MUHAMMAD ASLAM Versus THE STATE
This judgment shall also deal with and dispose of Cr.A. No.416 of 1987, both arising out of the judgment, dated 27‑6‑1987, by which the learned Special Judge, Anti‑Corruption, Gujranwala at Lahore convicted:‑
(i) Muhammad Aslam appellant, who at the relevant time was Revenue Patwari of Baqirpur, Tehsil Daska, under section 161, P.P.C. read with section 5(2) of Act‑11 of 1947 and sentenced him to three years' R.I. and a fine of Rs.1,000 or in default to further undergo three months' R.I. and
(ii) Muhammad Siddiq appellant under section 161, P.P.C. read with section 165‑A, P.P.C. and sentenced him to three months' R.I. and a fine o1;Rs.1,000 or in default of its payment to further undergo three months' R.I.
2. The prosecution case was that on 14‑3‑1984 Muhammad Yousaf complainant had made an application to Muhammad Aslam Patwari for the demarcation of a piece of land, alleging encroachment over a portion of graveyard in the village by Abdullah and others. The appellant demanded Rs.200 as bribe or `Kharcha'. They again met and the appellant brought down his demand and agreed to accept Rs.100 as bribe to be paid at Tehsil basks where .he also undertook to deliver a copy of mutation No. 126 dated 29‑11‑1983 to the complainant and later get the demarcation carried out. Muhammad Yousaf complainant instead of straightaway giving bribe to the appellant on 7‑4‑1984, reported the matter to the Anti‑Corruption Authorities.
3. On the same day the complainant went to the Naib Tehsildar/Magistrate 3rd Class, who was present in his Tehsil Office, and informed him that he had passed on the bribe to the appellant who was sitting at the `Dera' of Muhammad Nawaz, Advocate at Daska and it should be recovered from him. On the receipt of this information the Naib-Tehsildar/Magistrate heading a raid party went to the `Dera' of Muhammad Nawaz, Advocate and on the search of the person of Muhammad Siddique appellant, who was present alongwith Muhammad Aslam Patwari appellant, recovered the tainted currency note of Rs.100 from him. He then searched the record of Muhammad Aslam Patwari appellant and found from his custody the application (Exh.P.W.1/1) of the complainant which he had made for the demarcation of his lane!. He recorded the statements of the appellants and asked Inspector A.C.E. to complete the investigation and take further proceedings.
4. On the completion of investigation, the challan was submitted against both the appellants in the Court of Special Judge, Anti‑Corruption, Gujranwala Division.
5. On the commencement of trial, Muhammad Aslam Patwari appellant was charged under section 161, P.P.C. while his co‑appellant Muhammad Siddique was charged under section 161, read with section 165‑A, P.P.C. On their pleadings not guilty, the prosecution led evidence against them by producing as many as seven witnesses.
6. Muhammad Yousuf complainant appearing as (P.W.1) supported the prosecution case in all material respects from start to finish. Muhammad Khan Naib‑Tehsildar (P.W.2) explained his role as a Raiding Magistrate. Muhammad Nazir Girdawar (P.W.3) proved the passing of order, for demarcation of the land on the application of the complainant. Irshad Ahmad (P.W.4) deposed as to how he had scribed the application for demarcation and, after getting it marked from Naib‑Tehsildar, passed it to the complainant as the Girdawar, to whom it was marked by the Naib‑Tehsildar, was not available. Khadim Hussain (P.W.5) deposed that he had negotiated the receipt of bribe on behalf of the complainant with Muhammad Aslam Patwari and had also witnessed the actual incident of recovery of the tainted money by the Raiding Magistrate. Mr. Ghulam Raza (P.W.6) gave the details of investigation, as at the relevant time he was the Circle Inspector of Anti Corruption Department and had arranged the raid and accompanied the Raiding Magistrate, after the registration of the case.
7. The appellants, while examined under section 342, Cr.P.C., denied ail the incriminating circumstances figuring against them in the prosecution evidence. Muhammad Aslam Patwari appellant, explaining his position, stated that Muhammad Yousuf complainant had brought the application for demarcation and he ‑told him that he should bring Girdawar for demarcation and he would accompany them. Thereafter, he brought the raiding party and since he had not received the bribe, it was not recovered from him, he added.
8. Muhammad Siddique appellant, explaining his involvement, took up the position that he had gone to the `Dera' of Muhammad Nawaz, Advocate for getting a draft of mortgage deed prepared in favour of G.T. Surgical. He stated that at the time of raid the tainted curre4y note had fallen in his lap and he had protested as who had thrown it. When confronted with their statements recorded by the Raiding Magistrate soon after the raid, they denied the same altogether. They produced no defence.
9. It was argued on behalf of the appellants that:‑
(i) Muhammad Aslam Patwari appellant had no concern with the demarcation which was to be carried out either by the Girdawar Halqa or by the Naib‑Tehsildar and there was no occasion for him to have demanded and received bribe from the complainant nor Muhammad Siddique appellant had any connection with his co -appellant as he was employee of a Firm manufacturing surgical instruments and was innocently present at the time of raid in the office of Muhammad Nawaz, Advocate in connection with his own personal affairs:
(ii) that nobody saw the tainted money being passed by the complainant to Muhammad Aslam Patwari appellant and the same being further transmitted by him to Muhammad Siddique appellant, nor anybody heard the conversation between the complainant and the appellants; and
(iii) that the venue of the transaction was the office of a lawyer who was never examined and leaving a currency note of Rs.100 on the office table of the lawyer was not unusual.
10. It is an admitted position that Muhammad Yousuf complainant had made an application to the Revenue authorities for demarcation and after the orders of the Naib‑Tehsildar and Girdawar Circle it had reached Muhammad Aslam appellant, who at that time was Revenue Patwari concerned, and at the time of raid it was recovered from his possession. So, there was an occasion for Muhammad Aslam to demand bribe from the complainant for doing his job. It is fatuous to say that the Patwari had no concern with the demarcation of land. He had a pivotal role to play in the demarcation proceedings, which were to be supervised by the Girdawar Circle or the Naib‑Tehsildar, because he was to arrange the presence of the contesting parties and make available the Revenue record, the chain and the flagged poles to the Girdawar or Naib‑Tehsildar for carrying out this process. Without his presence the demarcation could not be carried out. So, it cannot be said that he had no concern with the demarcation to be carried out at the instance of the complainant and he had no reason to demand and receive bribe from him. Similarly, there was no force that the appellants had no inter se connection and as such there was no reason for Muhammad Siddique appellant to conceal the tainted money received by his co‑accused. It is in prosecution evidence that Muhammad Siddique appellant was a helper (Basta Bardar) of Muhammad Aslam Patwari (appellant) and there is no reason to disbelieve it. The Revenue Patwari occupies an important position in the revenue heirarchy and with the passage of time, when the whole system of revenue administration has become outdated, he has unfortunately become a central figure without whom the entire revenue machinery becomes paralysed. Therefore, almost every Revenue Patwari has a helper or (Basta Bardar) who not only helps him in carrying out his day to day duties but also acts as his bribe agent. I am, therefore, inclined to believe that Muhammad Siddique appellant, who could not give any plausible reason for his presence with Muhammad Aslam Patwari co‑appellant at the time of passing money by the complainant to the latter as also at he time of raid, was a helper or Basta Bardar of his co‑appellant and for that reason tainted money was recovered by the raiding Magistrate from his pocket. There is no substance in his defence that the tainted currency note was lying on the table or it had fallen into his lap and was picked up by the raiding Magistrate from there.
11. As regards the second and the third contentions of the learned counsel for the appellants, those too are without substance. No doubt, the raiding Magistrate did not see the passing of tainted money from Muhammad Yousuf complainant to Muhammad Aslam Patwari nor did he overhear the conversation between them because this transaction had taking place sometime earlier to the raid when the complainant was only accompanied by Khadim Hussain P.W. but it cannot be said that the fact of tainted money changing hands was not witnessed by any one else because Khadim Hussain P.W. was present with the complainant at that time as also at the time of raid and he deposed accordingly without any reservation. At that time Muhammad Nawaz Advocate, at whose `dera' the bribe transaction had taken place, was also present but the was neither cited as a witness nor he was arraigned as an accused, though in the circumstances of the case it would have been better if he had been made an abetter as he was allowing his `dera' to be used as a bribe den. To witness the tainted money changing hands between the bribe‑giver and bribe‑receiver and to overhear their conversation is not the requirement of law and it is only a rule of prudence which has recently been laid down in certain judgments of the High Courts, particularly those of Lahore High Court. So far as I know, the Supreme Court has not yet recorded any findings thereon. Of late it has been laid too much stress upon by certain Courts as also by members of bar in raid cases. In my opinion, it has been given undue importance to often extend undeserved concession to the persons involved in receiving bribe (which is now a deep‑rooted malady affecting almost every walk of life in the country) even in cases which stand otherwise duly proved by other evidence. The case in hand, except to the extent that the raiding Magistrate could not see the tainted money changing hands nor could overhear the conversation between the complainant and the Patwari, stands fully proved against both the appellants because:‑
(a) it is an admitted position that Muhammad Yousuf complainant had applied for the demarcation of some land ad$ his application had reached Muhammad Aslam Patwari (appellant) which was recovered from his possession by the raiding Magistrate and for the same illegal consideration he had also issued a copy of mutation to the complainant which was passed on by him to the raiding Magistrate at the time of raid and as such there was an occasion for the appellant to demand and receive bribe from the complainant;
(b) there was no animosity or illwill between Muhammad Yousuf complainant and the appellants and there was no reason for the former to falsely implicate the latter;
(c) the passing of tainted money by Muhammad Yousuf complainant to Muhammad Aslam Patwari appellant stood amply proved by the testimony of the former coupled with the corroborative statement of Khadim Hussain P.W.; and
(d) the same tainted money was recovered from the possession of Muhammad Siddique appellant, who was helper or basta bardar of his co‑appellant, and he could not furnish any plausible explanation for his presence with his co‑appellant at both the occasions.
12. It may be mentioned here that the requirement of raiding Magistrate's seeing the tainted money changing hands and overhearing conversation between the bribe‑giver and bribe‑receiver in a raid case has been fully discussed in my judgment reported as Allah Ditta v. The State PLD 1992 Lab. 45 and adhering to the same view I am of the opinion that failure on the part of the raiding Magistrate in this case to see the tainted money changing hands and overhearing conversation between the complainant and the appellants does not adversely effect the prosecution case which stands proved against the appellants beyond any shadow of doubt by other evidence of reliable character.
13. In view of the above., there is no substance in both the appeals and the same are dismissed. Resultantly the convictions and sentences of the appellants are maintained. As the learned trial Judge has already taken too lenient a view in awarding the sentences to the appellants for no valid reason, they are declined the benefits of section 382‑B, Cr.P.C.
14. The appellants being on bail, the learned District Magistrate, Sialkot, to whom a copy of this judgment should be remitted immediately, shall cause their re‑arrest and send them to the prison for serving out their remaining sentences.
N.H.Q./M‑343/L Appeals dismissed.