1. SALAHUDDIN AHMED, J.-These three appeals are from three orders of the erstwhile High Court of West Pakistan, Lahore, and they are now being disposed of under one judgment.
2. Appeals Nos. 39 and 40 are against Rasool Bakhsh. Appeal No. 63 is from a Full Bench decision of the High Court which answered the two questions referred in it in the following manner:
(i) That an investigation by the Police commences with the first step taken by the Police Officer towards the entertainment of the offence and the culprit thereof, and
(ii) the statement by an accused of the commission of an offence of criminal misconduct, on being halted by the Magistrate is not admissible in evidence as the same was not recorded by the Magistrate in the manner prescribed by sections 164 and 364 of the Code of Criminal Procedure.
3. The decision of the Full Bench, now stands overruled by the decision of this Court in the case of Mohammad Sarwar v. The State (PLD 1969 SC 278).
4. In the case under report similar questions were under con--sideration and the Supreme Court, after having considered the relevant provisions of the Prevention of Corruption Act (II of 1947) and the Pakistan Special Police Establishment Ordinance (VIII of 1948) and the West Pakistan Anti- Corruption Establish--ment Ordinance (XX of 1961), and the instruction issued by the Central Government in 1953 to Special Police Establishment under section 2 (2) and (3) of Ordinance VIII of 1948, and the Rules framed under Ordinance XX of 1961, held that ---the rules framed by the West Pakistan Government make a departure from the provisions of Chapter XIV of the Code of Criminal Procedure and envisage a preliminary enquiry to test the genuineness of the complaint made against a Government. Servant which includes trap evidence.
5. This is explicit in, the proviso that no prior approval is necessary for the arrest of an officer caught red-handed committing any offence specified in the Schedule to Ordinance XX of 1961. An officer is caught red-handed only when a trap is laid on the complaint that lie has demanded or agreed to receive a bribe. The conclusion reached by the learned Judges that a Police Officer in a corruption case neglects to record an information of a cognizable offence when he takes the informant to a Magistrate who records his statement and then lays a trap and that by adopting this method the police officer violates the mandatory provisions of Chapter XIV of the Code of Criminal Procedure as well as section 23 of the Police Act, 1861, is, therefore, wholly erroneous.
6. We further find that the conclusions reached by the learned Judges are not in conformity with the provisions of Chapter XIV of the Code of Criminal Procedure either. The information given to the members of the Special Police Establishment On Anti-Corruption Department about the demand made by a Government servant for bribery cannot relate to the commission of the offence of receiving the bribe at a subsequent stage. The two offences are distinct and committed at different times. Surely, the learned Judges did not mean to lay down that if during the course of an investigation the accused commits another offence within the sight of the police officer a separate F.
1. R. Is not to be recorded in respect of that offence or that the police officer and any other person present at that time is not a competent witness of the commission of that offence. Therefore, if the accused person makes a statement in the presence of a police officer or a Magistrate before the case is registered and investigation commences they will be competent witnesses to the commission of the offence and the statement made by the accused in their presence will notwithstanding the provisions of section 164 of the Code of Criminal Procedure be admissible in evidence."
7. "---.. The learned Judges laid down a patently erroneous rule that investigation in respect of the offence of receiving bribe commences when the complainant informs the members of the Anti- Corruption Police that a Government servant has made a demand or agreed to receive a bribe.
8. The two offences being distinct from each other the information report about the offence of demand for a bribe cannot be tacked on to the offence committed subsequently of receiving the bribe. A fortiori the statement of the Government servant recorded at the time of recovery of the bribe money from him by a Magistrate will not attract the provisions of section 164 of the Code of Criminal Procedure."
9. It may be mentioned here that the aforesaid two questions referred to the Full Bench arose in connection with the appeal from the conviction and sentences of the respondent in Appeal No. 41 of 1969.
10. This appeal should, therefore, be allowed fur the reasons mentioned by this Court in its decision reported in PLD 1969 SC 278.
11. Appeal No. 40 is from the order of a learned Single Judge of the high Court allowing the appeal and setting aside the conviction and sentences of respondent Rasool Bakhsh under section 161, P. P. C.
12. Read with section 5 (2) of the prevention of Corruption Act (11 of 1947).
13. Appeal No. 41 is from another order of the same learned Judge of the High Court allowing the appeal of respondent Ghulam Abbas Patwari and setting aside his conviction and sentence under the same sections of the laws.
14. Both the respondents are Patwaris Halya, that is, Consolida--tion Patwaris as opposed to Revenue Patwaris.
15. The allegations against respondent Rasool Bakhsh, Con--solidation Patwari, were that he had demanded and ultimately agreed to accept Rs. 40 from P. W. Atta Muhammad as illegal gratification for the supply of copies of Fard Jamabandi in respect of 25 kanals of land. Instead of paying the gratification P. W. Atta Muhammad reported the matter to a Sub-Inspector (P. W. 5) of Anti-Corruption Establishment, and the latter applied to the District Magistrate for deputing a competent Magistrate to Conduct a trap against the respondent. A First Class Magistrate (P. W. 4, Fazal Hussain Shah) was deputed for the purpose and the procedure followed the usual pattern of a trap case, and it `ultimately resulted in the recovery of four marked currency notes of Rs. 10 each from the respondent in presence of the said Magistrate. The notes had been given by P. W. Atta Muhammad and received by the respondent in response to the latter's demand for illegal gratification for supplying copies of Fard Jamabandi. The respondent on having been caught with the money told the Magistrate that the money had been given in a lump sum by P. W. Atta Muhammad for supplying copies of Fard Jamabandi and Mutation Register and that as the respondent was busy he told P. W. Atta Muhammad that the former could not go into details of the fees and that after the Fards were supplied the amount would be adjusted. A case was registered against the respondent and he was ultimately tried by a Special Judge. The respondent examined three witnesses in his defence and in his examination under section 342, Cr. P. C. Stated as follows : "The complainant wanted copies of Jamabandis from years 11/12 to 1957-58, the copies of Khatoni Ishtimal, the copies of mutation and wanted to inspect the revenue record. As such he asked me roughly the fees of the documents which I gave him roughly Rs.
40. Actually the fees was demanded according to the number of Khatas in the Jamabandis and that was only done after going through the whole of the record. On the day of the raid he left the money with me saying that if I had no time to prepare the copies at this time ; they may be given to him after preparation on the next day but the money should be kept with me so that he should not bother to bring the money again as he is a poor man and has collected the same after great hardship. I am innocent and falsely implicated due to enmities with the P. Ws. Atta Muhammad etc."
16. Prosecution relied on the evidence of the recovery of the marked currency notes from the possession of the respondent as furnished by P. W. 4, Fazal Hussain Shah, Magistrate, 1st Class, P. W.
17. 2 Atta Muhammad, and P. W. 3, Ghulam Rasul as well as on the evidence of P. Ws. Atta Muhammad and Ghulam Rasool who proved the demand of the illegal gratification by the respon--dent and the passing on of the money to and its recovery from the respondent. Prosecution also relied on the admission of the respondent as contained in his statement, Exh. P. W. 4/C made before P. W. 4, Fazal Hussain Shah, Magistrate, immediately after the recovery of the said money. The statement of P. W. Atta Muhammad recorded by the said Magistrate prior to holding the actual trap was, too, relied on.
18. All this evidence had been accepted by the learned Special Judge.
19. On appeal before the High Court, however, the learned Single Judge of the High Court, on receipt of the answer of the Full Bench excluded from consideration the said statements of P. W. Atta Muhammad and of the respondent as recorded by P. W. 4, Fazal Hussain Shah, the Magistrate, and on a consideration of the rest of the evidence found himself unable to maintain the convic--tion of the respondent on the ground that the prosecution had fail--ed to prove its case against the respondent. Evidence of P. Ws. Atta Muhammad and Ghulam Rasool were not accepted on the ground that they had grudge against the accused respondent and there was no corroboration of their evidence.
20. On behalf of the State it has rightly been contended that the learned Judge of the High Court in doing so failed to take into consideration section 4 of the Prevention of Corruption Act (Act II of 1947) and section 7 of Pakistan Criminal Law Amend--ment Act (XL of 1958) which have put the onus upon the accused to prove that it was not an illegal gratification once it had been proved that he accepted the marked money from P. W. Atta Muhammad.
21. Section 4 of Act II of 1947 and section 7 of Pakistan Criminal Law Amendment Act are as follows : Act II of 1947 : "4.-(1) 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.
(2) Where in any trial of an offence punishable under sec--tion 165-A of the Pakistan Penal Code it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by any accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case maybe, as a motive or reward such as is mentioned in section 161 of the said consideration or for a consideration which he knew to be inadequate.
(3) Notwithstanding anything contained in subsections (1) --and (2), the Court may decline to draw the presumption referred to in either of the said subsections if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn."
22. Act XL of 1958 : "7.-(1) When any person is charged before a Special Judge with an offence triable under this Act, the fact that such person or any other person through him or on his behalf, is in possession, for which he cannot satisfactorily account, of pecuniary resources, or property disproportionate to his known sources of income, or that such person has, on or about the time of offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, may be proved, and may be taken into consideration by the Special Judge as a relevant fact in deciding whether he is guilty of the particular offence with which he is charged.
(2) Where in any trial before a Special Judge of an offence punishable under sections 161 to 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, or any pecuniary advantage from a person or the agent of a person, for any favour shown or promised to be shown by the accused 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, or pecuniary advantage to himself or some other person, as the case may b:, as a motive or reward such as is mentioned in sections 161, 162 and 163 of the Pakistan Penal Code, or as the case may be, without consideration, or for a consideration which he knows to be inadequate.
(3) Where in any trial of an offence punishable under section 165-A of the Pakistan Penal Code, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give the gratification or valuable thing, as the case may be, as a motive or reward such as is mentioned in section 161 of the said Code or, as the case may be, without consideration or for a consideration which he knew to be inadequate.
(4) Notwithstanding anything contained in subsections (2) and (3), the Court may decline to draw the presumption referred to in either of the said subsections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn."
23. In view of the Magistrate's evidence regarding the recovery of the money there should have been little difficulty in holding that the respondent had received the money as illegal gratification for the motive as contemplated in section 161 of the Pakistan Penal Code. Once this is accepted it is evident that the onus was on the respondent to prove that the money had been paid for reasons other than those mentioned in section 161, P. P. C. No reason has been advanced as to why the evidence of the said Magistrate should not be believed.
24. Furthermore, on account of the Full Bench ruling the statement of the respondent as well as the statement of P. W, Atta Muhammad recorded by P. W. 4, the Magistrate were excluded from consideration. The result was that learned Judge of the High Court having held P. Ws. Atta Muhammad and Ghulam Rasool to be interested and inimical, their evidence without any corroboration were not considered enough to prove the guilt of the respondent as it had to be shown that the accused accepted the amount having known it to be an illegal gratification. Had the learned Judge kept in view the provisions of section 4 of Act II of 1947, and section 7 of Pakistan Criminal Law Amendment Act, 1958, and taken into consideration the afore--said statements of P.
25. W. Atta Muhammad and the respondent as recorded by p. W. 4, the Magistrate, he would not have arrived at such finding. The only thing alleged against P. W. Atta Muhammad was that during the consolidation proceedings the respondent Patwari had at one time given the entire land in possession of mortgagees Khushi Muhammad and others although only one and a half killa of the land was in their posses--sion, and the rest of the land was in possession of P. W. Atta Muhammad.
26. This does not appear to us to be a sufficiently good reason for P. W. Atta Muhammad to falsely implicate the respondent. Besides his evidence has received strong support not only from the statement of the respondent himself but also from the conduct of P. W. Atta Muhammad in at once report--ing the matter to the Anti-Corruption Authorities and subjecting himself to the obvious inconvenience of attending a protracted criminal case besides laying himself open to the risk of prosecution if his allegations were found false. Similarly there was very thin reason for rejecting the evidence of P. W. Ghulam Rasool only because his land had been placed near the path by the respondent Patwari in the consolidation proceedings but that on. Appeal the path was taken out from the land, but the land was allowed to remain at the same site. If the alleged enmity was true, it was highly improbable that the respondent would enter into the aforesaid transaction of illegal gratification with P. W. Atta Muhammad in presence of P. W. Ghulam Rasool and that respondent would receive money from P. W. Atta Muhammad in the manner alleged by the respondent and without having entered the transaction in some official book.
27. The respondent's explanation of the purpose for which he had received the money in question is highly improbable for it is difficult to believe that P. W. Atta Muhammad who along with his brother owned only 25 kanals of land would require copies of Jamabandis for the years 1911/12 to 1957-58. P.
28. W. Atta Muhammad has denied that he needed the Fards for so many years as alleged by the respondent. The witness further said that he had asked for the copies of the Fards because he wanted to know whether his land had been correctly shown or not and that he had asked for `Khataunis' and the last Fard of his ownership because it was only then possible that he could compare his land with those documents. That being so, it stands to reason that the respondent has failed to prove that the money, admittedly received by him from p. W. Atta Muhammad was for a purpose other than mentioned in section 161, P. P. C, The evidence of the D. Ws. Were disbelieved by the learned Special Judge for good reasons, inasmuch as their evidence were not only improbable, but were also inconsistent with one another and with the statement of the respondent himself as recorded by the raiding Magistrate (P. W. 4).
29. The learned Judge of the High Court has given no reasons for disagreeing with the Special Judge on this point, and for relying on the evidence of the D. Ws. Without having discussed the evidence.
30. The misconception about the admissibility of certain material statements brought about by the aforesaid decision of .The Full Bench of the High Court, coupled with the failure on the part of the learned Single Judge of the High Court to bear in mind the onus that lay on the accused person have led the learned Judge to approach the case wrongly, and this has resulted in a grave miscarriage of justice.
31. This appeal must, therefore, succeed.
32. Criminal Appeal No. 41 of 1969 This appeal arises out of the order of acquittal of respondent Ghulam Abbas of the charge under section 161 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act (II of 1947). The allegations against the respondent are that in his capacity as Patwari Halqa Maingan, Tehsil Chakwal, District Jhelum, he had accepted Rs. 50 as illegal gratification for the supply of certain Fard to Mst. Ehsan Elahi Begum. As the respondent had demanded the said illegal gratification for supplying the Fard, the matter was reported to the Anti-- Corruption Staff at Jhelum and it resulted in the laying down of a trap in which the respondent was caught red- handed at Qureshi Hotel, Chakwal, and five marked currency notes of Rs. 10 each were recovered from his possession, in presence of P. W. 4, Mr. C. A. Saeed, the then Sub-Divisional Magistrate, Chakwal. This part of the prosecution case is supported by the evidence of P. W. Mr. C. A. Saeed (Additional District Magistrate at the time of deposition), P. W. 2, Mst. Ehsan Elahi Begum, P. W. 3, Fiza Muhammad, P. W. 5, Malik Fazal Din, Sub-Inspector of Police. Having been questioned by the raiding Magistrate immediately after the recovery of the tainted notes, the respondent said in Exh. P. W, 1/F that they had been put in his pocket by the boy, P. W. 3, Fiza Muhammad, while the respondent was learning and writing. At the trial however, the respondent pleaded that the money had been paid to him as Fees Abadkari which was due from P. W. Mst. Ehsan Elahi Begum, and examined four witnesses in defence.
33. The learned Special Judge took into consideration the statement of the respondent recorded by the raiding Magistrate, P. W. 1, Mr. C. A. Sayeed, and found that if the defence plea were true, that the money in question was paid to him by P. W. Mst. Ehsan Elahi Begum as fees Abadkari due from her, the respondent would have said so in his voluntary statement made to the said Magistrate, Exh. P. W. 1 /F. The learned Judge of the High Court having fallen into error with regard to the admis- -sibility of Exh. P. W. 1/F on account of the aforesaid decision of the Full Bench, however, excluded the statement from consideration with the that an important piece of evidence was not available for corroborating the evidence of P.W. Mst. Ehsan Elahi Begum. The evidence of the Ehsan Elahi Begum was disbelieved because the High Court held her to be decoy witness and inimical to the respondent and her evidence remained uncorroborated. The Special Judge also elide on the fact that the payment was made inhotel room of, as usual, at the Tehsil.
34. Similarly, as in Appeal No. 40, the learned Judge fell into error in regard to the onus, and he held that the mere recover of the tainted money from y m the possession of the respondent could not be considered enough to fix him with guilt as it had to be shown that he had accepted the amount having known it to be illegal gratification. The Special Judge had made a correct approach and held that it having been proved that the money was recovered from the respondent it was his duty to explain that he had received the money for a purpose other than mentioned in section 161, P. P.
35. C., and this the learned Special Judge found the respondent failed to prove. This is the correct legal position as we have found in Appeal No. 40.
36. The evidence of P. W. Mst. Ehsan Elahi, her grandson P. W. Fiza Muhammad, and her son-in-law, P.
37. W. Mushtaq Ali stand amply corroborated by the evidence of the raiding Magistrate, P. W. 1, and by the absence of any such explanation as given at the trial in the statement of the respondent recorded by P, W. 1, Exh. P. W. 1/F. This explanation is clearly an afterthought, and even P. W. I was not asked anything about it. The fact that the money was paid in a hotel is inconsistent with the respondent's explanation at trial that the money had been paid as Fees Abadkari. This fact also supports the prosecution case. And this position is not altered by the evidence led by the defence that Fees Abadkari were due from her and they were indeed paid in August 1963, that is, after the occurrence which had taken place in March 1963. At least one defence witness viz. D. W. 3, a Lambardar, admitted that he knew about the trap on the same day, and yet he did not consider it his duty to tell the police about the proposed payment of Abadkari fees by P. W. Mst. Ehsah Elahi.
38. This is indeed curious, and reflects on the defence evidence. The aforesaid explanation was, therefore, rightly rejected by the learned Special Judge.
39. This appeal, too, must, therefore, be allowed.
40. In the result all the three appeals are allowed. In Appeals Nos. 40 and 41 of 1969 the impugned orders of the High Court are set aside, and the conviction and sentences of the respondents by the learned Special Judge are restored in their entirety. The f District Magistrate of Jhelum must now take steps to arrest respondents Rasool Baklish and Ghulam Abbas so that each one of them may serve out the sentences of imprisonment imposed on him. The respondents must also pay the fines imposed on them.