1. ' WALI MUHAMMAD KHAN, J.---Muhammad Hanif convict/ appellant, through leave of the Court, has called in question the judgment, dated 27-6-1990 passed by a learned Single Judge of the Lahore High Court, whereby his appeal against his conviction and sentence under section 161 read with section 5 of the Prevention of Corruption Act II of 1947 passed by the learned Special Judge, Multan vide judgment dated 17-7-1977, was dismissed. The leave granting order is as follows: "Learned counsel for the petitioner, inter alia, contends that the conviction is bad because no member of the raiding party had heard the conversation between the petitioner and the complainant and there was no justification to rely on the statement of the petitioner allegedly made before the Magistrate after the raid, as the same was not put to him during his examination under section 342 of the Cr.P.C. The contention needs examination. Leave to appeal is, therefore, granted."
2. The facts of the case, briefly stated, are that Raja Shah brother-in-law of Munawar Hussain complainant P.W.1 died about three years ago leaving behind three sons and five daughters besides his widow. The complainant contacted Muhammad Hanif appellant who was then Patwari Halqa where the landed property owned by Raja Shah was situated and requested him for entry of inheritance mutation for which the accused/appellant demanded Rs,500 as illegal gratification and since the complainant was not ready for the same he approached the Anti-Corruption Staff at Sahiwal. They produced him before the Ilaqa Magistrate who recorded his statement Exhs.P.W.1/A.
3. The complainant produced ten currency notes of Rs,50 each Exh.P.1 to P.10 and the learned Magistrate noted down their numbers. Raid was arranged for entrapping the accused but on the day agreed upon the raid was cancelled as the Patwari was not available on account of cancellation of the tour of the Tehsildar. 2/3 days thereafter, the raid was arranged and after checking of the notes the learned Magistrate handed them over to the complainant for passing them on to the appellant. The raiding party alongwith the complainant proceeded to Chak No,1/10- L and en route seeing the accused coming on bicycle the Magistrate alongwith the police party turned to nearby melon field, while the complainant, on reaching the accused, requested him for the entry of mutation and handed him over the tainted currency notes. On signal by the complainant the raiding party rushed to the place of occurrence and recovered the tainted notes from the possession of the appellant. The learned Magistrate recorded the statement of the appellant, arrested him, completed the raid report and handed it over to the A.S.I. For the registration of case and conducting investigation. The Special Judge, Multan, after recording the prosecution evidence, statement of the accused and the defence witnesses, vide his judgment, dated 17-7-1977, found the accused guilty of an offence under section 161, P.P.C. Read with section 5 of Prevention of Corruption Act, 1947 and sentenced him to one year R.I. And fine of Rs,1,000 or in default, to further R.I. Of six months. His appeal before the High Court did not succeed and hence the instant appeal through leave of the Court.
4. ' We have heard Ch. Muhammad Ashraf, Advocate, for the appellant; Rao Muhammad Yousaf, A.O.R. For the State; and have perused the record of the case.
5. ' The case of the prosecution is that the complainant approached the Patwari for entry of inheritance mutation of his brother-in-law for which the appellant demanded Rs,500 as illegal gratification and the amount was passed on to him after a raid in the supervision of the Magistrate was arranged. On the other hand, the defence theory is that the complainant desired to get the inheritance mutation entered and attested in the name of the sons of the deceased only, to the exclusion of his daughters which the appellant was reluctant to accede to and therefore he was falsely trapped in in the present case. According to the statement of the accused in Court, the tainted money was recovered by the Magistrate from the ground and not from his person.
6. According to the statements of the D.Ws. They were present when the complainant insisted upon the appellant to enter the mutation in the name of male issues of the deceased only and tried to pass on the tainted notes to him which was being resisted by him when the members of the raiding party came there. It is thus admitted by both sides that the inheritance mutation of Raja Shah was to be entered by the Patwari Halqa for which, according to the complainant, illegal gratification was demanded by the Patwari/appellant, whereas, according to the defence, the complainant insisted to get an illegal entry made in the revenue record to which the appellant was not agreeable. Be that as it may, one thing is clear that the raiding party was there for the recovery of the tainted notes. Mr. Ahmed Raza, Magistrate 1st Class P.W.3 who headed the raiding party, in his statement in Court, positively stated that he recovered the tainted notes from the possession of the accused/appellant. He is also corroborated in this respect by Abdul Hamid Tahir Inspector Police P.W.2. The accused/appellant in his initial statement before the raiding Magistrate admitted that he was counting the notes when the same were taken into possession from him by the learned Magistrate.
7. ' The question which requires determination at this stage, therefore, is whether the depositions made on oath by the responsible prosecution witnesses namely, Ahmed Raza P.W.3 and Abdul Hamid Tahir P.W.2 are to be accepted or the explanation tendered by the accused supported by the defence witnesses in his statement under section 342, Cr.P.C. That the notes were picked up from the ground is to be given preference. No doubt, in such like cases any plausible explanation tendered by the accused is given due weight but in the instant case the plea of the accused/appellant is not consistent. In his initial statement he says that while he was counting the notes the raiding party recovered the same from him while in his statement in Court he stated that they were picked up from the ground. The defence witnesses produced by him are silent about the recovery of the tainted notes by the raiding Magistrate. There is yet another circumstance going against the appellant to the effect that he derelicted his duty in not entering the inheritance mutation in spite of the fact that an owner in the estate had died and he was made aware of it not only by the complainant but through verification from the Lambardar that the deceased had left behind three sons and five daughters. Had he entered the mutation before the date of occurrence that could provide a good defence that he acted as an honest official and entered the mutation against the wishes of the complainant but the fact that no mutation was entered is suggestive of the fact that the matter was being delayed for ulterior motive. The raiding Magistrate as well as the Police Inspector have no apparent motive to falsely implicate the accused/appellant and keeping in view the background of the incident, we are convinced that the occurrence had taken place in the manner alleged by the prosecution and deposed to by the disinterested witnesses. Both the lower forums have concurrently held that the accused/appellant demanded and received illegal gratification for entering inheritance mutation of Raja Shah and was rightly convicted and sentenced by the trial Court which was maintained by the High Court.
8. ' We do not find any illegality committed by the lower two forums and accordingly dismiss the instant appeal.