' Fazal Qadir appellant faced his trial before the learned Special Judge, Anti-Corruption on the charges under section 161, P.P.C. Read with section 5(2), Prevention of Corruption Act, 1947 and stands convicted thereunder and sentenced to undergo one year's R.I. And to pay a fine of Rs,1,000 or in default to further undergo six months S.I. Vide judgment dated 1-9-1988 of the learned trial Judge.
2. Briefly stated the facts giving rise to this appeal against his aforementioned conviction and sentence, are that on the report of Noor Akbar complainant (PW.1), Mohammad Alam Khan, Circle Officer, Anti-Corruption Establishment Peshawar (PW.6) registered a case vide FIR. No,7 dated 23- 71986, Police Station Anti-Corruption Establishment, Peshawar, to the effect that the appellant had demanded Rs,3,500 as illegal gratification for entering mutation pertaining to land measuring 13 Canals 12 Marla's purchased by him from one Taj Wali but the amount settled between them was Rs,300 which he was willing to pay.
3. After completing necessary formalities of requisitioning the services of a Magistrate to supervise the raid, the party, alongwith the complainant, left for Pitwarkhana situated in Faqir Abad, Peshawar. Having reached there the complainant went inside Patwarkhana and, after sometime came out alongwith the appellant on the road side where the members of the raiding party, including Ghazanfar All Khan Magistrate, were waiting. There the transaction of paying and accepting of illegal gratification of tainted money a pimtomg to Rs,3,000 allegedly took place, whereafter, on an agreed signal of the complainant the raiding party approached the appellant but the appellant threw away the tainted money which was picked up by PW. Noorzada and found to be the same currency notes were handed over by the Magistrate to the complainant for onward passing on to the appellant.
4. The Magistrate then examined the accused (Exh.PW.5/3) and prepared his raid report (Exh.PW.5/4) On the completion of rest of investigation, the accused was charge-sheeted by the learned Special Judge Anti-Curruption, Peshawar, to which he pleaded not guilty and claimed trial.
5. The prosecution, in support of its case produced as many as witnesses. The learned trial Court also examined one C.W. Who produced Mutations Nos.1076 and 1077 entered by the appellant on 22-7-1986 pertaining to the matter in issue which were later on verified by the Court witness on 25- 8-1986 and later attested on 20-9-1986. While examined by the trial Court under section 342, Cr.P.C.
The appellant admitted his being in service as Patwari in Halqa Gari Chandan in the year 1986. He denied to have demanded or recovered any money as illegal gratification from the complainant.
He also stated that the tainted money was being forcibly given to him which in fact has also been the statement of the appellant before the Raiding Magistrate immediately after the raid. He denied any recovery from him and pleaded that this trap is laid by the complainant at the instance of his friend Mewa Khan whose mutation was objected to by him (appellant) and he had arranged the issuance of warrant against Mewa Khan with regard to Abiana etc. He declined to produce any defence or to be examined on oath as his own witness.
6.The appellant has come up in appeal to assail the judgment of the learned trial Judge on the points of conviction as well as sentence. The State has also filed a revision petition for enhancement of the sentence of the appellant which was admitted and notice was duly issued to the appellant. Both these matters will be disposed of by this single judgment.
7. I have heard the learned council for the appellant Mr. Dost Muhammad Khan Durrani, and Mr. Tasleem Hussain, Advocate for the State. I have also gone through the whole record of the case with the assistance of the learned counsel appearing for the parties.
8. The learned counsel for the appellant tried his best to point out certain discrepancies between the statements of the prosecution witnesses but the same were too trivial to discredit them or to reflect on the prosecution version. He ultimately confined his arguments to the point that conversation between the complainant and accused at the time of raiding admittedly was not heard by the Magistrate and to rely on uncorroborated testimony of the prosecution witnesses, would not be in accord with the safe administration of justice in the case. Reliance was placed on Muhammad Salcem v. The State 1986 P Cr. L J 1615, Muhammad Abdullah v. The State 1986 P Cr. L J 1839 and Sultan Ali v. The State 1986 P Cr. L J 2324, which incidently are given by the same learned Single Judge of the Lahore High Court. On the other hand the learned counsel appearing for the State contended that the precedent cited on behalf of the appellant are distinguishable in view of the fact that the transaction of passing the tainted money to the appellant took place almost at the thoroughfare where the complainant and the appellant were quite visible to the members of the raiding party including the Magistrate. In this connection he referred to the statement of Mohammad Alam Khan (PW.6) whereby he has unshakeably affirmed that from the movements of their (appellant and the complainant) hands he came to know that the transaction between the appellant and the complainant had taken place. He along with the other members of the raiding party then approached the accused, S.I. Shah Dad caught him from his hand but he threw away the tainted money on the ground which was picked up by PW. Noorzada. Similarly a perusal of the statement of the learned Magistrate would reveal that he saw the appellant and the complainant coming out of Patwarkhana towards the road side and after a short while, on receiving a signal, the raiding party rushed to the spot and the appellant in his presence threw the notes on the ground. A reference to hire laid report (Exh.PW.5/4) prepared by Mr. Ghazanfar Ali Khan, Magistrate, on the spot, would disclose that he observed the complainant and the appellant coining out of Patwarkhana to the road side "there the accused received the amount" and added that all of them approached to the accused and when he saw us he threw the amount on the road side near his feet." He also affirmed that the currency notes were the same which were given to the complainant before the raid. The contention of the learned counsel for the State therefore appears to be carrying weight.
9. Moreover, every case, particularly the criminal case, has to be decided on its own merits and no yardstick can be used to measure the guilt of the accused. With respect to the learned Judge of Lahore High Court, the decisions relied upon by the learned counsel for the appellant, could not persuade me to agree with the proposition. I am of the view that it cannot be laid down as a principle of law that in every such case the audition of conversation between the complainant and the accuse by Magistrate or an officer of the Investigating Agency at the time of passing the tainted money, irrespective of the peculiar facts of the case and situation, is a Sine qua non for bringing home the guilt to the accused. In the instant case too, keeping in view the circumstanes, situation and location of the occurrence, it cannot be said that inability of hearing the conversation between the appellant and Noor Akbar complainant will, on the part of Magistrate or Investigating Officer, in any manner, prove fatal to the prosecution case.
10. I, therefore, hold that the prosecution witnesses are quite independent. They have faced the cross-examination successfully. Their statements do no suffer from such contradictions/discrepancies as to cast a doubt on their veracity and I am convinced that the learned Special Judge has rightly convicted the appellant. This appeal therefore fails and is hereby dismissed.
11. Regarding criminal revision filed by State for enhancement of sentence awarded to the appellant, punishment ander section 5(2) Prevention 'of Corruption Act is to the extent of seven years R.I. Or with fine of with both. Mr. Amjad Zia, learned counsel for the State has urged that on the question of quantum of punishment in corruption cases, superior Courts look rather unfavourable at the lenient view taken therein and submitted that in the circumstances of this case, the punishment awarded to the accused-respondent is hardly adequate. He relied on a judgment in case Muhammad Amin v. The State reported in PLD 1984 SC 343.
12. In the said case a Muharrir in the office of Deputy Commissioner, Lahore was convicted under section 161, P.P.C. And section 5(2) Prevention of Corruption Act 1947 and sentenced to two years R.I.
In appeal while his conviction was maintained, the sentence of two years was reduced to two months R.I. Mohammad Amin then filed a petition for Special Leave to Appeal and while dismissing the petition, their Lordship of the Supreme Court made observations which can be reprodued with advantage:- "There is a great hue and cry in the public that corruption is rampant in the country. This fact has even been acknowledged by the highest in the Government. It is not every day that an official of this type is caught red-handed or for that matter even reported against for demanding and the receiving bribe, because the poor litigant public who are fleeced by such minor officials in the District Courts, have no option but to comply with their demands. The fact is that it is very seldom that a person takes the courage of reporting the matter fearing, fistly, that he might jeopardize his position vis-a-vis the Court officials and secondly that he would unnecessarily be involving himself in the agony of another case. It is, therefore, a matter for regret that to risk taken and the efforts made by the complainant and the police to bring the petitioner to took have practically gone in waste. We feel that such persons, especially those (like the petitioner) who are employed as public servants in institutions dispensing justice, should be dealt with very severely, if and when they are caught and proved to be guilty. The evil of corruption can never be eradicated unless it is dealt with an iron hand. The punishments awarded by the Courts should be deterrent and not as light as has been awarded in the present case because such light punishments will not serve any purpose and only act as an inducement to other public servants who ask for and obtain bribes, because of the like feeling that even if they were caught, which is rare, the punishment likely to be awarded, would only be trivial."
13. In the instant case too, the appellant involved is a public functionary. He is a Patwari and as such comes in contact with many a person almost daily, who in connection with their numerous and multifarious jobs, are at his mercy. This section of public service, therefore, is at par with the Court functionaries and thus the principles relating to the quantum of sentence as enunciated in the aforementioned authority of the Supreme Court, shall be equally applicable in the case of appellant as well.
14. I have given serious consideration to the question of quantum of sentence in this case and I tend to agree with the learned counsel for the State that the sentence awarded to the petitioner cannot be said to be adequate. I, therefore, accept the revision petition filed by the State, and enhance the sentence of imprisonment from one year R.I. To three years R.I. And the fine is enhanced from Rs,1,000 to Rs,10,000 or in default thereof to undergo further eighteen months' R.I. .