This is an appeal by Ghulam Rasul who was a Revenue Patwari of Ghatey Phakni Circle in Tehsil Depalpur in the District of Montgomery (Sahiwal). He was convicted under section 161 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corrupion Act, 1947, for having received Rs. 200 as illegal gratification on 20th of April 1965, and was sentenced to rigorous imprisonment for one year by the order of Mahar Sher Muhammad Khan Sial, Special Judge, Anti- Corruption, Multan, dated 24th of September 1966.
2. The facts which furnished the foundation for the prosecution of the appellant are these Hidayatullah (P. W. 1) and his brother-in-law Nazir had purchased some evacuee land from Thakar Nazir Muhammad Khan by a registered sale deed dated 25th of February 1965. The appellant was approached for entering a mutation on the basis of the registered sale deed and he demanded Rs.
260 as illegal gratification. Hidayatullah paid Rs. 160 as part of the bribe money in the first week of April 1.965. The appellant told Hidayatullah that Naib--Tehsildar would be visiting Chaurasta on 30th 'of April 1965, for the purposes of the attestation of mutations and that he should arrange for the remainder of the bribe meoney, Hidayatullah met Shaukat Ali (P. W: 2) who was the Chairman of the Union Council No. 142, Rajowal, and told him that the Patwari was demanding bribe for entering a mutation, Shaukat Ali P. VV. In his turn told Hidayatullah that the Patwari was also demanding bribe from him for entering dertaln mutations. Shaukat Ali advised hind tp approach the Anti-Corruption Police: Hidayatullah saw Ch. Nemat Khan Circle Officer of the Anti-Corruption Police at Montgoitiery on 29th of April 1965: The A: D: M: deputed Ch, Wali Muhammad, Tehsildar Montgomery (P: W: 3) to conduct the raid. The Tehsildar recorded the statement of Hidayatullah Exh. P. A. In which he stated that the appellant was demand-- idg bribe from hint as well as front Shaukat Ali. It was decided that the complainant should meet the raiding party neat Khushk Beas on the next morning. Hidayatullah met the raiding party and took them to the sera of Shaukat Ali which is quite close to the place which the Naib-Tehsildar was expected to visit. The raiding party was taken to a back room of Shaukat Ali's bungalow where P. W. Hidayatullah produced ten currency notes of the denomination of Rs. 10 each. Their numbers were noted down in Exh. P. B. This Tehsildar then recorded the statement of Shaukat Ali P. W. Who produced a currency note of the denomination of Rs.
100. The notes were given back to the two witnesses for handing over to the appellant Both the witnesses went out and brought the appellant in the room which adjoined the back room where the members of the raiding party were sitting. The Tehsildar and Ch. Nemat Khan heard some talk about mutations and bribe but' could not give its particulars at the trial. Ch. Nemat Khan, however, saw through the chinks in the door the appellant actually receiving money from Shaukat Ali and Hidayatullah. The raiding party thereafter went into that room and the Tehsildar after disclosing his identity called upon the appellant to produce the money. The appellant produced the money from the left pocket of his shirt. Memo. Exh. P. H. Was prepared at the spot.
Another sum of Rs. 104 was recovered as a result of the personal search of the appellant and memo. Exh. P. M. Was prepared. The register of mutations which contained mutation No. 66 (Exh. P.
L) relating to the sale in favour of Hidayatullah and Nazir was also taken possession of. It has been entered on 18th of March 1965, but had not been put up for registration till the time of the raid.
3. The bribe money from Shaukat Ali was alleged to have been demanded by the appellant for entering certain mutations regarding sale of plots of land which Shaukat Ali had been selling in his own right as well as the mukhtar of his two brothers Muhammad Yunis and Niaz. The case of the prosecution was supported at the trial by the two bribe. Givers and two official members of the raiding party.
4. The appellant while making a statement at the time of the raid admitted the recovery of Rs. 200 from him but alleged that Hidayatullah Lambardar owned him Rs. 260 out of which he had paid him Rs. 45 a day earlier and Rs. 155 were paid to him just before the raid. According to the appellant, Rs. 60 were still owing from Hidayatullah. He denied that he had received any money from Hidayatullah or Shaukat Ali as bribe. He further stated that he had asked Hidayat--ullah that he should procure the presence' of Thakar Nazir Ahmad, the vendor, before the Naib-Tehsildar without which the mutation could not be attested.
While making his statement under section 342, Cr. P. C., the appellant took up the position that Hidayatullah had purchased a she-buffalo from Ch. Wali Muhammad Lambardar D. W. 2 for Rs.
480. Hidayatullah was not able to pay the whole price and promised to pay Rs. 260 afterwards. The appellant was appointed the intermediary for realising the amount. On the day of the raid, the appellant demanded from Hidayatullah Rs. 260 in the presence of Wali Muhammad Lambardar the seller of the buffalo. Hidayatullah took the appellant to the dera of Shaukat Ali who was also present there. Hidayatullah then handed over Rs. 200 to the appellant and promised to pay the remaining Rs. 60 later. He further asked the appellant to get a receipt for R1. 200 from Wali Muhammad Lambardar, but before this could ' be done, the raiding party came in. The appellant further alleged in the above statement that he had recorded a note in the copy of the fard jamabandi as well as in the mutation that litiga--tion was pending in respect of the land in question and it was on that account that Hidayatullah had trumped up of a false case against him.
An agreement dated 14-I 1-1964 between Nazir Muhammad and Nazir the brother-in-law of Hidayatullah was produced to show that the parties had agreed to postpone the transac--tion of sale of land for three months in order to remove the objection noted in the fard khata that an appeal was pending in respect of the land in dispute. This agreement was not formally proved at the trial but the learned Special Judge accepted it as a part of the defence evidence. He held that the defence of the appellant that he had entered an objec--tion in the mutation Exh. P. L. To the effect that it could not be attested because .Of the pendency of some litigation was not a fact. He further held that the agreement referred to above did not prove the plea of the appellant that Hidayatullah had got annoyed with him because of a note made in the faro malklat that an appeal was still pending, because Hidayatullah was not a party to the agreement, and the copy of the fard malklat was supplied to Nazir Muhammad the vendor who in view of the note postponed the execution of the sale deed till after January 1965. The land which formed the subject-matter of this agreement was purchased by Hidayatullah and his brother-in-law Nazir and the sale deed was executed on 25th of February 1965.
5. During the defence evidence, Abdul Ghafoor, Head Registration Clerk produced the copy of the Jamabandl issued on 9th of December 1964, and there were seven notes in red ink on it. Two of the notes i.e. 4 and 7 were placed on the file at the request of the learned counsel. According to Note No. 7, the vendor had stated at the time of the issue of the copy that no appeal against him was pending at the time. The learned Special Judge came to the conclusion that the objection regarding the pendency of an appeal had been raised in the fard malkfat issued on 14th of November 1964, but not in the fard issued on 9th of December 1964, on the basis of which the sale deed was registered. He held that on the day of the execution, no appeal was pending and that in the fard malkiat issued sub--sequently on 9th of December 1964, the appellant had clearly stated that according to the vendor no appeal was pending.
As to Shaukat Ali, the stand of the appellant was that he entered all the mutations that Shaukat Ali had asked him to do, but he alleged that Shaukat Ali belonged to the party of Hidayatullah and had acted at the latter's behest.
During the course of the evidence, the appellant attempted to make out a case that Shaukat Ali was also hostile to him. It was alleged that Shaukat Ali had entered into a lease transaction with one Mst. Ruquyya Begum who had filed an application Exh. D. F. Against Shaukat Ali on which the appellant gave an adverse note and as a result the mutation for lease was rejected. It was further put to Shaukat Ali that he had himself written the application Exh. D. G. On behalf of Mst. Ruquyya Begum and got her thumb-impres--sion on it without disclosing the contents. He was also asked whether he knew that the appellant had made a report adverse to Shaukat Ali on the back of this application. Shaukat Ali denied all knowledge of these applications and the learned trial Judge held that there was no evidence that Shaukat Ali knew about the adverse reports made by the appellant.
6. In order to prove that there was actually a. Transaction for, the sale of the buffalo, the appellant produced at the trial a ruqqa Exh. D. D. Which is alleged to have been written by Hidayatullah P. W.
To the appellant for payment of Rs. 50 to Wali Muhammad D. W.
2. This was obviously done to support the plea of the appellant that he was an intermediary with regard to the alleged sale of buffalo by Wali Muhammad to Hiadyatullah. Hidayatullah was shown the ruqqa in this connec-- tion, during his cross-examination, but he denied his signatures and stated that he was illiterate and could not read its contents. The signatures on the ruqqa were examined by Mr. Muhammad Ali Anwar Nomani Handwriting Expert (D. W. 6) and were com--pared with the admitted signatures of Hidayatullah on his statement Exh. P. A. And memo. Exh. P. B. According to the learned Special Judge the Expert witness, Mr. Nomani, hopelessly failed to show any similarity in the disputed and the admitted signatures. The learned trial Judge came to the clear conclusion, that the signatures on ruqqa Exh. D. D. Were not that of Hidayatullah.
7. The appellant produced seven defence witnesses at the trial. Ahmad Din (D. W. 1) stated shat he had given a secret information to the Director Enforcement Staff against Thakar Nazir Muhammad as a result of which allotment of 132 acres of land was cancelled. The witness claimed that he had filed an appeal which was pending in the Court of S. D. M., Pakpattan and the next date was fixed as 11th of August 1966. This witness also stated that Hidayatullah and the appellant had a row over the question as to whom the batai was to be paid by the tenants. Wali Muhammad (D. W. 2) appeared to support the defence plea with regard to the transaction of the sale of a buffalo to Hidayatullah by this witness. Mst. Ruqayya Begum (D. W. 3) appeared to state that she had sent applica--tion Exh. D. F. Against Shaukat Ali to the revenue authorities. She also denied that she had ever written application Exh. D. G. Or thumb-marked it. Ahmad Nawab Khan (D. W. 41 produced the file of the rejected mutation which was entered with regard to the lease. Transaction between Shaukat Ali and Mst. Ruqayya Begum. He also produced the report of the appellant on these applications.
Qurban Rasul (D. W. 5) and Muhammad Hussain (D. W. 7) stated that on the day of the occurrence the appellant had demanded a sum of Rs. 260 from Hidayatullah. Muhammad Hussain further stated that Hidayatullah, had paid Rs. 200 to the appellant which money was later on recovered by the Raiding Magistrate. As mentioned earlier, D. W. 6 Mr. Nomani is the Handwriting Expert, who has stated that the signatures of ruqqa Exh. D. D. Were that of Hidayatullah.
8. Mr. Arif Iqbal Husain Bhatti, the learned counsel for the appellant, made two submissions. In the first instance, he submitted that the proceedings of the raid party were inadmissible in evidence because the investigation in the case had started as soon as Hidayatullah informed the Circle Officer and the Magistrate that bribe was being demanded from him: He relied on the majority judgment in Ghulam Abbas v. State (1). The second contention of the learned counsel was that the evidence of Hidayatullah and Shaukat Ali was inimical and should not be accepted without corroboration. He, in this connection, cited a number of judgments
9. The first contention raised by the learned counsel may be disposed of by reference to Muhammad Sarwar v. The State (2) in which the case relied upon b the learned counsel was overruled. It was observed by their Lordships of the Supreme Court that the majority view expressed in Ghulam Abbas v. A The State was not legally sustainable and was not in confor--mity with the provisions of Chapter XIV of the Criminal Procedure Code.
10. As to the second contention of the learned counsel, it may be stated that the evidence does not reveal that Hidayatullah and Shaukat Ali were in4icaily disposed to the appellant. It is true that Shaukat Ali teas a candidate for election to the
(1) PLD 1968 La h. 101(2) PLD 1969 SC 278 Basic Democracy as against one Sharif, and Bidayatullah was a protagonist of Shauhat Ali. It is also borne out from the record that Shaukat Ali was an attesting witness of the agree--ment of sale which was ultimately incorporated in mutation Exh. P. L. These facts do indicate some mutual cordiality between Shaukat Ali and Hidayatullah, but there is nothing to warrant the conclusion that they had any reason to involve the appellant in a false case. Actually, the appellant did not suggest anything against Shaukat Ali during his, statement before the Tehsildar at the time of the raid or his statement made before the Court under section 242, Cr.P.C. The reports made by him on application Exh. D. F. And D. G. Have not been proved to be in the knowledge of Shaukat Ali. Actually, Shaukat Ali was never summoned during the muta--tion proceedings which related to lease transaction between himself and Mst. Ruqayya Begum The report of the appellant, on the back of application Exh. D. F. Suggests that only Mst. Ruqayya Begurn should be called. She also did not appear and the mutation was rejected: -
11. As for the alleged -motive of Hidayatullah to falsely involve the appellant, the plea of the appellant has been rightly rejected. It has come in evidence that the objection regarding the pendency of the appeal bad been raised in the ford malklat issued on 14th of November 1964, but there is no such objection on the fard malkiat dated 9th of December 1964, on the basis of which the sale deed was executed. The plea of the appellant that he had raised a similar objection in Exh.
P. L. Has been found to be factually incorrect by the learned Special Judge. There are seven notes in red ink but there is no mention of the pendency of any appeal with regard to this land in any of these notes.
12. The prosecution case- has been proved by the testimony of Shaukat Ali and. Hidayatullah and the fact that the appellant received Rs. 100 from each of them is corroborated by the evidence of Ch. Nemat khan Circle Officer (P. W. 4) who actually saw through the chinks of the door the money being passed to the appellant. The Tehsildar and the Circle Officer both stated that there was some talk about the muta--tions and the bribe money, although they were not able to reproduce the exact nature of the conversation. The defence plea of the appellant has not been quite consistent to start with. In his statement at the time of the raid, he did not refer to any transaction regarding sale of a buffalo between Wali Muhammad D. W. And Hidayatullah - P: W. He only claimed that Hidayatullah owed him Rs. 260 out of which he paid him Rs.45 earlier, and the rest of the money was paid on the day of the raid. At the trial, however, he built up the story regarding the sale of buffalo by Wali Muhammad to Hidayatullah. It is to be noted that in his statement under 'section - 242, Cr. P. C. He did not refer to the fact that be had received a ruqqa from Hidayatullah for payment of Rs.50 to Wali Muhammad. We also find from the statement of the appellant that on the day of the raid Wali Muhammad was present when money was allegedly demanded from Hidayatullah. If Wali Muhammad was present at that time, the money should have been paid there and then because Wali Muhammad was the person more concerned with -the payment of money.
There would have been no occasion for the appellant to leave Wali Muhammad behind and accompany Hidayatullah and Shaukat Ali to the room wherefrom the raiding party recovered Rs.
200 from the pocket of the appellant. I therefore, find that the appellant was rightly convicted.
13. The question of sentence, however, confronts some difficulty. The appellant was convicted on 24th of September 1966, and was bailed out by this Court by order dated 4th of October 1966. It means that he has remained in jail for about 11 or 12 days. This sentence is definitely inadequate in view of the nature of the crime of which the appellant has been found guilty. It is, however, submitted that it would be rather harsh to send the petitioner to jail to serve the rest of his sentence after the lapse of about three years. The appellant has lost his job as a result of his conviction and has been waiting for the disposal of his appeal for the last three years. In the circumstances of the case, I reduce the sentence of imprisonment to that already undergone but impose a fine of Rs. 1,000 on the appellant. In case of default in the payment of fine, he shall undergo rigorous imprisonment for ten months.