Appellant Sultan All son of Wali Dad has been convicted by the Special Judge-cum-Enquiry Officer, Hyderabad for an offence under section 5(2) of Act II of 1947 and sentenced to suffer R. I. for 12 months and to pay a fine of Rs, 200.00, or in default to suffer R. I. for three months more.
2. The prosecution case in brief was that the' appellant was at all material times posted as Tapedar, Tapo Sunder Belo, Taluka Pano Akil, District Sukkur. In his capacity as such he had to recover various amounts of land revenue due from the Khatedars, one of whom was complainant Sardar Shah P. W.
2. The land revenue due from the complainant was about Rs, 65.00. It is alleged that the appellant asked him to pay Rs, 100.00, as he wanted the balance amount for himself as an illegal gratification. The complainant then came to the office of D. S. P., Anti-Corruption Establishment and reported the matter to him, as a result of which his statement Exh. 9 was recorded ; and ten Government currency notes of Rs, 10.00 each of which the numbers were recorded in the mashirnama Exh. 3 were handed over to him. The complainant gave Rs, 100 to the appellant but the latter demanded Rs, 9.12 more as this was the amount outstanding against the former's brother. The complainant, therefore, went to D. S. P. Nazir Ahmad P. W. 3 who gave him Rs, 50.00 more in four notes of Rs, 10.00 each and 2 notes of Rs, 5 each, vide memo Exh.
4. The entire amount of Rs,150.00 was passed on to the appellant and it was subsequently recovered from him by D. S. P. Nazir Ahmad vide memo. Exh.
5. After the usual investigations were concluded the appellant was challaned.
3. In his defence the appellant admitted that he was at all material times posted as Tapedar Tapo Sunder Belo Taluka Pano Akil, and in that capacity he had to recover land revenue from the complainant and his relations. According to the appellant the total amount paid by the complainant was Rs, 166.39 which included the land revenue payable by the complainant himself, his brother and two other persons, namely, Allah Rakhiyo and Bakhsho. The complainant had promised to pay land revenue on their behalf vide his letter Exh.
15. The appellant stated that he had enmity with the complainant and the latter had implicated him on that account. In other :4words, the appellant's contention was that the amount paid to him was Rs, 167.00 and that he had returned some change retaining only Rs, 166.39 which was due on account of land revenue payable by the four persons mentioned above. No witness was examined in defence.
4. It is not disputed in this case that the tainted money consisting of 16 G. C. Notes mentioned in Exhs. 3 & 4 was recovered from the appellant, alongwith several other G. C. Notes of various denominations totalling Rs, 1,186.00. The only question that needs consideration is whether this money was paid towards the land revenue on behalf of the four Khatedars as stated by the appellant or it was paid only on behalf of the complainant and his brother, and the balance was paid to the appellant as an illegal gratification. On this point there is the oral word of the complainant against the word of the appellant.
5. I need hardly emphasise that ordinarily in such cases it is not safe to rely on the uncorroborated testimony of the bribe-IA giver. In Emperor v. Anwar Ali , Cornelius, J. (as his Lordship then was) observed as follows :- "Money may be passed from one person to another on a variety of pretexts, and it cannot be remembered too carefully that persons who lend themselves for use as decoys and agents provocateur possess ingenuity and suppleness of wit above the ordinary. No stupid or simple person could ever hope to perform such a function. Therefore, it is of the utmost importance in cases of this kind that there should be independent corroboration of the statement of the decoy witness that the money was received by the accused person for an illegal purpose. Naturally, the decoy witness will be extremely keen that his trap should not fail, and having in the forefront of his mind that the central thing is that the marked money should be passed to the intended victim, and assuming a certain elasticity of moral character in the decoy witness, there is a real danger that he may pass on the money under some pretext which may even be wholly innocent, but in giving his evidence may represent that he gave the money for the purpose relevant in the case, feeling confident that having taken care that the money was passed with as little publicity as possible ; the case on this particular point will resolve itself into a conflict between his evidence on solemn affirmation and the statement of the accused person which must necessarily be made without an oath."
6. In Osimuddin v. The State , Hamoodur Rahman, J., (as his Lordship then was) pointed out as follows :- "It is true that corroboration is not required in every minute detail or particular of the evidence of an accomplice or bribz-giver ; but it is certain that on two broad points such corroboration is absolutely essential, namely, (I) as to the implication of the accused and (2) as to the offence itself."
7. More recently it was emphasised by their Lordships of the Supreme Court in Noor Muhammad v.
The State , that where the cace rests mainly on the evidence of bribe-giver, it must be scanned with much caution ; and the Court should consider whether the facts and circumstances of the case support the story of the bribe-giver.
8. Judged in the light of these principles the case against the appellant appears to be doubtful. The version of the complainant is that although only an amount of Rs, 65 was payable by him, the appellant demanded Rs, 100.00 as he wanted Rs, 35 for himself as an illegal gratification. In the first place, it is difficult to believe that the Tapedar would demand an amount of Rs, 35 when the land revenue payable was only Rs,
65. Be that as it may, the fact remains that when an additional demand of Rs, 9 only was made the complainant instead of getting one G. C. note of Rs, 10 from the1 2 3 D. S. P. actually took five such notes from him and paid the entire amount of Rs, 150 to the appellant.
I have not been able to understand as to why Rs, 40 were unnecessarily thrown away by the complainant in this manner. If the actual demand of bribe was only Rs, 35 and even that amount was so high that the complainant thought it necessary to lodge a report, one cannot understand as to why he, without any reason, paid this additional amount of Rs,
40. In this connection I may also refer to the letter Exh. 15 which was sent to the appellant by the complainant a few days before this trap. This letter which has been admitted by the complainant to be in his hand reads as follows :- "Dear brother Sultan Ali Khan, As-Salam alaikum.
I am to state that Allah Rakhio and Buxo Maher are my persons, kindly do not press them to pay the land revenue. I will bring them within 10/15 days and pay my and their land revenue. Do not worry. I hope that you will accept my request.
Rest is 0. K. (Sd.) Illegible. Sayed Village."
It is significant that when questioned about this fact in his cross. examination the complainant conveniently forgot that he had written such a letter. When, however, the letter was pointed out to him, he admitted the same and statel at the end of his deposition as follows :- "Because accused demanded `Dhar for all these four persons, I had gone for taking more money."
This admission by itself is sufficient to demolish the case of the complainant as mentioned in the earlier part of his deposition. Moreover, Article 'A', namely, the Receipt Book which has been produced in Court shows that the following four receipts were issued by the appellant in that order :- (1)Receipt No, 79 for Rs, 22.15 paid on behalf of Buxo.
(2)Receipt No, 80 for Rs, 65.37 paid on behalf of Allah Rakhio.
(3)Receipt No, 81 for Rs, 69.68 paid on behalf of Sabal Shah (father of the complainant).
(4)Receipt No, 82 for Rs, 9.19 paid on behalf of Attaullah, brother of the complainant.
The total amount comes to Rs, 166.39.
The fact that the amount of Rs, 50 was demanded by the complainant from D.. S. P. Nazir Ahmed, is, therefore, more consistent with the fact that he had to pay an amount of Rs, 167 rather than with the allegation that he had to pay only Rs,
110. It appears that the complainant paid an additional amount of Rs, 17 for making a total payment of Rs, 167 which was due from all the four Khatedars and he was refunded the balance in change. It is accordingly, obvious that the complainant was to pay land revenue on behalf of all the four persons as mentioned in his letter Exh. 15.
9. The learned trial Judge has drawn an adverse inference against the appellant from the circumstance that he did not examine Allah Rakhiyo and Buxo in his defence. Admittedly Buxo and Allah Rakhiyo were his own men and they would not have hesitated to support the complainant. If they had been examined their testimony would not have carried the case of the defence any further. On the other hand, merely because they were present there it cannot be assumed that they had paid their shares of land revenue themselves ; especially in view of Exh. 15 which has been reproduced above and the admission of the complainant himself in respect thereof.
10.Mr. S. M. Noorul Hassan, the learned counsel for the State has contended that under section 4
(i) of the Prevention of Corruption Act, 1947, there would be a presumption that the amount had been accepted as a bribe unless the appellant proved to the contrary. Reliance is placed on the language of section 4(1) itself which reads as follows :- "Where in any trial of an offence punishable under section 161 or section 165 of the Pakistan Penal Code it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate."
It is no doubt correct that this section is a departure from the general law under which motive and intention was to be strictly proved by the prosecution in cases under sections 161 and 165, P. P. C.
This departure is not, however, serious. As pointed out in Rex v. Carr Bariant : "Where, either by statute or at common law, some matter is presumed against an accused person 'unless the contrary is proved', the jury should be directed that the burden of proof on the accused is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that this burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called on to establish,"
11. This principle has been approved by their Lordships of the Supreme Court in the case of Mir Ahmad v. The State , in the following words :- "Where there is a question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances the decision must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case, and the accused is entitled to the benefit of doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt."
12.As observed by their Lordships of the Federal Court of India in Lt. Hector Huntley v. Emperor , a charge under section 161, P. P. C. is one which is easily and may often belightly made. It would, therefore, be an outrage on common sense and reason to infer that under section 4 the presumption has itself been displaced and that the offence of bribery must be held to be established the moment money passed into the possession of the accused without further proof that it was accepted as an illegal gratification. When the law raises a presumption against the accused and calls upon him to prove the contrary, it is well settled that the contrary can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution.
13.Muhammad Bachel, J. while dealing with a similar case, namely, Ikramuddin v. The State , summed up the position thus :- "The presumption against the accused under this section is not to be drawn until the explanation of the accused is considered and found unsatisfactory. At this stage of the consideration of the case, the normal principle will apply, namely, that the accused is entitled to benefit of doubt and where reasonable explanation is offered, which is acceptable and raises a doubt, that the prosecution has not discharged the burden though the accused may not have proved the explanation. It was enough for his purpose if he succeeded in raising a doubt as to whether or not the prosecution was true Rex v. Schana (1915) 84 L J K B 39 also Dr. Woolmington v. Director of Public Prosecutions (1935)
A C 462. But if the Court feels justified in drawing a presumption against the accused after due consideration of the explanation, then the burden is on the accused to displace the presumption of criminal misconduct, always remembering as has been held in Rex v. Carr-briant (1943) 1 K B 607, that the burden of proof on the accused in such cases is less than on the prosecution and that it is enough for the accused to make out the truth of his defence in all reasonable probability though not clearly beyond doubt."4 5 6 7 14.In this connection it is hardly necessary to point out that the proof of the contrary need not necessarily be by evidence, oral or documentary but it may be furnished by the statement of the accused himself or by the circumstances of the case.
15.In the light of these principles and the circumstances in favour of the revision of the appellant as discussed in para. 7 above, I have not the slightest hesitation in holding that there is more than a reasonable possibility that the appellant's explanation may be correct. I would, accordingly, allow this appeal and set aside his conviction and sentence. The appellant is on bail and need not surrender. His bail bonds stand cancelled. AIR 1948 Lah. 27 PLD 1961 Dacca 798 PLD 1963 SC 38 (1943) 1 K B 607 PLD 1962 SC 489 (1944) FC R 262=AIR 1944 FC 66 PLD 1958 Kar. 21