The appellant Ghulam Nabi who at all relevant times was the Settle--ment Tapedar in Tehsil Rohri was tried by the Special Judge-cum-Enquiry Officer, Sukkur, on a charge under section 161, P. P. C.
Read with section 5(2) of the Prevention of Corruption Act and on being found guilty was convicted of the said offence on 30-6-1972 and sentenced to R. I. For three months and a fine of Rs. 250 (in default simple imprisonment for two months). He has filed an appeal through Mr. Azizullah Sheikh who has appeared for him and the State has been represented before me by Mr. Manzoor Hussain.
2. Briefly stated the facts of the case are that complainant Dur Muhammad was a Khatedar in Deb Khohi Khabor in Rohri Taluka. He owned Survey No. 271 by inheritance and had purchased Survey No. 23 from some Moharir. About 3 or 4 days prior to the date of trap in this case viz. 22-10-1970, complainant Dur Muhammad had gone to the office of the Settlement Mukhtiar kar to obtain a copy of the record-of-rights in respect of his land bearing survey No. 271. He contacted appellant Ghulam Nabi who was the Tapedar and it is stated in the case that the appellant demanded a sum of Rs. 180 from him for supplying a copy, on the pretext of the amount being Government fees.
The complainant paid this amount and was asked to visit after 2 or 3 days and when he again visited on the date of occurrence in this case viz. On 22-10-1970, the appellant made a further demand of Rs. 250. The complainant has stated that be made requests for 'forbearance, but the appellant refused to reduce the amount so that he promised to pay the amount on the same day at about 12 noon. The complainant thereafter proceeded to the office of the Anti-Corruption Establishment and lodged the report at 11-30 a.m. Which was recorded by Ghulam Nabi, the Additional Circle Officer. The Investigating Officer requested Mr. Ghulam Qadir, Municipal Magistrate at Sukkur to witness the trap. Hashmat A.I was also called to act as a mashir. The trap party thereafter proceeded to the office of the Settlement Mukhtiar kar and while complainant went to the office of the appellant, the Magistrate and the Circle Officer waited near the Inspection Bungalow at Rohri. The complain--ant returned after five or ten minutes and informed the Magistrate and the Investigation Officer that the appellant had left the office after instructing his Kotar (peon) that he was going to the hotel of one Shahzado. The entire party thereafter proceeded in the same taxt to Shahzado hotel and the appellant was not in that hotel but he was sitting in the adjoining hotel which is said to be the hotel of one Syed. The complainant Dur Muhammad alongwith the mashir went to the hotel of the Syed and talked to the appellant, to whom the complainant paid a sum of Rs. 250. The appellant after putting this money in the pocket of his shirt asked the complainant to meet him after three days in order to receive the copy; and the appellant then sat in a rickshaw and proceeded further. In the meantime the com--plainant gave a signal to the police party who came up and asked the rickshaw to stop which had just proceeded a distance of few paces. When the rickshaw stopped the Magistrate and the Police Officer saw the appellant sitting in the rickshaw and the tainted money was at that time lying in the Jholi (lap) of the appellant. The appellant on seeing the Magistrate got down from the rickshaw and at that time the currency notes fell on the ground which were collected by the Magistrate, and compared with the amount that had originally been entrusted to complainant Dur Muhammad for being paid as bribe to the appellant, and the numbers tallied. The appellant was arrested and a trap report was prepared. On completion of formalities in regard to obtaining of sanction etc. The appellant was sent up to stand his trial which has resulted in his conviction and consequent sentence as aforesaid.
3. The appellant in his statement under section 342, Cr. P. C. Denied the prosecution case and he stated that the amount had been thrown at him by the complainant when he had got into the rickshaw. He further stated that the complainant bore enmity to him because he has served a notice on the complainant in regard to proof of ownership of survey No. 23. Viz., the other survey number which the complainant had purchased from some Mahajira. He proceeded to state that on the day in question he was proceeding to Sewhan for attending the fair of Qalandar Lal Shahbaz and he hired a rickshaw for reaching Sukkur, and while he was in the rickshaw complainant Dur Muhammad stopped the same got into it, offered the money to him which he refused. The complainant thereafter threw the money in his lap after getting to the rickshaw and after the money was thrown in his lap the appellant stated that he immediately got down and stood at a distance of 3 or 4 paces from the rickshaw.
The appellant also examined four witnesses in his defence. The first of these was one Allahdino who stated that on the day earlier to the day of trap when the complainant had come and made an application for obtaining copy of the record of the rights, he was also present and both he as well as the complainant had paid a sum of 2 or 3 rupees to the clerk who was to supply a copy. This witness went on to state that the appellant was not present in the office on the day. The next defence witness is Amir Bux who is the rickshaw driver. He has stated that while he was driving the rickshaw with the appellant sitting in it a person sat in the rickshaw along--with the appellant but that person asked him to stop the rickshaw after he had proceeded a little further and that person having got down, the rickshaw went away. He went on to state that after he had driven 5 to 8 paces a police constable stopped him and at that time he found that some currency notes were lying on the ground. The third defence witness was Shaukat A.I, also a Tapedar of Tapo Taria. This defence witness stated that a notice had been issued to complainant Dur Muhammad by the Settlement Mukh--tiarkar, Rohri, calling upon him to produce proof in regard to his ownership of survey No. 23.
The last defence witness was Ghulam Hyder who had stated that on 20-10-1970 viz., two days before the date of incident in this case, complainant Dur Muhammad had presented an application before him for grant of the copy of the Record of Rights in respect of Survey No. 2/1 and he delivered the application to complainant Dur Muhammad, presumably after recording an order for delivery of a copy. This defence witness stated that the appellant had prepared a copy of Record of Rights on 22-10-1970 and the same could not be delivered to the complainant because the Mukhtiar kar had not yet signed the same; the latter being out of station.
4. The learned Special Judge was impressed by the evidence of the witnesses in regard to the trap.
He held that the evidence in-regard to recovery of tainted money was reliable and he further held that the circumstance of the appellant having been tracked by the complainant and the trap party upto Shahzado hotel indicated a concert and arrangement in regard to payment of money. The learned Special Judge has also considered the evidence of defence witnesses and has come to the conclusion that the evidence of these defence witnesses was partly true but that it did not in any case advance the case in regard to innocence of the appellant.
5. Some facts in the prosecution case stand proved beyond any doubt and these facts are that complainant had made an application for obtaining a copy of the Record of Rights and that the complainant had gone to the office of the Mukhtiar kar at about 12 noon on the day of incident where he was informed that the appellant could be found at Shahzado hotel. It is further established that the complainant alongwith the trap party proceeded to Shahzado hotel but the appellant was sitting in the adjacent hotel of Syed. It is further established that the appellant sat in a rickshaw which started moving and while the appellant was in the rickshaw a sum of Rs. 250 was with him which amount was thrown by the appellant on the ground at the time he was caught by the trap party.
The story of the prosecution is that the complainant had applied for a copy and was told to come after two days and when he contacted the appellant on 22-10-1970, a demand of Rs. 250 was made. The complainant was unwilling to pay this amount so that he lodged a report with the Anti-- -Corruption Officer. A trap was arranged and thereafter the party proceeded to the office of the Mukhtiar kar but the appellant had left. The strongest circumstance in the chain is that the time when the complainant went to the office of the Mukhtiar kar, he came to know that the appellant had left and was sitting at Shahzado hotel. Obviously this information had been conveyed by the appellant through Ghulam Hussain Kotar who had in turn given such information to the complainant. Although Ghulam Hussain Kotar has not been examined as a witness, the fact is that the complainant did come to know that the appellant was at Shahzado hotel at that time and the appellant was indeed found not in Shahzado's hotel but in the adjacent hotel of Syed. What was the necessity for the appellant leaving a sort of message in regard to his whereabouts is not otherwise explicable except upon hypothesis that the appellant had an arrangement for receiving that amount and he wanted to receive the amount at Shabzado hotel. This according to me is a circumstance which is very strong link in the prosecution case and clearly goes to indicate that the appellant had demanded a bribe and had been told by the complainant that he would be paid the amount at 12 noon, on that day. The next circumstance is that the appellant was travell--ing in a rickshaw and at that time a sum of Rs. 250 was with the appellant either in his shirt pocket or in his lap. There is a possibility that on seeing the police party and the Magistrate the appellant may have taken out the amount from his pocket and thrown in his lap so that he may be able to show at the time of getting down from the rickshaw that the amount was lying in his lap having been thrown there by someone; which had fallen down, thereby indicating that he had not willingly accepted this amount. Be that, as it may, the fact is that the appellant was in possession of this amount and was going in a rickshaw. The other circumstance is that the complainant was interested in obtaining a copy of the Record of Rights and for getting such a copy the appellant had asked him to pay a sum of Rs. 250. An application was in the office of the Mukhtiar kar and the same has been produced on record and it is also proved that the appellant had prepared copy of the Record-of-Rights.
The tainted money was recovered from the appellant and there is consistent evidence of the complainant as well as the Magistrate and Investi--gating officer to the effect that when the appellant was in the rickshaw the amount was seen by the witnesses lying in his lap and when he got down from the rickshaw the same amount fell on the ground which was collected by them.
These are therefore, circumstances and facts which are established on the record and there is no serious controversy in regard to such facts.
6. The learned Advocate for the appellant has contended before me that it was improbable that the appellant might have demanded and the com--plainant should have agreed to pay a sum of Rs. 250 for obtaining a copy of the Record of Rights. In that context he has relied on the evidence of complainant Dur Muhammad echo had stated in his evidence that on a previous occasion he had obtained a copy of the Record of Rights and had to pay 3 or 4 rupees. Additionally, he has relied on the evidence of Allahdino, the defence witness who had also come on the same day to the office of the Mukhtiar kar for obtaining a copy and had stated in his evidence that both he as well as complainant Dur Muhammad had paid a sum of Rs. 2 or Rs. 3 to some clerk for obtaining the copy.
On the other hand the com--plainant has also stated that earlier to this demand of Rs. 250 by the appellant the complainant had already paid a sum of Rs. 180 to the appellant for obtaining this copy. The complainant had also stated in his evidence that he had paid a sum of Rs. 180 on the earlier occasion to the Tapedar in the presence of defence witness Allahdino. On that point the evidence of defence witness Allahdino may be examined. This defence witness has stated that on the day in question, the appellant, who was the Tapedar was not present in the office and a clerk had accepted two or three rupees from. Him as well as complainant Dur Muhammad. In his cross- examination he has stated that complainant Dur Muhammad had visited the office of the Mukhtiar kar after about half an hour of his visit and further that the clerk had first called him and he was sitting with that clerk for half an hour and thereafter Dur Muhammad was called and he waited for Dur Muhammad until Dur Muhammad returned from the clerk whom each one of them namely, complainant Dur Muhammad and defence witness Allahdino had mot. This would show that the defence witness and the complainant did not meet the clerk at the same time but they met that particular clerk at different times and there is, therefore, nothing to show that the statement of Allahdino that he as well as complainant Dur Muhammad paid Rs. 2 or Rs. 3 for obtaining the copy was reliable. The position is amply clear because both these persons had met the concerned clerk, if at all, both of them did at all meet a clerk, at different times and for such a reason the evidence of Allahdino is not reliable. What is more that earlier payment of Rs. 180 by the complainant to the appellant is also stated in the first informa--petition report. In that very document it is stated that the complainant had paid Rs. 180 to the appellant in the presence of Allahdino. The learned Advocate for the appellant bas however, invited me to examine the judgment on that point and the learned Special Judge has expressed himself as follows: "As the complainant is not supported by Allandino on the point of payment of Rs. 180 to the accused and therefore it is not safe to accept the uncorroborated word of the ,complainant. But in view of this circumstance the entire evidence of the complainant cannot be discarded as it can be partly believed and partly disbelieved particularly when rest of his evidence finds support from certain confirmatory circumstances which I shall discuss presently."
The learned Special Judge had earlier disbelieved the evidence of Allahdino on the point and had stated that the defence witness being a cultivator it was inconceivable that he must be remembering the exact date of his visit to the office of the Mukhtiar kar and according to the Special Judge some pres--sure had been brought on this person to appear and depose in favour of the appellant. It seems that Allahdino had been cited as a prosecution witness but was given up.
This is also indicative of the fact that the prosecution did not rely on this witness. In this context it cannot be overlooked that there was a dispute in regard to ownership of the other survey number which was being claimed by complainant Dur Muhammad. In regard to the ownership of that land there was a notice issued from the office of the Mukhtiar kar calling upon the complainant to produce the documents of his title. It is possible that the appellant who was a Tapedar knowing that the complainant knew about the issuance of such a notice had misused his position in order to pressurise the complainant so that the complainant may pay him a far larger amount for obtaining the copy of the record-of-rights Such a probability cannot be overlooked, although it is not specifically stated in the evidence. It seems that since the complainant was standing the risk of losing survey No. 23 on account of an enquiry in regard to his ownership of that survey number the complainant might have agreed to pay a far larger amount than what would be normally payable for obtaining a certified copy of the Record-of-Rights.
7. The next point that has been urged by the learned Advocate for the appellant is that if the appellant had agreed to receive the money from the complainant he should not have left his office and gone to Shahzado hotel. In that context he relied on the further circumstance that he was not found in the Shahzado hotel but in the adjacent hotel of one Syed. Accord--ing to me this argument is hypothetical. The facts of the case clearly indicate that the trap party including the complainant first proceeded to the office of the Mukhtiar kar, and it was there, that the complainant came to know that of all the places in the town of Rohri the appellant would be found in Shahzado hotel. This would indicate that the appellant had left a word in regard to his whereabouts in Shahzado hotel and further that the appellant intended to remain at Shahzado hotel for sufficient time so that the complainant could come first to the office and then proceed to Shahzado hotel and locate him. This argument according to me does not advance the case of the appellant.
8. The learned Advocate for the appellant has also attacked the evidence in regard to recovery. He has in that context relied on the evidence of Amir Bux, the rickshaw driver. On a reading of the evidence of Amir Bux I have not been impressed as he has contradicted himself in the most material aspects of the case. While in the examination-in-chief he stated that when appellant got down from the rickshaw he found the currency notes lying on the ground; in cross-examination he stated that he did not see the currency notes fallen (lying) on the ground. What is more that the statement of the appellant is that the complainant came and stopped the rickshaw and thereafter sat in the rickshaw and threw the money in his lap and got down. Reading the evidence of defence witness Amir Bux it would appear that the defence witness has stated that after that person, which might be the complainant according to the defence witness, got down from the rickshaw, the rickshaw drove five-eight paces when a police constable standing on the road asked him to stop and accordingly stopped. This would show that even if the evidence of Amir Bux is believed in regard to money having been accepted by the appellant while sitting in the rickshaw, still the appellant retained the money with him until such time that the rickshaw proceeded 5 to 8 paces and was stopped by a constable. This would indicate acceptance of the money rather than foisting of the money. I would like to state clearly that I should not be misunderstood to mean that I am in any manner disbelieving the evidence of the complainant on the point, but I am only criticising the evidence of Amir Bux on the point that even on his own showing the evidence of this defence witness was not true. The defence of the appellant that the amount was foisted on him is completely belied by the evidence of the complainant and the trap party, apart from the establish- -ed circumstances of this case that when the rickshaw stopped, the money was found in the Jholi
(lap) of the appellant.
9. The next point that has been urged by the learned Advocate for the appellant is that mashir Hashmat A.I has not been examined and in any case mashir Hashmat A.I did not belong to the town of Rohri or Sukkur. In my view the criticism is misconceived. First of all it is not necessary for the prosecution to examine every witness but in this case the mashirnama does not show the address of Hashmat A.I and the investigating officer has stated that mashir Hashmat A.I had shown his residence at Syedabad, Taluka Hala, and also resident of Sukkur at the time of this incident. It would therefore, appear that this mashir originally belonged to Syedabad in Hala Tehsil but was on the day of trap residing in Sukkur. The mashir has not been examined on account of want of particulars.
10. Coming to the evidence of the two remaining defence witnesses namely, Shaukat A.I and Ghulam Hyder I am of the view that they do not advance the case of the appellant at all, and on the contrary establish some incriminating circumstances against him. Defence witness Shaukat A.I had stated that a notice had been issued to complainant Dur Muhammad to produce proof in regard to his right over survey No. 23. Such notice was written in the manuscript writing of the appellant which the witness identified. He was examined by the Court, and in such questions, he stated that the entries in the Record-of-Rights in favour of Dur Muhammad complainant were until when then valid and had not been cancelled, and further that the notice had neither been outwarded in the office nor did it show that it had boon served on the complainant Dur Muhammad. This would show that the notice had been kept away by the appellant who had prepaired the same on 5-10-1970 and had not been delivered or served on the com--plainant until 22-10-1970. It seems that this notice was kept away by the appellant in order to keep the dice loaded against the appellant. Coming to the evidence of defence witness Ghulam Hyder he had clearly stated that the preparation of the record-of-rights was the function of the Tapedar and in this case the appellant had actually prepared the copy of the record-of --rights but had not delivered it to the complainant. Such retention of the copy in spite of the same being ready is also an indication of an intention of the appellant to extort money from the complainant. It is however, stated that the same could not be delivered because the Mukhtiar kar had not yet signed it but if that was so at least the appellant should have informed the complainant that he was not delivering the copy to him because the Mukhtiar kar had not signed it but it is to the evidence of the complainant that the appellant on the contrary told him to come after two or three days and take away the copy without assigning any reason why the copy was not being delivered to him immediately.
11: On the other hand the evidence of the complainant which is strongly corroborated by the evidence of the Trap Magistrate as well as the investigating Officer is completely reliable in so far the facts of the case ate concerned. The evidence in regard to recovery is unimpeachable and I fully rely on the same. I find that the case against the appellant has been amply proved and he has not been able to give any satisfactory explanation with regard to the money having been recovered from him.
12. I would for such reasons dismiss the appeal. The appellant who is on bail must surrender and serve out the sentence which has been imposed on him.