Dl)RAB PATEL, J.-The appellants have been convicted by the Special Tribunal set up under the Sind Special Tribunal Ordi--nance, 1970 under section 161, P. P. C.
Read with section 5(2) of the Prevention of Corruption Act and sentenced "to undergo R.
1. For a pcricd of three years under each of these two sections (the sentences to run concurrently) and to a total fine of Rs. 10,C(0 each only or in default to 9 months' R. I. More." The arpellant boor Nabi Agba has also been convicted under section 420, P. P. C. And sentenced to "R. I. For a further period of two years and to a fine of Rs. 1,000 or in default R.
1. For six months". Both the appellants have filed appeals against their conviction and sentences under section 10 of the Sind Special Tribunal Ordinance and these appeals have now come up for hearing before us.
2. According to the prosecution, on or about 20th May 1957 one Mr. A. H. Baluch, a contractor, obtained by negotia--tions with the Sind University a contract for the construction of the Physics Block of that University at Jamshoro. The work order (Exh. 2/3) was issued to the contractor on 20th May 1957 and a formal contract (Exh. 2/4) was also executed on the same day. During the progress of this work Mr. Baluch was given another contract for the construction of A and C type residential quarters of the University. Payments for the work done by the Contractor had to be made to him in instalments in accordance with the terms and conditions of the contract (Exh. 2/4). But in the year 1960 the appellant Daudpota was Superintendent (Accounts) in the Office of the Registrar of the University, Mr. Muhammad Hussain. The said Mr. Muhammad Hussain had to sign cheques in the contractor's favour, and the contractor had to pay bribes to Daudpota in order to obtain payment of his running bills. These bribes were shared by the appellant Daudpota and the said Mr. Muhammad Hussain. Thereafter, in 1961 Mr. Muhammad Hussain became the Project Director of the University, and in order to extort more bribes from the contractor, he got one Mr. Nasari, an Assistant Engineer of the University, to prepare a report (Exh. 2/7) according to which there bad been over payment to the contractor in the sum of nearly Rs. 2.25 lakbs. Thereafter, the contractor was made to learn that if he paid a bribe to the appellant Agha, the difficulties created by Mr. Nasari's report would be removed. He accordingly paid a bribe to the appellant Agha who prepared a retort (Exb. 2/8) according to which the contractor had been overpaid by Rs. 9,000 only.
According to the contractor, this report (Exh. 2/8) was a false report because it recommended payment to him for items of work which were never carried out by him, and in consequence of the report, he was even able to obtain the refund of his security deposit. However, the appellant Agha was so greedy that, despite the bribe received by him, he continued to harass the contractor so that his bills for the A and C quarters were held up. Finally, as he (the contractor) could not satisfy the appellant Agba's insatiable greed, Agha had the University's contract with the contractor for the A and C quarters cancelled. The contractor did not make any complaint at the time about this harassm ent to him, but in 1967, the defective construction of the Sind University became a public scandal so that the case was referred to the Anti-Corruption Department. Investigatiors were commenced and in the events that happened, Fakir Wazir Hussain Shah, D. S. P. Anti Corruption (Establishment), Hyderabad lodged an F.
1. R. On 18th October 1968 against the appellants and four others. After Invcst lgations, the case was referred to the Martial Law Authorities, but on the promulgation of the Sind Special Tribunal Ordinance, the case of the appellants, together with many other cases against persons involved in the frauds in the construction of the Sind University Campus, were referred to the Special Tribunal set up under this Ordinance.
3. In support of Its case, the prosecution examined Mr. A. Ii. Baluch who turned approver. I shall therefore refer to him as the approver, and the learned Advocate-General stated that the evidence of the approver was the sheet anchor of the prosecution case. Meanwhile, before the cases of the appellants had been referred to the Special Tribunal, the appellant Daudpota had also recorded a confession and tendered a pardon. Daudpota later retracted his confession, but the prosecution had relied on it before the Tribunal. In farther support of its case, the prosecution examined Dr. Muhammad Saleh Qureshl, a former Vice-Chancellor of the Sind University, and two other officials of the Sind University, Mr. Abdul Kadir and Mr. Wall Muhammad Dareshani. It also examined the Investigation Officer, Mr. Fakir Wazir Hussain Shah, D. S. P. And produced documentary evidence.
According to the learned Advocate--General, the evidence of the approver was the sheet anchor of the prosecution case and the documentary and other evidence was relied upon for purposes of corroboration.
4. Both the appellants totally denied the offences alleged against them In their statements under section 342, Cr. P. C. And, as I have pointed out, the appellant Daudpota retracted his confession but at the same time submitted that the pardon granted to him had become final. The learned Chairman of the Special Tribunal rejected Daudpota's plea about the pardon and held that he was guilty largely on the basis of his retracted confession because, according to the learned Chairman, that retracted confession was corroborated by the evidence of P. W. Wall Muhammad Dareshani and other evidence. As to the case of the appellant Agha, the learned Chairman held that the approver's evidence against him was amply corroborated by Mr. Nasari's report (Exh. 2/7). He also held that this appellant's statement under section 342, Cr. P. C. Was not satisfactory, and I shall refer In detail to this aspect of the case presently. The learned Chairman further held, on the basis of the approver's statement and other evidence, that this appellant had dishonestly misappropriated the approver's construction material worth Rs.
20,000 for the construction of his own bungalow in Latifabad, Hyderabad. He also held that the construction of this bingalow was a piece of evidence which corroborated the approver', evidence against him (the appellant Agha).
5. I have observed that the learned Advocate-General stated before us that the approver's evidence was the sheet anchor o the prosecution case against the appellants. But an approver's evidence requires corroboration, and as the learned Advocate, General, was not able to support some of the findings of the learned Chairman on the question of corroboration, he submitte that the evidence of an approver was fit to be accepted provided it was corroborated in any single material particular. On the other hand, Mr. Hayat Junejo, learned counsel for the appellant Agha, suttmitted that the approver had given false evidence so that his evidence could not, according to the settled law, be accepted without very strong corroboration. As we have heard lengthy arguments on the question of the degree of corroboration required for accepting the evidence of an approver, I would first briefly consider this aspect of the case.
6. In support of his arguments Mr. Hayat Junejo referred us to the decision of the Judicial Committee in Bhobani Shahu v. The King (1), and to the judgment of the Supreme Court in Dr. Muhammad Bashir v. The State (2). The view taken in both the cases cited is that the evidence of an approver should not be accepted unless it is properly corroborated, and further in Dr. Muhammad Bashir's case, Sajjad Ahmed Jan, l., who delivered the judgment of the Court, has very clearly stated that the question of corroboration has to be decided by reference to the facts of each case. According to learned counsel this judgment has never been dissented from, and he referred us to and sought to distinguish the judgment of the Federal Court in Ishaq v. The Crown (3), as it was against him. On the other hand, the learned Advocate-General, who was conscious of the weakness of the corroboratory evidence, stated that the evidence of an approver required corroboration only on a material particular, and for this purpose relied on Ishaq's case. I will therefore now briefly consider the case-law cited.
7. In Bhobanl Shahu's case the Privy Council held that !t would be unsafe to act upon the evidence of an accomplice unless 9t was corroborated In material respects so as to implicate the accused.
This judgment was not considered by their Lordships in Ishaq's case, but Munir, J., observed in that judgment at page 346 as follows :- "Another point to be noticed about the nature and extent of corroboration is that it need not confirm all the particulars disclosed by the accomplice in his evidence. Though illustra--tion (a) to section 114 of the Evidence Act uses the word "particular" in the plural, it has been held that corroboration on a single particular deposed to by the accomplice is sufficient provided that that "particular" tends to show that the prisoner was concerned in the crime. It is certainly not the rule that proof of that particular should itself be sufficient for conviction, or that standing by itself, it should not be capable of art Innocent explanation because if the particular proved is inconsistent or incompatible with the innocence of the accused of the offence charged, then ex hypothesi it will itself be sufficient proof of the commission of the crime by the accused and the evidence of the accomplice will thus be unnecessary."
These observations lend support to the Advocate-General's submission, even though the view taken in them was not shared by two eminent Judges. However, the observations had reference to a murder- case and the facts were that the approver's
(1) AIR. 1949 F 'C 257(2) PLD 1971 SC 447
(3) PLD 1954 FC 335 evidence was corroborated by the production of the dead body of the murdered man from the place where it had been hidden. Now, as observed by Munir, J., at page 346 "On charges of murder, the concealment of the body has always been considered to be a grave and inculpatory fact and a point of the Court's suspicion", therefore Mr. Hayat Junejo's submission that the judgment is not on all fours with the present case is, in my humble opinion, correct and if we were to accept the Advocate---General's argument, we would be disregarding the warning of Supreme Court in Hamida Bano v. Ashiq Hussain (1), that a judgment in a criminal case "must be understood with great particularity as having been said with reference to the facts of that particular case". The Advocate,-General then submitted that the view taken in Ishaq's case had been consistently followed by their Lordships of the Supreme Court. But no decision has been cited in which the judgment has been followed. The Advocate-General however thought that his argument was supported by the judgment of the Supreme Court in Abdul ,ll:halique v. The State (2). This submission is not correct. There the evidence of the approver was supported by three pieces of evidence. The first piece of evidence was the production by the appellant of a blood-stained knife from an earthen pot in which he had hidden it, and this knife was proved to have been stained with human blood. The second piece of evidence was the production by the appellant of his blood- stained clothes, and although it was not proved that these clothes were stained with human blood, they had been produced from an earthen pot hidden in the corner of his room. The third piece of evidence was the medical evidence of the injuries to the appellant. In these circumstances their Lordships held that the approver's evidence had been corroborated. I see nothing in the facts of this case to support the submission of the Advocate-General that the corroboration required of an approver's evidence is corroboration only of one single material particular, nor have I found any observation in the judgment to support this argument which is prima facie extremely unreasonable. On the other hand, Mr. Hayat Junejo referred us to the judgment of their Lordships in Dr. Muhammad Bashir v. The State, in which Sajjad Ahmad Jan, J., who delivered the judgment of the Court, has observed at page 454 as follows:- "As a rule of prudence, which has almost hardened into a rule of law, it is dangerous to act on the uncorroborated testimony of an approver, who is a self-confessed criminal, having betrayed his former associates under the temptation of saving his own skin. Suffering from this stigma and marked depravity of character, an approver's evidence cannot be viewed without natural reaction of distruct and incredulity. His evidence must first be tested on its basic probabilities or improbabilities like the evidence of any other witness, and more strictly so in his case, because it is the statement of a person
(1) PLD 1963 SC 109(2) PLD 1970 SC 166 of suspicious credentials. His evidence needs corroboration for the simple reason that it cannot be accepted without mental reservation and distrust, and it must, therefore gather support from other sources to induce faith in its veracity. The corroboration, which is thus, needed, must confirm in material particulars not only that the crime has been committed, as. Alleged by the approver, but also that the accused concerned has, or have, committed it. The type of corroboration needed: must differ with different cases, but such corroboration, although not required to be adequate and sufficient by itself to prove the charge, must tend to show a strong link between the crime and its perpetrators, as alleged by the approver. It often happens that an approver, who has polluted his own hands in the crime, is ready with an imaginative or tutored story to explain the crime owned by him, and substitutes an innocent person to shield the really guilty for his own ulterior interest.
Basically, therefore, the intrinsic worth of the--approver's testimony must first be judged. Before the Court reaches the stage of considering the question of corroboration,, the first and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver, then there is an end of the matter. An approver's evidence has to satisfy a double test. His evidence must first show that he is a--- reliable witness. If this test is satisfied, then the second test has to be applied, namely, as to whether it has received!
Sufficient corroboration. The latter is a special test, which has to be applied in the case of tainted evidence like that of am approver."
I am in respectful agreement with these observations, and in the light of the rule laid down by their Lordships, I shall first examine the approver's evidence and then the corroboratory pieces of evidence. But I shall first consider the case of the appellant Agba.
8. The approver gave evidence on the 14th, 15th, 16th and; 17th April 1971. He stated in his evidence that he had obtained the contract for the physics Block of the University "through negotiation" and produced it (Exh. 2/4), and I may observe here that the details of the contract are set out in Schedule B of the contract. However, although his evidence runs into 20 pages,. He did not state with whom he had conducted these very successful negotiations. He has further stated that whilst the work of the Physics Block was in progress he was given another contract for the A and C residential quarters of the University. This was in July 1958 and measurements with regard to work under both the contracts "were being recorded on the basis of plinth area and payment followed on this same basis." He then stated "I used to experience great difficulty in getting my payments unless I greased the palms of N. N. Agha and accused Daudpota . . . . .. It was in the years 1960, 1961 and 1962 that I paid various--amounts to each of these accused in order to get payment of my bill." He then explained that the University Registrar, Mr.. Mahomed Hussain ,was a great friend of the appellant Daudpotar and through Daudpota it was made clear to him that his bills would not be paid unless their palms were greased. The said Mr. Muhammad Hussain became the Project Director in 1961 and he deputed an Assistant Engineer of the University. Mr. S. T. Nasri, to take the measurements of the Physics Block. Mr. Nasri took the measurements and submitted his report Exh. 2/7 dated 10th June 1961 which the approver produced. According to this report, the approver had been paid Rs. 8.25 lakhs on account whilst "the value of work, as worked out by actual measurements is only 5.06 Lakhs. Even if we round up this figure to Ks. 6 Lakhs leaving a net margin of Rs. 94,000 for the contractor claim for water extra items and the difference in measurements if any then too an amount of Rs. 2.25 Lakhs stands unaccounted and can be considered as over payment to the contractors." I have quoted the observations in Mr. Nasri's report because the approver relied on them as correct. He then pointed out that he had learnt of this report in 1961 when he went to obtain payment of his bills for his A and C quarters, and. Mr: Muhammad Hussain had informed him about the overpayment and that bills for the A and C quarters had therefore been stopped. Dismayed by this news, the approver went to the appellant Daudpota as this appellant was Mr. Muhammad Hussain's man, and this appellant told him that his bills would not be passed unless further money was paid as a bribe. In these circumstances, the approver said that he had made payments aggregating Rs. 35,000 to Daudpota which were to be shared by Daudpota with Mr. Muhammad Hussain. Thus the position as to how the appellant Agha began taking bribes was not clear from this evidence which was recorded on 14th April 1971. However, the approver clarified the position on the second day of his evidence, and said., "I now wish to say that after I had made two or three of these payments, Mr. Muhammad Hussain, Registrar appointed accused N. N. Agha to take detailed measurements again of the physics Block ........ Accused N. N. Agha then came to me and informing me of the order of Muhammad Hussain, Registrar . . . . . Told me that if I satisfied him with money and by payment of a bribe to him there would be no need for me to be present when fresh measure--ments were being taken and that on his own he would do the work provided I satisfied him sufciently. Thereupon I paid him money, in the first instance, a sum between Rs. 15,000 to Its.
20,000. The total sum that I paid to him by way of a bribe was Rs. 52,000." The approver then stated that true to his word the appellant Agha produced a report according to which the overpayment to him was only Rs. 9,000 and not Rs. 2.25 lakhs as stated in Nasri's report, Exh. 2/7. The appellant also produced this report prepared by the appellant Agha dated 10-10-1961 (Exh. 2/8). Further according to the approver, this report was a "feat" and he was not able to understand how the appellant Agha had been able to explain away the overpayments made to him (the approver) on .His running bills.
In this connection the approver pointed out that the report (Exh. 2/8~ recommended payments to him for dismantling and water charges, although he was not entitled to it. He further pointed out that this report recommended payment for Ashler facing when no such work had been done by him and for brass fittings when in fact he had only supplied iron fittings which were a quarter of the price of brass fittings. The further consequence of this report, according to the approver. Was that he obtained payment of his 14th running bill for the Physics Block and even obtained the refund of his security deposit. The approver has not given any details of the bribe of Rs. 52,000 paid by him to the appellant Agha, but was merely said that this appellant's appetite for bribe only increased with receipt of the enormous sum of Rs. 52,000. The approver further said "accused Agha pestered me for more illegal gratification to be paid to him but I was helpless and could not oblige him. So he got my contract cancelled without giving me notice although clause 3(a) of my contract Exh. 2/4 specifically provides for a rescission notice in writing to the contractor under the hand of the XEN."
He further alleged that "he had building material worth Rs. 20,000 at the site of the works but even this was removed by the appellant Agha to his own bungalow then under construction in Latifabad.
After cancelling my contract he gave over the same to another contractor by the name of Abdullah".
9. This evidence no doubt lends support to the prosecution case, but the question is whether it is fit to be believed. The approver claims to have paid Rs. 82,000 for bribes. This is an enormous sum, but he did not produce any bank statements to show that he had this enormous amount with him.
When I observed that I was not impressed by the bald statement that sum of Rs. 82,000 had been paid as bribes the learned Advocate--General stated that, as the approver had been overpaid by more than two lakhs, he obviously had the means to pay Rs. 82,000. But the approver has not stated that he was not receiving payment in cash. On the contrary, the evidence establishes that the University was making payments by cheque. Therefore the enormous amount of Rs. 82,000 could have been paid as bribes only if the approver had first drawn out this amount from his bank account. The failure of the approver to produce his bank statement does not impress me, as also the fact that no particulars whatsoever have been given of the alleged payments. Again, whilst on the first day of evidence the approver categorically stated that he had commenced paying the bribes to both the appellants in 1960, the evidence which was recorded the next day is discrepant with this statement. In his evidence on 15th April 1971 the approver stated "had stated in my evidence yesterday that Daudpota told me if I pay him and Muhammad Hussain money, as desired, I would receive payment of my bills for A and C type quarters. At that time it was by 13th running bill for A and C type quarters that was then pending . . . . . . : ' This running bill is dated 4-10- 1961. Now, if, as deposed by the approver on 15th April 1971, he commenced paying bribes only after this running bill had been blocked. It falsifies his earlier statement that he had commenced paying bribes in 1960.
10. The approver's evidence about Mr. Nasri's report (Exh. 2/7) and his statement that he as a contractor had been overpaid by more than Rs. Two lakhs is so astonishing that it requires some examination. The question of overpayment can only be decided by reference to the terms of his contract with the University (Exh. 2/4) under which he was entitled to Rs. 6,94,557 plus 22 % for his profits which means a total payment of Rs. 8,47,349 for completing the contract satisfactorily. The approver has nowhere stated that he had left any item of work incomplete or that his work was unsatisfactory, except that brass fixtures were substituted by cheap iron fixture.
The learned Advocate-General also categorically asserted that the approver had completed his contract satisfactorily, except for the brass fixtures. But the item for brass fixtures is petty. Together with the doors, windows etc. It amounts to only Rs. 33,001 (Schedule B of Exh. 2/4). Therefore as it could only have made a difference of a few thousands to the reports (Exh. 2/7 and 2/8) it cannot possibly explain away the enormous difference between Mr. Nasri's report and the payment stipulated in the contract (Exh. 2/1), and even if it is assumed that Iron fixtures are much cheaper than brass fixtures, the approver would still be entitled to a sum exceeding Rs. 8 lakhs. But, according to the approver's evidence, he was only entitled to a payment of Rs. 5 or 6 lakhs (vide Mr. Nasri's report Exh. 2/7), and further, the appellant Agba fraudulently passed for payment his last running bill for the Physics Block, namely, the 14th running bill dated 31-10-1960 (Exh. 2/5) and similarly, in order to obtain bribes, he (the appellant), prepared a false report (Exh. 2/8) to justify the overpayment to the approver. I will consider these pleas one by one. As to the 14th running bill, it was for a sum of Rs. 31,388 and under the previous 13 running bills the approver had been paid Rs.
7,29,220. Even after payment of the 14th running bill, the approver would have been entitled to a balance under his contract (Exh. 2/4). Therefore, I find it difficult to understand how it can be alleged that the appellant Agha acted dishonestly in recommending a payment to the approver which was admittedly due to him under the contract. Turning now to the appellant Agha's report it was described by the approver as a "feat" or dishonesty. The total amount recommended for payment under it is Rs. 8,12,261.50. Not only does this amouns not exceed the amount due to the approver under his contract (Exh. 2/4) but it also includes payment for two additional items, Rs.
24,300 for dismantling charges and Rs. 30,000 for water carriage charges. In these circumstances, as the validity of the contract (Exh. 2/4) is not disputed, I am not able to understand how the approver's evidence that the appellant Agha's report (Exh. 2/8) was a dishonest and fabricated document can be accepted.
11. I will now briefly examine Mr. Nasri's report which was put up by the approver as a model of honesty. I have to point out here that Mr. Nasr! Has at least criticised the manner in which the contract (Exb. 2/4) was given to the approver. But as this objection has not been taken by the approver and as the prosecution asserts the validity of this contract (Exh. 2/4), I found it difficult to understand how this report (Exh. 2/7) was put forward as an honest document. Accordingly, we invited the learned counsel to explain how Mr. Nasri had come to the conclusion that the approver had been overpaid, and Mr. Hayat Junejo took us through the annextures of Mr. Nasri's report as well as Schedule B of the approver's contract (Exh. 2/4), which contains the details of the work to be done by the approver, and the payment for each item of the work done by him. The Schedule contains 38 items, but without giving any reasons whatsoever. Mr. Nasri has rejected the approver's claim for items 2, 14, 22, 23, 24 and 34 to 38. The total of these items exceeds Rs. 50,000. Again while Mr. Nasri has recom--mended payment for the other items of Schedule B, he has reduced the amount to which the approver was entitled under Schedule B. To take a few random instances, the approver was entitled under Schedule B to a sum of Rs. 1,06,512 for work under item No. 7. But Mr. Nasri has recommended payment of a sum of Rs.29,321.90. As to item 13 of Schedule B, while the approver was entitled to a payment of Rs. 1,29,015. Mr. Nasri has recommended only Rs. 87,394.59. Similarly, as to item 21, under Schedule B, the approver was entitled to Rs. 49, 800 but Mr. Nasri has recommended payment of only Rs. 13,696..75. In the absence of evidence that the approver had not executed his contract properly, and there is no such evidence, it is clear that Mr. Nasri's report is not correct. I may however point out here that Mr. Nasri in his report has criticised the work done by the approver. But, as I shall presently show, the opinion thus expressed by him cannot be accepted. On the other hand as I have pointed out earlier, it is not the approver's case that he had not completed the contract or that he had completed it unsatisfactorily except for the item of brass factory. Therefore, it does not lie in his mouth to say that Mr. Nasri's report was true and whatever be the true position, on the evidence on the record in these appeals, the approver gave false evidence when he stated that Mr. Nasri's report was true and that he had been overpaid. Stranger though his conduct be in so doing, Mr. Junejo submitted that the explanation was to be found in his enmity towards the appellant, Agha, which was the plea raised by this appellant in his statement under section 342, Cr. P. C.
12. I have pointed out earlier that, according to the approver, as he could not go on feeding Agha's appetite for bribes, this appellant even got his contract for the A & C quarters cancelled by the University. But it is obvious that a mere Assistant Engineer could not possibly have cancelled the contract, as alleged by the approver, and the approver was compelled to admit in his cross- examination that the contract had been cancelled by the University Authorities. His statement in his evidence-in-chief however reflects his own feeling or suspicion that the contract had been cancelled at the instance of the appellant Agha. But no evidence whatsoever has been produced to show how the approver's contract for the A and C quarters was cancelled ; therefore, as rightly submitted by Mr. Junejo, it follows that the appellant's own admission proves his hostility to the appellant Agba.
13. There is another inconsistency in the approver's evidence to which Mr. Junejo referred and which requires to be mentioned. a The University could, at any time, have requested the appellant to carry out additional work and there is even provision for this in the contract (Exh. 2/4). Now, one of the main controversies 5n the appeal by Agha is whether the approver carried out dismantling work and incurred water carriage charges as additional items. As I shall presently show, the approver's evidence on this question was very evasive. And he asserted that he was not entitled to any payment for dismantling and water carriage charges. But he had himself filed a suit against the University for payment for work done on additional items. This was supported by the evidence of Dr. Muhammad Saleh Qureshi, and the approver was compelled to admit in his cross-examination that he had filed a suit for payment for additional items of work against the university but he could not remember whether the suit included a claim for water carriage charges. In the first place, it was unfortunate that the approver did not refer to the suit filed by him in his evidence-in-chief, and I have no doubt -that this suppression was deliberate. I also cannot believe that he could not remember whether his suit included a claim for water carriages. On the whole, therefore, his evidence does not inspire confidence.
14. Mr. Junejo then referred us to the long delay by the prosecution and the circumstances in which the approver had obtained his pardon. As to the first objection, there is no doubt that there waj a delay of many years in instituting the prosecu--tion, but the approver cannot be blamed for this.
However, the F. I. R. Against the appellants had been lodged in October 1968. Investigations were thereafter commenced by P. W. Wazir Hussain Shah, D. S. P. The Investigation Officer, who, by his letter on 31-7-1969 (Exh. 3/3) directed the approver to come and see ,him on that day and wrote a letter to the Investigation Officer from Karachi on the same day. - He alleged in this letter that, in order to carry out his contract with the University. He had been compelled to pay bribes to certain University officials. But he did not name them. Then by his letter dated the- 13th August 1969 (Exh.
3/4) he stated for the first time that the appellant Agha had taken from him a bribe of Rs. 52,000 and that the other appellant had taken a bribe of Rs. 35,000. Mr. Junejo therefore submitted that this delay in naming the appellants cast doubts on the approver's veracity, the more so as there were no records with the police of the receipt of these two letters of the approver. The argument has force. Finally, we were astonished to find that the approver was never in custody .And was always on bail. Mr. Junejo therefore submitted that the circumstances surrounding the grant of pardon to the approver invited suspicion, and in support of this argument he ,referred us to a judgment of a Division Bench of the West Pakistan High Court in Wazir and others v. The State (1).
The Judgment cited supports Mr. Junejo's argument and it is clear that the manner in which the approver was granted pardon does not inspire confidence. In all the circumstances discussed, it lB :follows, from the rule laid down by the Supreme Court in Bashir
(1) PLD 1960 Kar. 674 Ahmed's case, that the approver's evidence cannot be accepted without very strong corroboration, and I will now examine whether there is any corroboration of his evidence. .
15. I have observed earlier that the learned Chairman has treated Mr. Nasri's report as the principal piece of evidence corroborating the approver's evidence, and if this report had been consistent with the evidence on the record and the approver's contract (Exh. 2/4) and if Mr. Nasri had been examined, I have no doubt that it would have provided strong corroboration of the approver's evidence. But Mr. Nasri was not examined and, for the reasons which I have given in paras. 10 and 11 it appears to me a false report or at least not a correct report. Therefore it fails to provide any corroboration of the approver's evidence.
1G---. However, 1 must pause here to consider whether this report (Exh. 2/7) can be considered in evidence at all. Mr. Junejo submitted that the statement in the report that the work done by the approver was only of the value of Rs. 5 or 6 lakhs was a statement of opinion, at:d therefore, as Mr. Nasri had not been examined, it was of no evidentiary value. The learned Advocate-General had conceded that the effect of the failure of the presecution to examine Mr. Nasri was to reduce the evidentiary value of his opinion. But later, when it was found on the evidence that it was at least an incorrect and misguiding document, and that in some ways it even supported the appellant Agha's case, the learned Advocate-General turned round and stated that the report was not admissible under section 60 of the Evidence Act. He then corrected himself and stated that the report was relevant under section 35 of the Evidence Act. But, in view of section 60 of the Evidence Act, it could not be treated as a piece of substantive evidence. I therefore invited the learned Advocate- General to clarify his submission and state whether he was relying on the report at all or not. The learned: Advocate-General repeated that the report was not a piece of substantive evidence, but that, as it was clearly relevant under section 35 of the Evidence Act. He would rely on it only to the extent : the approver had stated that he had been threatened with a claim for over payment after Mr. Nasri's report. Then the appellant Agha had taken bribes and issued his report (Exh.2/8) in consequence of which the approver's difficulties were removed, all his bills were paid promptly and even his security deposit refunded.
17. Can the learned Advocate-General be thus allowed to repudiate the document which, in his own words, was the sheet anchor of the case for the prosecution before the learned Chairman? I was astonished by his argument that I invited him to refer me to some authority in support of his strange plea. But he could only refer us to section 60 of the Evidence Act. I may point out here that Chapter IV of the Evidence Act deals with oral evidence. According to section 59: "All facts, except the contents of documents, may be proved by oral evidence." Section 60, in so far as is relevant reads as follows "Oral evidence must, in all cases whatever, be direct; that is to say- If it refers to an opinion or to the grounds on which tha~ opinion is held, it must be the evidence of the person who holds that opinion on those grounds."
The learned Advocate-General submitted that the above-mentioned direction to examine the author of the opinion supported his argument. But, as the section relates to oral evidence only, it is completely irrelevant, and does not refer Mr. Nasri's report inadmissible. On the other hand, as the report is a document, the only questions for determination are whether it is primary evidence and whether it has been properly proved. The report is obviously primary evidence and as it has been proved by several witnesses, I have no doubt that it is admissible, but its evidentiary value is another matter. An adverse inference has to be drawn against the prosecution for its failure to examine Mr. Nasri. I have also referred earlier to the circumstances which cast doubt on the report.
But apart from those circumstances, the assertion in the report that the value of the work done by the approver was only of Rs. 5 to 6 lakhs is clearly a matter of opinion, therefore as Mr. Nasri was not examined 1 agree with Mr. .Lunejo that in so far as the report states Mr. Nasri's opinion, it is of no evidentiary value. Even otherwise, as I have explained, the report is incorrect, if not false. This means there is no evidence to corroborate the approver's claim that he had been grossly overpaid; and.
On the contrary, the evidence exposes him as a dishonest witness. Similarly, as the prosecution has failed to prove that the appellant's report (Exh. 2/8) was false, there is no corroboration of the approver's claim that the appellant had issued this report dishonestly in order to obtain a bribe from him. The result of this discussion is very damaging to the prosecution because the main evidence of the approver is thus not only not corroborated but is discredited. In this background the fact that the approver was paid after the appellant's report (Exh. 2/8) or that the appellant had recommended the payment of this 14th running bill (Exh. 2/5) or the refund of his security deposit are not circumstances which can be treated as corroboration of the approver's evidence.
18. The next piece of corroboratory evidence relied upon by the learned Chairman was the fact that after Agha's report the approver's bills were all paid promptly in a matter of days. The learned Advocate-General also laid stress on this aspect of the case. But as to the 14th running bill of the Physics Block (Exh. 2/5), Mr. Junejo rightly pointed out that payment of this bill together with the refund of the security deposit had been ordered by the Superintending Engineer who was not even examined. Learned counsel also referred us to the conditions of the contract (Exh. 2/4) according to which the University was required to pay the approver's bills within three days. In view of this clause, prompt payment by itself without any other evidence, and there is none, cannot be treated as corroboration of any material particular of the approver's evidence.
19. The learned Advocate-General then referred us to what;he described as the appellant Agha's recommendation for the payment to the approver of Rs. 24,300 for dismantling and alteration charges and of Rs. 30,000 for water carriage charges and stated that this recommendation had been made, although no dismantling or alteration had been carried out by the approver nor any water carriage charges incurred by him. This was also the view of the learned Chairman, and if the evidence can show that the appellant recommended these payments, although no such work had been done by the approver, it would furnish strong corroboration of the approver's evidence. It is therefore necessary to examine whether the appellant Agha had made any recommendations, and if so, whether it was totally false as held by the learned Chairman.
20. In his report (Exh. 2/8) to the Executive Engineer, the appellant has stated that it had been difficult for him to make correct measurements of the approver's work "so far as concealed items of beams, columns and foundation of Auditorium are concerned. Anyhow I have tried hard to record, as far as possible, the correct measurements of these items . . . ." Then in further reference to the question of dismantling he has stated: "Particularly in case of Auditorium stepping arrangement it is difficult to ascertain the correct re-inforcement of beams. From the record it is also ascertained that lot of dismantling has been done during the course of construction while changing the size of Auditorium Hall when the main bearing wall was at the plinth level. The position of ventilations and doors was changed and subsequent dismantling took place. The position of Jallies was also changed from the inside . . . . .
Prom record it is also ascertained that lot of claim of water charges, stoppage of work etc. Have been put forward by the contractors which may also be considered in the finalisation of this case.
In the first place, as rightly submitted by Mr. Junejo, the appellant has merely placed his recommendations before his superior and pointed out the handicaps under which he had to work, and the fact that his recommendations were on the basis of the record. It would therefore be difficult to spell out a ease of fraud or dishonesty against him, especially in view of the last paragraph of the report. In any case, I would now examine the two items and I will first consider the question whether, as contended by the Advocate-General, no dismantling work was done by the approver.
21. The report which I have quoted specifies in detail how and where dismantling and alteration work was carried out, and if these particulars had been false, it would have been the duty of Mr. Nooruddin Mahmood, the addressee of the report, to .Contradict them. Theprosecution has not produced Mr. Nooruddin Mahmood's reply, nor any other document nor even examined him. It has also not examined any other responsible officer such as the Vice-Chancellor at the relevant time to show that the observations, which I have quoted, were false. In these circumstances, it is difficult to see how the prosecution can establish that the approver had not done any dismantling work or alterations. It is true that he has given evidence on this question but his evidence cannot be accepted without corrobora--tion. I would however now turn to his evidence, and it is relevant to remember that, according to the report (Exh. 2/8), the dismantling work was done in the Auditorium and/or the Physics Block. However, in his evidence, the approver said that two rooms had been constructed with the Physics Block which were temporary constructions. He then said that the appellant Agha had directed him to build three more rooms which were to be used "as an Annexee workshop to the Physics Block". He then said:- "I had not demolished or dismantled the two rooms first erected by me, and yet I find o I page 33 of Exh. 2/8 that the sum of Rs. 24,300 has been allowed to me under the head "dismantling and alterations". I am aware that this item of dismantling or alterations refers to the main Physics Block and not to the aforesaid two rooms but I must point out that under my building contract with S. U. I was not entitled to any money or compensation for dismantling charges."
The approver was obviously a very clever witness. Yet, whilst the issue was of dismantling of rooms in the Physics Block, he gave evidence about the dismantling of the Annexe to the Physics Block.
Nowhere has he denied the allegation that there had been dismantling of the Auditorium or of any other part of the Physics Block itself. But, as the appellant had recommended payment for dismantling and alterations of the Auditorium and/or of the Physics Block, even if the approver's evidence is accepted, it is not sufficient to establish that he had not carried out dismantling and alterations, as stated in the appellent Agha's report (Exh. 2/8).
22. I now turn to the dispute about the water carriage charges. Provision in this respect is contained in Schedule A to the contract (Exh. 2/4). The relevant clause states: "The water supply shall be made at the site on the same conditions as received from the P. W. D. And rate shall be recovered on no profit no loss basis." In view of this clause, the University had to supply water, and if it did so, it was entitled to recover from the approver the cost paid by it to the P. W. D. This it has done, but water is required all the time in construction work, and if the approver obtained it directly, he would be out of pocket to the extent of the difference between the P. W. D's charges to the University and the expenses reasonably incurred by him for bringing water to the site. These would be charges not for water but for the carriage of water, and it is this claim which is referred to in the appellant Agha's report. Turning now to the approver's evidence, all that he has said is as follows:-- "In the matter of water charges the agreement Exh. 2/4 provided that the S. U. Would provide water to me the Contractor at site at the same rate received by them from the P. W. D. . . . . The water carriage charges were paid for by me. In spite of this express agreement, I find that on page 33 of Exh. 2/8 a sum of Rs. 30,000 is allowed to me as my claim for water carriage charges."
As the approver has himself stated that he had incurred water carriage charges, I do not see how even his evidence makes out any case that the appellant Agha had dishonestly recommended the payment ef water carriage .
Charges. Confronted with this difficulty, the learned Advocate-General thought that the learned Chairman had not recorded the approver's evidence correctly. I see no reason whatever for making any such assumption, which ignores the meticulous care taken by the learned Chairman fn recording the evidence. Thus, in the first place, the approver's evidence itself does not implicate the appellant, so that the question of corroboration does not arise Secondly, as the learned Advocate-General was able to refer us to only two running bills (Exhs. 3/10 and 3/14) in which the University had debited its water charges to the approver. Mr. Junejo submitted that the work undertaken by the approver could not have been done with the very small supply of water, which was suggested by these charges. This submission cannot be accepted as it is not known how much water was supplied by the University under these charges. Mr. Junejo then referred us to Mr. Nasri's report (Exh. 2/7) which envisages a claim of nearly one lakh for water charges and "extra items". This express reference to water charges supports the appellant's report (Egh. 2/8) and I may also refer here to the 14th running bill (Exh. 2/5). The items of work under this bill require a large quantity of water, but as no water charges have been deducted by the University under this bill which it will be remembered was the final bill for the Physics Block the evidence suggests that the approver had brought the water to the site himself and thereby became entitled to water carriage charges. In this context his lapse of meLnory in forgetting whether he had included in his suit against the University a claim for water charges invites suspicion. The result is that, although the approver had alleged that the appellant had falsely recommended payment of water carriage charges to him, his own evidence is, to say the least, very equivocal. But even if it is construed as implicating the appellant, it is not corroborated.
23. The learned Advocate-General then submitted that, as the contract (Exh. 2/4) did not expressly provide for payment for dismantling, alterations and water carriage charges, the fact that the appellant Agha had recommended them in his report proved his dishonesty and also corroborates the approver's evidence. The argument is without merit. The approver would have been entitled to compensation on a quantum merult basis; in any case, the contract (Exh. 2/4) itself provides for additional items, and the items recommended were clearly additional items under the contract.
The Advocate-General then submitted that even if these items were additional items under the contract, as the approver had not followed the prescribed formalities for submitting a bill for additional items, the appellant Agha had acted dishonestly in recommending payment of these items. But as the appellant was not the disbursing authority, it was not necessary for him to consider whether the approver had complied with all the formalities required for making claims for additional items. In any case, he had recommended for consideration the payment of these items in language so guarded that a dishonest intention cannot be attributed to him. I am therefore not impressed by the learned Advocate-General's submission; the evidence about water carriage charges and dismantling charges neither implicates the appellant nor corro--borates the approver's evidence.
24. The appellant Agha had also recommended in his report (Exh. 2/8) payment for Ashiar work and for brass fixtures on the doors and windows of the Physics Block. The approver had however said that he had not done any Ashiar work whatsoever and that instead of brass fixtures, he had supplied cheap iron fixtures. This evidence is supported by that of Dr. Kureshi and the learned Chairman has therefore believed the approver and held that his evidence was corroborated. The learned Advocate-General also half heartedly submitted that Dr. Kureshi's evidence corroborated the approver's but only with regard to the dispute about fixtures. I may explain here that Dr. Kureshi was the Vice-Chancellor of the Sind University in 1967 and he said in his evidence that he did not remember having seen any Ashiar work in the Physics Block. He also stated that he had noticed that the fixtures were of brass, not of iron and that iron fixtures were much cheaper than brass fixtures. I agree with the learned Chairman that the witness was an independent witness of unimpeachable integrity, but although be had prepared at the time a report about the defects in the Physics Block (Exh. 7/A) he bad not said in this report that Ashiar work had been done or that the fixtures were iron, despite the terms of the contract to the contrary. The possibility therefore that the recollection of the witness was erroneous cannot be ruled out. On the other hand, Ashiar work to the tune of Rs. 14,000 had to be done under the contract (Exb. 2/4), and this is also referred to in Mr. Nasri's report (Exh. 2/7). It is also significant that the appellant Agha had made a categorical statement in his statement to the Court that Ashiar work had been done by the approver and he had also filed an application that the Court should inspect the Physics Block to verify the truth of his assertion. In these circumstances, bearing in mind the fact that the prosecution had to prove that Ashiar work had not been done, the learned Advocate-General conceded that he could not support the learned Chairman's finding on the question of Ashiar work. The concession was correct, as in the circumstances it is clear that the prosecution has failed to prove that Ashiar work had not been done by the approver.
25. 1 now turn to the dispute about fixtures, and as is obvious these were fitted only as the contract was nearing comple--tion. Further, it is relevant to bear in mind that it was at this final stage of the construction of the Physics Block that the appellant Agha came into the picture, and it is not disputed before us that he had personally supervised the installation of fixtures only on 149 square feet of doors and windows. Mr. Junejo made much of this, but the fact that the item certified was petty would not by itself be decisive if it was dishonestly certified. In any case, the question is of corroboration and if the fixtures fitted were cheap iron fixtures instead of brass, this would furnish corroboration of the approver's evidence. But, as I have observed, the appellant had applied for inspection of the Physics, Block, and as the learned Chairman rejected this application. Mr. Junejo submitted that an adverse inference had to be drawn against the prosecution with consequences fatal to the question of corroboration. With respect, the learned Chairman's order rejecting the appellant's application was unfortunate; yet he held that the approver's evidence was corroborated. This was on two grounds: the ambiguity in the appellant's statement under section 342, Cr. P. C. And, Dr. M. S. Qureshi's evidence. As the appellant's inspection application was rejected, I am not impressed by the first ground. As to Dr. Qureshi's evidence, although it corroborates the approver's evidence, as I have pointed out, the witness had not referred in his detailed report (Exh. 7/A) to the question of fixtures. Therefore Mr. Juneja submitted that it would be unsafe to rely on the oral recollection of the witness. As the approver's evidence cannot be accepted without strong corroboration, in the circumstances discussed, Dr. Qureshi's evidence is not sufficient to corroborate it.
26. 1 would also like to refer here to another aspect of the case. The appellant's report certifying the fixtures to be of brass could have been issued dishonestly or negligently, and it would be dishonestly issued only if iron fixtures were really much cheaper than brass fixtures, as stated by the approver and by Dr. Qureshi. But as the approver did not produce any bills in support of his allegation, according to the settled law, his statement cannot be accepted so that the only question is of the: effect of Dr. Qureshi's evidence. As Dr. Qureshi's evidence supports the prosecution case. Mr. Junejo submitted that we should not accept it because the prosecution should have produced the best evidence available to it. The argument has force. The prosecution could easily have examined traders in support of its claim that iron fixtures were much cheaper than brass fixtures, at the relevant time. As it did not do so, I do not think it would be safe to rely on the oral recollection of a witness however eminent. Another circumstance relevant here is that both brass and iron fixtures would be of many qualities. Imported iron fixtures might well be as expensive as local brass fixtures. This is important, because the evidence establishes that English locks had been fitted. In these circumstances, it was very unfortunate that the prosecution did not examine traders In support of its claims. And the result is that the prosecution= evidence on the question of fixtures does not inspire confidence.
27. The other major piece of evidence relied upon by the prosecution to corroborate the approver's evidence is the fact that the appellant Agha had built his own house in Latifabad in 1961. The case of the prosecution is that, as the appellant Agha had no funds of his own and as his salary was very low, the construction of the house could only have been financed out. Of the bribes received by the appellant. As the appellant alone had the knowledge of his own means he had to give evidence about it, and if the evidence is not sufficient to explain how he built his house, I have no doubt that it would furnish corrobora--tion of the approver's evidence. The plan of the house is admitted (Exh. 9-4A) and its built-up area is a little under 2,000 square feet. The appellant being an Engineer, Mr. Junejo submitted that he would be able to build his house much cheaper than the ordinary citizen, and there is great force in this contention. I now turn to the appellant's explanation of how he built his house. In answer to question No. 21 he stated :- "I have stated above that money was available to me for building my house in Latifabad. This money came from the sale of 331 acres of my Barrage Land situated in deh Mangrio taluka Tando Allahyar for Rs. 49,000 to Pir Ghulam Rasul Shah as per documents produced by me in Case No. .2/70 and row shown by me to the Court from the R and P of that case."
Unfortunately, as no copy of the transaction with Pir Ghulamali Rasool Shah had been filed, we observed that it would be relevant, and the learned Advocate-General immediately offered to have the record of Case No. 2 of 1970 sent for. It was received by us through the courtesy of the Investigation Offcer, and we find that, although there is no sale deed, the relevant extracts support the evidence of the appellant. There being no evidence to the contrary, I accept his statement that, at the relevant time, he had a sum of about Rs. 50,000 for the con--struction of the house. According to the plan (Exh. 9-4A) the house is a modest construction. It consists of a drawing room, a dining room and a bed room on the ground floor and two. Bed rooms on the upper floor. Only one of the rooms, namely, the master bed room on the first floor, can be described as large, othe wise all the rooms are small.
The construction is there--fore a modest construction which could have been built within the sum available to the appellant, and Mr. Junejo invited us to hold accordingly. The learned Advocate-General however submitted that we could not take judicial notice of the cost of the construction of a house in Hyderabad. That is true, but the prosecution has to show that the appellant could not have built the house, vide the plan (Exh. 9-4A) with the funds available to him through the sale of his property. Unfortunately, it has produced no such evidence, although it could have easily done so. The learned Chairman has however relied on the evidence of the Investigation Officer Pir Wazir Hussain Shah and the Advocate-General also relied on it. I shall therefore consider--it. This witness produced the papers which prove that the--appellant had obtained two adjoining plots in Latifabad, Hyderabad. He further said on the first day of his evidence that the appellant had built two houses on these plots, but the next. Day he contradicted himself and admitted that on'y one house had been built consisting of a ground floor and a first floor.
He also said that the house consisted of 9 rooms. But, according to the plan, which is admitted as correct, the house had only 6 rooms. Considering that the fact that the Investigation Officer made these inconsistent statements, despite the advantag.- of having made full investigations, his evidence dots not impress me. Further, as the appellant has given evidence of his means, the real question for determination in this appeal is whether the evidence on the record supports the conclusion that the cost of the appellant's house had exceeded Rs. 49,00j, which the appellant admittedly had with him. I observed that unless this was established, the construction by itself could not furnish proper corroboration of the approver's evidence of having given a bribe of Rs.
50,000 to the appellant. The Advocate-General therefore referred us to the evidence of P. W. Wazir Hussain Sbah on the value of the property. The witness stated that property had been assessed at Rs. 4,800 per month, and then observed "According to the usual formula, the cost of this building would be 20 times this assessm ent". Speaking for myself, I find it difficult to believe that the house under plan (Exh. 9-4A) would have cost Rs. 96,000 unless the quality of the construction was very superior, but of that there is no evidence. I therefore requested the learned Advocate-General to enlighten us on the formula referred to by the witness in his evidence. The learned Advocate- General promised to let us know the basis of this formula, but he was unable to give us any information. He however said that the witness had ascer--tained the formula through his enquiries from the Excise and Taxation Department. But this means that the witness repeated what someone in the Excise Department had told him. Apart from the fact that there is no evidence whatsoever as to the sources of the witness's information, the statement of the witness is pure hearsay and cannot possibly be considered against the appellant. I would also observe here that the prosecution could easily have given independent evidence to give the Tribunal an approximate idea of the cost of construction of the appellant's bungalow. But as it has not cared to do so, an adverse inference has to be brought against it. In all the circumstances dis--cussed it has failed to prove that the cost of the appellant's house was beyond his means, therefore the evidence of the construction by itself is not sufficient to corroborate the approver's evidence.
28. I am aware that the approver has said in his evidence that the appellant had removed Rs.
20,000 worth of material belonging to him from the University site to his house for the construction and I am also aware that another witness, Mr. Dareshani, had asserted that the appellant had removed material belonging to the University for the construction of his house. But the approver had neither reported the case to the police nor examined his Chowkidar who was supposed to have verified the removal of his material. Similarly, Mr. Dareshani neither made a complaint about the alleged misappropriation by the appellant to the University Authorities nor to the police. He however said in his evidence that he had informed the Vice-Chancellor of the approver's conduct by a letter. Even this letter was written after a long delay, and it merely states that the construction of his houses by the appellant required investigation. It does not contain any allegation that the appellant had removed from the University Stores the material of the University. This evidence does not inspire copfidence, and I am also not able to see its relevance because the appellant is not being prosecuted for misappropriating the material either of the approver or of the University. But even if for the sake of argument this evidence is accepted as correct, the result would be to reduce substan--tially the cost to the appellant of the construction of his house. As a piece of corroboratory evidence, it is therefore consistent with the other corroboratory evidence relied upon by the prosecution, In any case, as this evidence does not inspire confidence, It does not furnish eny corroboration of the approver's evidence.
29. 1 am aware that the approver's evidence receives some support from the retracted judicial confession of the other appellant. But one tainted piece of evidence cannot corroborate another tainted piece of evidence and that was also the view o a Division Bench of the West Pakistan High Court in Wazir and others v. The State (1), an authority to which the learned Advocate-General himself very fairly referred. But the result is that, although the prosecution case is based on the approver's evidence that evidence cannot be accepted because it is not properly corroborated.
The further consequence of this is that L the prosecution has failed to prove beyond reasonable doubt the guilt of the appellant Agha and his appeal has to be allowed.
30. I now turn to the appeal of the appellant Nazar Muhammad Daudpota. I have pointed out a- irlier that this appellant had been granted a pardon by an Additional Magistrate by an order dated 27-7-1970. But on 2-11-1970 the learned Additional District Magistrate cancelled the pardon on the ground that as the Special Tribunal under the Sind Special Tribunal Ordinance, 1970 had been set up, only that Tribunal was competent to grant a pardon and that was also the view of the learned Chairman: But I have to observe here that whilst this Ordinance expressly empowers the Tribunal to grant a pardon, it is silent on the question of the effect of a pardon granted before the 'Tribunal was set up. Now, in the instant case the appellant had been granted a pardon before the enactment of this Ordinance, therefore, in view of the provisions of section -5 (2) of the Criminal Procedure Code, with great respect, I am not able to agree with the view of the learned Chairman that the pardon granted on 27-7-1970 had become invalid. However, this order of 27-7-1970 itself states that the case was "still at the stage of investigation." Therefore the learned Advocate-General submitted that the Additional District Magistrate, who had granted the pardon, was not competent to do so, in view of the proviso to subsection (1) of section 337 of the Criminal Procedure Code, and he further sub--mitted that, in any event, there could not be any question of a pardon because the offence against this appellant did not fall under the offences specified in the section. These arguments are supported by the plain language of subsection (1) of section 337, Cr. P. C.. And with respect, whilst I cannot agree with the reasoning of the learned Chairman, I agree with his conclusion that he was.
Competent to try the appellant Daudpota.
31. As the appellant Daudpota cannot challenge the legality of his trial, the only question is whether his guilt has beer
(1) PLD 1960 Kar. 674 established. According to the learned Advocate-General, the prosecution case against him was based on his own judicial confession, the evidence of the approver and the evidence of P. Ws.
Abdul Kadir and Wali Muhammad Dareshani. The learned Advocate-General very fairly conceded that, as the appellant had retracted from his judicial confession, it could not be accepted without corroboration, so that the real question is whether the retracted judicial confession has been corroborated. As the approver's evidence is only another piece of tainted evidence, it cannot be relied on either, therefore the only question is whether the evidence of P. Ws. Abdul Kadir and Wali Muhammad Dareshani corroborated this appellant's retracted confession.
32. In a rather rambling confesssion, the appellant has admitted having taken a bribe from the approver and has stated that this was at the instance of the Registrar, Mr. Muhammad Hussain, who took 3/4th of the bribe received whilst he had only a 1/4th share in it. Neither of the prosecution witnesses examined had any direct knowledge of the bribe nor did they claim to have any such direct knowledge. However, they both asserted that Mr. Muhammad Hussain was v*y friendly with the appellant and that it was well-known that Mr. Muhammad Hussain took bribes through the appellant. In this connection they had also stated that the appellant worked as a Superin--tendent under Mr. Muhammad Hussain. But the appellant has said categotically in his statement under section 342, Cr. P. C. That between 1959 and 1963 "excepting for the month when I was under P. W. 1 Abdul Kadir he had worked only as Superintendent, Examinations Department." The question whether this appellant was working at the relevant time under Mr. Muhammad Hussain, as alleged by the prosecution or whether he was employed in the Examination Branch, was obviously relevant to the prosecution case, yet it did not produce the records of the University, which it could very easily have done, to show how and where the appellant was employed. This hardly improves its case. Additionally, the evidence of P. Ws. Abdul Kadir and Wali Muhammad Dareshani is of a general nature relating to the appellant's reputation. Even if it is admissible, P. W. Dareshani was compelled to admit in cross-examination his hostility against the appellant. Similarly, as to P. W.
Abdul Kadir, this witness said in his evidence-in-chief that he had been victimised and compulsorily retired by Mr. Muhammad Hussain because he would not join hands with him "in his illegal activities". Therefore, in view of his statement that the appellant was very friendly with Mr. Muhammad Hussain, it would not be safe to rely on his evidence either. The result is that there is no satisfactory corroboration of this appellant's retracted judicial confession, therefore the prosecution has failed to prove beyond reasonable doubt his guilt.
33. In the result, the appeals are allowed and the appel--lants shall be released forthwith unless required on any other charge.
GHULAM RASOOL K. SHAIKH, J.--I have had the advantage of ,seeing the judgment proposed to be delivered in this case by my learned brother. While respectfully agreeing, I feel tempted to touch a few points arising therein, without reiterating the facts and circumstances except when found necessary.
The mainstay of the prosecution case is the evidence of the .Approver while the other circumstances have been brought on record in corroboration thereof. It was frankly conceded by the learned Advocate-General that in case the evidence of the approver was found to be incredible and thereby rejected, the cir- cumstances sought in corroboration of his evidence would neither Improve that evidence nor by themselves be sufficient to sustain the conviction. In this connection recalling the pertinent observa--tion made by Supreme Court in the case of Dr. Muhammad Bashfr v. The State as already reproduced by my learned brother at the end of para. 7 of the judgment, it is necessary before proceeding to look for corroboration, to examine the intrinsic value of the evidence of the approver, that is to say, his evidence must first be tested on its basic probabilities and improbabilities like the evidence of any other witness, apart from the basic infirmity polluting his testimony. Applying this test, if his evidence is found to be false or of dubious nature, the utility ,of corroborating evidence pales into insignificance.
Turning to the evidence of the approver in the present case, my learned brother has given elaborate reasons in rejecting his testimony and I am in complete agreement with him. It. There-- fore, follows that the prosecution case as has been founded upon the evidence of the approver cannot be counted upon. It is a statement of a person who, in view of his conduct, cannot be credited with any scruples for honesty and integrity. Eliminating his testimony, the prosecution stands bereft of the whole foundation, with the result that the conviction is not sustainable.
As regards water it was provided in the contract that ft was to be supplied at the spot of construction by the University at the rate charged by the P. W. D. Without a clause to compensate the contractor in case the University was unable to fulfil the obligation. It was, however, conceded by the learned Advocate--General that the necessary implication was that in that event the University was bound to reimburse the contractor for any adi d di costs incurred by him. The item of claim to which exception has been taken relates to the expenditure alleged to have been incurred by the contractor over the carriage of water as the University failed to supply water required for construction .At the spot in terms of the contract. The fact that there was scarcity and short supply of water is indicated by the endorsement dated i0-8-62 made by the Project Director on Exh. 2/11 as well as the various running bills and the admission of the approver (contractor) that he had paid for the carriage of water. It was rightly observed by my learned brother that the approver would have been entitled to compensation on a quantum meruit basis. Moreover, Nasri's report which formed the basis of the investi--gation and the gravamen of the charge against the appellant, also supports this claim.
Dealing with the judicial confession made by appellant Nazar Muhammad Daudpota and the pardon granted to him, which was eventually cancelled, it is necessary to recount a brief statement of facts as revealed by the evidence of the Investigating Officer and the documents brought on record. The case was, registered on 18th October 1968, for the offence said to have been committed in the year 1960-61, on the basis of some preliminary inquiry. During the regular investigation several. Persons were examined and documents were secured. The--Investigating Offcer sent a letter dated 2-7-1969 to the appellant. To appear before him on 9-7-1969, but he expressed his inability for reasons of his health. Another letter was sent to him on 19-9-1969. To this there was prompt response, but later the meeting, took place. In the meantime the investigation was concluded and a report was submitted to the Director, Anti-Corruption, West Pakistan, through the Anti-Corruption Officer, Hyderabad, by the latter's letter dated 21-9-1969. Referring to the contact with the appellant it was stated by the Investigating Officer that on. 25-9-1969 the appellant came to his office and said that he wanted to make a clean breast of that all. He was, therefore,., directed to write out his statement at home and bring it to him. In pursuance of this direction the appellant appeared with written notes with his own handwriting on 27-9-1969 and, made a request that he wanted to make confession. In view of his desire he was forwarded with a letter to A. D. M., Hyderabad, but since the Magistrate was busy the appellant was taken to A. C. M., Hyderabad who recorded the confession. Subsequently a letter dated 30th June 1970 (Exh. 9/9) was received from the Martial Law Authorities directing the Anti-Corruption Officer to submit charge-sheets against the accused persons involved in the various cases which would be tried by the Military Court and warrants for their arrest had already been issued. However, on 27-7-1970 the appellant was produced before the A. D. M., Hyderabad, and pardon under section 337, Cr. P. C. Was tendered.. 1t appears that the appellant subsequently changed his mind and claimed to be innocent. So the A. D. M., Hyderabad, who bad granted the pardon, was approached to cancel the pardon., It was cancelled on 2-t 1-1970. The case was challaned orr 30-12-1970 as per decision of the Provincial Anti-Corruption Council communicated by letter Exh. 9/3 dated 3-11-1969. The supplementary charge-sheet was submitted on 3-4-1971. .In the--cross-examination the Investigating Officer refused the suggestion that at the time when the appellant made the confession any--assurance was given to him that he would be made approver or the pardon was tendered to him on that account. It was.--however, admitted by him that the name of the appellant transpired as an accused person after he had made the judicial confession.
In connection with the above statement of facts the question which confront us relates to the effect of the pardon granted to the appellant. A point was taken before the trial Court and repeated before us that pardon once granted under section 337, Cr. P. C. Could not be withdraws nor the appellant could be prosecuted without a certificate from the public prosecutor as required by- section 339, Cr. P. C. And since the condition precedent was not .,complied with the trial was invalid.
This contention was ,rejected by the learned Chairman of the Tribunal. The learned Advocate- General although supported the rej:ction of contention but did not endorse the reasons given by the learned Chairman. He maintained that the pardon was invalid ; firstly the investigation was concluded and the papers had been submitted to the Director, Anti-Corruption for further action; secondly the offences for which the appellant was sought to be prosecuted were not covered by the provisions of section 337, Cr. P. C.
Examining the contentions raised by the learned Advocate---General, there is no force in his first contention that the investigation was concluded. The case had not yet been challaned. Mere submission of report to the Superior Officer does not amount to the conclusion of investigation in order to debar the Investigating Officer to hold further investigation if the 6 circumstances so warrant and fresh evidence is forthcoming. This power is available even after the case has been challaned. Moreover, as pointed out by my learned brother, the order granting the pardon clearly indicated that the case was still at the stage of investigation. This is a complete answer to the .Contention raised by the learned Advocate-General.
So far the second contention of the learned Advocate-General is concerned, it must prevail.
Section 337, Cr. P. C. Lays down the condition regulating the tendering of pardon to an accomplice.
It requires that not only there must be some complicity or privity in the crime itself before pardon can be granted to the accomplice and his evidence received at the trial but the crime must be the crime which falls in the category of offences mentioned in the section which forms the basis for acting thereunder. This is an essential condition and the defect is not curable. It, therefore, follows that an accused not lawfully tendered pardon continues to be as before in the clutches of law and to all intents and purposes an accused. The offences specified in section 337, Cr. P. C. Are the offences triable exclusively by the High Court or Court of Session, punishable with imprisonment which may extend to ten years, or punishable under section 211 with imprisonment whitsb may extend to seven years or under any of sections 216-A, 369, 401, 435 and 477-A, P. P. C. So far the present case is concerned, the offences said to have been committed were under section 161, P. P.
C., section 5(2), Prevention of Corruption Act, section 420, P. P. C. And section 120-B, P. P. C. None of these offences falls within the category of the offences specified in section 337, Cr. P. C.
Consequently the pardon could not be legally tendered to the ;appellant and his trial by the Tribunal, is not open to exception.
This, however, does not conclude the matter. The implication of the pardon in its effect upon the judicial confession made by the appellant cannot escape attention. One cannot be segregated from the other. BOLh are the links in the chain of circumstances leading to the prosecution. To say that the pardon is invalid and should be ignored is to disregard the legal requirement that the confession to be admissible in evidence should not only be true abut It must also be voluntary. If the confession is procured or made in the hope of being made an approver, it cannot be said to be voluntary. In this connection, I may refer to the pertinent observation made in the case of Fazlan v. Crown (t) to the effect "If for no other reason, the circumstances that the admissibility of such a statement contravenes one of the strongest principles of Criminal Law, namely, that the confession is relevant only if voluntarily made, the Court must lean against its admissibility, in view of the obvious inducement which procured the statement". In that case the approver who was a woman when examined at the--trial resiled from the confession which was recorded under the provisions of section 164, Cr. P. C. And later prosecuted on the basis of the certificate by the Public Prosecutor as required by section 339, Cr. P. C. At the trial reliance was primarily placed upon the retracted confession corroborated by a few circumstances--and the conviction was recorded and later confirmed by the High Court but the Federal Court ruled that the confession having been induced on the promise of being made an approver was not volurtary and, therefore, inadmissible in evidence. So she was acquitted.
Thus the main question involved in this case is whether the confession was voluntary or the appellant made the confession a a result of the promise of pardon. The appellant categorically I' stated that he had made the confession on the assurance given by . the Investigating Ofcer that he would be made an approver. I is rather surprising to notice that nothing relevant to this fundamental objection appears in the impugned judgment. The learned Chairman simply narrated the events in chronological order and without stating reasons presumed that the confession was voluntary and true. It hardly furnishes a safe criterion for determination of the question. Enough account was not taken of the circumstances prominently appearing in the case.
On the other hand, the Investigating Officer attempted to get. Over the difficulty by pretending that the appellant appeared before him on 25-9-1969 in pursuance of direction given to him: earlier and volunteered to make the confession, thereby silently suggesting that there was no question of any promise or inducement and more so when the pardon was tendered to him several months later. It is a statement capable of being readily discounted. He acknowledged that the name of the appellant transpired as an accused person after he had made the judicial confession. Evidently there was nothing against him till then, although the case was registered in October 1968 and even the investigation was concluded prior to his appearance as the report of the Investigating Officer was forwarded to the Provincial.. Anti-Corruption Council by Memo. No. 23810-11 dated 21-9-69, indicated by letter dated 3-11-69 (Exh. 9/3) issued by Director, Anti-Corruption West Pakistan, directing the prosecution of the various persons. Despite this it is startling to find that the appellant had decided to make a clean breast of his involvement in: this affair and with that determination appeared before the Investi. Gating Officer. There was in fact, no occasion for making a choicer of this kind. There is no indication in the evidence that he was
(1) PLD 1956 FC 7 even suspected of his involvement in the crime. The admission necessarily has the effect of betraying the claim of the Investigating Officer. It, therefore, seems that the appellant made the confession under intensive pressure. The promise of being made an approver is a sufficient inducement to obtain confession. This receives confirmation from the subsequent events. The pardon was actually tendered to him but after a few months he changad his mind with the result that the pardon was cancelled. It may, however, be said that the pardon was granted a long time after the confession and, therefore, the two incidents could not be even remotely connected. In `eed, there is some force in it but at the same time the alleged remarkable promptness, uninfluenced by some extraneous consideration or gain, to make the confession is difficult to imagine. It is also noteworthy that till the pardon was granted the challan was not submitted. It may be recalled that the pardon was granted on 27-7-1970 while the case was challaned on 30- 12-1970. Thus there was still ample time to redeem the pledge which may have been given at the time when the confession was obtained. Having given my anxious though I am not satisfied that the confession was voluntary. That being so, it is inadmissible and must be ruled out of consideration. So >g the question of corroboration does not aris-,. Even the evidence sought in support is incredible as has been fully commented upon by my learned brother. The conviction is, therefore, not sustainable.