MUHAMMAD NAWAZ Versus THE STATE Q.M. Saleem , Ch. Imtiaz

This Criminal Appeal arises from the judgment of learned Special Judge, Anti‑Corruption, Sargodha and Faisalabad Division, at Sargodha, whereby he on 8‑9‑1985, convicted Muhammad Nawaz appellant under section 161, P.P.C. and sentenced him to eleven months' R.I. and a fine of Rs.20,000 in default thereof ten months' R.I.

2. The appellant was a Patwari. The charge against him was that he demanded and accepted Rs.2,000 as illegal gratification from Tariq Latif P.W. 3 for the correction of entries in the Jamabandi. He denied the charge and claimed to be tried.

3. To prove its case, prosecution examined six witnesses. Tariq Latif P.W. 3 appeared to prove demand as well as acceptance of Rs.2,000 from him as illegal gratification by the appellant. Syed Nasar Baidar Inspector P.W. 1 and Sarfraz Ahmad Qureshi, Magistrate First Class P.W. 6 were produced to prove the acceptance of illegal gratification by and recovery of the tainted currency notes from the appellant. They have supported the prosecution case. The rest of the evidence is more or less of formal nature.

4. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. In answer to the question as to "why the case against you?" he stated:‑‑

"My statement Exh. P.J. was recorded by the raid Magistrate in his Retiring Room. The complainant suspected that I had tampered with these entries. In fact I did nothing of the sort. I do not know as to the fact of tampering with the revenue record. Because of this suspicion this false case has been made against me. The complainant belongs to the brotherhood of raid Magistrate and is his relation."

In defence, he produced two witnesses and tendered the documents Exhs. D.A. to D.F. the Extracts from the Jamabandi. Riaz Hussain D.W. 1 deposed about the forged entries about the holdings of the father and uncle of the complainant. Muhammad Yasin D.W. 2 stated that he was present in the office at the time of raid and that the tainted currency notes were not recovered from the appellant.

5. The learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt; that the money was not recovered from the appellant; that the prosecution witnesses are not reliable and that the appellant has been involved falsely. Conversely the learned counsel for the State has supported the impugned judgment.

6. I have considered the submissions made by the learned counsel for the parties with care. I have not been able to persuade myself to agree with the learned counsel for the appellant. I find that the Magistrate and the Inspector, Anti‑Corruption who are quite independent witnesses had seen the appellant holding tainted currency notes ill his hands and that it was within their view that the appellant threw down the tainted currency notes which fell in the lap of Ali Sher from where same were taken into possession. The complainant has stated that the tainted currency notes were received by the appellant as illegal gratification. The Magistrate and Inspector, Anti‑Corruption are quite independent witnesses. They had no motive to involve the appellant falsely in the case; that they have withstood the test of cross‑examination and that the statements of the prosecution witnesses do not suffer from infirmities such as material contradictions/discrepancies and dishonest improvement and that the recovery of the tainted currency notes in the circumstances of the case also gives rise to the statutory presumption that the same were received by him as illegal gratification. The appellant has not been able to rebut prosecution evidence and that in view of the statement of the Magistrate and the fact proved by the prosecution that the money was in the hands of the appellant who threw the same in the laps of Ali Sher within the view of the Magistrate, the defence evidence to the effect that the appellant had not received the tainted currency notes appears to be false. The documents D.A. to D.F. and the statement of the defence witnesses do not rebut the prosecution case. For all these reasons, I am convinced that the trial Court has rightly, convicted the appellant.

7. This brings me to the question of sentence. I find that the appellant has not only suffered agony of the protracted trial but also has lost the service and as such, a case for leniency in the sentence is made out. The sentence of R.I. for 11 months is set aside and the fine of Rs.20,000 is also reduced to Rs.15,000 in default thereof the appellant shall undergo R.I. for 10 months. The appellant shall deposit the fine with learned Special Judge, Anti‑Corruption, Sargodha and Faisalabad Division, at Sargodha within two months from today, failing which the learned Special Judge shall issue warrants for the arrest and detention of the appellant in jail for serving out the sentence of imprisonment in default of the payment of fine.

S.G.D. Sentence altered.