' This is an appeal under section 10 of the Pakistan Criminal Law Amendment Act, 1958 against the judgment of the Special Judge, Anti-Corruption, Faisalabad, dated 12-2-2000, whereby the appellant Malik Munir Hussain has been convicted under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to two years' R.I. And to pay a fine of Rs,10,000 or in default to undergo further R.I. For a period of six months.
2. The prosecution case is that Nazir Ahmad complainant made a complaint ,(Exh.P.E.) on 31-12- 1995 alleging therein that his brother Ghulam Muhammad son of Khushi Muhammad had died on 5-11-1994 and Mst. Salim Akhtar daughter of Muhammad Shafi who was the divorcee/widow of his brother late Ghulam Muhammad in league with the appellant had got sanctioned on 21-12-1994 the mutation of inheritance bearing No,2630 in her favour. An appeal was preferred by the complainant and other inheritors before the A.C./Collector Sadar Sub-Division, Faisalabad, which was rejected on 14-3-1995. A revision was filed but the same was dismissed by the Additional Commissioner on 14-5-1995. The complainant challenged the legality of the orders of the Revenue Courts by means of instituting a civil suit which was decreed in his favour on 5-9-1995 on confession judgment. The appellant who was a Patwari of the Halqa, demanded illegal gratification in the sum of Rs,25,000 for implementation of the order in the Revenue Papers. The complainant had agreed to pay Rs,20,000 and paid Rs,15,000 to the appellant in advance and promised for the payment of remaining Rs,5,000 and the correction in the mutation was carried out. The appellant continued demanding Rs,5,000 more which was postponed by the complainant and ultimately reported the matter to the Anti-Corruption Department. Muhammad Ashraf, Assistant Director, A.C.E. Moved an application before the A.C. City for getting a raid party constituted who vide order, dated 1-1-1996 (Exh.P.A./1) appointed Malik Zafar Javaid, M.I.C. To supervise the raid. The Magistrate recorded the statement of the complainant (Exh.P.A./2) and handed over to the complainant five currency notes of Rs,1,000 each bearing No,L6930469 (P.1), E6665465 (P.2), E0946015 (P.3), H0668132 (P.4) and G3926227 (P.5) total amount being Rs,5,000 and constituted the raiding party consisting of Nazir Ahmad, Malik Zafar Javaid, M.I.C., Muhammad Ashraf A. Dir, A.C.E. And Hawaldar Ajmal, and Muhammad Sharif, Constable and then despatched the complainant to the spot with specific signals. The raiding party went to the Circular Road near behind the office of the Sub-Division.
Faisalabad. On a specific signal of the complainant, the Magistrate introduced himself to the appellant and got recovered Rs,5,000 (P.1 to P.5) from the right pocket of the Shalwar of the appellant. The statement of the complainant (Exh.P.B.) and the statement of the accused (Exh.P.B./1) were recorded by the Magistrate. After completing the investigation, the matter was challaned to the competent Court where the appellant was formally charge-sheeted to which he pleaded not guilty and claimed trial. At the trial the prosecution examined four witnesses, viz. Nazir Ahmad P.W.2, Muhammad Ajmal P.W.3 and Ch. Muhammad Ashraf P.W.4 and brought on record the application of the Dir. A.C.E. (Exh.P.A.), the order of the Magistrate to supervise the raid (Exh.P.A./1), the statement of the complainant (Exh.P.B.), statement of the accused (Exh.P.B./1), order of M.I.C., dated 1-1-1996 (Exh.P.C.), recovery memo. Of currency notes (Exh.P.D.), complaint (Exh.P.E.), formal F.I.R. (Exh.P.E./1) recovery memo. Dated 4-1-1996, sanction order (Exh.P.G./1), currency notes of Rs,1,000 each being Nos.L6930469 (P.1), E6665465 (P.2), E09446015 (P.3), H0668132 (P.4) and G3926227 (P.5), order, dated 4-5-1995 of the Additional Commissioner (Exh.P.6), memo. Of suit for declaration (Exh.P.7/1), order of Civil Judge, dated 5-9-1995 (Exh.P.7./2), order of Civil Judge dated 13-9-1995 (Exh.P.7/3), order of Civil Judge, dated 17-9-1995 (Exh.P.7/4), decree-sheet dated 5-9- 1995 (Exh.P.7./5), Mutation No,3630, dated 21-2-1994 (P.8), Mutation No,745, dated 21-12-1994 (P.9).
The accused statement under section 342, Cr.P.C. Was recorded and he denied the allegations and pleaded innocence and tendered copy of F.I.R. (Exh.D.1), copy of Mutation, dated 21-12-1994 (Ex After the arguments, the impugned conviction and sentence was passed by the trial Court.
3. Learned counsel for the appellant has argued that the trial was illegal for misjoinder of charges and that the explanation of the appellant was plausible which has not been given due weight. In the alternate he submitted that the sentence is too harsh; and that the appellant having since been retired from service, he needs a leniency. On the other hand, learned counsel for the appellant has submitted that no dent could be created by the appellant in the prosecution case at the trial.
4. I have given due consideration to the valuable arguments on both sides.
5. The relevant provisions of law under which the appellant was convicted are contained in section 161, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947, which are reproduced for ready reference:-- '"Section 161. Public servant taking gratification other than legal remuneration in respect of an official act.--- Whoever, being or expecting to be a public servant, accepts or obtains or agrees to accepts, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or for bearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or dis-service to any person, with the Central or any Provincial Government or Legislature or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both".
' "Explanation: Expecting to be a public servant.--- If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
"Gratification".--- The word "gratification" is not restricted to pecuniary gratifications, or to gratifications estimable in money.
"Legal remuneration".--- The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the (authority by which he is employed, to accept).
"A motive or reward for doing".--- A person who receives a gratification as a motive for doing what he does not intend to do, or as reward for doing what he has done, comes within three words.
Illustrations.
(a) A, a Munsif, obtains from Z, a banker, a situation in Z's bank for A's brother, as a reward to A for deciding a case in favour of Z, has committed the offence defined in this section.
(b) A, holding the office of Counsel at the Court of a Foreign Power accepts a lakh of rupees from the Minister of that power. It does not appear, that accepted this sum as a motive or reward for doing or forbearing to do any particular official act, or for rendering or attempting to render any particular service to that Power with the Government of Pakistan. But it does appear that A accepted the sum as a motive or reward for generally showing favour in the exercise of this official functions to that Power. A has committed the offence defined in this section.
(c) A, a public servant, induces Z erroneously to believe that A's influence with the Government has obtained a title for Z and, thus, induces Z to give A money as a reward for this service. A has committed the offence defined in this section.
' "Section 5(2) Criminal misconduct.--- (1) .............................................
(2) Any public servant who commits (or attempts to commit criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both."
Both these provisions of law were enacted for prevention of bribery and corruption. The offence under section 5 of the Prevention of Corruption Act is an offence which is distinct and separate from the offence under section 161 and, the trial for the offence of criminal misconduct under section 5 of the said Act and offences under section 161, P.P.C., where the offences form part of the same transaction may be held at the same time, under the provisions of sections 233 to 239 of the Criminal Procedure Code. The same view was taken by the Division Bench of this Court in the case of Akhtar Hassan Khan v. The State PLD 1967 Lah.
923. The offence under section 161 is a species of and is included in the offence under section 5(2) of the Prevention of Corruption Act, 1947. These two offences can co-exist and the one will not be considered as overlapping the other. In the case of Muhammad Iqbal v Muhammad Ramzan and 2 others 1974 SCM R 199 it was observed that the accused may be charged under either or both of the) sections although he could not be punished more than once for the same offence.
6. The scrutiny of the prosecution evidence shows that Malik Zafar Javaid (P.W.1) deposed that P.W.4 Ch. Muhammad Ashraf, Assistant Director A.C.E. Had presented application (Ex before him on 1-1-1996. On which, he recorded the statement of the complainant (Exh.P.A./2) and constituted the raiding party and marked the currency notes of Rs,5,000 (P.1 to P.5) and handed over the same to the complainant and he was also made to understand the special signal and thereafter they had reached near the Sub-Division Office at Circular Road and on specific signal the recovery of Rs,5,000 (P.1 to P.5) was made from the person of the appellant from the pocket of his Shalwar which was compared and were found the same. He also deposed that he recorded the statement of the complainant as well as the accused and prepared and signed the memo. Of possession of currency notes (P.1 to P.5). P.W.3 Muhammad Ajmal and P.W.4 Ch. Muhammad Ashraf have also supported the version of P.W.1. In his statement under section 342, Cr.P.C. The appellant explained that he was coming back from the hotel after taking his meals to his Sub-Division Office to go to Jalalpur Bhattian that the complainant Nazir Ahmad met him at the Circular Road and asked him as to where was he going, and he told him that his maternal niece with her children was abducted in Jalalpur Bhattian and that Nazir Ahmad complainant had asked him if he could be of any help to him, and on that he told him that he needed money. On that Nazir Ahmad gave him Rs,5,000 and also offered his car which he received and kept in the right pocket of his Shalwar that meanwhile Malik Zafar Javaid, Magistrate came out and on his inquiry he disclosed the same story to the Magistrate. He further stated that there was dispute between the wife of the deceased and the brother of the complainant and after the decision of the appeal by the Additional Commissioner on 15-5-1995 the complainant had a grudge and got the raid conducted. In the presence of grudge between the complainant and the appellant on account of non-connection of mutation entry, the offer of Rs,5,000 by the complainant as help to the appellant is not plausible. Thus, the amount of Rs,5,000 demanded by the appellant and its receipt by him from the complainant stood proved and the same being illegal gratification stood also proved by the factum that there was no occasion to offer the same for any other reason. This fact is supported by the evidence of the eye- witnesses. Hence, no exception can be taken regarding the conviction of the appellant.
7. The next contention of the learned counsel for the appellant is that the sentence is harsh.
Keeping in view the agony of the protracted litigation of 5 years the sentence already undergone is considered as meeting the ends of justice.
8. The appeal stands partly allowed.
Sentence reduced.