Mansoob Ali Qureshi for Appellant.
I Habib-ur-Rasheed for A.-G. For the State.
Appellant Abdul Razak Rathore was tried by Special Judge, Anti---Corruption (Provincial), Karachi, for the offence under section 161, P.P.C. Read with section 5(2) -of the Prevention of Corruption Act, 1947, who found him guilty and vide judgment dated 10th March, 1991, sentenced him to suffer R.I.
For six months and to pay a fine of Rs.5,000 or in default to suffer R.I. For one month more. By this appeal filed under section 410, Cr.P.C., read with section 10 of the Pakistan Criminal Law Amendment Act, 1958, the appellant has challenged his conviction and sentence;
2. Complainant Iftikhar Ahmad who was working as Clerk in Health Department in Karachi Metropolitan Corporation, hereinafter referred to as K.M.C. Was surrendered by Director Health, K.M.C. For his posting to some other branch. He, therefore, approached one Pervaiz, Despatch Clerk working in Establishment Branch of K.M.C. For getting a suitable posting, who introduced him to appellant Abdul Razak Rathore, the concerned clerk and he demanded a sum of Rs.500 as illegal gratification for his transfer to Land Department of K.M.C. About 16 or 17 days prior to the registration of this case the complainant paid a sum of Rs.300 to said Pervaiz for its delivery to the appellant.
On 15-4-1985, the appellant came to the office of complainant Iftikhar Ahmad along with Pervaiz, Despatch Clerk and demanded the balance of Rs.200 for accused Zafar Iqbal, Head Clerk (not sent up), which annoyed the complainant, but he promised to pay the agreed amount on the following day, viz. 16-4-1985. The complainant then went to D.S.P., Anti-Corruption Establishment, Karachi, and made a written complaint to him. The D.S.P. Then recorded the F.I.R. And laid a trap for the appellant. A sum of Rs.200 being the tainted money was then given to complainant Iftikhar Ahmad in presence of Mr. Zafar Ali, A. C. M. Court No. VII (South), Karachi. At about 12-20 p.m. 'the tainted money was passed on to appellant which was subsequently recovered from his possession. The appellant was taken into custody and such inventory was prepared on the spot. After completing the investigation and obtaining the requisite sanction the appellant was challenged.
3. The appellant pleaded not guilty when the charge was read over to him and claimed a trial. At the trial the prosecution examined complainant Iftikhar Ahmad (P.W.1.), Muhammad Hussain Mashir, (P.W.2), Mr. Zafar Ali Magistrate (P.W3), and Sabir Ali Khan, D.S.P. (P.W.4).
4. The appellant met the charge with a., denial. His, defense in his own words is as follows:-- "It is a false case. -- Complainant had come to me. He tried to give me an envelope and told me to give the same to Pervaiz. On my refusal he, Put the same on my table. In the meantime police came and arrested me and involved me in this case.
5. The appellant did not step into the witness box. He also led no defense.
6. On the assessm ent of evidence available on record the learned Special Judge found the appellant guilty and convicted him accordingly-
7. The case of the prosecution mainly rests upon the evidence of Muhammad Hussain (P.W.2) who has acted as Mashir, Mr. Zafar Ali, A.C.M. (P.W.3) who has supervised the raid and Sabir Ali Khan, D.S.P. (P.W.4) who has conducted the raid. Complainant Iftikhar Ahmad (P.W. 1) who was the aggrieved person has not supported the case and was declared hostile. A hostile witness does not necessarily lose his credibility because of the fact that he has been permitted to be cross- examined. Merely because the witness has not fully supported the contents of his F.I.R., it cannot be said that his evidence is wholly unreliable. The correct position in law is that the Court can come to its own conclusion after consideration of the whole of the evidence for what it is worth.
8. The evidence of Iftikhar Ahmad (P.W.1) when examined carefully makes it clear that the tainted money was given to appellant in an envelope which was seized by the Magistrate from his possession. Muhammad Hussain (P.W.2) who has acted as Mashir has also stated so in the following words: -- "It is correct that the complainant had put the tainted money in the envelope and had passed on the envelope to the accused."
9. Admittedly both Mr. Zafar Ali, A.C.M. (P.W. 3) and Sabir Ali Khan, D.S.P. (P.W. 4) had not seen the actual transaction and in the absence of any other evidence, I have no reason to discard the evidence of complainant Iftikhar Ahmad (P.W. 1) and Muhammad Hussain Mashir (P.W. 2), on this limited point. A case which is on all fours with the present case is the case of Muhammad Usman v.
The State reported in 1975 PCr. L J 1267, decided by a Single Judge. Of this Court, wherein it was observed:-- "In regard to the actual passing of the amount there, are circumstances which reduce the probative force of the prosecution evidence. The consistent case of the prosecution is that five notes of one hundred rupees each were handed over to Ghulam Murtaza for payment to the appellant. Although Wali Muhammad Shah had denied that at the time of recovery these-notes were found to be folded in a piece of paper there is sufficient material on the record to show that to such extent the evidence of Wali Muhammad Shah was not true. The Investigating Officer, the Magistrate and the Mashirnama of recovery clearly show that when the amount was recovered the same was found folded in a piece of paper. No explanation whatsoever has been offered by the prosecution in regard to the, fact of folding of the currency notes in a piece of paper or the reason therefor. In solemn proceedings undertaken to catch a Government servant with tainted money, one cannot overlook the circumstance of tampering with the tainted money given to the complainant for being passed on to the accused. In the present case since the notes had been folded in a piece of paper a reasonable probability exists, indicating that the tainted money was attempted to be passed on to the appellant as some document which the appellant innocently obtained. Even the learned State counsel has not been able to give any explanation in regard to such strange conduct of the complainant in folding the tainted money in a piece of paper. This circumstance had been overlooked by the trial Court and is not easily susceptible of an explanation."
10. The presumption in section 4'of the Prevention of Corruption Act, 1947 arises only upon proof that the accused person has accepted any amount as illegal gratification. In the case of Sultan Ali v.
The State reported in PLD 1971 Kar. 78, a learned Single Judge of this Court observed that it would be an outrage on common sense and reason to infer that under section 4 of the Prevention of Corruption Act, 1947, the presumption has itself been displaced and-t hat the offence of bribery must be held to be established the moment the money is passed into the possession of the accused without further proof that it was accepted as an illegal gratification. When the law raises a presumption against the accused and calls upon him to prove the contrary, it is well-settled that the contrary can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution. The proof of the contrary need not necessarily be by evidence, oral or documentary; but it may be furnished by the. Statement of the accused himself or by the circumstances of the case.
11. In Kazi Nizamuddin v. The State reported in PLD 1979 Karachi 294, a learned Single Judge of this Court examined the provisions of section 4 of the Prevention of Corruption Act, 1947, and observed as follows:-- "It is true that section 4 of the Prevention of Corruption Act, 1947 provides for presumption in favoure of prosecution when the tainted money has been passed into the lands of the accused and the burden would be upon him to prove that it was not accepted by him' as illegal gratification but this would require consideration of two important points. Firstly that whether the money in question was tainted as alleged by the prosecution and secondly what is the standard of proof required from the accused when per statutory requirements presumption operates against him. On the first point, it has been argued before me that in the instant case when the complainant is not supporting the prosecution allegation that the marked notes were meant to be delivered as illegal gratification and both the complainant and the appellant in the instant case unanimously state that money was given and returned for some other purpose, which has nothing to do with the allegation of bribe, the money which was passed to the appellant during the raid was not tainted at all. On the second point, it has been argued before me that in the instant case when presumption operates against the appellant under section 4 of the said Act, the burden of proof which falls upon the appellant is not greater but lesser than the general standard of burden of proof on the prosecution which makes it imperative upon the prosecution to prove guilt of accused beyond any reasonable doubt. In this context it is further contended before me that in such a case when law raises a presumption against the accused and calls upon him to prove the contrary, it is well-settled that contrary can be said to be proved if the accused succeeded in establishing that the act attributed to him is capable of interpretation other than that suggested by the prosecution.
The proof of the contrary need not necessarily be by evidence, oral or documentary, but it may be furnished by the statement of the accused or by the circumstances of the case."
12.Admittedly the t4inte-d money had not passed in presence of Mr. Zafar Ali, A.C.M. (P.W.3), and Sabir Ali Khan, D.S.P. (P.W. 4) Who Also did not hear the conversation between complainant Iftikhar Ahmad (P.W. 1) and the D appellant. Mr. War Ali, A.C.M. (P.W. 3) has admitted so in the following words:- "One Mashir Muhammad Hussain and Head Constable Basheer Ahmad had gone along with complainant to the room of the accused. I have not heard conversation between accused and the complainant. I had not seen complainant handing over Rs.200 to accused According to the Magistrate the office of the appellant was situated on the first floor of the building where he was found sitting at the time of raid.
13. Sabir Ali Khan, P.S.P. (P.W. 4) who has made the raid has also admitted in clear terms that he had not seen the actual transaction nor he had heard any conversation between the parties. His evidence further shows that :- "Complainant was sent along with Head Constable Basheer to second floor, while I along with Magistrate and Mashirs remained standing at the first floor of K.M.C. Building 14.' The most important witness in such a situation was Basheer Ahmed, H.C. But he was not examined, why? No body knows. Besides this omission both Mr. Zafar Ali, A.C.M. (P.W. 3) and Sabir Ali Khan, D.S.P. (P.W. 4) have again contradicted each other about the location of the office of appellant where he was found sitting at the time of raid. In the given circumstances the evidence of Mr. War Ali, A I C.M. (P.W. 3) and Sabir Ali Khan, D.S.P. (P.W. 4) cannot be made as basis for convicting the appellant for the offence with which he is charged. The cases of Muhammad Sadiq v. The State, ---reported in 1975 PCr. LJ 1286; Manzoor Hussain Shah v. The State reported in 19,78 PCr. L J 885; Khurshid Ahmed Zaidi v. The State reported in PLD 1983 Lah. 514 and Niaz Ahmad , vThe State reported in 1984 PCr. IJ 2037, are relevant on this point.
15. There is another point of much greater importance. This Court observes with concern the association of Magistrates with those who detect crime, viz. The police machinery and that too in a contemptuous manner by F calling the Magistrates to the office of Anti-Corruption Establishment.
As observed in the case of Muhammad Saleem v. The State reported in PLD 1971 Lahore 799, the law does not require, that the raid in such cases must necessarily be supervised by a Magistrate. One of the earliest pronouncements on this point is to be found in the case of A. Mirzada v. The Crown reported in PLD 1956 Kar. 273, wherein it was observed:- "Apart from this, the practice of taking Magistrates or other judicial officers on expedition or missions of this kind has been condemned by the highest Courts
16. In this connection it will be instructive to read the observations of a D.B. Of 61cutta High Court in the case of M.C. Mitra v. The State, reported in 52 Cr. LJ 1116, which are as follows:-- "Before I conclude I wish to express this Court's. Great disapprobation of the practice that seems to have become very frequent of sending Magistrates as witnesses of police traps. The Magistrate is made to go under disguise to witness the trap laid by the police. In this case it was Presidency Magistrate and in other cases which have come to our notice there have been other Magistrates who became such witnesses. To make the Magistrate a party or a limb of the police during the police investigation seriously undermines the independence of the Magistrates and perverts their judicial outlook. The Magistrates are the normal custodians of the general administration of criminal justice and it is they who normally decide and pass judgments on the acts and conduct of the police. It is not enough to say, therefore, that the Magistrate acting as a witness in a particular case does not himself try that case. The practice is all the more indefensible here specially when there is no separation of the executive from the judiciary. The basic merit of the administration of criminal justice in the State lies in the fact that the person arrested by the police is entitled to come before an independent and impartial Magistrate who is expected to deal with the case, without the Magistrate himself being in any way a partisan or a witness to police activities. There is another danger and that is the Magistrates are put in the unenviable and embarrassing position of having to give evidence as a witness and then being disbelieved. That is not the way to the secure respect for the Magistracy charged with the administration of justice. In my judgment this is a practice which is unfair to the accused and unfair to the Magistrates. It is also unfair to the police. Because charged with the high responsibility and duty of performing a great and essential public service of this State the police cannot afford to run the risk of opprobrium, even if unfounded, that they have enlisted the Magistrate in their cause. That risk is too great and involves forfeiting public respect and confidence. The learned Standing Counsel for the State attempted a comparison with Income-- tax Officers who carry on their own investigation. But that is to compare the incomparable. One of the essential securities of a free people is that those who detect crimes shall not be those who try them A sound and impartial administration of criminal justice in the countrydemands an independent and untrammeled magistracy free from even the slightest breach of police tutelage.-
17. Das Gupta, J., while giving separate reasons in the above judgment observed as follows:- I agree entirely with the observations made by my learned brother as regards the undesirability of the practice which has recently sprung up of using Magistrates of the land to work as part of the police machinery. It is a matter of great, concern to this Court that Magistrates who arc to administer justice allow themselves to be used as a limb, of the police. As my learned brother has pointed out, it becomes very' difficult, if not impossible, for a Magistrate who has worked as a part of the police machinery to bring an unbiased mind to the consideration of problems in which the police arc concerned. It is equally clear that when Magistrates act in this manner the people who appear before them lose all respect in them and reasonably apprehend that such Magistrates arc merely a part of the police-"
18. While endorsing the above view I may observe that in such cases the Magistrates are put to an awkward Position after they are disbelieved.
19- Mr. Habib-ur-Rasheed, learned counsel foe the State finding himself on the horns of a dilemma, conceded and I think rightly, that the case against the appellant is doubtful. In the result the impugned judgment is set aside and r. The appeal is allowed- The appellant is acquitted and is discharged from his bail bond.
20. By a short order dated 31-10-1991, had allowed judgment would furnish the detailed reasons.