The applicant has been convicted for commission of an offence under section 161,.P.P.C. Read with section 5(2), Prevention of Corruption Act, 1947, by Special Judge, Anti-Corruption (Provincial), Karachi and sentenced to imprisonment till rising of the Court and to pay a fine of Rs.5,000, or in default to suffer further R.I. For three months. He has now appealed against the said conviction and sentence.
2. The case of the prosecution; briefly stated, is that the appellant in 1984, was serving as a teacher in a Government School. Complainant, Ziauddin, whose two sons, namely Fiayazur Rehman and Aijazur Rehman, aged about 11 years and 9 years respectively, wanted to get admission in a school, went to Government's Ibrahim Ali Bhoy School to get admission for his said sons. There he came in contact with the appellant who promised to help him in the matter. On 3-5-1984, the appellant told the complainant that he would arrange for the admission of his children in the said School provided transfer certificates from some school were arranged for. The appellant told the complainant that if he spent money, the same could be done for him. The appellant demanded Rs.200 for --- each transfer certificate. Thereafter, the complainant gave Rs.100 to the appellant and promised to pay Rs.300 on receiving the transfer certificates. The complainant, thereafter, contacted Inspector, Karam Khan of Anti-Corruption Establishment and lodged a report in this regard. After recording the report, Inspector, Karam Khan arranged for a trap but the trap failed because the appellant had told the complainant that the Head Master of Manghopir Primary School was not available. On 24-5-1984, another trap was arranged for and Inspector Karam Khan took the complainant and Mashirs Azizullah and Faqecr Muhammad to IN-City Courts and requested Magistrate P.W. Muhammad Ahsan to supervise the trap. He then gave Rs.300 as tainted money to the complainant in presence of Mashirs Azizullah and Inspector Faqeer Muhammad under Mashirnama Exh.10. The complainant was then sent to bring the appellant to Cafe Lazat while the complainant party waited there. At about 10-30 a.m., the appellant and the complainant arrived at the Cafe and then in presence of Magistrate Muhammad Ahsan and Inspector Karam Khan, the complainant paid the tainted money to the appellant who then pocketed the same and gave the two certificates to the complainant. The trap party then went and recovered the tainted money from the possession of the appellant under Mashirnama Exh.11. The complainant also produced the school leaving certificates (Exhs.7 and 8) which were secured under Mashirnama Exh.13. Thereafter, the appellant was arrested and after the usual investigation he was challaned in the Court to stand his trial.
3. The appellant in his statement recorded under section 342, Cr.P.C. Denied the aforesaid allegations. According to him, the complainant wanted illegitimate work from him and when he refused to oblige, he got him involved in they case. The appellant also examined three witnesses in his defence, namely, D.W.1 Syed Ziaul Islam, D.W.2 Atta Muhammad and D.W.3 Shahzad Mirza.
4. The learned trial Court on the basis of the evidence of the prosecution witnesses found that the prosecution had succeeded in establishing its case against the appellant and, therefore, it convicted and sentenced the appellant as pointed out earlier.
5. I have had the advantage of hearing only, Mr. Habibur Rasheed, learned counsel appearing on behalf of the State as the Advocate of the appellant remained absent. The learned Advocate for the appellant, as is evident from the case diary, was only obtaining adjourments and did not appear to be interested in proceeding with the case. Consequently, there was no other alternative, but to proceed with the case in his absence. The appellant, who was present in person was asked to argue the case but he had nothing to say, except that he was innocent.
6. So far as the case of the prosecution is concerned, it has been fully supported by the evidence of P.Ws. Ziauddin Ahmed who was also the complainant in the case, P.W.2 Azeemullah, P.W.3 Muhammad Ahsan and P.W.4 Inspector Muhammad Karam Khan. There is a clear evidence that the appellant took illegal gratification from the complainant in exchange, for providing him the school leaving certificates Exhs.7 and 8. Tainted money-9f Rs.300 was recovered from the possession of the appellant in presence of the Magistrate, P.W. Muhammad Ashan and other Members of the trap party and the appellant has not been able to satisfactorily explain the said circumstances against him.. The appellant also produced three defence witnesses in evidence.
According to D,W.1 S. Ziaul Kazim, who was a teacher in the Government Boys Primary School, Manghopir, the students named in the school leaving certificates Exhs.7 and 8 had been studying in the said School. The complainant -had gone to the School for obtaining transfer certificates for the students as he wanted to get them admitted in some other school. D.W.2 Atta Muhammad stated that the appellant who was his friend, had gone to him on 24-5-1984 at about 10-00 a.m. And had remained with him at his workshop in Nazimabad till about noon time. The third witness examined by the appellant in his defence, namely, Shahzad Mirza was the owner of Cafe Lazat. According to him, nothing had happened in his presence in May, 1984 the month in which the trap had been arranged. He further stated that his statement had not been recorded by the Anti-Corruption Police.
7. The learned trial Court has not placed reliance upon the evidence of the defence witnesses in view of the evidence given by the prosecution witness against the appellant and, in my opinion, rightly so. D.Ws. S. Ziaul Kazim and Atta Muhammad were known to the appellant and it appears that they had obliged him by giving favourable evidence in the Court. D.W.3 Shahzad Mirza, no doubt, might be present at Cafe Lazat at the time of the raid, but his evidence cannot be of any avail to the appellant, because it was not necessary that action which was taken by the trap party at the time of the raid should have been taken inside the Cafe. On the other hand, the prosecution witnesses appear to be independent and nothing has been attributed to them to implicate the appellant falsely in the case.
8. In the result, I find no force in this appeal which is dismissed. However, in view of the fact that the appellant is only a teacher the sentence of fine of Rs.5,000 under the circumstances of the case appears to be harsh. The E fine is, therefore, reduced from Rs.5,000 to Rs.2,000. Subject to this modification the rest of the judgment passed by the learned trial Court shall remain intact.