ZAHIR-UD-DIN Versus THE STATE

Zaheer‑ud‑Din appellant was convicted by Special Judge, Anti -Corruption, Multan, on 16‑5‑1967, under section 161, P. P. C., and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo rigorous imprisonment for one year on each count. He was also sentenced to pay a fine of Rs. 250 under section 5(2) of the Prevention of Corruption Act, 194 7. In default in payment of fine, he was ordered to suffer rigorous imprisonment for six months. Both the substantive sentences were ordered to run concurrently. Zaheer‑ud‑Din preferred Criminal Appeal No. 308 of 1967 against his convictions and sentences. Mohammad Yar co‑accused filed separate Criminal Appeal No. 318 of 19f~7. He was convicted under section 201, P. P. C. and sentenced to undergo rigorous imprisonment for six months. Both the criminal appeals mentioned above filed by Zaheer‑ud‑Din and Mohammad Yar arise out of the same judgment. My single judgment will dispose of both the appeals.

2. Briefly, the facts are that Allah Bakhsh (P. W. 2) and his brother and cousins purchased land from Mst. Bhirawan. An amount of Rs. 3700 was paid in advance to Mst. Bhirawan while the remaining amount was to be paid at the time of attestation of mutation. Zaheer‑ud‑Din appellant was posted as Patwari Halqa. Allah Bakhsh P. W. approached the appellant for the attestation of the mutation who demanded Rs. 100 as illegal gratification. Ultimately, the amount of illegal gratification was settled at Rs.70. The appellant informed. Allah Bakhsh complainant that he had already entered the mutation and in case an amount of Rs. 70 was paid to him, he would place the mutation for attestation before the Revenue Officer. Allah Bakhsh complainant informed Ch. Dil Mohammed Inspector Anti‑Corruption Establishment, mho submitted an application Exh. P. A. for the appointment of a Magistrate to supervise the raid. Ch. Mohammad Sharif. Magistrate Section 30, Muzaffargarh, was deputed for the job. He recorded the statement of Allah Bakhsh Exh. P. B. The numbers of notes were taken down and the person of Allah Bakhsh complainant was searched. Ghulam Hassan (P. W. 3) was sent along with Allah Bakhsh (P. W. 2). The other members of the raiding party remained present near the place where Zaheer‑ud‑Din appellant was sitting. The Magistrate acted a person doing on quick pace towards the Northern entrance of the house of D. H. O. Allah Bakhsh P. W. was running after him. Ch. Dil Muhammad Inspector, was present near the outer wall of the house of D. H. O. He caught told of the person who was going on quick pace. Ch. Mohammad Sharif also reached there in the meantime. Allah Bakhsh held that person by the arm. The Magistrate found currency notes valuing Rs. 70 at a distance of 2/8 feets. That person was identified as Mohammad Yar son of Ghulam Qadir. On enquiry Muhammad Yar informed the Magistrate that he had thrown Rs. 70, which had been given to him by Zaheer‑ud‑Din Patwari. He further informed the Magis trate that these notes had been passed on to Zaheer‑ud‑Din by Allah Bakhsh complainant. The Magistrate asked Zaheer‑ud‑Din Patwari to produce the register of mutation. The said register was produced by Zaheer ud‑Din appellant. It was found that mutation No. 14 on behalf of Mst. Bhirawan in the name of Allah Bakhsh etc. had been entered by Zaheer‑ud -Din Patwari on 12‑1‑1966, and it was verified by the girdawar, on 31‑1‑1966. The Magistrate recorded the statement of Mohammad Yar Exh. P. F. and that of Zaheer‑ud‑Din appellant Exh. P. H. He found a prima facie case against both the appellants under section 161, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947. Both the appellants were arrested and handed over to the Police. Permission for investigation was accorded. Sanction for prosecution was also accorded by the Collector. The appellants were challaned after investigation.

3. The accusations were read out to both the appellants who denied their correctness and offered to show cause against the allegations.

4. The prosecution examined five witnesses in support of the case. Allah Bakhsh (P. W. 2) stated before the trial Court that he alongwith his brothers and cousins, purchased land from Mst. Bhirawan and a mutation was entered by Zaheer‑ud‑Din appellant ; that Zaheer‑ud‑Din appellant demanded Rs. 200/300, but ultimately came down to Rs. 70 for putting up the mutation before the Revenue Officer ; that he did not want to pay the bribe and thus approached Ch. Oil Mohammad, Circle. Officer, who produced him before Ch. Mohammad Sharif Magistrate and the Magistrate recorded his statement Exh. P. B ; that he presented one currency note of Rs. 50 and two currency notes of Rs. 10 each and their numbers were noted down by the Magistrate and there the said notes were returned to him and the Magistrate directed hire to contact Zaheer‑ud‑Din appellant in Tehsil compound in order to give him the bribe ; that Ghulam Hassan P. W. was sent with him; that he found Zaheer- ud‑Din sitting in the Tehsil compound under a tree alongwith 6/7 other persons, that he handed over the currency notes to Zaheer‑ud‑Din who first put the notes in his pocket and then handed them over to Mohammed Yar appellant and gave him a signal to go away ; that Mohammad Yar appellant left the spot and started moving at a brisk pace and he followed him ; that he over‑took Mohammad Yar and caught him by the hand and Mohammad Yar took out the currency notes from his pocket and threw them on the ground ; that the Magistrate and Inspector Police reached from two different sides and the t0agistrate picked up the currency notes and inquired from Mohammad Yar as to wherefrom he obtained the currency notes and Mohammad Yar told him that Zaheer‑ud‑Din Patwari had given him the currency notes.

Ghulam Hassan (P. W. 3) corroborated the statement of Allah Bakhsh by stating that Allah Bakhsh gave currency notes worth Rs. 70 to Zaheer‑ud‑Din appellant, who was sitting in the tehsil compound and Zaheer‑ud‑Din appellant passed on that money to Mohammad Yar and gave him a signal telling him to go away ; that Mohammad Yar left the spot but was followed by trim and Allah Bakhsh and when Mohammad Yar appellant reached near the residence of D. H. O., Allah Bakhsh caught the hand of Mohammad Yar, who threw down the currency notes that the Inspector Police and the Magistrate came out of the residence of D. H. O. and inquired from Mohammad Yar about the currency notes, who told that Zaheer‑ud‑Din Patwari had given him the said notes. The statements of Allah Bakhsh and Ghulam Hassan were further corroborated by the statements of Ch. Mohammad Sharif, Magistrate Section 30, who supervised the raid and Ch. Dil Mohammad, Circle Officer.

5. Zaheer‑ud‑Din appellant in his statement under section 342, Cr. P. C. denied the prosecution allegations. He denied to have received the amount from Allah Bakhsh. He further denied to have passed it on to Mohammad Yar. When asked to explain as to why the case had been made out against him, the appellant gave the following explanation :‑

"Allah Bakhsh and others asked me to put up the mutation in question before the Tehsildar on the said date but I told them that this would be done on 17‑2‑66 when the Revenue Officer would be visiting Basti Kharak. Since I did not comply with their wishes, they entangled me in this case."

6. Mohammad Yar admitted in his statement under section 342, Cr. P. C. that on 7‑2‑66, Allah Bakhsh P. W, paid Rs. 70 to Zaheer-ud‑Din co‑accused as illegal gratification for putting up their mutation before the Revenue Officer for attestation, at the premises of Tehsil Muzaffargarh. He further disclosed in his statement that Zaheer‑ud‑Din did give him the said money but he returned it to him. As he was away from the; Tehsil, the accused threw this money before him and it was picked up by the Magistrate.

Zaheer‑ud‑Din appellant produced Zafar Ali. Girdawar Qanungo and G hulam Muhammad Patwari in h is defence. Zafar Ali (D. W. 1) stated that be verified entries of the disputed mutation on 31‑1‑1966, and the mutations were usually put up before the Revenue Officer on tour. He further stated that on 7‑2‑1966, Allah Bakhsh and Ghulam Hassan P. Ws. contacted Zaheer‑ud‑Din appellant in his office in connection with the mutation. He went on to say that Allah Bakhsh told hi‑n to direct the Patwari to put up iris mutation but he informed Allah Bakhsh that it would be put up before the Revenue Officer during tour. The witness further stated that both Allah Bakhsh and Ghulam Hassan went away and again returned at 3‑15 p. m. and insisted that mutation be put up before the Revenue Officer, the same day. Zaheer‑ud‑Din appellant refused to oblige. Mohammad Saeed Patwari, Mohammad Yar appellant, Allah Bakhsh and, Ghulam Hassan P. Ws. went away. The witness stated that Allah Bakhsh and Ghulam Hassan did not give any bribe to Zaheer‑ud‑Din in his presence, Ghulam Mohammad (D. W. 2) corroborated the statement of Zafar Ali (D. W. 1).

7. The learned counsel for Zaheer‑ud‑Din appellant, contended that the statement of Allah Bakhsh complainant made before the Magistrate was discrepant from the statement made in Court inasmuch as in earlier statement the witness had alleged that the accused had demanded Rs. 100 while in the latter statement, the witness disclosed that the appellant had demanded Rs. 200 or Rs. 300, that 6/7 persons were present with Zaheer‑ud‑Din appellant but none of them was produced in support of the prosecution instead Zaheer‑ud‑Din appellant produced Ghulam Mohammad Patwari in his defence, that Allah Bakhsh complainant stated in Court that he had met the accused on the day of occurrence at 2‑40 p.m. and settled the amount, whereas the Magistrate stated that the application was presented before him at 2‑40 p.m. and the time given by the complainant and the Magistrate could not be reconciled ; that the statement of Ghulam Hassan (P.W.3) could not be said to be an independent corroboration as the said witness was from the brotherhood of Allah Bakhsh (P. W. 2) and had accompanied him from the village and besides, this witness remained away at a distance of three or four yards, that the statement of Mohammad Yar co‑accused could not be taken to be a corroboration as he had not shown his own participation in the actual crime. The learned Counsel for Zaheer‑ud‑Din appellant cited Iftikhar Ali Ghazi v. The State (1972 P Cr. L. J 189). I was taken through the entire record. I have considered the evidence carefully. The appellant clearly stated in his statement Exh. P. H. which he made before the Magistrate who conducted the raid, that Allah Bakhsh or Ghulam Hassan P. W. had no enmity with him. The argument that, since the appellant did not oblige Allah Bakhsh, the latter involved the appellant falsely in this case, is not at all appealing the Patwari had already made entries about the mutation in the relevant register. Allah Bakhsh (P. W. 2) mentioned in his statement Exh. P. B., Which he made before the Magistrate before the raid, that the appellant had demanded Rs. 100 is illegal gratification from him, but during his statement before the trial Court. he stated that the appellant hall first demanded Rs. 200 or Rs. 300. The witness had made statement in court after 11 months of the raid, and at that time, he might not be certain as to whether the appellant had demanded Rs. 200 or Rs. 300. On account of this variation, his other statement cannot be rejected or discarded.

The raid report shows that when the Magistrate was busy in recording the raid report, many Patwaris and other persons collected at the spot and it indicates that Zaheer‑ud‑Din was present with Mohammad Saeed Patwari and other Patwaris. It was not expected from the colleagues of the appellant that they would depose against their own colleagues and for that reason none from those; person was cited as a prosecution witness. One of the Patwaris namely, Ghulam Mohammad and Zafar Ali Girdawar appeared in defence. Zafar Ali (D. W, 1) also stated that on the day of occurrence, many other Patwaris were present in the Tehsil premises.

8. During cross‑examination, Allah Bakhsh (P. W. 2) stated that he had settled the amount of bribe with Zaheer‑ud‑Din appellant at about 2‑40 p.m. and had subsequently paid him the bribe at about 3‑30 p.m. Ch. Mohammad Sharif (P. W, 1) stated that the application Exh. P. A. was presented before him at 2‑40 p.m. Allah Bakhsh (P. W. 2) being a villager, could not be expected to give the exact titre as to when he bad settled the amount. There could be a difference of about half an hour or so. It did not take along in approaching the Circle Officer, who took the com plainant to the A. D. M. and when the A. D. M. was not found, he obtained oral direction from the District Magistrate and then presented application before Ch. Mohammad Sharif. No weight can he attached to the difference in time given by Allah Bakhsh complainant and Ch. Mohammad Sharif Magistrate.

Ghulam Hassan was a member of the brother‑hood of Allah Bakhsh complainant and had accompanied him from his village. For this reason B, he cannot be held to be an interested witness. This witness had no motive to make false statement against the appellant. During cross‑examination, the witness explained that he had turned aside for coughing. It would not show that he was not present when Allah Bakhsh passed on the money to the Patwari. The witness clearly stated in examination‑in‑chief as well as in cross‑examination that he was present when Allah Bakhsh gave currency notes to Zaheer‑ud‑Din appellant. He was present when Allah Bakhsh passed on the money to Zaheer‑ud‑Din appellant. He was also present when Zaheer‑ud‑Din appellant handed over the said money to Mohammad Yar appellant and gave him a signal to go away. It is recorded in the raid report that Mohammad Yar appellant h d admitted that Zaheer‑ud‑Din appellant had given him the notes, which he had subsequently thrown. The Magistrate recorded the statement of Mohammad Yar Exh. P. F. In that statement, Mohammad Yar admitted that he was a servant of Saeed Ahmad Patwari and the appellant and Saeed Ahmad were working at the same place and in his presence, Allah Bakhsh P. W. had given Rs. 70 to Zaheer‑ud‑Din, who passed that amount to him and directed him to go away. He further admitted to have thrown that amount when he was stopped near the level crossing. In his statement before the trial Court, Mohammad Yar also admitted that on 7‑2‑1966 Allah Bakhsh P. W. had paid Rs. 70 to Zaheer‑ud‑Din co‑accused as illegal gratification for putting up the mutation before the Revenue Officer for attestation at the premises of Tehsil Muzaffargarh. He further admitted that Zaheer‑ud‑ Din had given him the said money but then explained that he returned it to him. From the statements of Allah Bakhsh, Ghulam Hasan, Ch. Mohammad Sharif and Ch. Dil Mohammad, it clearly stood proved that Zaheer‑ud‑Din Patwari received the tainted money (Rs, 70) as illegal gratification for putting up the mutation in Tehsil premises and then he passed on this money to Mohammad Yar appellant, who took it away and started walking at a brisk pace but was caught near the place where Zaheer‑ud‑Din was sitting and on having been apprehended, he threw the currency notes on the ground, which were picked up by the raiding party.

It is laid down in section 30 of the Evidence Act that when more persons than one are being tried jointly for the same offence and a confession made by cane of such persons effecting himself and some other or such persons is proved, the Court mat take into consideration such confession as against such of the persons as well as against the person who makes such confession. Mohammad Yar appellant clearly confessed that Zaheer‑ud‑Din co‑accused had received illegal gratification from Allah Bakhsh P. W. He further confesses that Zaheer‑ud‑Din accused had give him the said illegal gratification, The confession made by Mohammad Yar appellant is available against Mohammad Yar as well as against Zaheer‑ud‑Din. The facts of the case mentioned in the above authority were distinguishable and the said authority is not applicable in the instance case.

9. For the reasons stated above, I come to the conclusion that the prosecution succeeded in proving that Zaheer‑ud‑Din appellant had demanded Rs. 70 as illegal gratification from Allah Bakhsh P. W. for showing favour and had in fact received the said amount from Allah Bakhsh and then passed it on to Mohammad Yar to be taken away immediately. The learned Special Judge had convicted Zaheer‑ud‑Din appellant under section 161, P. P. C. and section 5(2) of the prevention of Corruption Act, 1947 and sentenced to undergo rigorous imprisonment for one year on each count. Sections 161, P. P. C. is species of, and included in, offence under section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) and hence accused could not be punished under both the offence as punishment could not be awarded snore than once for the same offences. This view was expressed in case S. M, Sadiq v. Settlement Commissioner & others (1974 S C M R 149). Conviction of Zaheer‑ud‑Din appellant under section 161, arid section 5(2) of the Prevention of Corruption Act was not proper. Misconduct has been defined in section 5(1) of the Prevention of Corruption Act, 1947. The definition is an exhaustive one and the provisions of section 161, P. P. C. are covered under section 5(1) of the Prevention of Corruption Act, 1947. Punishment has been provided under section 5(2) of the Prevention of Corruption Act. Following the above authority, I set aside the conviction of Zaheer‑ud‑Din appellant under section 161, P. P. C. but maintain his conviction under section 5(2) of the Prevention of Corruption Act, 1947, and alter his sentence to sentence of imprisonment already undergone and a fine of Rs. 250 or in default in payment of fine, to undergo rigorous imprisonment for six months. The case was registered against the appellant on 7‑2‑66. It eras decided on 16‑5‑67. It remained pending before the Special Judge for a period of more than one year and three months. After conviction Zaheer‑ud‑Din appellant was allowed bail on 22‑5‑67. He remained in jail for six days. The appeal was filed on 19‑5‑67 and it is being decided after a period of seven years. Zaheer -ud‑Din appellant would lose his service on account of this conviction if he has already not been turned out. Under these circumstances, the sentence already undergone and a fine of Rs. 250 or in default in payment of fine, rigorous imprisonment for six months would meet the ends of justice.

10. Mohammad Yar appellant clearly knew that an offence under section 161, P. P. C. and section 5(2) of the Prevention of Corruption Act, 1947, had been committed. He took away the tainted money in order to cause the evidence of commission of offence to disappear, He disappeared with the intention of screening the offender with legal punishment. He vas rightly convicted under section 201, P. P. C.

11. For reasons given in the case of Zaheer‑ud‑Din co‑appellant, for reducing his sentence, I reduce the sentence of Mohammad Yar appellant to sentence already undergone and a fine of Rs. 100 or in default in payment of fine, to undergo rigorous imprisonment for one month. Mohammed Yar was convicted on 16‑5‑67. He filed an appeal against his conviction and sentence on 25‑5‑1967 and was allowed bail on 2‑6‑67. He remained in jail for about 17 days. This sentence would meet the ends of justice in his case.

12. Action according to law be taken for the recovery of fine.

Order accordingly.