' The appellant, Sher Zaman, Patwari, alongwith his co-accused Muntazir, Girdawar Circle, was charged for having committed an offence punishable under section 161, P.P.C. Read with section 5(2), Prevention of Corruption Act, 1947, vide F.I.R. No,2, dated 23-4-1991 registered at Police Station Anti-Corruption Establishment, Mardan.
2. After the completion of the usual Police investigation complete challan was submitted in the Court of Special Judge, Anti-Corruption N.-W.F.P. Camp at Mardan against both the accused on 3- 1-1994.
3. At the conclusion of the trial which took more than 2-1/2 years, the Special Judge, Anti- Corruption N.-W.F.P. While acquitting accused Muntazir, Girdawar, convicted the appellant, Sher Zaman, Patwari, by his order recorded on 15-7-1996. For the sake of convenience the operative portion of the impugned order is reproduced hereunder:-- "At the same time the case of the two accused is different. Accused Muntazir is not alleged to have demanded bribe money in the F.I.R. The tainted amount was not recovered from his direct possession. He was not directly involved in issuing the required Fard. P.W. Ehsan Ullah had not met him. It was accused Sher Zaman who wanted to share the Booty with him, and thus, obliged to him.
His case, therefore, deserves benefit of doubt. He is, therefore, acquitted of all the charges in this case.
' The net result is that I conclude that the prosecution have proved their case beyond any reasonable doubt against the accused Sher Zaman. He is, therefore, convicted under section 161, P.P.C. And section 5(2), Prevention of Corruption Act of 1947. He is sentenced on both the counts to the period of imprisonment of 17 days which is the period of his judicial detention undergone by him in this case in terms of the amended section 382-B and to a fine of Rs,50,000 (Fifty thousand) or in default to undergo six months simple imprisonment. The orders are announced. It is at this juncture that the convict Sher Zaman informs that he intends to pay the above fine today and further intends to prefer an appeal. He is in his active service. His services may be prejudiced pending the institution of the above appeal. I, therefore, direct that the operation of this judgment in respect of some efforts on his present service (if any) is kept suspended till the expiry of the period of limitation under the law or the institution of appeal by him before the Honourable Appellate Court."
4. Aggrieved by the impugned order the appellant/accused Sher Zaman, Patwari, has challenged its validity/legality by filing this appeal.
5. Similarly the State, through Advocate-General, N.-W.F.P. (Mr. Muhammad Akbar Khan Swati) has filed Criminal Revision No,122 of 1996 praying therein that the sentence awarded to the accused Sher Zaman, Patwari, being inadequate, may grosly be enhanced in accordance with law.
6. As the appeal das well as the criminal revision have arisen out the same judgment, therefore, I propose to dispose the two by this judgment.
7. Sardar Aslam Afridi, Advocate, learned counsel for the appellant and Mr. Abdur Rauf Khan Gandapur, Advocate, learned counsel for the State present and heard. I have also gone through the record of the case carefully with the able assistance of the counsel for the parties.
8. Since the facts of the case in hand have already been given, in detail, by the Special Judge, Anti- Corruption, in the impugned judgment, dated 15-7-1996, therefore, it would be a futile exercise to reproduce/narrate the same once again.
9. In essence, the legality/validity of the impugned judgment appears to have been challenged, in the main on two grounds. Firstly, that the prosecution witnesses had not seen the passing of the bribe money (tainted amount) to the accused by the complainant and secondly, that the conversation, which took place between the bribe receiver (appellant) and the bribe giver (complainant), was not heard by the P.Ws. i,e,, the members of the raiding party.
10. Besides, it has been alleged that all the P.Ws. Being official witnesses were interested witnesses and therefore, their testimony was not trustworthy to record the conviction under section 161, P.P.C.
Read with section 5(2), Prevention of Corruption Act, 1947. Consequently the same could not be sustained. The learned counsel for the appellant, in support of his contention, relied on case titled Muhammad Ashraf v. The State reported as 1996 SCM R 181. This case was decided by an Honourable Division Bench of the Supreme Court of Pakistan comprising of His Lordship Mr. Justice Afrasiab Khan and His Lordship Mr. Justice Muhammad Bashir Jehangiri. It was held by their Lordships:-- "(c) ibid...
Section 5(2). Interested testimony of police officials which remained uncorroborated, would not be enough to record conviction under section 5(2) with P.P.C. Section 161.
(d) Police Officials ...
Interested evidence of Police Officials which remained uncorroborated would not be sufficient for sustaining conviction recorded by Trial Court.
(e) Constitution of Pakistan, 1973.
Article 185(3). Leave petition against judgment of High Court upholding conviction/sentence under section 161, P.P.C. Recorded by Trial Court on basis of evidence of Police Officials which remained uncorroborated. Supreme Court holding that interested evidence of Police Officials could not sustain conviction converting leave petition into appeal, allowing appeal ordering acquittal of convicts."
11. The learned counsel for the State on the other hand, submitted vehemently that in trap cases it was absolutely not necessary to look for direct evidence between the accused and the decoy witness. According to him it was sufficient if the person who had supervised the raid had not been cheated either by the complainant/decoy witnesses or by the accused, and that he was of the view that the episode had in fact taken place as was alleged by the prosecution. He further contended that under the said circumstances conviction could be validly recorded by the Trial Court. The learned counsel for the State further argued that the standard and mode of appreciation of evidence in cases where "acquittal" was sought to be set aside was quite different than the appreciation of evidence in the cases where "conviction" was sought to be set aside. In support of his contention he placed reliance on a case, Muhammad Aslam v. The State reported as PLD 1992 SC 254 decided by a Division Bench of the Honourable Supreme Court of Pakistan, comprising of their Lordships Mr. Justice Muhammad Afzal Zullah (the then Chief Justice) and His Lordship Mr. Justice Abdul Qadeer Chaudhry. It was held by their Lordships:-- "(a) Prevention of Corruption Act (II of 1947)--- ----S. 5(2)---Penal Code (XLV of 1860), S.161---Trap cases---Not necessary in a raid (trap case to look for direct evidence of criminal conversation between the accused and decoy witness; provided that the Magistrate who supervised the raid was satisfied that he had not been cheated either by the complainant/decoy witness or by the accused---Where the Magistrate who conducted the raid was in no doubt about the correctness of the prosecution case nor was he in any doubt about the reality which had taken place and which was witnessed by him. Supreme Court declined interference in the conviction and sentence of the accused."
12. A critical analysis of the petitioner evidence would show, admittedly, that the complainant had no or enmity with the two accused against whom he had reported the matter to the concerned quarters. When examnmed as P. W.1, nothing could be brought on record, in the cross-examination, to show that he had either concocted the case against the appellant or had any malicious intention to involve them in the case falsely. Admittedly the complainant had produced the currency notes before the Raiding Officer who had duly noted the number of the notes. Later, the complainant (P.W.1) alongwith Yaqoob (P.W.2) went to the "Patwarkhana" with the tainted amount where the bribe amount was actually paid. Immediately after the payment of the amount in question the agreed signal was given by Yaqoob (P.W.2). Resultantly, the raiding party entered the "Patwarkhana". It was the S.H.O. (P.W.5) who recovered the tainted amount of Rs,7,000 (seven thousand) from the pocket of the shirt which the appellant Sher Zaman was wearing. The amount recovered was found to be the tainted money. The remaining tainted amount of Rs,3,500 (Rs, thr:..e thousand and five hundred) was, however, recovered from beneath of a "mat"
13. The recovery memo. (Exh.P.W.4/4) was duly prepared by the raiding party. It may be pointed out that although the Raiding Officer was not a Magistrate, but he was a responsible/Senior Police Officer of the rank of Deputy Superintendent of Police. It was contended by the learned counsel for the State that this method was adopted so as to avoid the leakage of the information regarding the raid. The appellant, from whose possession the tainted amount of Rs,7,000 was recovered, failed to explain reasonably as to how and under what circumstances the tainted amount was received by him. Since the amount was duly recovered from his possession, therefore, it was incumbent upon the appellant to have shown, by cogent evidence, that he had been falsely invclved in the case because of some previous enmity/ulterior motive. Such explanation is however, not forthcoming. The contention of the appellant that the complainant was not the owner of the land in the Patwar Halqa in which he was posted as a Patwari and that he was, therefore, not entitled to ask for or to get "Fard Jamabandi", is of no significance. The contention of the complainant, on the other hand, that his son was the owner of landed property in the said Patwar Halqa and that he required the requisite Fard Jamabandi on his behalf is quite plausible and could not be refuted by the appellant during the trial.
14. The appellant's second plea that the complainant was annoyed with him as he was declared as a defaulter in respect of non-payment of "Abiana" and "Ushr", by the appellant, is also without any substance inasmuch no evidence worth the name was produced in this respect at the trial in support of this contention. The contention of the appellant regarding this fact cannot be, therefore, accepted.
15. In the circumstances, I am of the view that the prosecution had succeeded in establishing it's case against the appellant for receiving bribe money amounting to Rs,7,000 (Rs, seven thousand) and that the Special Judge, Anti-Corruption had rightly convicted him. In my opinion there appears to be nothing wrong with the well-reasoned judgment recorded by the Special Judge, Anti- Corruption which is neither arbitrary nor perverse. He has, to my mind, recorded a speaking order and has given valid reasons for his conclusion. The appeal does not merit consideration and is accordingly dismissed.
16. Since the appellant-accused has been convicted and sentenced to undergo imprisonment for 17 days only and to pay a fine of Rs,50,000 (Rs, fifty thousand) or in default to undergo 6 months' R.I., therefore, I am of the view that he has been dealt with quite leniently. Accordingly the revision petition filed by the State is accepted and the sentence is enhanced to 3 years' R.I. The sentence of fine to be paid by him shall, however, remain the same.
17. The appellant is absent although his brother namely, Munir Khan son of Isa Khan is present, therefore, perpetual non-bailable warrant of arrest be issued against him.