' The appellant Zulfiqar Hussain Kalhuri was tried by the Special Judge cum Enquiry Officer, Karachi, on a charge under section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and convicted of the said offence on the 5th April 1972 and sentenced to imprisonment till the rising of the Court and also to pay a fine of Rs, 400, in default of payment of fine he has been ordered to suffer further R.
1. For four months. The appellant filed an appeal through Mr. G. M. Shah, Advocate and the appeal was admitted by my Lord the Chief Justice who at the time of admission also ordered issuance of notice to the appellant to show cause why the sentence should not be enhanced.
' Mr. G. M. Shah has appeared for the appellant before me in the appeal that has been filed by him and also in the suo rnotu Reference for enhancement that has been made by the orders of my Lord the Chief Justice. Both the appeal and the reference are being disposed off by this judgment.
2. Briefly stated the facts of the Tprosecution case are that on the date of commission of this offence viz. 27th September 1965, appellant was working as an Assistant Stores Officer in the Karachi Development Authority and was posted in the North Nazimabad Store Sub-Division. One Muhammad Hashim who was at one time a chowkidar in the Karachi Development Authority Stores Department had proceeded on leave and not returned and for that reason perhaps his service had been terminated. However, Muhammad Hashim returned in the month of September 1969 and on the 25th September, 1969 he made an application (Exh. 13) which was addressed to the Executive Engineer, Karachi Development Authority, Stores Division, North Nazimabad for the post of chowkidar. Muhammad Hashim took that application to the appellant and asked him to recommend him for appointment. The appellant is said to have asked Muhammad Hashim to pay a bribe of Rs, 70, if he wanted the post. Muhammad Hashim thereafter informed Fazal Ahmed who was then working as the Chief Store Keeper in the Karachi Development Authority. Fazal Ahmed advised complainant Muhammad Hashim to report the matter to the Anti-corruption Police and accordingly Muhammad Hashim reported the matter to Anti-corruption Establishment on 27th September 1969 wherein ho clearly stated all the circumstances with regard to the demand of bribe by the appellant.
' The Inspector of Anti-corruption Establishment Mr. Ashfaque Ahmed, thereafter requested Mr. Sufaid Shah, a Magistrate of Karachi to witness the trap. In the presence of the Police Officer, Sufaid Shah prepared a mashirnama in regard to entrustment of sum of Rs, 70 to Muhammad Hashim.
The complainant, for being paid as a bribe to the appellant. Thereafter the Police Officer and the Magistrate alongwith the complainant proceeded to the office of the appellant in North Nazimabad. The complainant went to the room of the appellant where Fazal Ahmed was also present. As soon as the complainant reached the room the appellant demanded the money from him and the complainant paid him Rs, 70, which was the tainted money in this case and the appellant after taking the same put it in the left side pant pocket of his. A signal had been arranged and on the giving of the signal the Magistrate alongwith the police Officer namely Ashfaque Ahmed came to the room of the appellant and asked him to produce the money. The appellant took out the money from the left side pant pocket. The appellant was thereafter, arrested and investigations were completed. Thereafter the prosecution obtained sanction for the prosecution of the appellant from the Chairman, Karachi Development Authority, and sent up the appellant to stand his trial before the Special Judge-cum Enquiry Officer, Karachi which has resulted in his conviction and sentence as aforesaid.
3. At the trial the prosecution examined the complainant Muhammad Hashim, the Magistrate Sufaid Shah, the Investigating Officer Ashfaque Ahmed. Besides these witnesses the prosecution also examined Fazal Ahmed who has deposed as to the appellant having obtained the money from the complainant and this witness also signed the mashirnama of the recovery of tainted money although it is stated by the prosecution that his services had not been originally requisitioned in that behalf viz. For acting as a mashir. Besides these witnesses the prosecution examined one Muhammad Rafiq who is also a Store Clerk in the Karachi Development Authority and he had stated that he was working under the appellant and was therefore, able to identify his handwriting and signature. This witness produced a Muster Roll in regard to attendance of some K.
D. A. Employees. What is the actual significance of his evidence is not very clear but he had however stated in cross-examination that the appellant had on an earlier occasion made a report against him. Besides these witnesses the prosecution examined three other witnesses namely, Maqbool Ahmed, a Store Keeper, Muhammad Ali and Qamaruddin, two Buklders in the employment of the Karachi Development Authority. The evidence of these three witnesses also appears to be irrelevant because the same has no bearing on the facts of this case. It seems that an attempt was made by the prosecution to show that the appellant had even on previous occasions been demanding bribes from his subordinates and if any subordinate had refused to pay bribe, the appellant used to mark him absent from duty, so that such employee may have to suffer trouble or loss in his wages. Suffice to say that the prosecution case is mainly, based on the evidence of complainant Muhammad Hashim, the Magistrate, the Investigating Officer and Fazal Ahmed who had signed the mashirnama of the recovery of the tainted money.
' Before stating as to the stand taken by the appellant in this case I will refer to the application that complainant Muhammad Hashim had made for appointment as a chowkidar. This application was made by Muhammad Hashim on the 25th September 1969 and was addressed to the Executive Engineer of Karachi Development Authority. On the same day the prosecution witness Maqbool Ahmed Jaffri, with regard to whose evidence I have stated that he used to maintain the muster roll, wrote a forwarding note stating that the complainant had already worked as chowkidar for about 44 years and recommended that he may be appointed in an existing vacancy. This application was thereafter, recommended by the appellant on the 26th September 1969 viz. The day preceding the trap. The appellant had stated in that application that the case of complainant Muhammad Hashim for appointment may be treated as an emergent case because there was shortage of security staff.
' The appellant also examined three defence witnesses namely, Durrey Hussain, an Assistant Engineer in the Karachi Development Authority who produced some documents showing that the appellant had made some reports against prosecution witness Maqbool Ahmed and Fazal Ahmed.
In one out of these reports the appellant had stated that Maqbool Ahmed Jaffri had attempted to take away three trucks loaded with C. I. Pipes of the K. D. A. In the other report which was in the nature of the supplementary report, the appellant stated that in regard to this attempted theft or misappropriation, name of Fazal Ahmed had erroneously been omitted by the typist. In short these two reports were against Maqbool Ahmed and Fazal Ahmed which were made by the appellant alleging that both of them were guilty either of theft or misappropriation of some C. I. Pipes belonging to the Karachi Development Authority. While the first of these reports is dated the 11th July 1969 and is against Maqbool Ahmed; the second report is dated the 22nd October 1969 wherein the name of Fazal Ahmed was also added with a view to implicate him in this alleged theft or misappropriation case. I have referred to these dates because the appellant had been arrested in this case on the 27th September 1969 and it would taus seem that the second report in which the name of Fazal Ahmed has also been added was made after the arrest of the appellant in this case.
It seems that in spite of the arrest, the appellant was allowed to work in the office. What is more that these two reports made by the appellant were enquired into and it was found that there was HO shortage of any stores of the Karachi Development Authority and on the 31st December 1969, the Stock Engineer (Development) of the Karachi Development Authority made a report stating that the complaint made by the appellant seemed to be incorrect. The other defence witness was Saidan Shah, the Head Watchman in Karachi Development Authority Store at Nazimabad and he deposed that Maqbool Ahmed and Fazal Ahmed had come in a car and had taken away three C. I.
Bends from the Store and he went on to state that he reported such facts to the Store Officer viz, the appellant. In his cross-examination this witness has stated that to his knowledge no enquiry was held in the allegations that were made by him. The third defence witness was Ghulam Hussain, also a Chowkidar in the Karachi Development Authority office, and he stated that on the date of incident which was in the month of September 1969, he found a Bengali gentleman, and Muhammad Hashim is stated to be a Bengali; talking with Fazal Ahmed. The witness went on to state that this Bengali gentleman gave some currency notes to Fazal Ahmed who went inside the office of the appellant and gave that money to the appellant. He however admitted in his cross- examination that the raiding party was standing at a di stance of 10.15 paces from the veranda and the amount was passed on by that Bengali gentleman to Fazal Ahmed in the verandah.
4. In the present case the recovery of tainted money from the possession of the appellant had been admitted by the appellant himself. He has himself stated that he had received the money from Fazal Ahmed as a loan and before he could count the amount the Police Party came and arrested him. On that point there is evidence of Sufaid Shah a Magistrate who had supervised the trap and he had also stated that as soon as he got a signal he went inside the room of the appellant and found him sitting and on demand the appellant took out money from the pocket of his coat and produced the same. This evidence is also corroborated by the evidence of Inspector Ashfaque Ahmed, who stated that the appellant on being enquired in regard to the money took out the same from the pocket of his trousers and produced the same. No doubt there is small contradiction inasmuch as the Magistrate states that the money was taken out from the pocket of the coat and the Police Officer stated that it was taken out from the pocket of the trousers, but in view of the fact that the appellant had himself admitted the recovery of the money and production of the same before the Police Officer the contradiction is not of much signifcance. The evidence of the Magistrate and the Police Officer is also fully supported by the complainant Muhammad Hashim who has stated that he had gone and paid the amount to the appellant in his room and thereafter the Magistrate and the Police Officer came inside the room and caught the appellant and recovered the tainted money from the pocket of his trousers, the mashirnama in regard to the recovery of the tainted money (Exh. 16) also clearly states that when the Police Officer disclosed his identity to the appellant and asked about the money the latter took out the same from the left side of his pant pocket and produced it before the Police Officer and the Magistrate. There can thus be no doubt whatsoever in regard to the tainted money having been found from the possession of the appellant. There can also be no doubt that these seven currency notes of Rs, 10 each, which form the tainted money in this case had earlier been given by the Magistrate Mr. Sufaid Shah to the complainant Muhammad Hashim in the presence of the Inspector and a mashirnama in respect of that entrustment had been prepared which is Exh. 15 on the record. Even the first information report which was drawn up before the trap clearly states that the appellant had demanded a sum of Rs, 70 from the complainant Muhammad Hashim as illegal gratification for the purposes of getting him an appointment as chowkidar.
' It would thus see to be very clear that this amount of Rs, 70 that was recovered from the appellant was the same amount which had earlier been given by the police to the complainant Muhammad Hashim for the purposes of payment to the appellant, so that the latter could be caught red- handed with the tainted money.
5. The contentions of Mr. G. M. Shah, the learned Advocate for the appellant, are that since the appellant had already recommended the application of the complainant Muhammad Hashim for appointment on the previous day, there was no reason for the complainant to have paid the amount to the appellant. Additionally it has been contended that the appellant was a victim of circumstances and since both Maqbool Ahmed and Fazal Ahmed were his enemies they have used Muhammad Hashim as a pawn for the purpose of implicating him in this false case. He has in that regard argued that the appellant had earlier asked for a loan from Fazal Ahmed and this amount was obtained by the appellant from Fazal Ahmed and not from the complainant.
6. It is no doubt true that Muhammad Hashim had made an application for appointment on 25th September 1969 and on the same day it had been recommended by Maqbool Ahmed and it was on the next day viz. 26th September, 1969 that the appellant had also recommended the complainant Muhammad Hashim for appointment as chowkidar. However, the question is whether this circumstance can be considered to be of a nature which would render the prosecution story in any manner improbable. Under the law a person will be deemed to be guilty of obtaining illegal gratification, even if he obtains the amount after having shown favour to the person concerned.
Besides, it is not improbable that the appellant may have already recommended Muhammad Hashim the complainant on the latter's promising to pay the amount. In any case I have not been impressed by that argument because it is very improbable that Muhammad Hashim would falsely implicate the appellant whom he had approached for getting him the post of chowkidar; and the appellant had actually recommended him. For that reason Mohammad Hashim should be grateful to the appellant rather than fasely implicate. In the first information report also Muhammad Hussain had already stated that the appellant had demanded Rs, 70 as a bribe for getting him employment.
7. The next point for consideration is whether this amount of Rs, 70 that was recovered from the appellant by the police and the Magistrate had been paid to him by Fazal Ahmed or complainant Muhammad Hashim. On that point the most important circumstance is that these currency notes were the same which the police had earlier given to the complainant Muhammad Hashim for payment to the appellant. On that point the evidence of the prosecution witnesses is very clear and consistent. The case of the prosecution is that when Muhammad Hashim had taken the application to the appellant, the latter had demanded a bribe of Rs, 70 and Muhammad Hashim had narrated the facts of this demand of the appellant to Fazal Ahmed and the latter had directed Muhammad Hashim to approach Anti-corruption Police. Muhammad Hashim thereafter approached Anti-corruption Police and a trap was arranged. Fazal Ahmed in his evidence has stated that on the day in question and at 3 p.m. When this raid had been arranged, he was sitting with the appellant in his office and at that time the complainant Muhammad Hashim came and the appellant demanded the money from the complainant on which the latter paid the amount to the appellant who took the same and put it in his pant pocket. It is no doubt true that Fazal Ahmed had on earlier occasions acted as a witness in 2 or 3 Anti-corruption cases against the Karachi Development Authority employees pertaining to some stores. He has also admitted in his cross- examination that he had acted as a witness in one Anti-corruption case but the said case did not relate to Karachi Development Authority. It is quite possible that Fazal Ahmed may be knowing some Officer of Anti-corruption Establishment or for the variety of reasons he may have told Muhammad Hashim to lodge a complaint with the Anti-corruption Police in regard to the demand made by the appellant for the bribe, but that by itself in my view will not render the evidence of Fazal Ahmed false, As it is the application of Muhammad Hashim had to be dealt with by the appellant and Fazal Ahmed was also working in the same office. It is also in the evidence of Muhammad Hashim and Fazal Ahmed that Muhammad Hashim had narrated to Faze' Ahmed the fact of the making of the application for appointment and also the fact of the appellant having demanded a bribe. Under such circumstances if Fazal Ahmed had advised the complainant to lodge a report with the Anticorruption Police, I would not for that reason alone hold Fazal Ahmed to be a false witness. It is however, being argued before me that the appellant had reported appellant Fazal Ahmed in regard to the theft of C.
1. Pipes. This report as I have stated earlier was made after this case. This was a report which was in continuation of an earlier report wherein Fazal had not been implicated by the appellant. On the other hand it is the case of the appellant that he had demanded a loan from Fazal Ahmed. It is inconceivable that if Fazal Ahmed was an enemy of the appellant, the latter would demand a loan from him.
' No doubt Fazal Ahmed has signed the mashirnama of recovery of the tainted money from the appellant. It is however not the prosecution case that Fazal Ahmed's services had been requisitioned by the Anti-corruption Police or the Magistrate for acting as a mashir in regard to the trap. However, the fact cannot be overlooked that Fazal Ahmed according to the prosecution witnesses and also the appellant was present in the room of the appellant when the appellant received Rs,
70. He is further stated to have been present at the time of recovery. Under those circumstances Fazal Ahmed may have been asked by the Police Officer or the Magistrate to sign the mashtrnama of recovery and I can possibly find no fault with it. The question is whether the recovery as shown in the mashirnama was a fact or not and on that point even the appellant does not dispute the fact of recovery.
' However, it is in the evidence of the Magistrate Sufaid Shah as well as Fazal Ahmed himself that when the appellant was caught with the tainted money, he made a complaint to the Magistrate that this money had been paid by Fazal Ahmed to him. Such a fact is admitted by the Magistrate as well as by Fazal Ahmed himself. The argument is sought to be re-inforced by the evidence of defence witness Ghulam Hussain. The evidence of this defence witness is that while the raiding party was standing 10-15 paces away from the verandah Muhammad Hashim the complainant was seen by this witness talking to Fazal Ahmed in the verandah and passing some money to Fazal Ahmed. The import of such evidence appears to be that Muhammad Hashim after obtaining the trap;t money from the police had in the presence of the raiding party consisting of the Police Officer and the Magistrate passed on that money to Fazal Ahmed for being paid to the appellant.
The evidence in my view is absurd and no such question has been asked from the Magistrate or the Police Officer in cross-examination. Even the learned Advocate for the appellant candidly conceded before me that the evidence of this defence witness was not very reliable. In fact on a reading of the evidence of Ghulam Hussain, I am left in no doubt that his evidence is false. This witness has even gone to the extent of saying that the complainant Muhammad Hashim after giving money to Fazal Ahmed went away to the canteen. Even such a question has not been asked or suggested to Muhammad Hashim in his cross-examination by the appellant. Moreover, it is the consistent case of the prosecution and has been deposed to by all the witnesses that Fazal Ahmed and Muhammad Hashim were present in the room of the appellant at the time of recovery of the tainted money. Muhammad Hashim has even signed the mashirnama of recovery. Even otherwise, I am of the view that this story of Muhammad Hashim having passed on the money to Fazal Ahmed is absurd and absolutely unbelievable.
8. The next argument of the learned Advocate for the appellant was that it was very improbable that the appellant might have taken money in the presence of Fazal Ahmed, who according to the learned Advocate was inimical to the appellant. The enmity was sought to be proved on the basis of the report that had been made by the appellant against Fazal Ahmed. This report as I have already stated, is later in point of time to the date of commission of this offence. Moreover, there appears to be no reason to believe that Fazal Ahmed was on terms of enmity with the appellant.
No doubt Fazal Ahmed may have asked the complainant to report the matter to Anti-corruption Police so that a trap could be arranged but that itself will not show that Fazal Ahmed bore any enmity against the appellant. Moreover, on the showing of the appellant himself he had demanded a loan from Fazal Ahmed and normally a person does not seek a loan from an enemy. As to the appellant having taken the amount from the complainant in the presence of Fazal Ahmed much need not be said. Human nature as it is, there are people who have more daring and less respect for law then others, and they may well accept bribe even in the presence of some persons.
Moreoever, Fazal Ahmed was a subordinate of the appellant and therefore, the appellant had nothing much to fear from him. What is more that the appellant knew that Fazal Ahmed himself was interested in getting the post of chowkidar for Muhammad Hashim. In that view of the matter I am of the opinion that it is not improbable that the money may have been taken in the presence of Fazal Ahmed and 1 can possibly see no circumstance to disbelieve that part of the prosecution case.
9. The learned Advocate has also strenuously argued that at the very first point of time the appellant had stated before the Magistrate that the money had been obtained by him from Fazal Ahmed as a loan. This no doubt appears to be true because both the Magistrate as well as Fazal Ahmed have admitted it. However, the question is whether such a statement made by the appellant at the spur of moment is by itself such a circumstance as to render the entire case of the prosecution unbelievable. There are people who may be able to make out a story at the spur of the moment and it cannot be said that simply because an accused person when caught with tainted money is able to make out a false story immediately, the same story must be believed. Moreover with regard to that statement we have got to look into the circumstances of this case. First of all Fazal Ahmed being a subordinate of the appellant, it is hardly probable that the appellant would have asked for a loan from him. Next circumstance that renders this story improbable and false is that the appellant had in his statement stated that he had originally demanded a loan of Rs, 100, but when Fazal Ahmed had expressed his inability to pay Rs, 100, he demanded Rs, 50 as a loan. If that is so there is hardly any reason for the amount of the bribe being settled at Rs, 70 rather Rs, 50, which was the amount demanded as loan. Moreover, it seems hardly probable that the appellant was in such need of money that he should have approached Fazal Ahmed, the prosecution witness, for this amount. Fazal Ahmed has been cross-examined on this point, and he has clearly denied that the appellant had obtained any loan from him or even asked him to pay him a loan.
The mere statement of the appellant to the Magistrate at the time of trap will not in my B view be sufficient to react on the prosecution story because a person could create a false defence on the spur of the moment also.
' The Advocate for the appellant has also argued that this case has been instigated against the appellant by Maqbool Ahmed and Fazal Ahmed. On a reading of evidence of Maqbool Ahmed I find that there is nothing to indicate that he knew anything with regard to the demand of bribe by the appellant from the complainant. All that he has stated in cross-examination is that complainant Muhammad Hashim brought some application to him; and he might have dealt with that same application in normal office routine. He has no doubt stated that enmity did exist as between him and the appellant but there is nothing on the record to indicate that he has taken any part in having the appellant implicated.
10. On a consideration of all the evidence that has been recorded in this case I am left in no doubt that the tainted money was recovered from the possession of the appellant and the appellant has failed to give any reasonable account for the same. He has attempted to raise a false defence that the amount was not the bribe amount but a loan that he had obtained from Fazal Ahmed. To that extent 1 have disbelieved the defence of the appellant. The guilt of the appellant stands proved and I see no reason to interfere with the conviction that has been recorded against him.
11. The next question is with regard to sentence. The incident had taken place in September 1969 and the appellant was sent up for trial in July 1971, viz. After about two years. This delay in prosecution of the appellant has not been explained. I would say that such delay in sending up corruption cases before the Special Judge for trial defeats the very object of the Criminal Law Amendment Act. The trial again dragged on for about 9 months and the appeal has been heard after 18 months. It would show that suo moto notice for enhancement of sentence is being heard after four years of the commission of offence. I have no doubt that the sentence that has been imposed on the appellant is lenient in the extreme. Normally the sentence in corruption cases should be one of substantive terms of imprisonment. In fact that was the purpose of the enactment of Prevention of Corruption Act whereby the offence under section 5(2) which is almost identical in terms to the offence under section 161, P. P. C., provided a sentence of 7 years when section 161, P. P. C. Provided a sentence only of two years. Moreover, the Special Judge is to be a Judge of the status of the Sessions Judge and has indeed to follow such procedure. It would thus seem that the object of the Prevention of Corruption Act was to provide higher sentences. But in the present case I find that since mor than 4} years have lapsed, and the appellant has lost his job; and he has no further chance of being appointed in any Government or semi-Government D body, no useful purpose would be served in enhancing the sentence. FOI that reason I will recall the suo moo notice that has been issued for the enhancement of the sentence.
12. In the result the appeal of the appellant is dismissed and the conviction and sentence imposed on him is confirmed. The suo mow notice for enhancement of sentence is hereby recalled and vacated. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.