This is an appeal against the order of Ch. Hasan Nawaz P. C. S., Special Judge, Anti-Corruption, Lahore dated 11-5-1971 whereby he convicted Muhammad Bashir appellant aged 35 years under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to six months' R. I.
2. The prosecution case is that Muhammad Rashid complainant (P. W. 2) had a weaving factory with handlooms, wherein he employed 14 persons. The appellant who was employed as a Labour Inspector in the office of the Deputy Director, Labour Welfare, Poonch House, Lahore, had demanded a monthly payment of Rs. 20 from Muhammad Rashid complainant, in return for permitting him to work his factory even on Fridays, (which was the holiday for the said factory).
Muhammad Rashid approached Ch. Muhammad Sadiq, Inspector Anti-Corruption Establishment, Lahore (P. W. 4). The Inspector recorded his statement and then made an application to the District Magistrate for the nomination of a Magistrate for conducting raid. The Additional District Magistrate, Lahore deputed Mr. Muhammad Zar, Magistrate lst Class for this purpose. The Inspector then produced Muhammad Rashid complainant before Mr. Muhammad Zar, M. I. C. who recorded the latter's statement Exh. P. A. Abdur Rashid complainant then produced three currency notes, Exh.
P. 1 of Rs. 10, Exh. P. 2 of Rs. 5 and Exh. P. 3 also of Rs.
5. The Magistrate recorded the numbers of the above-mentioned three notes in memo. Exh. P. B. and returned currency notes to the complainant.
The Magistrate satisfied himself that the complainant was not in possession of any other money.
The raiding party headed by the said Magistrate and consisting of Muhammad Rashid complainant P. W.2, Muhammad Sadiq Inspector P. W. 4, Allah Din Constable (who has not been produced), then left for in a Taxi, for the office of Deputy Director, Labour Welfare, Poonch House, where the appellant was employed. 0n arriving at the said office the taxi was stopped outside the Poonch House. The complainant told the Magistrate that the appellant was present in the lawn of the office. He then went and contacted the appellant. A short while later, Muhammad Rashid gave a pre-arranged signal, signifying the passing of money. The Magistrate and the other members of the raiding party thereupon rushed to the spot. Mr. Muhammad Zar P. W. 1 introduced himself as a Magistrate First Class and searched the person of the appellant and recovered the three tainted currency notes from his pocket. He also found Rs. 1,060 on his person. Thereafter the Magistrate recorded the statement Exh. P. C. of the appellant. In his statement the appellant stated that he had not taken the tainted money from the complainant but had received this from the Canteen Contractor to whom he had given a currency note of Rs. 50 a day earlier when he had taken tea at the latter's canteen, situated in the Poonch House, alongwith a few of his friends and the Canteen Contractor gave him the balance, which included the Rs. 20 in question (i.e. the tainted money). The raiding Magistrate, thereupon, called Rukan Din the Canteen Contractor (subsequently produced as D. W.
2), and recorded his statement Exh. P. E. Rukan Din, however, denied that the appellant had given him a currency note of Rs. 50 on the previous day. After completing the raid report the Magistrate handed over the same to Muhammad Sadiq Inspector, alongwith the currency notes. The Inspector arrested the appellant and registered a case under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act.
3. At the trial the prosecution produced Abdur Rashid complainant P. W. 2, who said that the appellant had demanded Rs. 20 as bribe from him and that after reporting the matter to the Anti- Corruption Establishment he passed on the tainted money to the appellant, which was then recovered by the Magistrate in the course of a raid.
Mr. Muhammad Zar, M. I. C., Lahore (P. W. 1), the raiding Magistrate deposed about the raid.
Muhammad Khurshid (P. W. 3) M. H. C- recorded the formal F. I. R. Ch. Muhammad Siddiq, Inspector, Anti-Corruption Establishment, arranged for the raid and accompanied the raiding Magistrate. He also deposed about the passing of the money. Mir Ijaz Hussain Inspector (P. W. 5) is the Investigating Officer.
4. The appellant when examined at the trial denied bis guilt and took up the following plea : "The notes were recovered, but I had not obtained the same from him as bribe from Muhammad Rashid. These notes were given to me by the Canteen Contractor as balance after deducting his Bill from the currency note of Rs. 50."
He produced three witnesses in defence. Mr. Abdur Rashid (D. W. 1), Labour Inspector, Lahore brought the prosecution register and the official diaries of the department to show that the appellant had challaned Qamar Din, the uncle of the complainant, Maqbul Hussain, the son-in-law of the said Qamar Din and Inayat Ali, the brother-in-law of Qamar Din, for violation of Labour Laws and that these persons were then actually tried by a Court and convicted.
It may be mentioned that at the trial the complainant was asked, during the cross-examination as to whether the appellant had challaned his above-named relations, but he (the complainant) denied it flately.
Rukan Din (D. W. 2) and Khurshid Alam (D. W. 3) deposed in support of the defence version reproduced above.
5. 1 have gone through the entire record with the help of the learned counsel for the parties. I have also gone through the judgment of the learned trial Court. I find that the learned trial Court has devoted greater part of its judgment in showing that the defence version put forward by the appellant himself, or through the D. Ws. is correct and has gone to the extent of observing the defence plea itself, irrespective of the prosecution evidence, is "a very sound proof of fact that the purpose of accepting the money was quite illegal."
Apart from the fact that there are some patent defects in the arguments relied upon by the learned trial Court in holding that defence version is incorrect, it overlooked the principle that the general burden of proving the commission of the offence always rests on the prosecution and a conviction cannot be based merely on the failure of the accused person to prove the correctness of the plea. The learned trial Court has hardly touched the prosecution evidence except for a short discussion in paragraph No. 5. In this paragraph, after giving the names of the witnesses and stating that they were the members of the raiding party, the learned Court observed as follows :-- "These witnesses, particularly the raiding Magistrate and the Inspector A. C. E., and quite independent and reliable. There is nothing on the record to show that they can be interested in involving an mnocent person in a case, so serious in nature as could have not only deprived him of his job but also driven him to jail. The statements of P. Ws. 1 and 4 constitute a very strong evidence of the fact that the accused did accept a sum of Rs. 20 from the complainant as illegal gratification, such as is mentioned in section 161 of the P. P. C."
This is about all the attention he had paid to the prosecution evidence. Of course, while discussing the defence version the learned trial Judge mentioned that "there is no doubt about the fact that the accused did challan the complainant's relatives............. . . . sometimes in the month of October 1964, and that they were subsequently convicted by the Court", but he went on to observe that the circumstance of complainant's enmity with the accused, though very important in ordinary criminal cases, "has to be approached with a different point of view" in cases of bribe, and in such case "some sort of concession has to be made for the complainant's enmity or ill-will towards the accused, or without such ill-will, cases of Corruption can never come to light."
6. I am afraid I cannot too agree with this view. In cases of corruption, the existence of previous enmity or hostility between the complainant and the accused person is as important as in any other criminal case because there is always a danger that it may constitute a motive with the complainant to arrange a frame-up and to falsely involve the accused person, for wreaking personal vengeance. This is more so in cases where the complainant is the main or the sole witness of the demand or the passing of the bribe.
In the present case, Abdur Rashid complainant is the only witness to the demand as well as the giving of the bribe. The raiding Magistrate has admitted that he neither heard the conversation between the appellant and the complainant, nor saw the passing of the money. Ch. Muhammad Siddiq, Inspector (P. W. 4) of course stated that he had seen the complainant giving the money to the appellant, but did not say that he also heard the conversation that may have taken place between them. He was admittedly not present at the time of the demand of the bribe. The sole witness, therefore, who alleges that the money was given to the appellant as bribe, is Abdur Rashid complainant himself. It is established from the record that previous enmity or ill-will existed between Abdur Rashid complainant and the appellant and the learned trial Court has also accepted this fact. I am of the view that in the presence of this enmity it would be extremely unsafe to base the conviction on the solitary testimony of Abdur Rashid complainant. This view is supported by the following authorities :--
(1) Noor Muhammad v. The State PLD 1963 SC 38.
(2) Ghulain Hussain v. The State 1969 P Cr. L J 563.
As already mentioned previous enmity between the witness and the appellant is established. He, therefore, had a motive to involve the appellant falsely. Further, it is highly improbable that the complainant would go and demand bribe from a person with whom he has got such enmity. Since no one heard the conversation between the complainant and the appellant at the time of the passing of the money, it would not be safe to presume that it was given or taken as bribe. I am of the view that from the evidence on the record it is not established beyond reasonable doubt that the money was passed as illegal gratification. Conviction of the appellant cannot, therefore, be maintained irrespective of the fact whether the plea taken up by him in defence is correct or not.
I, therefore, accept the appeal and set aside the order of his conviction and sentence. He should be set at liberty. .