Ashiq Hussain, a peon of the office of the Deputy Settlement Commissioner, Circle No. 2, Farid Kot House, Lahore, and Iftikhar Ali Razi, a clerk in the office of the Deputy Settlement Commissioner, Circle No. 6, Farid Kot House, Lahore, were tried by Sh. Iqbal Ahmad, Special Judge (Central), Lahore, for offences under section 161 of the Pakistan Penal Code and section 5 (2) of the Prevention of Corruption Act. They were found guilty and were sentenced to rigorous imprionment for a period of two months under each of the aforesaid two counts and in addition, were directed to pay a fine of Rs. 200 each, under section 161 of the Pakistan Penal Code. In default of the payment of fine, they were directed to undergo further rigorous imrisonment for two months each. The convicts have preferred separate appeals. The one filed by Ashiq Hussain is Crl. Appeal No. 513 of 1965, and the appeal of Iftikhar Ali Razi bears No. 503 of 1965. Both the appeals shall be disposed of by this judgment.
2. Briefly stated, the facts of the case are, that a portion of house No. 1031, situated in street No. 77, Lahore Cantonment, was allotted to one Amir-ud-Din and on his death, was transferred to his wife Mst. Mumtaz Begum. Compensation Book of Mumtaz Begum aforesaid (C. B. No. 277810) was submitted to the office of the Deputy Settlement Commissioner, Circle No. 6, for adjustment of rent and transfer price. The matter was then pending with Iftikhar Ali Razi accused-appellant, to work out the transfer price, so that permanent transfer deed could be issued in the name of Mst. Mumtaz Begum. It is in connection therewith, that Abdul Latif (P. W. 6) son of Mst. Mumtaz Begum aforeasaid, paid a visit to Farid Kot House and contacted Iftikhar Ali Razi accused about a week before the accurrence in question. The accused, however put him off and finally a day before the occurrence, i. e. 3rd August 1961, told him to fetch his peon Ashiq Hussain accused. Abdul Lateef P.
W* complied and he was told by Ashiq Hussain accused, that he should pay Rs. 30 as illegal gratification, for getting his job done.
3. Since Abdul Lateef had no intention to pay illegal gratification, he contacted Sub-Inspector Zahid Hussain, Anti- Corruption Establishment, Lahore (P. W. 7), on 4th August 1961, and disclosed to him about the demand of bribe by the appellants from him. notes of denomination of Rs.
5. Their serial numbers were noted by the Magistrate and the tainted money was passed on to Abdul Lateef P. W. to be paid to the appellant as bribe through Ashiq Hussain accused.
5. After the aforesaid formalities were over, a raid party consisting of Magistrate, Sub-Inspector Zahid Hussain, Foot- Constable Aftab Ahmad and Abdul Lateef P. Ws. was organised and proceeded to the office of the Deputy Settlement Commissioner, situated in Farid Kot House, Lahore, On arrival at the aforesaid office, Abdul Lateef P. W. pointed out Ashiq Hussain accused, who was standing in the compound of the office. The Magistrate and the police officer stood at a short distance away from the aforesaid accused. Abdul Lateef P. W. met him, talked to him and made over the tainted money to the aforesaid accused, who put the money in the left hand pocket of his bushirt. The Magistrate and the police officer then proceeded towards the accused, who suspecting danger, threw down the money and tried to run away. He was, however, apprehended by Foot Constable Aftab Ahmad. The Magistrate took possession of the currency notes. He inquired from Ashiq Hussain accused, as to why, he had received the tainted money from Abdul Lateef. He replied that he had done so at the instance of Ishfaq and Iftikhar Ali Razi, clerks of the office of the Deputy Settlement Commissioner, Farid Kot House, Lahore, and for their benefit. However, after the investigation, only the appellants were sent up and not Ishfaq, mentioned by Ashiq Hussain accused, for the reasons, which have not been disclosed.
6. Seven witnesses were examined by the prosecution in support of its case. When the accused were examined under section 342 of the Code of Criminal Procedure, they denied the prosecution allegations except they admitted to be posted as peon and clerk in the office located in Farid Kot House, Lahore. Ashiq Hussain accused examined one Fazal Dad in defence and Iftikhar Ali Razi accused examined four witnesses in defence.
7. The prosecution case against Ashiq Hussain accused rests mainly on the testimony of Abdul Lateef (P. W. 6), Sub-Inspector Zahid Hussain (P. W. 7) and Mr. S. Agha Haider, Magistrate (P. W. 1).
The case against his co-accused Iftikhar Ali Razi, however, rests on the evidence of Abdul Lateef and the alleged statement made by Ashiq Hussain accused at the time of the raid before the Magistrate. I shall, in the first instance, take up the case of Ashiq Hussain accused. So far as he is concerned, I find no reason to disbelieve the statements of Abdul Lateef, Zahid Hussain and the Magistrate, that this accused had accepted tainted money from Abdul Lateef P. W. and when the members of the raiding party proceeded towards him, getting an impression that he might be involved, he threw away the currency notes which he had earlier put into the pocket of his bushirt.
He also admitted their acceptance as illegal gratification from Abdul Lateef P. W. to the Magistrate, when questioned by the latter. Fazal Dad, who has been produced by the aforeasid accused, deposed, that the accused declined to accept the tainted money, when it was offered to him. Thereafter, the person, who was giving him the bribe, tried to thrust money into his hand, as a result whereof, the currency notes fell down on the ground. This witness admitted, that a Magistrate and a Sub-Inspector immediately thereafter, apprehended the aforesaid accused. He also admitted, that he did not tell the Magistrate, that the accused had refused to accept the money. He also admitted that he was not produced by the accused before the police during the investigation. This witness, who had come forward to depose about 4% years after the occurrence, cannot, therefore, be easily believed and it cannot be held that the three prosecution witnesses, mentioned above, are not telling the truth. Thus, so far as Ashiq Hussain accused is concerned, the case stands amply established against him.
8. It is the case of Iftikhar Ali Razi accused, which requires serious consideration. The contention of Abdul Lateef P. W. is that the aforesaid accused put him off a number of times and ultimately directed him to contact his peon and when the latter was contacted, he demanded Rs. 30 as illegal gratification. The first question would be, whether at the relevant time, i. e. either on 3rd August 1961, when the peon demanded bribe from Abdul Lateef P. W. or on the following day, when the tainted money was actually passed on to him, Iftikhar Ali Razi accused had anything to do with this case, or the file of the disputed house was with him. The prosecution examined one Riaz Ahmad, Accountant of the office of Deputy Settlement Commissioner, Circle No. VI, as P. W.
2. He deposed that the file relating to property No. 1031, had been dealt with by Iftikhar Ali Razi accused on 24th July 1961, when he recorded the following note:-- "The rent of the house No. 1031 (portions) transferred to Mst. Mumtaz Begum and rent in the name of her late husband Mr. Amir-ud-Din may be adjusted in C. B. Number 277810 attached with the file please."
This note, which is exhibited as P. W. 2/A on the record was marked by the aforesaid accused to the Accountant Mr. Saleh. The witness further deposed, that this file though marked to him, was not passed on to him by the accused. However, in cross- examination, he admitted that on the day of raid, the hie was with Mr. Saleh. He also admitted, that in the ordinary course, the file should not have been sent to the accused unless it had been dealt with by Mr. Saleh, who had to adjust the rent. Ghulam Rasool (D. W. 5) has been produced by the accused in defence. He depos ed that he was U. D. C. in the office of the Deputy Settlement Commissioner, Circle No. VI, Lahore, in August 1961 and that he produced the file of property No. 1031, mentioned in memo. Exb. P. E. before the police on 5th August 1961. He also deposed, that the file had been made over to him by Muhammad Saleh, Junior Clerk, in the office of the Deputy Settlement Commissioner, Circle No. VI, on the evening of 4th August 1961, for safe custody. It was his duty to work out the rent due for adjusment of the price.
Muhammad Hussain (D. W. 4) deposed, that Iftikhar Ali Razi accused had no direct dealing with the public. Kent had to be adjusted in the compensation book by Muhammad Saleh and the entries with regard thereto had to be made by the accused. He also deposed:-- "Compensation books used to be handed over by the Record Keeper to Iftikhar Ali Razi accused for entries of price etc. therein. This accused then used to return the compensation books to the Record Keeper after making necessary entries therein."
At another place, he deposed:-- "iftikhar Aii Razi accused had nothing to do with the preparation or issue of P. T. Os."
It is thus clear that on the day of occurrence, the lile of property No. 1031 with regard to which, Abdul Lateef had to pass on the bribe, was not in possession of Iftikhar Ali Razi accused, nor was he dealing with it on that day. It is doubtful, in view of the defence evidence, whether the accused had any occasion to demand bribe, as he had to perform a formal job viz., that of making entries with regard to the rent in the rclevaut register C. S. C. 5,
9. The next question, which would arise in connection with the case of Iftikhar Ali Razi accused, is whether there was any occasion for him to have requisitioned the services of his co- accuscd Ashiq Hussain to demand bribe on his behalf. We have it from Abdul Lateef P. W., that Iftikhar Ali Razi accused asked him "to fetch his peon". He, thereupon contacted Ashiq Hussain accused.
Thereafter, the matter was settled. It is prosecution's own ease, that at the time of occurrence, Ashiq Hussain accused was a peon iu the office of the Deputy Settlement Commissioner, Circle, No. 2, whereas, Iftikhar Ali Razi accused was a U. D. C. in the office of the Deputy Settlement Commissioner, Circle No. 6. We also have it from Muhammad Hussain (D. W. 4), a Head Clerk of the office of the Deputy Settlement Commissioner, Centre VT, Lahore, that Ashiq Hussain accused had nothing to do with Centre No. VI in August 1961. How could, in these circumstances, therefore, Iftikhar Ali Razi accused direct Abdul Lateef P. W. to contact his peon namely Ashiq Hussain accused, when the latter was not his peon. However, it cannot be denied that Abdul Lateef P. W., whether under some wrong impression or believing that Ashiq Hussain accused would be able to help him, did contact him, as the subsequent event, which took place on 4th August 1961, reveals.
10. The last piece of evidence, that would require consideration, is the statement alleged to have been made by Ashiq Hussain accused before the Magistrate at the time of the raid, which was subsequently retracted by him at the trial. It may be repeated that the Magistrate deposed at the trial, that when an inquiry was made from Ashiq Hussain accused, as to why, he had received the tainted money, he replied that he had done so at the instance of Ishfaq and Razi accused, clerks of the office of the Deputy Settlement Co ntnissioner, Farid Kot House, Lahore. So far as Ishfaq is concerned, 1 have already pointed out above, that no action seems to have been taken against him, for the reasons best known to the prosecution. However, it is to be seen, as to what value should be attached to this statement. When Abdul Lateef P. W. appeared before the Magistrate before the raid, he made statement Exh. P. A/3. Its perusal reveals that he had merely stated that the clerk, who was dealing With the papers with regard to the house of his mother, was demanding bribe through his peon. He had not named the clerk at that time.
Subsequently as has been pointed out above, when the peon was questioned, he named the two persons on whose behalf he had accepted the bribe. It was the duty of the prosecution if it did not intend to send up Ishfaq as an accused, to examine him as a witness. The fact, that this has not been done, weakens the prosecution version to some extent. Placing reliance on the case of Mehrun Nisa v. The Crown (l) a decision of the Supreme Court, it was contended by the learned counsel for the aforesaid accused, that the statement of Abdul Lateef P. W. cannot be relied upon without independent corroboration, as he is an accomplice. It was also urged that the so-called admission or confession made by Ashiq Hussain co-accused of Iftikhar Ali Razi appellant before the Magistrate at the time of raid and it had not been abided by at the trial, cannot be taken as corroboration of the tainted testimony of Abdul Lateef P. W. and conviction cannot be based thereupon. The contention appears to be correct. In the case cited above, the facts were that one Thigri Shah used to traffic in contraband Cltaras in Sukkur under certain arrangements with the officers of the Excise Department including Ghulam Qadir, who was an Excise Inspector and Qadir Bakhsh, who was an Excise Constable. The Deputy Commissioner of Excise came to Sukkur on 18th October 1951, when Thigri Shah was directed to go away from that place during the stay of the Deputy Commissioner of Excise. He acted accordingly and returned to Sukkur on 29th October 1951, when aforesaid Ghulain Qadir asked him to pay Rs. 750 for the period of his absence from Sukkur, in accordance with the arrangements under which he had been selling Charas. Thigri Shah informed Anti-Corruption Department and subsequently a raid was arranged. Currency notes of the value of Rs. 360 were recovered from Qadir Bakhsh Constable who, according to Thigri Shah had been sent by Ghulam Qadir to receive it. Qadir Bakhah was then produced before a Magistrate before whom he made a confession which was recorded under section 164 of the Code of Criminal Procedure.
The question arose, as to whether, the aforesaid confessional statement of a co-accused could be used as a good corroboration of the statement of the accomplice Thigri Shah and conviction based thereupon. Their Lordships of the Supreme Court came to the conclusion, that there being no evidence against the appellant beyond the confession of a co-accuscd and the evidence of an accomplice, his conviction could not be maintained. They did not agree with the Judges of the Sind Chief Court, who thought the raid coupled with the large amount of money that was
(1) 1969 P Cr. L J 1124 recovered in consequence thereof, was sufficient corroboration. It was observed that it was true that a large amount had been recovered, but that did not in any way, tend to corroborate the statement of the accomplice as it did not tend to implicate the appellant i. e. Ghulam Qadir, in the offence charged. Under these circumstances, the appeal was allowed. The case before me stands on a weaker footing. Undoubtedly the statement made by Ashiq Hussain accused before the Magistrate at the time of the raid is admissible in evidence as held in the case of Muhammad Sarwar v. The State (1). This statement, as has been pointed out above, is of no consequence, because besides Iftikhar Ali Razi accused, Ashiq Hussain had also named one Ishfaq as having asked for bribe. The result of the aforesaid discussion, therefore, is that the charges levelled against Iftikhar Ali Razi accused are not established. His appeal is allowed. His conviction and sen tences are set aside. The fine, if already realized, shall be returned to him and he shall be discharged from his bail bond.
11. The conviction of Ashiq Hussain accused on both the counts is maintained. However, in view of the fact that for the last live years, he is on bail, and out of the imprisonment of two months, has already undergone a period of about fourteen days, 1 would reduce his substantive sentence to the period already undergone on both the counts. He shall pay the fine of Rs. 200 if the same has not been paid so far or in default of the payment of the same, undergo one month's rigorous imprisonment. .
(1) PL D 1969.SC 278