THE STATE Versus SYED MUHAMMAD HANEEF

NOOR UL ARFIN, J.‑ ‑‑ This is an appeal against the judgment of Captain Syed Iftikhar Hussain, Special Judge: central), Karachi Camp at Hyderabad, given on 20‑12‑1966. Accused Muhammad Hanif was a Tax Superintendent of the Hyderabad Cantonment Board in June 1965. The incident, on which the accused was prosecuted, relates to a canteen within the area of the Hyderabad Cantonment. The contract of this canteen vas auctioned and was taken by one Muhammad Saeed on a monthly rent of Rs. 250. It is admitted position that the canteen contractor used open space in front of the canteen. The canteen contractor himself did not run the canteen, but entrusted this work to his employee P. W. Mirza Hameed Beg. During one of his visits, the Station Commander of the Hyderabad Cantonment objected to people sitting in the open space, and, under his direction. P. W. 4 Rizvi sent a notice (Exh. 34) requiring the canteen contractor to stop using the open space or placing any tables and benches there, failing which he was informed that the lease of the canteen would be terminated. According to tire prosecution case, on receipt of this notice, P. W. Mirza Hameed Beg approaches the accused and, under the latter's (direction, moved an application (Exh. 8), which was delivered to the accused. It was stated in this applicant that the canteen contractor was in fact, paying heavy rent for the open space which was under his use, and therefore prayed that the removal of chairs and benches from the open space will cause great in convenience to the customers, and that he should be exempted from payment of rent for the open space. That rent was charged for this open space is confirmed by P. W. Rizvi, who stated that the rent of Rs. 20 for the first time was charged in respect of the open space in November 1963. P. W. Mirza Hameed Beg delivered this application to the accused, who took it away with himself It is the prosecution case that the accused demanded Rs. 50 for favourable orders on this application, and that Mirza Hameed Beg, infact promised to pay this amount to him. When this information was given to the canteen contractor Muhammad Saeed, he directed Mirza Hameed Beg to make a report to the Special Police. On 12th June 1965, the services of a Magistrate were secured by the Anti‑Corruption Inspector, but the accused failed to appear on that date to collect the amount. Again, on 9th June 1965, a Magistrate recorded the statement of Mirza Hameed Beg, who was given Rs. 50 to be paid to the accused. With this amount Mirza Hameed Beg came to the canteen, where the accused also came, and, after a short talk with Mirza Hameed Beg at the counter, the accused walked away accompanied by the complainant. It was at this time that money is alleged to have passed from the complainant (Mirza Hameed Beg) to the accused, whereupon the complainant made a signal and the Magistrate and the Anti‑Corruption Inspector, who were sitting in front of the canteen, followed the accused and secured from his person Rs. 50 in notes whose numbers had previously been noted by the Magistrate. The Magistrate recorded the statements and prepared his report, and thereafter the Anti -Corruption Inspector, Mr. Abdul Jabbar, completed the investigation. In the report of the Magistrate there is a mention that he also secured the application (Exh. 8) referred to above, from an open tray lying on the table of the accused. Thereafter the case was transferred to the Special Police as the accused was a central Government employee and, on completion of investigation by them, the case was put up for prosecution before the learned Special Judge. The prosecution examined seven witnesses, namely Mr. Hussain Bux Alamani (a Third Class Magistrate) who supervised the trap, Mitza Hameed Beg, Manager of the Canteen, Muhammad Zafar, a tailor master (`mashir' of the trap), Syed Mahmood Abid Rizvi the Canteen Executive Officer, Muhammad Anwar Usmani, the Tax Collector working under the accused, Abdul Jabbar, the Investigation Officer and Najm‑ul‑Hassan, Inspector of the Special Police establishment, who had challenged the accused after obtaining the necessary sanction of the Government. When the substance of accusation was read out to the accused, he denied the allegations, though he admitted that he was a Tax Superintendent at the relevant time. He contended that the application by the canteen contractor, referred to above, was not made at his suggestion, but it was delivered to him, and he put it up before the Executive Officer. He denied that he received Rs. 50 as illegal gratification and contended that he had been demanding Rs. 50 from the canteen contractor on account of ground rent for the open space since 25‑5‑1968. With regard to the trap, he said that, when Rs. 50 were secured from his person, he shouted in presence of several persons that this amount was, in fact, the ground rent paid to him. As regard the recovery of the application, he said that it was secured from an open tray on his table by Mr. Usmani and Mr. Jabbar. He further contended that the application of the canteen contractor was given to him, but he forwarded it to the Executive Officer and did not see it again until he found it an the open tray on his table. His further allegation was that the whole case had been made up against him by P. W. Usmani, who wanted to take over his place as Tax Superintendent of the Cantonment Board.

2. The learned Special Judge has examined prosecution evidence in detail and has come to the conclusion that it appeared that the accused had become unpopular in the Cantonment Office due to his over‑bearing attitude thereby causing annoyance to his superior officers. The learned Special Judge has also recorded his conclusion that there was gross mismanagement in the accounts Department of the Cantonment Board against which the accused had been making representations and applications to various authorities. In dealing with the application (Exh. 8) referred to above, the learned Judge took the view that if it was an ill conceived application, then the accused's superior officer would have returned it back to him rather than retained it with him for considerable time. Note was also taken by the learned trial Judge of the favour shown to the canteen contractor with regard to the water tax etc. Dealing with the contentions of the accused, the learned Judge recorded the conclusion that it was the accused who first charged ground tent for the open space from the canteen contractor, which amount continued to be paid by the canteen contractor on the understanding that he would use only an area of 200 sq. ft. But actually the canteen contractor was occupying about 500 sq. ft. of open space, and therefore the accused demanded rent at the rate of Rs. 50 per month for this open space. After closely analysing the prosecution evidence, the learned trial Judge cams to the conclusion that the case against the accused had been cooked up because of his overbearing and insolent attitude and his application and representations against his superior officer, and that, in fact, the amount of Rs. 50 secured from the accused's person presented rent of the open space used by the canteen contractor. The view taken by tile learned Judge with regard to the prosecution case cannot be said to be an altogether unreasonable view. Nor can it be said that the learned trial Judge took unreasonable view of the defence put up by the accused. Be that as it may, the acquittal of the accused was recorded on 20th December 1966, and it is the admitted position that, by now, the accused has already retired from service and gone back to his original province of Baluchistan. In fact, the accused retired from service two years before the present criminal acquittal appeal came up for hearing before the Court. In these circumstances, we are of the opinion that it is not a fit case, particularly in view of the fact that the accused retired from service two years ago, to interfere with the conclusions and the judgment of the learned trial Judge. Further, the appeal has been pending for a long time and has been heard from time to time on different dates. This considerable delay itself would warrant that we should abstain from interfering with the judgment of the lower Court. Moreover, as the accused has already retired from Government service, and the amount which he allegedly took as illegal gratification was only Rs. 50, and as there is sufficient material on record to lead to the doubt whether this amount was taken by the accused as illegal gratification, or on account of rent, we think that no useful purpose will be served by convicting the accused and making him to undergo punishment mine years after the alleged commission of the offence. The order had already been announced in Court on 4th July 1974. This judgment contains the reasons for that order.

Petition dismissed.