' Appellant Naeem Akhtar, Settlement Patwari of village Gadai, Tehsil and District Dera Ghazi Khan, was tried by Sh. Abdur Razzaq, Special Judge, Anti-Corruption, Dera Ghazi Khan, on the charge of receiving Rs.200 as illegal gratification from Ghulam Sarwar complainant for entering mutation of redemption of a piece of land pursuant to a decree of the Civil Court and, vide his judgment, dated 16-3-1989, was convicted under section 161, P.P.C. Read with 5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo two years' R.I. And a fine of Rs.5,000 or in default of its payment to further suffer three months' R.I.
2. To be a little more precise, on 17-8-1988 Ghulam Sarwar complainant lodged a report (Exh.P.W.2/A) with Lal Hussain Inspector/Circle Officer, Anti-Corruption Establishment, Dera Ghazi Khan, alleging therein that he obtained a decree for the redemption of a piece of land and on 16-8- 1988 when he, accompanied by the brother Ata Muhammad, contacted the appellant for entering a mutation on the basis of that decree, he demanded from them a sum of Rs.500 as illegal gratification for doing the needful and since at that time he had only Rs.130 in his pocket, he paid the same to him and promised to pay the remaining amount on the following day but since he was reluctant to pay the bribe, he was reporting the matter for taking action against him (appellant).
3. After writing his statement and registering the case, the Circle Inspector applied for the appointment of a Magistrate for the supervision of the raid and Mr. Javaid Mahmood Bhatti, E.A.C.
Was deputed to perform this duty. The Magistrate recorded the statement (Exh.P.W.1/C) of Ghulam Sarwar complainant and after noting down the numbers of two currency notes (tainted money), each of the denomination of Rs.100, and appending his own initials thereon, gave the sum to the complainant for passing them on to the appellant at the agreed time and place. He organised the raid party and proceeded towards the appointed place to supervise the raid.
4. On the same day the raid party went to Block No.1 of Dera Ghazi Khan and waited near the Patwarkhana where the appellant was present and on the receipt of the agreed signal, the raid party entered the Patwarkhana and the Magistrate, after introducing himself to the appellant, asked him to bring out the tainted money that he had received from the complainant. On his asking, the appellant took out the two signed currency notes, constituting tainted money, from his pocket and delivered to the Magistrate who seized them vide recovery memo. (Exh.P.W.1/F). On the personal search of the appellant the Magistrate took out Rs.15,050 and seized this amount vide same recovery memorandum. He also secured the application of the complainant besides the certified copy of the decree passed by the civil Court, on the basis of which the mutation was to be entered and attested in favour of the complainant. The Magistrate also recorded the statement of complainant, his brother Ata Muhammad as also that of the appellant and in this way finalising the raid proceedings, handed over the papers, the appellant and the case property to the Circle Officer for the completion of investigation.
5. The Circle Officer carried out the investigation but before he could submit the challan he was transferred and the challan was submitted in the Court of Special Judge, Anti-Corruption, Dera Ghazi Khan, by his successor-in-office.
6. On the commencement of the trial the appellant was charged under section 161, P.P.C. Read with 5(2) of Act II of 1947 and, on his pleading not guilty, the prosecution led evidence against him by producing as many as four witnesses, namely, Mr. Javaid Mahmood Bhatti, Magistrate 1st Class (P.W.1), Ghulam Sarwar complainant (P.W.2), Ata Muhammad (P.W.3), and Lal Hussain, Circle Inspector (P.W.4).
7. Mr. Javaid Mahmood Bhatti, Magistrate 1st Class (P.W.1) and Circle Inspector Lal Hussain (P.W.4) gave full account of the role assigned to them in the prosecution story as it finds reflection in the above narration and fairly stood the test of cross-examination. Ghulam Sarwar complainant (P.W.2) and his brother (P.W.3) did not fully support the prosecution case and were cross-examined by the learned prosecutor after having been declared hostile, though the former still faired better than the latter.
8. The appellant, in his statement recorded under section 342, Cr.P.C. Explaining the incriminating circumstances figuring against him in the prosecution evidence, stated that on 16-8-1988 Ghulam Sarwar complainant did not contact him nor he demanded from him any bribe and on the following day after going to Katchery in connection with the sale of his motor-cycle when he returned to Patwarkhana and was sleeping at about 2 p.m. Ghulam Sarwar complainant came there and waking him up offered him Rs.200 for entering redemption mutation but he told him that he could not enter the same as he had been asked only to submit the report on his application moved by him before the Settlement Officer. According to him, the complainant asked him to accept Rs.200 as he had talked to Bashir Ahmad, Patwari on that subject, to which he replied that he should better pay the money to him but the complainant insisted that he should accept the same and later pay it to Bashir Ahmad, Patwari if he was to enter the redemption mutation. He added that as they were talking, the complainant put the money into his pocket and meanwhile Faiz Muhammad, Constable entered the room and asked him that he had received the bribe and he should come out of the Patwarkhana and then he (constable) told the raid party that a sum of Rs.200 had been recovered from him (appellant) though he had secured it from the complainant.
He further stated that then he was removed to the police station and sent to the lock-up. In reply to a question about his personal search and the consequent recovery of Rs.15,050, he stated that the money was recovered from him and it belonged to him as it was the price of his motor-bike Honda No.9838 sold by him. He denied having produced documents P.36 to P.39 which were secured by the raiding Magistrate vide memo. (Ddi.P.W.1/G) and alleged that these documents were produced by the complainant, though the same were shown to him by the Magistrate. With regard to his statement (Exh.P.W.1/J) recorded by the Magistrate and his signature thereon, he pleaded that this statement was recorded by the Magistrate who obtained his signature thereon but it was not read over to him. He alleged his implication in this case due to his enmity with the Circle Officer. He produced in his defence the certified copy of application (Exh.DA.), certified copy of agreement (Exh.D.B.) and copy of Mutation No. 4103 (Exh.P.C.) and closed his defence.
9. On the conclusion of the trial the appellant was convicted and sentenced in the manner aforesaid and aggrieved by it, he has come up in appeal to this Court.
10. It is argued on behalf of the appellant that neither Ghulam Sarwar complainant (P.W.1) nor his brother Ata Muhammad (P.W.2) supported the prosecution case and since both were declared hostile, their statements cannot be used against the appellant and in the absence of their statements the conviction of the appellant is not sustainable. Support for this contention has been sought from Ghazidino v. The State 1988 SCMR 637. According to the learned counsel for the appellant, the conviction of the appellant could not be based on the statement of the raiding Magistrate and Circle Officer of the Anti-Corruption Department because the latter in order to wreak his vengeance against the appellant got him falsely implicated in this case as he had refused to oblige him in his personal matter regarding the incorporation of an agreement in the Revenue record.
11. He submits that the raiding Magistrate neither heard the conversation between the complainant and the appellant nor did he see the tainted money changing hands at the time of raid and his testimony on these points is of no avail to the prosecution.
12. The learned State counsel, on the other hand, is of the view that the prosecution has succeeded in proving the guilt of the appellant beyond any shadow of doubt and he was rightly convicted and sentenced. In his opinion, Ghulam Sarwar complainant, despite having been declared hostile, supported the prosecution case in all material respects and his statement cannot be ruled out of consideration merely because he was declared hostile.
13. Now I take up the first contention raised by the learned counsel for appellant regarding the resiled statements of Muhammad Sarwar complainant (P.W.1) and his brother Ata Muhammad (P.W.2). To properly appreciate their testimony it is necessary to give some details of their deposition. Appearing as P.W.2, Ghulam Sarwar complainant deposed that the appellant was Patwari of their village and about 8/9 months ago he, accompanied by his brother Ata Muhammad P.W., had gone to him (Patwari) for getting redemption mutation of a piece of land entered in his favour on the basis of a decree obtained by him from the civil Court. He alleged that the appellant did not enter the mutation despite their repeated requests but he did not demand any bribe from them, rather, one Bashir Ahmad Patwari had told them that unless and until they paid illegal gratification to the appellant he would not do their work and so he paid Rs.130 on that day to Bashir Ahmad, Patwari and Rs.100 to the appellant. He deposed that when he paid Rs.130 to Bashir Ahmad, Patwari at that time his brother Ata Muhammad was not with him. He further testified that he lodged the report (Exh.P.W.2/A), which bears his signatures, with the Circle Officer and his statement was also recorded by the Magistrate who had noted down the numbers of currency notes P.1 and P.2 and instructed him and his brother to go to the Patwarkhana for passing the tainted money to the appellant. He stated that he paid that money to the appellant but at that time he was alone and after paying the same he gave an indication to his brother, who was standing outside the Patwarkhana, and he passed on the agreed signal to the raid party which reached the spot, caught hold of the appellant, and on his personal search secured a sum of Rs.15,050 as also tainted currency notes of Rs.200, whereafter he was removed to the police station.
With regard to his statement recorded by the Magistrate after the raid, he waivered by first saying that he did not know about it and then said that he did not record any statement to the Magistrate after the recovery from the accused. At this stage he was declared hostile by the Court on the request of the learned prosecutor who cross-examined him at some:length.
14. In reply to a question of the learned prosecutor he admitted his signature on the statement (Exh.P.W.1/H) as also on the memoranda (Exh.P.W.1/E), (P.W.1/F) and (P.W.1/G). He owned his application P.37 and his thumb-impression thereon. He, however, denied having stated in the F.I.R.
That the appellant had demanded Rs.500 from him as illegal gratification. He also denied having stated therein that he paid Rs.130 to the appellant in the presence of his brother, and had promised to Bashir Ahmad for paying Rs.200 to him. He was confronted with his statement in the F.I.R.
(Exh.P.W.1/A) where it was so recorded. He denied the suggestion of the learned prosecutor that he had been won over by the appellant and was giving concession to him and he, besides his brother, had recorded his statement before the Magistrate after the raid.
15. In reply to a question of cross-examination by the learned defence counsel he stated that he was illiterate but could sign. In reply to another question he testified that the Circle Officer and the Magistrate had not read over his statement and the memoranda (Exh.P.W.1/E) to (Exh.P.W.1/G) and when he entered the Patwarkhana the appellant was sleeping and after waking him up he asked him to accept Rs.200, as per direction of Bashir Ahmad, Patwari, but he told him that he should pay the money to the person who had asked him and eventually despite his refusal to receive bribe he put the money in his pocket and at that time the raid party reached there. He denied having paid the money to the appellant in the presence of his brother who kept on standing outside the Patwarkhana. In reply to another question he deposed that he did not know whether Rs.130 were paid by him to Bashir Ahmad, Patwari or he paid the same to the appellant. During the course of cross-examination he first stated that the appellant was lying on a cot and then stated that he was sleeping on the ground.
16. Ata Muhammad (P.W.3) deposed that he knew the appellant and the complainant, who was his brother, but he did not accompany him to the appellant and he had gone alone to him for the entry of redemption mutation. He added that his brother had initiated a case against the appellant and at the time of raid he was asked by his brother to give a signal to the raid party and he had acted accordingly. He further stated that his thumb-impression was obtained after the raid, but his statement was not recorded by the Magistrate and he did not know what had been recovered from the appellant at the time of raid he was standing outside the Patwarkhana, nor did he know to whom his brother had paid the money. At this stage the witness was declared hostile on the request of the learned prosecutor who started cross-examining him.
17. In reply to a question of cross-examination by the learned prosecutor, he stated that his brother had moved an application for getting redemption mutation of a piece of land entered and the said application had been marked to the appellant but he did not accompany his brother to him nor did he know if he had paid Rs.130 to him. In reply to another question he testified that the Magistrate had recorded his statement (Exh.P.W.1/D) but it was not read over to him nor did he know if any money was recovered from the appellant. He stated that the statement of the appellant was recorded by the Magistrate in his presence. He; however, denied the suggestion that he had been won over by the defence.
18. He was then cross-examined by the learned defence counsel and in response to his question he stated that he was illiterate and Lal Hussain, Circle Officer had obtained his thumb-impression on certain documents which were not read over to him.
19. It may be mentioned here that the facts of this case are different from the one embodied in the authority cited by the learned counsel for the appellant and it cannot serve as a precedent. To be a little more specific, in that case the Tapedar (accused) had demanded bribe of Rs.200 from the complainant for getting him sanctioned higher rate of compensation for his acquired land from the Land Acquisition Officer who was camping at the rest house and during the raid the tainted money was not recovered from the Tapedar (accused), rather it was recovered from another person, while in the instant case, even according to the appellant himself, the tainted money was recovered by the Magistrate from his possession, though he alleged that it was thrust into his pocket by the complainant. The complainant in that case had denied having paid the tainted amount to the Tapedar but in the case in hand the complainant, despite making certain other concessions to the defence, stuck to his stand that he had paid the tainted money to the appellant and it was recovered from his possession by the raiding Magistrate. Further, it was the appellant who himself was to make a report or to enter the mutation on the basis of civil Court's decree, while in that case the Tapedar himself was not to do any thing and he was to get the compensation enhanced from Land Acquisition Officer. Therefore, every case is to be decided on the basis of its own peculiar facts.
20. It is an admitted position that the complainant had obtained a decree for the redemption of a piece of land and it was to be given effect in the Revenue record but the appellant, who was to enter the mutation on the basis of the decree, was avoiding to do so, obviously with the mala fide intention of extracting something from the appellant, otherwise he and his higher officers were bound to give effect to the decree of the civil Court. The application P.36 made by the complainant to the Settlement Officer in this regard alongwith the certified copy of the decree (P.37), copy of the title of the plaint (P.38) and the certified copy of the last order sheet of the civil suit, all were recovered from the possession of the appellant. These documents were submitted to the Settlement Officer by the complainant and they had trickled down to the appellant in routine for report. The plea of the appellant in his statement under section 342, Cr.P.C. That these documents were supplied to the Magistrate by the complainant and were not recovered by him, is false because, beside admitting this fact in that very statement, he also conceded in his statement (Exh.P.W.1/J) recorded by the Magistrate soon after the raid, which is admissible in evidence and can be heavily relied upon by the prosecution, as held in Muhammad Sarwar v. The State PLD 1969 SC 278, that he had received these documents from the higher authorities and he even held enquiry thereon by going to the village of the complainant and also admitted having produced the same to the raiding Magistrate on his demand. There was therefore, an occasion for the appellant to demand illegal gratification from the complainant, who, compelled by the circumstances created by him (appellant), had no alternative but to offer and actually pay him the bribe to get his work done and at the same time he took recourse to the relevant authorities as he was not willing to pay the bribe and the raiding Magistrate, with the assistance of the Circle Officer of the Anti-Corruption Department and after meticulously complying with all legal formalities, conducted raid on him and recovered from him the tainted money that had been passed on to him by the complainant which facts he supported despite having given concessions to the defence on some minor points with a view to help him (appellant).
21. It may be observed that the statement of a hostile witness cannot be straightaway ruled out of consideration, merely because of his having been declared as such. There are a number of authorities on the subject and two of them have been quoted by the learned trial Judge in paragraph No.10 of his judgment in support of the preposition that the evidence of a hostile witness cannot be rejected outright and it has to be given due consideration, particularly that portion thereof which appears to be true. In this context, the statement of the complainant is true to the extent that a decree had been passed in his favour for the redemption of mortgage and he wanted to get it incorporated in the Revenue record for which initial step was to be taken by the appellant as a concerned Patwari. His statement was also true to the extent that he had given the application and the copy of decree to the Settlement Officer and they had come down to the appellant for necessary action. His statement was also correct that he went to the Anti-Corruption Department and reported the matter to them and the Circle Officer arranged the raid and he supplied two currency notes to the raiding Magistrate for making it a tainted money. His statement is also true to the effect that he passed on the tainted money in accordance with the agreed arrangement of raid and that money was actually recovered from the possession of the appellant alongwith a huge amount of Rs.15,050 which the appellant was carrying as the alleged price of motor-bike sold by him. This was a strong corroborative circumstance regarding the receipt of tainted money by him and its recovery from him by the raiding Magistrate. There is no substance in the argument of the learned counsel for the appellant that his client was falsely implicated due to his animosity with the Inspector Lal Hussain, Circle Officer P.W. This aspect of the matter has been duly considered by the learned trial Judge as well. The appellant was a recent entrant in service and he had nothing to do with the agreement and other documents produced by him in his statement under section 342, Cr.P.C. As those of the Circle Officer. In the cross-examination the Inspector had explained that he had exchanged his land with some of his co-villagers through a registered agreement and it had already been given effect in the Revenue record prior to the appellant took over as Patwari.
22. As regards the second contention of the learned counsel, this is true that the Magistrate and the Circle Officer did not hear the conversation between the complainant and the appellant, nor did they see the money being handed over by the former to the latter but the satisfaction of this condition is not a sine qua non for the proof of prosecution case. In a raid case it is a rule of prudence which needs to be complied with to the extent it is possible for the raiding Magistrate to comply and if there was no occasion for him to comply with it, it did not undermines the prosecution case in the presence of positive evidence that the money was actually recovered from the appellant and he had received it as a bribe as is apparent from the attendant circumstances of the case already discussed.
23. The learned counsel for the appellant has ultimately tried to win concession for his client on the ground that he was a raw hand and he was victim of the intrigues and wrath of his seniors. There is no evidence to that effect on the record. In my opinion, this contention runs counter to his earlier contention regarding his false implication on account of his animosity with Lal Hussain, Inspector/Circle Officer. In any case, he does not appear to be a raw hand at least in the matter of exacting bribe from poor land-owners like the complainant.
24. In view of what has been gone above, there is no substance in the appeal and the same is dismissed.