to 4,500 after correction and even then a sum of Rs, 500 remained unexplained because the land had been purchased vide Mutation No, 56 Exh.
P.W.3/A for Rs, 5,000. This very land was later sold by Mst. Amir Sultana vide Mutation No, 56, Exh.
P.W.3/B, dated 11-7-1968. The sale was for Rs, 13,000. The said sale which was made only after about eight months of the execution of the registered sale-deed, dated 7-2-1966 earned about Rs, 8,000 as profit. In my view, this sale was also doubtful. The said land could not have in the ordinary circumstances earned that much profit within few months time. The second disputed sale in favour of Mst. Amir Sultana took place vide a registered sale-deed on the basis of which Mutation No, 42 Exh. P.W.2/A was sanctioned. Through this Mutation, Mst. Amir Sultana had purchased 169 Kanals 11 Marlas of land for Rs, 19,333. There is no explanation as to wherefrom this amount was obtained by Mst. Amir Sultana. Even if the gain of Rs, 8,000 in the earlier two transactions in Mutations No, 56 and 66 is taken into consideration then also about Rs, 11,000 remained unexplained by the accused. It is correct that Mst. Amir Sultana was not examined by the prosecution during the trial as witness in support of its case. Obviously, it was not possible for the prosecution to undertake that risk. The prosecution produced in evidence the Goshwara Exh. P.W.7/A to prove that the accused received a sum of Rs,19,543.97 as total emoluments during his service. This amount was the only known source of income of Pir Muhammad appellant. There was no other source of income of Pir Muhammad appellant. In his statement under section 342, Cr.P.C. He has not claimed any other source of his income. It was contended by him that the two transactions in favour of his wife Mst. Amir Sultana vide Mutations No, 56 and 42 were made with the finances of his father-in-law. There is no evidence to show that the father and father-in-law of the appellant were men of means. They were not examined by the accused in his defence to prove his known sources of finance to purchase the land in the name of his wife. The prosecution has proved on record of this case the total known sources of the income of the appellant and also the property acquired by him in the name of his wife during his service. The prosecution has satisfactorily proved on the record of this case that the property held by Mst. Amir Sultana wife of Pir Muhammad accused was disproportionate to the known sources of income of Pir Muhammad accused who has failed to satisfactorily account for his pecuniary sources. As such a presumption of the guilt of criminal misconduct of the accused can be raised under subsection (3) of section 5 of Act No, II of 1947. As the prosecution satisfactorily proved on the record that the property acquired by Pir Muhammad appellant in the name of his wife was disproportionate to his known sources of income, it was necessary for the appellant to disclose and prove his other sources, if any, in support of his defence. I am, therefore, of the view that the learned trial Judge rightly convicted Pir Muhammad appellant under section 5(2) of Act No, II of 1947.
8. On the question of sentence I have considered the contention of the learned counsel for the appellant. It is correct that the appeal is being disposed of after about 12 years of the conviction of the appellant but as the interim orders of this appeal would show, Pir Muhammad appellant was himself to be blamed for this. The appeal was admitted and the appellant was allowed bail by suspension of his sentence by this Court on 2-4-1973. It was listed for arguments on 1-8-1977 when the counsel for the appellant was not present. Another counsel appeared on his behalf to state that the brief of the case had been misplaced. The appeal was adjourned and re-listed on 9-8- 1977 but the same could not be taken up as the learned counsel expressed his inability to argue the appeal for lack of preparation. It was then listed on 21-3-1984 but the appeal remained pending because the learned counsel for the appellant stated that he had no papers with him and as such could not argue the appeal. It was then listed on 24-4-1984 but the counsel who had appeared on behalf of the counsel for the appellant sought permission to be relieved of his duty to appear in this case. A notice was, therefore, sent to the counsel who had filed this appeal. No one appeared in this appeal on 17-6-1984 and 16-9-1984. Pir Muhammad appellant was present in person on 30-9-1984.
The case was thereafter adjourned and fixed by office for hearing on 11-12-1984 but no one appeared on behalf of the appellant. It was re-listed on 6-3-1985 but again no one was present on behalf of the appellant. His bail, was, therefore, cancelled and the appeal was fixed for presence of the appellant for 27-3-1985. No one appeared in this appeal on 27-3-1985, 10-4-1985 and 21-4-1985 when the appeal was fixed for presence of the appellant on 15-5-1985. In the meanwhile, the appellant filed an application for his bail which was allowed by order dated 6-5-1985. Thereafter this appeal was listed on 29-5-1985 and 24-6-1985.
9. In view of the above details, I am not prepared to allow any concession to the appellant in his sentence on the ground that the' appeal is being disposed of after 12 years of his conviction.
10. As a result of the above discussion, this appeal is dismissed. The conviction and sentence of the appellant is maintained. He is on bail. He will surrender to the authorities concerned to serve his unexpired sentence.