One Muhammad Zahoor Khan who was employed in the office .of the Accountant-General, Pakistan Revenues at Karachi was on that account allotted a quarter No. 103/F, Jehangir Road West, Karachi. He proceeded on deputation to the Agricultural Development; Corporation, at Hyderabad is September 1966.
Nevertheless he continued to remain in possession of the quarter in question, the allotment of which was finally cancelled in September 1967. Against this, he went on making representa tions but finally on the 28th of December 1967, when he was given 24 hours notice for ejectment. By an application dated 1st of January 1968, he appealed to the Additional Estate Officer praying that he be allowed to retain the above accommodation. According to himself he handed this application to the Additional Estate Officer, Mr. Zaheerul Haq, personally and Mr. Zaheerul Haq endorsed the application and told him to see the Superinten dent that is to say the present appellant which he did. The appel lant told him to come again and he did call upon him twice and finally on the 6th of January 1968, the appellant told himto see him at his, that is^the latter's residence in Jacob Lines.
Accordingly on the 6th he went to the appellant's house at about 3 o'clock in the afternoon when the appellant after some talk demanded a bribe of Rs. 200 per month payable three months in advance. After some more talk this was reduced and it was agreed that an advance payment of Rs. 100 should be paid. For the subsequent payment Muhammad Zahoor Khan was asked to produce some body resident in Karachi who could receive the payments at Hyderabad and pass them on to the appellant. It was agreed that the money should be paid on the 8th, the 7th being a Sunday, in the office of the appellant. On the 8th of March Muhammad Zahoor Khan made a complaint to the Deputy Superintendent, Police (Special Police Branch) as a result of which a trap was set. Two mashirs were sent for, namely, P. W. Abdul Majid and one Khadim Hussain who has not been examined, in whose presence the Inspector of Police, namely, P. W. Munawar Ali, gave Rs. 100 to the appellant. Muhammad Zahoor Khan and Abdul Majid then went to the appellant while the Police Officer and the other mashir went to a canteen nearby where it had been agreed that the money would be paid. The appellant then in the company of Muhammad Zahoor Khan and Abdul Majid came to the canteen where they sat at a table and ordered tea. The money was then paid and Muhammad Zahoor Khan gave the pre-arranged signal of touching his head with his hand where upon the police officer and the other mashir came up and, after having disclosed his identity, the police officer secured the money from the possession of the appellant. A mashirnama was then prepared whereafter the party went to the Estate Office and seized the file in question. In due course the appellant was sent up for facing his trial in the Court of the Special Judge (Central), Karachi who convicted him of an offence punishable under section 16!, P. P. C. read with section f(2) of the Prevention of Corruption Act and sentenced him to undergo simple imprison ment for a term of 9 months and to pay a fine of Rs. 2,000 or in default of payment thereof to suffer simple imprisonment for 6 months more. Against this conviction and sentence the appellant has appealed.
2. Mr. Khalid M. Ishaque who appeared for the appellant before me first questioned the validity of the sanction on the ground that it showed that the sanctioning authority had not applied his mind to the facts of the case. In order to appreciate this contention it is necessary to reproduce the sanction which is in the following terms :-- "Whereas it appears that Najmul Kibriya, Assistant Incharge, Estate Office, Karachi, to whom the representation of Mr. Zahoor Ahmed Khan for permitting him to retain his Quarter No. 103-E, Jehangir Road, West Karachi, was marked by the Additional Estate Officer, to report by 4-1-1968* demanded and accepted as bribe Rs. 100 from Zahoor Ahmed Khan to show him favour by submitting a favourable report and thereby committed the offences punishable under section 161 of the Pakistan Penal Code read with subsection (2) of section 5 of the Prevention of Corruption Act, 1947 (II of 1947) the Central Government on perusal of papers, considera tion of the facts and expediency of the matter, is pleased under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) to sanction the prosecution of the said Mr. Najmul Kibriya for the aforesaid offences, or any other offence the Court may consider fit, in the Court of the Special Judge (Central), Karachi."
3. It will be noted that the sanction speaks of the represen tation of the first informant being marked by the Additional Estate Officer to the appellant. Now the application itself bears the endorsement dated the 1st of January 1968, apparently by the Additional Estate Officer to the Assistant Estate Officer who in turn has put the note, "please examine and report up to me by 4- 1-1968". This note itself also dated the 1st of January is marked to Mr. Subhan. There follows the note by this Subhan who was an Assistant in the Estate Office and this note corrected by the appellant in his own handwriting is then signed by him. It is true, therefore, that the papers have not been marked to the appellant by name. Subhan himself was examined as a witness and he stated that the papers had been received by him and were marked to him by the appellant. It is not quite clear whether this means that, having been received by him he put them up to the appellant who then marked them to the witness or whether it was as a result of this marking that the witness received the papers at all. In any event I do not think this matter for the purposes of the contention which I am now examining. What the sanctioning authority had before it was not the evidence of Subhan as given in Court but the papers which contained the marking and the notes. These clearly did not show that they were marked to the appellant by name or designation. But clearly the office was being asked to put up a report after examining by the 4th of January. Admittedly the appellant was a Superintendent Incharge and the witness was an Assistant under him. It would seem to make little difference for the purpose of validity of the sanction whether the papers were expressly marked to the appellant or were so noted upon that it became the duty of the appellant to make a report on them. That this report was preceded by a note made by Subhan, seems to make no material difference. The discrepancy between the state of the file and the statement in the order of sanction if, indeed, it can be called a discrepancy, is not so great a one as to justify a finding that the sanction order was bad by reason of the sanctioning authority not applying his mind to the facts of the case. The order of sanction does say that the facts of the case and the expediency of the matter has been considered and the statement must be accepted on its face value unless of course there is evidence to show otherwise. The other allega tions upon which the case then rested, namely, the demand of bribe, the name of the person from whom the money was demanded, and the sum demanded are correct, and it is not con tended otherwise. I accordingly hold that the sanction was a valid one as was the trial.
4. The prosecution examined, in support of its case, 5 witnesses, namely, the first informant, Abdul Majid whom I have mentioned already, Subhan Assistant, Mr. Muhammad Jan Assistant Estate Officer and finally the Inspector of Police, Munawar Ali.
5. There is substantial discrepancy in the version given by Munawar Ali, the first informant and Abdul Majid as to the entire transaction of the payment of money. According lo the first informant, he and Abdul Majid, who was introduced as the first informant's uncle, went to the appellant in his office and all the three together came to the canteen where the Inspector and the other mashir were already sitting on a table. The mashir Abdul Majid states that he and the other mashir went to the canteen, while Munawar Ali and a constable went in the direction of the office, while the first informant went inside the office ; a little later, Munawar came to the canteen, and still later the appellant and the first informant came and sat at the table occupied by Abdul Majid. The Inspector, Munawar Ali, gives the third version. He states that Abdul Majid and the first informant did go to the appellant and that a little later Abdul Majid came and informed the Inspector that the appellant and the first informant would soon come to the canteen. Now it is true of course that honest witnesses cannot be expected to have a precise recollection as to every detail so that the evidence of all of them may be entirely consistent in each small particular. Perhaps if they were so absolutely consistent, one might well suspect that the story is entirely imaginary and got up. It is for that reason that I have omitted from consideration the smaller and more unimportant contradictions. But 1 cannot regard the major discrepancies as to the entire version of the matter as to who went to the appellant, who accompanied him to the canteen, whether or not the mashir was with the appellant when he came to the canteen as being minor contradictions of the nature which would arise in the evidence of truthful witnesses.
6. The chronology of events given by the first informant also is not, to my mind, satisfactory.
According to him he met the Estate Officer personally on the first occasion and was told to contact the Superintendent, that is to say, the appellant; He then says that he met the appellant who told him to come again. He did so twice and finally on the 6th of January he was asked to see the appellant, at his house. By that date, however, the appellant had already made a note which is. dated the 4tln Nevertheless he Sgreed on the 6th to pay a bribe. Between the 6th at 3 p.m. when all the details of the bribe payment had been arranged, until a little before the time fixed on the 8th for the actual payment the first informant took no steps to inform the police. It is only on the 8th of March that the first information report was recorded and the trap was almost immediately set up. On the 6th then there was nothing left which the appellant could possibly do to favour or harm the first informant. I find it difficult to believe that the first informant who himself is a Government servant and who must have visited the Estate Office on a number of occasions since the matter of his continued allot ment was pending from September 1966, until the first information report itself, which is early in January 1968, would not kno^/ that this was so. Of course as a matter of law, the offence of obtaining illegal gratification would be committed even if the appellant falsely pretended to be able to do something for the first informant which he was not able to do. But that is hardly compatible with the facts of the case nor is it a charge against the appellant that he was making any false promises as to his ability to help or harm the appellant.
1. Upon the question from where or from whom the file was eventually recovered by the police after the bribe had been paid, there is also some discrepancy. While the police officer claims that the file was seized from a drawer in the table of the appellant and this is consistent with the seizure memo., the mas/xir Abdul Majid is quite unable to say front where it was recovered and indeed he did not recollect having signed any seizure memo. The witness Subhan says that it was seized either from the tabic of the appellant or his rack. But Mr. Muhammad Jan the Assistant Estate Officer says that it was recovered from the Assis tant Estate Officer (Administration), that is to say, a person other than the witness. In view of what I have said already as to the appellant's ability or otherwise to help the first informant the question where the file was recovered from has some significance. 1 cannot, bn the state of the evidence, be sure that it was in fact recovered from the appellant and this makes lands added credi bility to the conclusion that the appellant had no longer anything to do with the file.
8. If the evidence that the appellant had in fact demanded a bribe and accepted one, cannot be accepted on its own merits it is not necessary to enquire why he has been falsely implicated. But as it happens in this case, some indication is available. For more than a year after he was posted on deputation at Hyderabad the first informant continued to be in possession of the allotted house and admittedly he was anxious to continue his possession. Appeals and representations had been turned down and, as Subhan deposes, Zahoor Ahntad has been finding excuses to remain in possession of the quarter. It seems plausible that this report was made in order to be able to continue in possession of the quarter. That it, in fact, had this effect is clearly shown by a letter by the Deputy Superintendent of Police addressed to the Additional Estate Officer, which is in the following words :-- "The application of Mr. Zaltoor Khan, complainant in case F. I. R. No. 2/1968 is forwarded herewith. The applicant apprehends victimisation in the nature of forced ejectment because he has got a corrupt official apprehended. He, it appears, has already made an appeal against the orders of the Estate Office to the Government which has not yet been decided. Furthermore, the question of the validity of the posses sion of the '"quarter by Mr. Zahoor Khan may also become a point in issue in the Court in case of criminal trial of Najmul Kibriya. In such circumstances it would be preferable if a status quo in respect of the possession of quarter No. 103-E, Jehangir Road is maintained." - During the criminal trial the question of the validity of the possession of the quarter by the first informant could hardly become a point in issue. It is remarkable, therefore, that the police addressed this letter and a suspicion cannot be avoided that the first informant and the police were in complicity.
9. Upon the whole, therefore, I am unable to hold that the prosecution evidence has made out a case against the appellant beyond reasonable doubt. The appellant examined two witnesses but their evidence is clearly not impressive ; regard being had to the fact, however, that the weakness of the defence could hardly relieve the prosecution of its own duty to prove the case, I am making no further comments on that evidence.
10. The appeal is accordingly allowed and the conviction and sentence set aside. The appellant is