Appellant Habibur Rehman Chishti has come to appeal against his conviction under section 161, P.
P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to six months'
R. I. And fine of Rs. 500 or in default further six months' R. I. By judgment of Mr. Mushtak Ali Kazi, Special Judge (Central), Karachi dated 17-4-1969.
2. Briefly the facts are that the appellant was employed as Assistant in Pakistan P. W. D. Karachi and used to deal with establishment matters concerning Class 1V servants. In January 1968, there was a proposal to transfer, Lahore Central E/M Division, from Karachi to Quetta, under which a list of the staff' to be transferred was prepared. One Tufail Ahmad, a Daftary belonging to Class IV star was also included in the proposed list of transferees. This man was working in those days in Circle Office of Pakistan P. W. D. Under the administrative control of the appellant. Tufail Ahmad made representation in writing against his proposed transfer soon through the Head Office to the Executive Engineer which was forwarded to the Central Office. It is alleged that thereafter, he approached the appellant in this connection. He made request for not including his name for 3-4 times to the appellant and finally on 29-1-1968, when he went to appellant for this purpose he demanded Rs. 100 as illegal gratification for showing him favour on which Tufail Ahmad is alleged to have shown his inability to pay Rs. 100 as demanded; however, the appellant it is alleged have agreed to accept Rs. 6U in two instalments of Rs. 30 each. First instalment was to be paid on the very day at 11-30 a.m. Outside Pakistan P. W. D. Office Block. Tufail Ahmad went straight to Inspector Munawar Ali, whose office was nearby and made a written complaint which was recorded and the Inspector gave him three ten-rupee notes after entering the numbers of those notes in a memorandum in presence of two mashirs, one of them was Ghulam Ali who was asked to accompany the complainant Tufail Ahmed while the other mashir followed with the raiding party beaded by the Inspector. At the appointed time appellant met Tufail Ahmed outside the office, and took him nearby canteen at 100 paces' distance. Thereafter, he and the mashir went inside the canteen and sat with the appellant and ordered for tea. Mashtr Ghulam Ali was introduced by the complainant Tufail Ahmed as his relation. Inspector Munawar Ali and his patty came and sat on a nearby table in the canteen. The appellant promised to help Tufail Ahmed in presence of Mashir Ghulam Ali. He then took out the three marked currency notes and handed over to him. At the same time he gave a signal to the Inspector by raising his hand against his forehead. The Inspector came there, disclosed his identity and asked mashir Ghulam Ali to search the person of appellant who recovered Rs 30 from his pant pocket. The numbers of these notes also tallied with the numbers already entered in the mashirnama by the Inspector and handed over to the complainant. The recovery memo was prepared. The appellant was taken to the Pakistan P. W. D.
Office and papers relating to complainant Tufail Ahmed were taken possession from Pakistan P. W.
D. Office by the Inspector. After necessary sanction from the Government the appellant was charged and was tried and convicted as stated above.
3. The appellant pleaded not guilty to the charges. He produced five witnesses in his defence. In his statement before the trial Court he stated that he had not demanded any illegal gratification from complainant Tufail Ahmed nor had accepted Rs. 30 as alleged. He further stated that he was taking tea in the canteen along with D. W. H. Rahman, Tufail Ahmed came there and requested him for cancellation of his transfer. He replied to come to office, while he was leaving the canteen, police party came and caught hold of him. The money was lying on the floor and was picked up by the Inspector. He pleaded that Tufail Ahmed involved him in this case as a result of conspiracy as they were not satisfied with him.
4. I have heard Mr. Nasir Shahmir, Advocate for the appellant and Mr. Murtaza Hussain, Advocate for the State. From the statement of appellant made under section 342, Cr. P. C. It is quite clear that he admits his presence in the canteen on the day of incident and also his being apprehended and searched by the police party and the recovery of Rs. 30 although not from his possession but from the floor under the table where he was sitting along with Tufail Ahmad complainant and another person. It is also admitted by him that complainant did make representation to him for cancellation of his proposed transfer with regard to which a covering letter and his application was forwarded to him but not the original application. He does not show any enmity with the Inspector Munawar Ali, all he says is that the case was set up against him due to a conspiracy among the Class IV staff that they were not satisfied with him.
5. P. W. 4 complainant Tufail Ahmed with regard to his offering Rs. 30 in the canteen to the appellant is supported in all material facts by Ghufran Ali P. W. 5 who acted as a mashir and took out the notes from the pocket of the appellant. Then we have the statement of P. W. 6 Munawar Ali, Inspector, S. P. E., Karachi, who arranged and headed the raiding party and investigated the case.
His statement corroborates the statements made by P. W. Ghufran Ali and Tufail Ahmed. The learned trial Judge believed the statements of these prosecution witnesses, in view of the clear admission on the part of the appellant with regard to the incident and his being asked by the complainant for showing favour with regard to his transfer to Quetta of which he admittedly has knowledge and also his admission that the money recovered from the floor under the table where he was sitting with the complainant, I have no reason to disagree with the conclusion reached by the learned trial Judge.
6. The learned counsel for the appellant attempted to argue that the sanction for trying the appellant was not in accordance with law; therefore, the trial was invalid. He however, failed to satisfy me that what particular provision of law with regard to sanction has been violated: The appellant was duly apprehended by the Police Inspector of the relevant Department authorised under the law; therefore, I do not see any substance in the objection. No case-law however, was cited by the counsel for the appellant to the contrary. No doubt, normally, al Magistrate has to accompany the raiding party but absence off Magistrate objected by the counsel for the appellant itself does not make the conviction invalid particularly so when there is abundant evidence to bring home guilt to the defaulting Govern--ment servant and no case-law has been cited to show that absence of Magistrate renders the conviction illegal.
7. The statements of defence witnesses Habibur Rehman, Shahid Hussain, Muhammad Ramzan and Noor Ahmad in my opinion in no way are helpful to the appellant and rightly disbelieved by the trial Court. Statement of D. W. 1 Habibur Rehman instead of helpful to the appellant in fact is against him because he states that he was sitting with the appellant in the canteen. He was approached by Tufail Ahmed to show him the favour with regard to his transfer and when they were leaving one man entered the canteen and gave .a slap to the appellant and asked him to pick up the currency notes which were seen lying on the floor. He further stated that he did not know from where the notes have come. This witness cannot be believed first of all that he is an Assistant and colleague of the appellant in the Same Department and secondly it is unbelievable if he was telling the truth that who put the notes on the floor where he was sitting because it cannot escape his attention if a stranger had thrown the notes under the table where he was sitting. In fact his presence in the canteen becomes doubtful. D. W. 2 Shahid Hussain states that he was reading newspaper in the canteen. He heard noise of some slapping and then saw three notes lying on the floor and appellant was being ordered by the Inspector to pick them up. He however, admits in cross- examination that the numbers of the notes were the same as of mashtrnama which he compared and he was sitting alone on a different table. Statement of this witness is of no consequence he must have been busy if he was telling the truth in reading the newspaper he could not have seen the proceedings at a distance. Equally the statement of P. W. 3 Mohammad Ramzan, hotel manager is of no value to the defence because he says that 3-4 persons came inside the canteen and sat at different tables, they also ordered tea, and he had taken the articles back to the kitchen.
On hearing the noise he came and found Inspector asking the appellant to pick up currency notes from the floor therefore, he could not have led precisely what happened and how the tainted money was passed to the appellant. D. W. 4 Noor Ahmed, Superintendent 4. P. W. D. Was produced for the purposes to show that the complainant bad sometime earlier filed a false certificate mis-- quoting his age to save him from his retirement. He not being the witness of incident, the previous alleged conduct of the complainant in no way in my opinion absolves the appellant from his guilt.
A prayer was made by counsel for the appellant at the end of the arguments that a lenient view may be taken with regard to the sentence of the appellant who has some 20 years' service to his credit and since then is out of job. I accept this submission of the counsel for the appellant particularly so that the offence pertains to the year 1968 and he has definitely suffered sufficient hardship and mental torture during the trial and the decision of the case. I am of the opinion that it will meet the ends of justice if the sentence of imprisonment is remitted, but the appellant has to pay the fine of Rs. 500 imposed by the trial Court within two months and in default he has to undergo 3 months' R. I.
8. Subject to modification in sentence for the reasons shown above, this appeal stands dismissed.