FAQIR HUSSAIN Versus THE STATE Kh. Sultan Ahmad , Nemo
Faqir Hussain son of Abdul Rehman, caste Arian, resident of Chak No. 77/G.B., District Toba Tek Singh, has filed this appeal against the order, dated 12th January, 1988, passed by Special Judge, Anti‑Corruption, Sargodha, whereby he has been convicted under section 161, P.P.C. and sentenced to three years' R.I. and a fine of Rs.3,000 or in default of payment of fine to undergo further R.I. for six months.
2. The appellant was Patwari in the Irrigation Department and was posted in Halqa 297/G.B. District T.T. Singh in the days of occurrence. Ghulam Rasul, complainant, (P.W.6) got sanctioned extra water for irrigating his garden on 12‑12‑1980, but as other share holders did not allow him to utilize the sanctioned water, therefore, he made applications to Ziladar Bhagat and the appellant/ Patwari to enforce the orders passed in his favour sanctioning water for his garden but in vain. On 9‑4‑1981 the complainant (P.W.6) again approached the appellant with the same request, whereupon he demanded from him Rs.1,000 as bribe for the purpose. It was agreed that the complainant (P.W.6) would pay the money to the appellant at 'Bismillah Cloth House' on 12‑4‑1981. The complainant informed Khan Muhammad, Inspector F.I.A. (P.W.3) who made arrangements for raiding the appellant on the said day under the supervision of Ch. Abdul Majid Gondal, M.I.C. (P.W.4).
3. According to the arrangement the members of the raid party waited outside 'Bismillah Cloth House', while the complainant entered that shop and having paid the bribe money (currency notes P.1‑P.10) to the appellant signalled to the raid party. The appellant was rounded in and the tainted currency notes P.1 to P.10 (valuing Rs.1,000) were recovered from the appellant from his right hand. Their numbers tallied with those numbers which had been noted earlier by the Magistrate and were secured under memo. Exh.P.F. Muhammad Younus (P.W.1) Qudratullah etc. who happened to be present inside the said shop at the time of raid, also witnessed the recovery.
4. The appellant in his statement. Exh.P.N. before the raiding Magistrate explained that he prepared papers of Tawan against those who utilized complainant's water but Muhammad Tufail Zilladar refused to sign them and demanded Rs.2,000 for signing those papers, therefore, he had received Rs.1,000 for paying it to him. The raiding Magistrate (P.W.4) drew up his report Exh.P.O. and handed it over to Khan Muhammad Inspector Police (P.W.8). The appellant was arrested and after completing investigation and obtaining sanction order challaned him to Court.
5. The prosecution examined 6 witnesses in support of the allegations levelled against the appellant. Ghulam Rasul complainant (P.W.6) stated that the appellant had demanded bribe from him for enforcing the orders sanctioning water for his garden. He went to Bismillah Cloth House for paying the bribe. Muhammad Shafi shopkeeper inquired if he had brought the money. He replied in the affirmative and paid it to him who passed it on to the appellant. The raid party recovered that amount from the appellant and seized it under memo. Exh.P.F. Khan Muhammad Inspector Police (P.W.3) Ch. Abdul Majid Gondal M.I.C. (P.W.4) corroborated him.
6. In his statement under section 342, Cr.P.C. the appellant denied the allegations, but admitted the recovery of tainted money from him, and explained that he had received that amount from Muhammad Shafi (D.W.1) who actually owed him this money. Besides producing Muhammad Shafi (D.W.1) in support of his plea, the appellant himself had also appeared as D.W.2 in his own defence. He denied to have made statement Exh.P.N. before the raiding Magistrate but admitted that he had not stated his defence as narrated at the trial before the raiding Magistrate at the time of raid.
7. Learned trial Court observed that although Muhammad Yunus (P.W.1) and Ghulam Rasul complainant (P.W.6) made consciously, concessional statements in favour of the appellant yet the prosecution case was not damaged. It further observed that the appellant had admitted the recovery of tainted currency notes from him but his explanation that he received that amount from Muhammad Shafi was unacceptable being afterthought. He is also right in saying that it was not possible for the raiding party to know that when they would reach Bismillah Cloth House. Muhammad Shafi (D.W.1) would be repaying his debt to the appellant. I am satisfied that learned trial Court rightly discarded the defence version and held the appellant guilty on the basis of evidence on record and I uphold the same.
8. Learned counsel appearing on behalf of the appellant has no challenged the conviction on merits. He has only submitted that sentence awarded to the appellant is harsh at any rate. He pointed out that the appellant was first convicted vide judgment, dated 16‑3‑1985 and sentenced to 11 months' R.I. and a fine of Rs.10,000 but on appeal the High Court remanded the case for retrial from the stage of examination of the appellant under section 342, Cr.P.C. which was held to be defective. The trial Court having rectified the mistake has again convicted him and sentenced him to three years' R.I. and fine which is far more excessive than the sentence awarded earlier although he deserves lighter punishment for he had undergone hardship of second trial. The appellant, in the circumstances, of course, deserves some leniency. Consequently, while upholding the conviction of the appellant under section 161, P.P.C. I would reduce his sentence to 15 (fifteen) months' R.I. and a fine of Rs.5,000 or in default to undergo further R.I. for six months. He shall be given the benefit of provisions of section 382‑B, Cr.P.C. as well. But for reduction in the sentence the appeal is dismissed.
M.Y.H./F/79/L Appeal partly allowed.