1. ' The appellant was charged and tried under section 161, P.P.C. Read with section 5 of Act II of 1947, before the learned Special Judge, Anti-Corruption (Provincial), Karachi, who convicted and sentenced him to suffer R.I. For three months, and to pay fine of Rs,1,000 or in default to undergo further R.I. For one month vide judgment, dated 19th October, 1987.
2. ' The brief facts of the prosecution case are that on 12-1-1984, one Hamid Ali lodged a report before the Inspector Anti-Corruption Police inter alia alleging therein that:- "I am working in K.D.A. As helper, and my posting is at Pump House situated at Board Office, North Nazimabad, Karachi. In the year 1983, Water and Sewerage Board was established in which the staff of K.D.A. And K.M.0 were included and my services were transferred to the Water and Sewerage Board. In the months of June and July 1983 I got leave for 41 days due to which my salary was withheld. After returning from leave I got my salary bill prepared for the months of June and July from North Nazimabad Office, Karachi, and it was sent to K.D.A. Office, situated at Co-operative Market, Saddar, Karachi but my salary bill has not yet been passed uptil now and since then it is lying with Muhammad Ali Clerk K.D.A. Co-operative Market, Saddar, Karachi. That Muhammad Ali is not sending my bill to the Head Office of Water and Sewerage Board. I have met the said Clerk many times in connection with my salary bill but on every meeting he kept me on false promises.
3. Yesterday, on 11-1-1984 at about 11-00 a.m. I visited Muhammad Ali, clerk at K.D.A. Office and requested him to send my bill on which he asked me that if I pay Rs,300 as bribe, he would send my bill after necessary processing to the Head Office for passing the bill. I asked Muhammad Ali that I am a poor helper and cannot give you that much amount, whereupon, Muhammad Ali told me that if I do not give him Rs,300 my bill will not be sent to the Head Office. Ultimately, I promised to pay him the said amount after arranging the same. He asked me to bring Rs,300 on the following day i,e, on 12-1-1984, upto 2-00 p.m. And after processing my bill he will send it to the Head Office."
4. ' The F.I.R. Has been produced as Exh.14. After recording the F.I.R., Abdul Hameed Inspector A.C.E.
5. Requested Mr. Lilaram A.C.M. Through S.P. Anti-Corruption, Karachi, to supervise the trap proceedings in this case. He also sent case for witnesses Shahid Najjam and Azmat Ali for acting as Mashirs. The Magistrate came to the Anti-Corruption Office at about 12-00 noon. He produced the complainant alongwith copy of F.I.R. Before Magistrate who verified the contents of F.I.R. From the complainant. Thereafter, he gave Rs,300 to the complainant as tainted money in presence of Mashirs Shahid Najjam and Azmat Ali. After preparing such Mashirnama which has been produced as Exh.6, the numbers of notes were noted in the above Mashirnama. He then went to the office of the accused alongwith Magistrate Mr. Lilaram, complainant and Mashir Shahid Najjam. He sent the complainant to the office of the accused for handing over the money to the accused on demand.
6. Mashir Shahid Najjam was also asked to go with the complainant for witnessing the transaction.
7. They also followed the complainant. The complainant and Mashir Shahid Najjam went inside the room where the accused was sitting. The Magistrate stood near the door of the room in which the accused was sitting, while Investigating Officer and Mashir Azmat Ali stood at different places near the room. After a shortwhile, complainant and accused came out alongwith Shahid Najjam and went towards the right side of the room. They were followed by Magistrate and others, while going towards another room, Mashir Shahid Najjam gave them pre-arranged signal on which Mr. Lila Ram A.C.M., Investigating Officer, Mashir and other members of the party reached towards the accused. By that time, the accused entered in the room of Accounts Officer Shaukat Azad. The Inspector and Magistrate went inside the room and disclosed their identity. They asked the accused to take out money which he had taken from the complainant on which the accused took out Rs,200 from the left side pocket of his shirt and handed over the same to them. The complainant told them that the accused has made concession and charged from him Rs,200 only.
8. They compared the numbers of the notes of Rs,100 each secured from the possession of the accused with the numbers mentioned in the Mashirnama Exh.6, and found them to be the same, which were secured under Mashirnama Exh.7. Imestigating Officer arrested the accused and took his personal search. He secured various articles from the accused and prepared such Mashirnama which has been produced as Exh.11. The complainant returned two notes of Rs,60 each which were secured by the Investigating Officer. The complainant produced supplementary bill and pay slip which the accused had given him which was secured under Mashirnama, and the same has been produced as Exh.1. The supplementary bill has been produced as Exh.10, then the accused and the witnesses were brought to the Anti-Corruption Office, further statement of the complainant was recorded. The Investigating Officer also examined Shahid Najjam and Azmat Ali. The Magistrate prepared raid report and handed over its copy to Investigating Officer Abdul Hamid. On 15-1-1984, he examined Shaukat Azad. After completing the investigation, he obtained necessary sanction through S.P. Anti-Corruption, and the same has been produced as Exh.18. On 14-4-1984 accused was challaned before the Court.
9. ' A formal charge was framed against the accused to which the accused pleaded not guilty.
10. ' At the trial prosecution examined Mr. Lilaram A.C.M., Karachi, P.W.1, complainant Hamid Ali P.W.2, he has produced the F.I.R. As Exh.14, Shaukat Ali Azad, Accounts Officer, Water Management and Sewerage Board, Karachi, P.W.3, and Mr. Abdul Hamid Inspector A.C.E., Karachi, Investigating Officer, P.W.4.
11. ' After close of the prosecution case, the statement of the accused/appellant was recorded under section 342 in which he denied the allegation. He also examined himself on oath as envisaged by section 340(2), Cr.P.C. He also examined Javed Iqbal D.W.1, and Muhammad Yousuf Wireman D.W.2.
12. ' The learned trial Judge after taking into consideration the evidence produced by the parties, has convicted the appellant as described above, and the present appeal is directed against the above judgment of conviction.
13. ' Complainant Hamid Ali P.W.2, has fully supported the contents of his F.I.R. And the prosecution case. He has further deposed that he, Judge, witness Shahid Najjam, and one other witness whose name he did not remember and the police staff came alongwith Investigating Officer to the office of K.D.A. He and Mashir Shahid Najjam came to the room where the accused was sitting. The Magistrate was standing at the gate of the room. The Inspector and other witnesses were standing outside the room. Accused inquired from him, if he had brought money with him. He replied in affirmative. After finishing the work the accused took out the bill and gave it to him. Thereafter, he and accused came out and went towards the room of Shaukat Azad. The accused demanded money from him, he took out Rs,200 and gave the same to the accused. He had given two notes of Rs,100 to the accused out of the tainted money. The accused kept Rs,200 in the pocket of his shirt, at that time, the Judge was standing at the distance of five feet from him. After taking money accused went inside the room of Shaukat Azad, he was standing outside the office of Shaukat Azad. After the accused had gone inside the office of Shaukat Azad, the Judge gave signal to the police, and the police along with the Judge went inside the office of Shaukat Azad. He did not know what had happened in the office of Shaukat Azad. He had returned the remaining amount of Rs,100 to the Inspector. He had given the pay bill and other papers to Inspector A.C.E. Which accused Muhammad Ali had given to him. The papers consisted of joining report, office order, pay slip and the fixation of pay orders. Papers Exh.10 were the same. Thereafter, the accused was arrested. His further statement was recorded. In cross-examination he has deposed that three/four persons were also sitting in the room in which the accused was sitting. Shaukat Ali was not known to him prior to the incident. He has denied a suggestion that accused Muhammad Ali produced him before Shaukat Azad before 12-1-1984 and had informed Shaukat Azad that he had threatened the accused to involve in some cases. He has also denied a suggestion that he had quarreled with accused Muhammad Ali in the first week of January, 1984. The tainted money was given to him in the office of the Anti-Corruption. There were about six tables lying in the room in which the accused was sitting. He had gone to the accused for 4/5 times. Prior to this, he had been getting his salary regularly and he had not felt any necessity to meet the accused. He has denied a suggestion that the accused had not demanded money from him, or that he had not given Rs,200 as bribe to the accused. He has also denied a suggestion that he had implicated the accused false case on account of his quarrel with him.
14. ' Mr. Lilaram, Additional City Magistrate, P.W.1 has fully supported the prosecution case on the point of payment of tainted money to the accused and consequent recovery. According to him, Mashirnama was prepared at the time of handing over the tainted money to the complainant in which numbers of notes were also mentioned and the same has been produced by him as Exh.6.
15. The amount of Rs,200 was recovered from the pocket of the shirt of the accused, Mashirnama was prepared by the Inspector Anti-Corruption, which was signed by him as well, and the same has been produced as Exh.7. He has further stated that on inquiry the complainant had stated before them that accused had demanded Rs,200 from him and, therefore, he had given him Rs,200 and the remaining amount of Rs,100 was handed over by him to the Inspector under Mashirnama, which has been produced as Exh.8. The complainant had produced supplementary pay bill, joining report, pay slip and office order, before the Inspector which was given to the complainant by the accused and the same were secured under Mashirnama which has been produced as Exh.9. In cross-examination, he has deposed that Mashirnama Exh.11, does not show that Inspector had secured Rs,200. Likewise, Mashirnama Exh.8 does not speak about the document Exh.8 produced by the complainant before the Inspector, Mashirnamas Exh.6, Exh.7 and Exh.9 were not prepared in his office. He had seen 3/4 persons more, doing the office work and sitting on the chairs where the accused was sitting. He has denied a suggestion that he had not seen the transaction. The accused was wearing Shalwar and Kamiz. Mashirnamas Exhs.8 and 9 do not show the place where the same were prepared. He has denied a suggestion that he was supporting the prosecution on account of instructions from the Government to co-operate with the Anti-Corruption Department.
16. He has also denied the suggestion that he had not seen the transaction nor the tainted money was secured in his presence.
17. ' Shaukat Azad P.W.3 has deposed that in the month of January, 1984, he was working as Accounts Officer in Water Management and Sewerage Board, Karachi. Their .Office was situated in Saddar Co-Operative Market Building, Karachi. He knew the accused present in Court. He used to work as Auditor under him in the same office. He used to deal with the pay bills of the staff. Supplementary salary bill of complainant, Hamid Ali in Court, for the months of July and August, 1983 Exh.10 was audited by accused Muhammad Ali on 9-11984. It was passed by him (witness) on 10-1-1984. After this bill was passed by him it was to be sent to Audit Department but it was not sent to the Audit Department. On 12-1-1984, he was present in his office when accused had come to him in his office at about 1-00/1-30 p.m. The accused was followed by one person who disclosed that he was Magistrate and told the accused that he was under arrest, as he had taken illegal gratification from complainant Muhammad Ali. Immediately thereafter, Inspector, his other staff also came there. The Inspector arrested the accused and secured Rs,200 from the front pocket of his shirt. He compared the numbers of notes, secured from the pocket of the accused with the numbers written on some papers. The Inspector had also taken personal search of the accused and secured some money from the pocket of the accused. Thereafter, the accused was taken away. In cross- examination, he has deposed that there is general complaint in their office that the staff working in their office had been giving threats to the Auditor to pass their pay bill without any loss of time. He did not recollect if accused Muhammad Ali had complained to him about the complainant Hamid Ali on 12-1-1984. He did not recollect having told Hamid Ali that if he had complained about the staff he should have complained to him rather than giving threats to the staff working under him. After recovery of Rs,200 from the pocket of the accused, the police did prepare some document in his office. His signature was riot taken by the police on any paper. Nobody had come in his office at the time of incident when the accused was arrested. The Magistrate was not known to him prior to the day of incident. He did not remember as to afte'r how many days of the incident his statement was recorded. He has denied a suggestion that he was told by S.P. Anti-Corruption to implead the present accused, otherwise he would be arrested. He has denied a suggestion that he was kept under detention by the Anti-Corruption Police. He has denied that he was giving false evidence against the accused.
18. ' The evidence of Inspector Abdul Hameed A.C.E. Investigating Officer P.W.4 has already been mentioned in the earlier part of this judgment.
19. ' As far as the evidence produced by the appellant/accused was concerned, he has deposed that he was working as Senior Clerk in Water Sewerage Board and his duty was only to make entry in the pay register. The complainant had come to his office in 1984, he had brought pay bill and asked him to pass it after making necessary entry in the relevant register. He sent the bill to Shaukat Azad, Accounts Officer who told that the bill was wrongly prepared and he should return the bill to the complainant. He told Hamid Ali that bill was not correctly prepared and it could not be passed.
20. Hamid Ali told him to pass the bill otherwise he will see and then he went away leaving the bill with him. He took the bill again to Shaukat Azad for getting covering letter signed by him. While he was going towards the office of Shatikat Azad, Complainant forcibly put money in his pocket, in the meanwhile Anti-Corruption Officer came there and arrested him. He had arrested Shaukat Azad, as well. He was then brought to the City Court. His personal search was taken there. Rs,300 and Sui gas bill was recovered from his pocket. The Magistrate was present there who allowed Shaukat Azad to go away and he was kept behind the bars. Some documents were prepared in the office of the Magistrate but he did not know the nature of documents. He had signed those documents, again stated that he had not signed any document. Nothing was secured from his possession. He was innocent and was falsely implicated in this case. Hamid Ali had foisted the false case against him as his bill was not passed. In cross-examination he has deposed that it was the function of Shaukat Azad to pass the bill. The bill of Hamid Ali Exh.10 in Court was passed on 10-1-1984. He has denied a suggestion that the bill was passed by Shaukat Azad. He had to send the bill to the Audit Department for necessary action. He has denied that he had demanded money from Hamid and told him that unless he pays the amount he will not send the bill to the Audit Department. He has denied that he accepted Rs,200 from Hamid Ali as illegal gratification. He has denied that tainted money was secured from his possession in presence of Magistrate. He did not have any enmity with Anti-Corruption Officer. He had no enmity with the Magistrate. The forwarding letter was attached to the bill. The bill Exh.10 was not secured from his possession at the time of his arrest. He had not made any application to any superior Officer that he had been falsely implicated in this case but had verbally reported to Shaukat Azad.
21. ' Javed Iqbal D.W.1, has deposed that he knew accused Muhammad Ali since last 14 years. The accused had worked with him in K.DA. In December, 1983, he had gone to the Accounts Department, Water and Sewerage Board, where he met the accused. The accused used to work in Establishment Section of Water and Sewerage Board. When he visited the accused he found that the accused was having a quarrel with one person by name Hamid Ali. Hamid Ali told the accused that if he would not do his work, it would not be good for him. He did not know if the accused was subsequently involved in this case. In cross-examination he has deposed that in the month of December, 1983, he used to work in billing and recovery department of Water Sewerage Board, situated at Kiani Road. At that time, the office of the accused was situated at Saddar two miles away from M.R. Kiani Road. He used to work in Head Office while the accused used to work in Branch Office. Whenever, there is work in subordinate office, they call the concerned clerk from there to the Head Office. He has denied a suggestion that he had not gone to the office of the accused in the month of December, 1983. He has also denied that Hamid Ali was not known to him.
22. He has denied that he was giving false evidence to save the accused as he was his friend.
23. ' Muhammad Yousuf, Wireman, D.W.2, has deposed that he knew the accused who resides in his Mohallah. He is Electrician. He had carried on work of electric fitting in the house of the accused. He had gone to the office of the accused to take his bills for the work done by him in the house of accused. He found one person there with whom the accused had exchange of hot words. That person told the accused that he would not allow him to work in this office or a long time. He (witness) had demanded money from the accused who told him that he will give him the same at his residence. After about a month, the accused told him that the person with whom he had exchanged hot words had involved him in a false case. In cross-examination he has deposed that he did not inquire from the accused as to why that person was exchanging hot words with the accused. The said incident had taken place on 7th/8th December, 1983.
24. ' I have heard Mr. MA. Kazim, learned counsel appearing for the appellant, Mr. Imam Bux Sheikh, learned counsel appearing for the State, and have gone through the R&P of the case.
25. ' It was contended by Mr. MA. Kazim, learned counsel appearing for the appellant that the prosecution story was absurd, unnatural and unbelievable inasmuch as when the appellant had demanded Rs,300 as illegal gratification, then how he agreed to accept Rs,200. That the complainant had quarrel twice or thrice with the appellant before the incident and, therefore, he was implicated falsely. That the evidence produced by the prosecution was contradictory and the learned trial Judge had erred in convicting the appellant.
26. ' Mr. Imam Bux Sheikh, learned counsel appearing for the State has contended that the prosecution story was natural, and reliable. That P.Ws. Mr. Lilaram, Shaukat Azad and Investigating Officer had no enmity with the appellant to implicate him falsely. That the prosecution had proved its case beyond reasonable doubt and the appellant was rightly convicted.
27. I have considered the contentions of the learned counsel. The evidence of Mr. Lilaram, A.C.M., complainant Hamid Ali, Shaukat Azad and Inspector Abdul Hameed, Investigating Officer, appears to be consistent, straightforward, natural and reliable. In spite of long cross-examination, their evidence has not been shattered in any way. Appellant has not alleged any enmity with Mr. Lilaram, Additional City Magistrate, Shaukat Azad and Investigating Officer Abdul Hamid. Shaukat Azad was Immediate Officer of the appellant, and he had no reason to give false evidence against the appellant. As far as complainant Hamid Ali was concerned, it was suggested that he had a quarrel with the appellant and two defence witnesses have been examined on this point, but defence evidence appears to be interested, and unreliable. Inasmuch as the two witnesses were the chance witnesses and they were connected with the appellant. The natural evidence of clerks working in the same office with the appellant was not produced. The pay bill and pay slip show that the bill was passed on 10th, while the pay slip was signed on 11th and, therefore, the explanation of the appellant that Shaukat had refused to pass the bill and had asked him to return the same to Hamid Ali for correcting it and that on the day of incident he was going to Shaukat Azad for obtaining covering letter from him was absurd on the face of it. In additional hereto, the pay bill and pay slip were handed over to complainant by the appellant and the same were produced by the complainant before Inspector and Magistrate immediately after the arrest of the appellant It was not suggested to Mr. Lila Ram, and Investigating Officer that the amount of Rs,200 was foisted on the appellant. The mere fact, that the appellant had demanded Rs,300 but later on accepted Rs,200 will not make. The prosecution case doubtful, and therefore, the first contention of Mr. M.A.
28. Kazi, learned counsel appearing for the appellant that the prosecution story was unnatural was untenable.
29. ' Adverting to the second contention of Mr. MA. Kazi, learned counsel appearing for the appellant that the case was false and the appellant was implicated because he had quarrel with the complainant Hamid Ali twice or thrice, I have already observed that the defence evidence was unnatural, interested, and the defence witnesses were chance witnesses. No witness was examined from the office of the appellant to show that there was any exchange of hot words between the complainant and the appellant before the day of incident. Moreover, no document has been produced to show that the complainant had ever approached the appellant for any other work previously except the payment of his bill in respect of 43 days. Even otherwise, the enmity alleged was not such which could prompt the complainant to file a false case against the appellant.
30. ' Adverting to the third contentions of Mr. MA. Kazi, it will suffice to say that he was not able to point out any material contradiction in the evidence of the witnesses except regarding the signal given by the Mashir and the Magistrate to Anti-Corruption Inspector. According to Mr. Lilaram A.C.M. He had asked one of the Mashirs namely Shahid Najjam to give signal to the police whereas according to the complainant Hamid Ali after the accused had gone inside the office of Shaukat Azad the Judge had given signal to the police and had gone alongwith the police inside the office of Shaukat Azad and arrested the accused. The above contradiction pointed out by the learned counsel was not such, which could throw doubt on the veracity of the witnesses.
31. From the above discussion I am of the considered view that the evidence produced by the prosecution was unbiased, disinterested, straightforward, natural and reliable. The defense of the appellant was afterthought and the witnesses produced by him were chance witnesses and their evidence was unnatural. The D natural witnesses which could be present at the time of alleged exchange of hot words between the complainant and appellant were not produced by the appellant. I am, therefore, of the considered view that the prosecution had proved its case beyond reasonable doubt and the appellant was rightly convicted.
32. ' Lastly, it was contended by Mr. MA. Kazi learned counsel appearing for the appellant that since the appellant was a public servant, had lost his service and had suffered agony of protracted trial the substantive sentence may be reduced. I am afraid the learned trial Judge has already taken a lenient view as far as the sentence was concerned. In the case of Malik Muhammad Khan v. The State 1988 SCMR 1476 it was observed by their Lordships of the Supreme Court that:- "We notice that there is public outcry against corruption from all quarters and there is great dismay that nothing is being done to stem it. Although the legislate e has, of course, made laws to punish corrupt officials, but in the first place, the public at large considers it far easier to pay illegal gratification to get their work done. Secondly persons from whom bribe is demanded do not dare to report the matter and go through the worry of an investigation by the police and thereafter be pushed from Court to Court. As the experience is known to be so agonizing that it deters others from repeating the performance. People who are daring enough to report the matter, hardly ever get anything except incurring the hostility of the concerned public functionaries. And even if after going through the turmoil or lengthy and tedious Court proceedings they are able to prove the guilt of the concerned official, the accused is invariably let off with nominal punishment, as in the present case. Why should then a citizen take the risk and hazard of going to the authorities for reporting such matters. We feel that despite this Court's observation in Muhammad Amin v. The State PLD 1984 SC 343, the practice of awarding nominal punishment to corrupt officials does not create a healthy impression."
33. ' It was further observed:- "Courts rightly give benefit of doubt to the accused whenever there is the reasonable apprehension in their mind that the accused person might have been falsely involved, and are justified in acquitting such persons. But once the Court finds that the offence has been proved against the accused beyond reasonable doubt and convicts him of that offence, then there is no reason whatsoever of showing the culprits any leniency on the kind of grounds given by the High Court for reduction of the sentence of the accused-appellant as in the present case; because, it is hardly conducive to give an impression that the Courts are more concerned with the welfare of the accused rather than that of the society."
34. In view of the above discussion, I do not find any merit in this appeal and the same is accordingly dismissed. The appellant is on bail and his bail bonds are hereby cancelled.
35. ' I had decided the above appeal on 18-10-1988 by a short order and these are the reasons for the same.