This is an appeal against the order of Captain Muhammad Daud Khan, Special Judge (Central), Lahore dated 30-5-1969 whereby he convicted Allah Rakha son of Mian Kaley Khan, the appellant for an offence under section 161, P. P. C. read with section 5 (2) of the Prevention of Corruption Act and sentenced him to one year's R. I. with a fine of Rs. 500. In default of payment of fine he was to undergo 6 months' R. I.
2. The facts of the case briefly stated are as follows :-- Allah Rakha appellant was posted as Supervisor in the Office of the Assistant Income-tax Officer, Lyallpur. Ghulam Hussain complainant wanted to mortgage the house of his wife, situated in Ward No. 7 (G-Ward), Lyallpur, which was within the jurisdiction of the appellant. The complainant required a clearance certificate from the Income-tax Department for the said purpose. He therefore, went to the office of the Assistant Income-tax Officer. He was accompanied by Muhammad Jamil P. W.
4. He met the Income-tax Officer who referred them to Allah Rakha appellant. Ghulam Hussain accordingly con tacted the appellant and visited his office 7 or 8 times to obtain the required clearance certificate. The appellant had demanded Rs. 200 from the complainant informing him that he had persuaded his officer to accept Rs. 200 although the latter had demanded a much larger amount. The complainant agreed to pay the money, but on the appointed day i. e., 26-11-66 he went to the office of the Anti-Corruption Establishment and informed Hashmat Ali Inspector P. W. 5 about the matter. The Inspector approached the Additional District Magistrate, who referred him to Mr. Iqbal Minhas, the Deputy Magistrate. Hashmat Ali Inspector produced the complainant before Mr. Iqbal Minhas who recorded the complainant's statement. The complainant then gave two, currency notes Exhs. P. 1 and P. 2 of Rs. 100 each to the Magistrate. Inventory of the currency notes was prepared and the two notes were returned to the complainant. A raiding party consisting of the Magistrate, Hashmat Ali Inspector, Imam Din Sub- Inspector together with Ghulam Hussain complainant and Muhammad Jamil P. W. 4, set out for the office of the Assistant Income-tax Officer. On reaching there Ghulam Hussain and Jamil P. Ws. proceeded to the appellant's room while the rest of the party stayed out. The appellant came out of his room and went to the cycle stand where he accepted the money from Ghulam Hussain complainant and put it in his pocket. When he returned to his room, Ghulam Hussain complainant gave a pre-arranged signal whereupon the Magistrate and his party came into the room. The Magistrate disclosed his identity, whereupon the appellant put his hands in his pocket, so as to destroy or throw away the money, but the Magistrate got hold of his hands and recovered the currency notes Exhs. P. 1 and P. 2 from him and were taken into possession. The Magistrate then prepared the Raid Report Exh. P. W. 2/4. He is also said to have recorded the statement of the appellant but the same was not specifically proved and brought on the record, nor was it put to him while recording his statement under section 342, Cr. P. C. The Magistrate then entrusted the papers to Hashmat Ali Inspector (P. W. 5) and directed investigation. Imam Din Sub-Inspector (P. W.
7) investigated the case and recorded the statements of the witnesses. Subsequ ently it was discovered that the appellant was a Central Govern ment employee. The investigation was therefore transferred to the Special Police Establishment. Malik Ghulam Haider, Inspector S. P. E., Lyallpur (P. W. 6), then took up the investiga tion and confirmed the statement already recorded.
The appellant was ultimately challaned and set up for trial, the result of which has already been mentioned above.
3. In support of its case, the prosecution produced all the five members of the raiding party t.e., Mr. Iqbal Minhas Magistrate (P. W. 2), Ghulam Hussain complainant (P. W. 3), his Munshi (i. e., Clerk) Muhammad Jamil (P. W. 4), Hashmat Ali Inspector (P. W. 5), and Sub-Inspector Imam Din (P. W. 7) who was then Sub-Inspector Anti-Corruption. It also produced Mr. Sher Muhammad A. I. T. O., who was posted as Assistant Income- tax Officer in Lyallpur at the relevant time, as well as the Investigating Officer, Malik Ghulam Haider Inspector S. P. E. (P. W. 6).
4. The appellant, when examined at the trial denied his guilt and pleaded innocence. He gave the following explanation as to why he had been involved in the case :-- "I had paid Rs. 200 for purchase of wheat to Lai Din. As subsequently rates went up, the amount was returned to me through Ghulam Hussain. Ghulam Hussain did not know me and on inquiry came to my table informing me about the return. I told him to put the amount on the table. Immediately thereafter Magistrate arrived and took the amount into posses sion under misunderstanding."
He produced four witnesses in defence. Muhammad Afzal D. W. 1, a Steno-Typist in the office of the T. T. O., Lyallpur stated that it was his function to issue the clearance certificates and that the appellant had nothing to do with the same, that the statement of Ghulam Hussain complainant Exh. P. W. 1/3-A was recorded by him and that tbe clearance certificate was issued to the complainant by him on 25-11-1966 i. e. a day earlier than the raid. He produced the Register relating to the transfer of property certificates in support of his statement.
Lai Din D. W. 2, Asif Javid D. W. 3, supported the above noted defence version given by the appellant at the trial.
Muhammad Din Supervisor, Income-tax Office, F. Ward, Lyallpur (D. W. 4) deposed that one Arshad an Income-tax practitioner was inimical to the appellant, and gave reason for the same.
5. I have heard the learned counsel for the parties and have also gone through the entire record.
6. The appellant has admitted the receipt of Rs. 200 from the complainant, but has given an explanation for the same. The question that has to be decided is firstly, whether the prosecution has proved its case against the appellant beyond reasonable doubt and secondly ; whether there is a reasonable possibility that explanation put forwarded by the later might be true.
7. According to the prosecution evidence only Ghulam Hussain and Muhammad Jamil P. Ws. were present when the money was either demanded or received by the appellant. Ghulam Hussain being a decoy witness, his statement, as a measure of safety, requires some corroboration from an independent source. The only corroboration available, however, is the statement of his own munshi Muhammad Jamil P. W. But since Muhammad Jamil is a personal employee of the complainant, his statement cannot be taken to be independent corroboration of the latter's evidence.
The learned trial Judge was also conscious of this fact and observed as follows :-- "The only factor against Jamil would be that he was agent of the complainant, but if we find any other corroboration with respect to motive it being supported well, the story put in by Ghulam Hussain will clinch the case against the accused. This other factor is pendency of clearance certificate in the office of the Income-tax Officer."
According to the learned trial Judge, the fact that a clearance certificate had been applied for and was still pending in the office of the Income-tax Officer, the allegation of demand of bribe stood supported. He also placed reliance on the fact that the said certificate was in fact issued to Ghulam Hussain com plainant just before the passing of the tainted money. The position taken up by the defence on the other hand is that the appellant had nothing to do with the issuance of the clearance certificate, and that this job had been entrusted by the Asstt. I. T. O. to the steno. It was also contended that the case against the appellant was a frame up and had. been manoeuvred at the instance of Irshad an Income-tax practitioner who was inimical to the appellant. Not only did the defence produce evidence in support of its conditions but also sought support from the statements of the prosecution witnesses. It is also urged on behalf of the appellant that Ghulam Hussain or his agent Muhammad Jamil had always been contacting Muhammad Afzal (D. W. 1) the steno- typist, in this connection and that the latter had in fact issued the clearance certificate to Ghulam Hussain on the 25th of November 1966, that is, a day earlier than the raid.
8. I find considerable force in the above-noted contentions raised by the learned counsel for the appellant, which are sup ported by evidence on the record.
Mr. Sher Muhammad Asstt. Income-tax Officer, who was posted in Lyallpur at the relevant time, appeared as the first prosecution witness and deposed inter alia that it was the steno who was entrusted with the job of issuing clearance certificate to the applicants. He also stated that statement (Exh. P. W. 1/3-A) of Ghulam Hussain com plainant is in the hand of his steno and that, the certificate had in fact been issued to the com plainant on the 25th of November 1965 under his (Asstt. I. T. O.'s) signature. The Assistant Income-tax Officer is a Gazetted Officer, holding responsible position. He had been produced as a witness by the prosecution itself. He was not got declared hostile and cross-examined by the prosecution. I therefore see no reason whatsover to ignore his testimony.
Muhammad Afzal# D. W. 1 has supported this statement by saying that he us*ed to issue the clearance certificates, that he had recorded the statement Exh. P. W. 1/3-A of Ghulam Hussain complainant and that he had issued the certificate to Ghulam Hussain on 25-11-66.
The prosecution has not attempted to deny that statement Exh. P. W. 1/3-A of the complainant had in fact been recorded by the steno in his own handwriting. The fact that the steno had personally recorded the statement of Ghulam Hussain in connection with his application for the issuance of the clearance certificate goes to show that he (the steno) was the person con cerned with the issuance of such certificates. He produced the relevant register to show the entry relating to the issuance of the certificate to Ghulam Hussain complainant on 25-11-66. The Assistant I. T. O. (P. W. 1) has stated that it was issued under his own orders. The copy of the certificate Exh. P. 1/2-B has been signed by Ghulam Hussain himself in token of his having received it.
There is however, no date under the signature of Ghulam Hussain on the copy Exh. P1/2-B and the learned counsel for the prosecution contended that the certificate may have been prepared and kept ready for delivery on the 25th but it was actually handed over to the complainant by the appellant on the 26th shortly before the bribe money was handed over to the latter.
The learned trial Judge also took notice of this contention and observed in the middle of paragraph No. 8 of his judgment that :-- "In this context of ambiguity we have to refer to the search by the Magistrate of the complainant and not finding any certificate on him and his subsequent presence with him after the raid. It definitely shows that the certificate was given to the complainant on 26th of November 1966."
9. On regarding of the various documents on the record however, it appears that the person of Ghulam Hussain com plainant was not searched either before or sfter the raid. When he was produced before Mohd. Iqbal Minhas, Magistrate before the raid, the latter recorded his statement.
He then produced two currency Notes of Rs. 100 each (Exhs. P. 1 and P. 2) and the Magistrate prepared an inventory (Exh. P. 2/3) of the two notes, wherein he noted down their numbers. The Magistrate has not said anything about having searched the complainant before proceeding for the raid. The complainant has of course stated that the Magistrate had searched him "for any other amount in my pocket", but there is no mention of a search for any article or papers etc., in his pockets, nor is there any mention that none was recovered. Even the raid report Exh. P. 2/4 does not mention anything about a search of the complainant having been made before or after the raid.
The F. I. R. Exh. P. 6/3 gives a fairly detailed account of all that transpired before and after the raid. Tt mentions all the things recovered on a search of the person of the appellant made after the raid and describes the articles recovered from him. But there is no mention of any such search of the person of Ghulam Hussain 1) PLD 1970 SC 343 3) 1970 P Cr. L J 1253
(l) AIR 1938 Lab. 428
(1) 1969 P Cr. L 1 138
(1) AIR 1945 Sind 42 (3) PLD 1967 Lah. 645
[I] AIR 1940 Lah. 93 (2) AIR 1928 Oudh 292
(3) AIR 1530 Bom. 179
[II] 1968 P Cr. L J 1734
4. therefore, find that both the learned District Magistrate and the learned Commissioner, Khairpur Division, have acted on the same material on which the applicant was acquitted or discharged by the competent Courts of Law. The observations made against him by the learned Commissioner to the effect that he had suddenly acquired wealth, which he liberally spent to defend himself, and that the sudden acquisition of illgotten gear only goes
5. (1897) 19 AH. 319 (2) PLD 1968 SC 26
6. The submission made by the learned counsel overlooks the fact that the definition of murder as contained in section 300, P. P. C. consists of four clauses, whereas the argument advanced before us s confined only to the first clause. It is
7. PLD 1967 SC 307
8. PLD 1960 Kar. 697
9. PLD 1956 Lah. 394 (2) PLD 1959 Lah. 1009
(3) PLD 1965 Pesh. 82
10. PLD 1960 Lah. 24
11. PLD 1967 SC 373 (2) PLD 1968 SC 313
(3) PLD 1969 SC 14
12. On the internal examination he found the following damage to this body :-- "On internal examination the left 7th and 8th ribs and right 9th rib were found fractured. Plurea holed in continuation of the external injury No. 1 (External).
Both lungs slightly conjested and holed in continuation with injury No. 1 (external).
The left vertical of the heart holed 1" x 1" and the heart was empty of blood.
The stomach was empty healthy. The left lobe of the liver lacerated 3' x 2". All other organs were pale and healthy."
13. A 1 R 1945 P C 18
14. Learned counsel for the petitioner adversely criticised the delay in the investigation of the case.
In this connection he relied on the case reported as GhuIam Qadir Khan v. The State (2). On the contrary learned counsel for the State relied on the case report ed as M S. Khawaja v. The State (3), in which the observations made in GhuIam Qadir Khan's case were specifically examined. The learned Judges of the Supreme Court quoted the following from Ghutam Qadir Khan's case : -- "The circumstances connected with the delay .... will have to be examined in each case to determine whether the delay constitutes an abuse of the process of the Court or not and no valid distinction can be made in the delay which occurs during the investigation stage or that occurs during the trial." and then observed as follows :-- With reference to the last quoted observation we should point out that abuse as attracting the inherent power of the Court must be abused of the process of any Court and the investigation stage is generally speaking outside the purview of the Court
(1) PLD 1960 Lah. 986 (2) PLD 1963 Lah. 32
(3) PLD 1965 SC 287
15. PLD 1963 Kar. 175 P. W. It cannot, therefore, be said with any certainty that Ghulam Hussain was not carrying the certificate Exh. P. 1/2-B in his pocket at the time of the raid, which he subsequently produced before the Magistrate as a proof of having given the money in return of the same. As a matter of fact the Magistrate has not stated whether the complainant had at all produced the copy of the said certificate before him immediately after the raid. Even if he said that Ghulam Hussain had been searched before the raid and the certificate was not found on his person, but was produced by him immediately after the raid, it coaid have been * easily explained by saying that it was carried by his munslti Muhatnmad Jamil P. W. 4, who was not subjected to any search and that the latter had passed it on to Ghulam Hussain, after their separation from the rest of the raiding party. It is well established that an inference adverse to the accused person can be drawn for any circumstance or a set of circumstances only, when these are not capable of being explained on any other hypothesis except the one advanced by the prosecution.
2. The result is that pendency of the application for issuance of a clearance certiiicate made by the complainant is not a circumstance which goes to support the statement of Muhammad Jamil P. W. as considered by the learned trial Judge in his observation, reproduced in para No. 7.
3. It has already been seen (and this fact has also been mentioned by the learned trial Judge in the first four lines of para. 8 of his judgment) that the "Magistrate, Jamil, Hashmat Ali and Imam Din could not say what transpired between the accused and the complainant at the time of passing of the money".
It is therefore evident, no one besides Ghulam Hussain can say whether the money was passed as bribe or for some purpose. Even if he said that Muhammad Jamil was also present at the time when Ghulam Hussain gave the money to the appellant, he (i. e., Jamil P. W.) has not stated as to whether any (and if so, what) conversation took place between the complainant and the appellant, front which it could be judged that the money was given as bribe. Even the learned trial Judge has observed that Muhammad Jamil P. W. being an 'agent' of the complainant, some independent corroboration is required to support his contention with regard to the 'Motive', /. e,, with regard to the fact that the appellant had earlier, demanded money for doing the needful. The learned trial Court found this corroboration in the fact that the copy of the certiiicate (Exh. P. 1/2-B) was produced by the complainant after the raid, whereas it was found on his person before the raid. I have already discussed that this view is not warranted from the evidence on the record. The result is that in the absence of corroboration it would not be safe to rely on the statement of Jamil P. W. 4, who is a personal employee of Ghulam Hussain and is bound to be under bis influence, and his (Jamil P. W.'s) statement is therefore not available to corroborate the statement of Ghulam Hussain P. W., who thus remains the sole witness to passing of money as bribe.
It is now well established that when the evidence of demand or receipt of bribe rests solely on the statement of the decoy witness it should be scanned with great caution to find out that it is true and it is not safe to rely on it without independent corroboration. This is supported by the following authorities :--
(1) Noor Muhammad v. The State PLD 196 J SC 38.
(2) Ghulam Hussain v. The State 1969 P Cr. L J 563.
As already observed the statemeut of Jamil P. W. is not reliable enough to constitute corroboration of the statement of his employer Ghulam Hussain. The latter's statement, by itself, is therefore not enough for upholding the conviction *of the appellant.
It might be mentioned that although the appellant made a statement to the raiding Magistrate, after the raid, which could be used against him but for some reasons it was not properly brought on the record nor was it put to the appellant as a circumstance appearing against him, when he was being question ed under section 342, Cr. P. C. It appears that it is for this reason the learned trial Judge did not touch this statement and the learned State counsel also did not press it into service before me. I therefore ignore it.
Mr. Muhammad Din Supervisor in the Income-tax Depart ment appeared as D. W. 4, and supported the defence version, by deposing that one Arshad an Income- tax practitioner was inimical to the appellant. The case of the appellant is that this Arshad had got this case made against him. The learned trial Judge has dismissed this evidence by observing :-- "The defence evidence can be referred to departmental sympathies."
No question whoever asked for Mr. Muhammad Din D. W. 4 if he was deposing falsely due to departmental sympathies or for any other reason. 1 cannot therefore agree that the above- noted witness was telling a lie merely to support the appellant.
In view of the above discussion, I am of the opinion that the prosecution case against the appellant has not been established beyond reasonable doubt, and it is quite possible that the explan ation given by him, which finds support from the prosecution as also the defence evidence, might well be true.
As a result of the above discussion, l give benefit of doubt to the appellant and acquit him of the charges levied against him. The appeal is accepted. .