' Syed Noor Muhammad Shah was convicted under section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act and was sentenced to undergo six months' R. I. And to pay a fine of Rs, 1,000, or in default to undergo further six months' R. I. By the Special Judge, Anti-Corruption, N.-W. F.
P., Peshawar per his order, dated 22nd May, 1982. Aggrieved from the order the convict has come on appeal to this Court.
2. The prosecution story is a simple one. Muhammad Tariq (P. W. 2) runs a `Karyana' shop in Jehangira Bazar and the appellant Syed Noor Muhammad Shah, Food/Sanitary Inspector, used to visit the various shops in connection with the discharge of his duties. It was on 17-6-1981 that Muhammad Tariq lodged a report with Shamshad Khan (P. W. 5), Inspector A. C. E., complaining that the appellant had demanded Rs, 200, as illegal gratification with a promise that he shall not send the sample from his shop to the laboratory for examination. The Inspector produced the complainant before Wali Muhammad Khan (P. W. 4), E. A. C., Nowshera who recorded his statement, initialled two currency notes of Rs, 100, each and handed them over to the complainant.
The raiding party headed by the Magistrate left for Jehangira where the complainant passed on the tainted money to the appellant near a sweetmeat shop and signalled the raiding party who rushed to the shop and on the personal search of the appellant the tainted money was recovered from the pocket of his shirt by the Magistrate in the presence of Muhammad Azam (P. W. 3) and Shamshad Khan. The appellant was taken into custody and his statement was recorded by the Magistrate where after the case was registered against him.
3. The appellant during the course of his statement at the trial denied the allegations made against him and contended that he had been falsely implicated in the case. He added that the complainant had offered him Rs, 200, as consideration for preventing him from taking sample but he refused and in the meantime Inspector Shamshad Khan appeared and lifted the amount from the ground. He produced no defence.
4. The learned counsel for the appellant strenuously contended that the complainant Muhammad Tariq who was the star witness for the prosecution being an accomplice could not be relied upon and with his exclusion there being no evidence of demand and acceptance of illegal gratification by the appellant the entire prosecution case fell to the ground. It escaped his notice that Muhammad Tariq cannot by any stretch of A imagination be regarded as an accomplice. The question of the evidentiary value of an informer .Or agent provocateur came up for consideration in Zafar All v. The State (1), and it was observed that the Courts do not look with favour on the statement of such a person but he cannot be placed in the class of accomplices and the rule requiring corroboration does not apply to him. The Court may having regard to the antecedents or character of a person refuse to act on his uncorroborated testimony but that relates to appreciation of evidence and is not governed by any rule like the one which applies to an accomplice. In Noor Muhammad v. The State (2), it was remarked that the bribe-giver cannot be regarded as a particeps criminis in respect of crime and where the case rested mainly on his evidence it must be scanned with much caution. Similar view about the bribe-giver has been expressed in Rashid Ahmed v. The State (3), and Ubedullah v. The State (4). It follows that the statement of the bribe-giver is to be scrutinized with care and caution and he being not an accomplice no corroborative evidence is necessary to believe him.
5. The learned counsel for the appellant next contended that the prosecution could not adduce evidence to prove that the appellant had
(1) PLD 1962 SC 320 (2) PLD 1963 SC 38 (3)1970 SCM R 770 (4) 1974 S CM R 58 demanded illegal gratification and that it was paid to him by the complainant. He referred to Abdur Rehman v. The State (1), wherein there was no evidence other than that of the complainant of money being paid and received as bribe by the accused Government servant and in the absence of independent corroborative evidence to support the complainant the conviction and sentence were set aside. In Kala Khan v. The State (2), none of the prosecution witnesses deposed that the accused public servant demanded money as illegal gratification nor any incriminating conversation between him and the complainant at the time of actual payment of tainted money was proved by the witnesses. It was held that the prosecution had failed to prove its case against the accused beyond doubt. In the instant case apart from the complainant Muhammad Tariq none of the witnesses for the prosecution claimed to have seen the appellant demanding the illegal gratification or its acceptance by him. Muhammad Tariq admitted that "when the accused demanded illegal gratification nobody was present with me." "He further admitted that" the raiding party did not hear the conversation between myself and the accused at the time of passing the tainted amount." He added that "the raiding party did not see me while passing the tainted amount to the accused as they were at a distance from me." Muhammad Azam (P. W. 3) in whose presence the tainted money was allegedly recovered from the shirt of the appellant had not witnessed its passing to the appellant. The Magistrate Wali Muhammad Khan (P. W. 4) admitted that "it is correct that I did not hear the conversation between the complainant and the accused" and he too did not claim to have witnessed the passing of the tainted money by the complainant to the appellant.
Thus, it is clear that the prosecution apart from the testimony of the complainant could not produce evidence with regard to the demand and acceptance of illegal gratification by the appellant. The question that arises is whether the complainant can, in the circumstances, be relied upon with regard to his allegation against the appellant.
6. It is said that the tainted money was accepted by the appellant who was standing in front of the sweetmeat shop and the same was recovered from his shirt by the Magistrate. The statement of the appellant was recorded by the Magistrate soon after the recovery of the tainted money from him and he inter alia stated therein that he was on his usual checking in Jehangira Bazar and Muhammad Tariq, Karyana Merchant, was with him. He was standing in front of the shop of the sweetmeat when the Magistrate and the Inspector of Anti-Corruption overpowered him and the Magistrate recovered Rs, 200, from the ground. He denied to have received Rs, 200, as illegal gratification from Muhammad Tariq. During the course of his statement at the trial he reiterated this plea in somewhat a different manner. The relevant portion of his statement reads as under:- ' On the day of occurrence when I wanted to take sample from the shop of a sweet-merchant, then P. W. Muhammad Tariq approached me and offered me Rs, 200, as consideration for preventing me from taking sample. I refused this offer and insisted on taking the sample, when in the meantime the Police Inspector Shamshad Khan appeared there and lifted the amount from the ground which was kept there by P. W. Muhammad Tariq. Excepting P. W. Muhammad
(1) 1978 P Cr. L J 247 (2) 1977 P Cr. L J 292 Shamshad and Muhammad Tariq no other P. W. Was present that time.
It appears from the above statement as if Muhammad Tariq had offered Rs, 200, as illegal gratification to the appellant but -the latter refused toll) accept it and it was Inspector Shamshad Khan who came and lifted the money from the ground in the absence of the Magistrate. The fact that the money was recovered from him goes a long way to show that he had accepted the offer of Muhammad Tariq. It is pertinent to note that the Magistrate Wali Muhammad Khan (P. W. 4) who is a disinterested witness stated on solemn affirmation that it was he who had recovered the tainted money from the shirt of the appellant This fact was admitted by the appellant too in his statement recorded by the Magistrate soon after recovery of the tainted money. Muhammad Azam (P. W. 3) is a witness to the factum of recovery and though he is a shopkeeper in the bazar yet he had no motive to implicate the appellant falsely in the crime. He candidly admitted that "I do not know whether the amount recovered from the possession of the accused vide memo. Exh. P. W.
3/1 was a bribe money or not." The complainant and Shamshad Khan were not questioned at the trial with regard to the recovery of the tainted money from the shirt of the appellant by Shamshad Khan and not by the Magistrate. The plea of the appellant that the tainted money was recovered from th ground finds support from no quarter. It was broad daylight and the incident took place in front of the sweet shop. The possibility of plantation of the tainted money on the appellant can, therefore, be excluded. It follows that the tainted money was, in fact, recovered by the Magistrate from the shirt of the appellant and not from the ground as pleaded by the latter,
7. The factum of recovery of the tainted money from the shirt of the appellant assumes significance and lends corroboration to the allegation of the complainant that it was paid by him as illegal gratification. In Ubedullah v. The State (1), the following observation was made in this context:- ' As regards the third point it is now well-settled that an unwilling bribe-giver is not in the position of an accomplice and the slightest corroboration is sufficient to render his evidence reliable. In this case, the corroboration is furnished by the recovery of the marked notes from the drawer of the petitioner.
In view of the above observation it can be said that corroboration of the complainant is furnished by the recovery of tainted money from the shirt of the appellant. The prosecution succeeded in bringing home the charge to the appellant beyond reasonable doubt and I find that his conviction and sentence are well-founded and merit no interference.
' In the result, the appeal fails and is dismissed. The appellant who was enlarged on bail be taken into custody to undergo his sentence.