This revision by Muhammad Sarwar Naseem is directed against the order of Mr. Hasan Nawaz, Special Judge, Anti---Corruption. Lahore dated 1-2-1972 whereby he rejected the petitioner's application praying to lead the additional evidence in his defence or, in the alternative, to call the Secretary, Union Committee Ward No. 41 to be examined as a Court witness along with the record pertaining to the cases of Niaz Gul Khan.
2. The facts leading to the application are that Muhammad Sarwar Naseem petitioner was accused of an offence under section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The case was instituted on the complaint of Muhammad Sadiq, P. W.
2. The allegations against the accused/petitioner were that Muhammad Sadiq P. W. Had received summons from Union Committee Abbot Road, Lahore on 16-2-1968 to appear before the Conciliation Court on 20-2-1968. He accordingly went to that Court on the said date. The Chairman was not present there and only the Secretary of the Committee (i.e. Muhammad Sarwar Naseem petitioner) was present there. He told Muhammad Sadiq P. W. 2 that one Niaz Gul Khan had instituted three cases against him for the recovery of Rs. 2,500. He also told him that if he paid Rs 500 to him (i.e., to Muhammad Sarwar Naseem accused) he would dismiss all the three caws otherwise the matter shall go to the State Bank and he shall be involved in civil and criminal cases.
Muhammad Sadiq P. W. 2 asked for some time and it was arranged that he would pay him the money after one or two days, and promised to make the payment on 22-2-1968. He however, informed the Anti-Corruption Department and arranged for a raid. Muhammad Sadiq P. W. Paid Rs.
100 to the petitioner in ten currency notes of Rs. 10 each. Thereafter the accused wrote a receipt Exh.
P. C. And gave it to Muhammad Sadiq wherein it is mentioned that he received Rs. 100 from the complainant (Muhammad Sadiq) relating to the three cases of Rs. 900 plus Rs. 800, plus Rs. 800.
The raiding Magistrate conducted the raid and recovered the money. He then recorded the statement Exh. P. D. Of the petitioner in which the accused/petitioner denied his guilt and explained the situation under which he had received the money as an installment, in pursuance of the decision of three cases filed against Muhammad Sadiq complainant by Niaz Gul Khan in Union Committee Abbot Road, Lahore. By this statement he laid the foundation of his defence. He produced six D. Ws. He had summoned Niaz Gul Khan as one of the D. Ws. But gave him up at the last moment. Since the later was present in Court, the learned trial Judge thought it fit to record his statement as a Court witness. He was cross-examined by the accused/petitioner. He made a statement wherein be (Niaz Gul Khan) stated nothing about the decree obtained by him with regard to Rs. 2,500 loaned by him to Muhammad Sadiq com--plainant, the accused/petitioner made an application on 8-3-1971 appearing on pages 123-125 of the original file inter alia, for the production of original registers of decisions of cases relating to Union Committee No 35, Abbot Road, Lahore from 1st January 1968 to April 1968, but it was reported that the said record was not available. It appears that a few days after the statement of Niaz Gul Khan was recorded the accused/petitioner was able to trace out the above-noted registers and obtained a copy of the order passed by the Conciliation Court in a case titled "Niaz Gul Khan v. Mirza Masood Beg alias Muhammad Sadly" which was decided on 21-2-1968. This according to him relates to the cases for the decision of which he is alleged to have asked for bribe from Muhammad Sadiq complainant.
The signature of Muhammad Sadiq appeared on this document.
3. It is contended on behalf of the petitioner that as the case had been decided on 21-2-1968 there was no point in Muhammad Sadiq complainant paying him bribe for the decision of the cases five days later on 26-2-1968. The learned counsel for the petitioner has also produced a photostat copy of the statement of Niaz Gul Khan C. W. 1, made by him before Aqa Bedar Bakht, Chairman, Conciliation Court Ward No. 41 on 22-9-1968 wherein he had admitted some pertinent facts relating to the three cases decided by the Conciliation Court, Abbot Road, Lahore, which if brought on record would go to support the petitioner's defence.
4. In corruption cases the moment the prosecution is able to show that the money was passed through a decoy witness to the accused, a presumption arises under section 4 of the Prevention of Corruption Act, 1947 that the money in question was received as illegal gratification but the presumption is not an absolute one and is rebuttable. The accused/petitioner has already laid the foundation of his defence and contends that it was necessary for arriving at just a decision in the case to permit him to examine other witnesses and bring some other documents on the record, some of which have been mentioned above. In support of this contention he has relied on Gehna v.
State (1968 P Cr. L J 109), wherein it has been held inter alia that wherever the production of certain witnesses is essential to the just decision of a case, the Court should exercise its jurisdiction under section 540, Cr. P. C. And examine him as a Court witness. I feel that this is a fit lose for examining further witnesses who may be called along with the relevant record notwithstanding the fact that the accused petitioner had an opportunity of producing the defence witnesses. The reason being that the main purpose of the entire judicial proceedings is to find out the truth, to arrive at a correct decision and to see that an innocent person is not punished merely because of certain technical omissions on hit part of on the part of his counsel. The petitioner is allowed to produce the following witnesses and the record:
(1) Record Keeper, Office of the Lahore Municipal Corpora--tion, Lahore, along with original file No. 314/UC/41/68 dated 10-7-1968 of Conciliation Court. Union Committee Ward No. 41, Qilla Gujjar Singh, Lahore and Register of decisions and orders pertaining to the month of February 1968, of Con--ciliation Court, Union Committee Ward No. 35, Abbot Road, Lahore.
(2) The relevant Secretary to prove the above-noted record should be summoned.
(3) Niaz Gul Khan C. W. 1, be recalled for the purpose of confrontation.
The revision petition is accepted and the case is remanded for the reasons given above.