' This is an appeal against the judgment of the learned Special Judge (Central), Lahore dated 31-8- 1976 whereby the appellant was convicted under section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to one year's rigorous imprisonment and a fine of Rs. 300 or, in default, to undergo a further term of four months' rigorous imprisonment.
2. Adalat Khan, complainant, is said to have made a report to Noor Sultan, Sub-Inspector, Special Police, Rawalpindi, who was on visit to Gujrat, at 5 p.m. On 19-2-1974, to the effect that the complainant had filed application for electric connection for his house and the mosque in the office of Sub-Division No. 2, Gujrat. He had been going to that office. A few days earlier, Raja Abdul Rehman, Line Superintendent, the appellant met him and he asked the appellant to give connection at an early date. However, the Line Superintendent told him that without being given something, nothing would be done. Six hundred rupees should be paid and then the appellant would come to the village for spot inspection. It is, further, alleged that the complainant entreated the appellant that the latter should do the job without taking any money but the appellant at last said in clear words that if the complainant were to pay Rs. 400, then only, the connection would be given, whereupon the complainant said that in his house, he had only two hundred rupees. The appellant is alleged to have said that he would come to village on 20-2-1974 and would inspect the spot and receive the two hundred rupees. He also said that there were some more applications from the village and that the complainant should get some money from those other applicants also because the higher officers did not sanction without taking money and without the officer's signature, the connection could not be given. It is, further, alleged that the complainant did not want to pay any bribe but the appellant was not prepared to do the job without bribe. Noor Sultan, Sub-Inspector, is alleged to have recorded the report and sent the same to his office at Rawalpindi for registration of a case. Then, on the same day, the Sub-Inspector is alleged to have filed an application before the Assistant Commissioner for deputing a Magistrate to conduct raid, and the Assistant Commissioner nominated Mr. Nasir Javed, Extra Assistant Commissioner, to supervise the raid. On the next day, the raiding Magistrate received the aforesaid order of the Assistant Commissioner and recorded that he had been informed that Adalat Khan, the complainant, was present in the office of the Anti-Corruption Department, Gujrat. He accompanied the Sub-Inspector to the office of the Anti-Corruption Department where he found the complainant to be present and recorded the latter's statement. Thereafter, the complainant was given marked notes of two hundred rupees to be passed on to the appellant and, then, the raiding party set off for the village.
They reached the kothi of one Ch. Sultan Ali. While the raiding party was sitting in a room, it is stated that the appellant and the complainant came along and sat in the outside veranda. They were offered food by the owner of the bungalow, Ch. Sultan Ali. During the course of talk, Ch. Sultan Ali asked the appellant as to whether whatever he took from the people was shared by the officers to which the appellant replied that without giving money to the officers nothing could be done and they (1. e. He and like him) did not do anything but were put in front. Ch. Sultan Ali, further, asked as to whether Adalat Khan had given him some thing or was just whilling away the time. The appellant is alleged to have said that he had been served to some extent whereupon Adalat Khan said that he had paid Rs. 200 and balance would be paid subsequently. Adalat Khan gave the assigned signal whereupon the raiding party came and after disclosing their identities, the appellant was asked to hand over the money which he did. Thereafter, the statement of the appellant was recorded in which the latter said that the complainant had said that he would get a visa for the appellant and would send him to England. Thereupon, he came alongwith the complainant. Adalat Khan had also given him two forms for electric connections. Further, that Adalat Khan had borrowed Rs. 200 earlier which he had returned and had said that towards the end of the month he would go to Rawalpindi and get a visa. He had brought him to the village on the pretext that the Visa Wala Man was in the village but then said that he was not there but he would contact him at Rawalpindi where he would go and get the Visa. He denied to have received the money as bribe.
He was asked as to whether he had said that the officers did not do anything without taking money to which the appellant replied in the negative.
3. After requisite investigation, the appellant was put to trial and when he was asked to show cause he said that although he was working as a Line Superintendent at the relevant time but "it is incorrect that I had demanded any illegal gratification from Adalat Khan or had accepted any amount as such. In fact I had paid Rs. 600 to Adalat Khan P. W. For getting me a Visa for England.
He failed to get me the requisite Visa whereupon I asked him to return my money. He returned Rs.
200 on 20-2-1975 and got me falsely implicated in this case. The money was recovered from me but I had not accepted it as a bribe". He pleaded not guilty. Adalat Khan appeared to support the prosecution as P. W.
1. Ch. Sultan Ali appeared as P. W.
2. Floor Sultan, Sub-Inspector, who had investigated the case, appeared as P. W. 3 and the raiding Magistrate, Mr. Nasir Javed, as P. W.
4. The appellant in his statement under section 342, Cr. P. C. Admitted to have made the statement before the raiding Magistrate but said that the same was recorded by the Inspector and to the question as to why this case against him, he replied "Sultan Ali and Adalat Khan P. Ws. Used to deal in 'Visa business. They used to take money from people and secure Visas for them for employment in the foreign countries. In November 1973 they came to my office and asked me if I wanted to serve abroad. I expressed my willingness to do so whereupon they demanded money from me in advance. I gave Rs. 200 to Adalat Khan, P. W. As part payment and promised to pay the remaining money when the Visa would be issued to me. Later on when I did not get the promised Visa I approached them and they put me off on different pretexts and excuses. About seven days before the raid I had an altercation with the said P. Ws. And I had threatened them that I would report against them with the police. On the day of raid Adalat Khan, P. W. Came to my office and told me that the concerned man relating to the Visas was in his village and asked me to come to his village, talk to the said man and get the Visa or the money whichever I liked. I accompanied him to his village after the office hours. I sat in the house of the said Adalat Khan for an hour. Sultan Ali, P.
W. Came there and whispered something to Adalat Khan and went away. Adalat Kban told me that the concerned man would be coming on the following day. He gave me Rs. 200 which he owed me and then asked me to accompany him to the house of Sultan Ali where meal was to be served. I accompanied him and there I was trapped". The learned Special Judge came to the conclusion that as the tainted money had been recovered from the appellant, presumption would be drawn against him and, further, that the statement of the complainant was supported by independent corroboration from the statement of Sultan Ali, and the Inspector and the Magistrate. The plea in defence was rejected as being inconsistent and contradictory. The contention that the raiding report was not made in the hand of the raiding Magistrate but was in the hand of the Sub- Inspector was found to be without force, though the learned Special Judge depracated the practice which the raiding Magistrate had adopted.
4. Learned counsel for the appellant has contended that under section 4 of the Prevention of Corruption Act, 1947, without proof of the fact that the appellant had accepted or obtained any illegal gratification, the adverse presumption could not have been drawn. He has placed reliance on Sultan Ali v. The State (1). Learned counsel has, next, contended that it is established on record that nobody had heard as to what was said when the tainted money was given to the appellant, nor, the same has been seen by anybody, because according to the prosecution case itself the money had already been passed on to the appellant by the complainant before the two of them reached the bungalow of Sultan Ali and, consequently, there is no proof of the fact that the appellant had received any illegal gratification. Learned counsel has referred to Muhammad SadiQ v. The State (2), Maqsud Ahmad v. The State (3), Ijaz Ahmad Quershi v. The State (4), Allah Diwaya v.
The State (5). Learned counsel has, further, contended that the only evidence of receiving illegal gratification is that of Adalat Khan who is virtually an accomplice and his statement cannot be accepted without corroboration. Learned counsel has referred to Mst. Mehrun Nisa v. The Crown (6) and Hafiz Aziz Ahmad v. The State (7). Lastly, the learned counsel for the appellant has contended that no reliance can be placed on the prosecution case as the entire proceedings of raid had been conducted by the Sub-Inspector and the learned raiding Magistrate had put down his signatures wherever the Sub-Inspector had asked him to do after he himself prepared the record.
5. Learned counsel for the State has submitted that there was no motive for Adalat Khan to falsely implicate the appellant and the tainted money having been recovered from the appellant, the latter was rightly found guilty by the learned Special Judge on the evidence of the complainant, Sultan Ali, P. W., the Sub-Inspector and the Raiding Magistrate.
6. After hearing the learned counsel for the parties and perusing the record, there are certain aspects of the case which call for attention. First is that the report is alleged to have been made by the complainant to the Sub-Inspector not at the latter's usual place of office in Rawalpindi but at Gujrat, a distance of more than a hundred miles between the two places. The explanation is that the Sub-Inspector happened to visit Gujrat when the complaint was made to him. The second is that the Sub-Inspectors gets an order for appointment of a raiding Magistrate from the Assistant Commissioner on 19-2-1974. Next day, when the raiding Magistrate takes up the proceedings, the complaintant is not brought to him for recordings his state ment, but, he is informed that the complainant is in office of the Anti-Corruption Department. The Sub-Inspector requests the raiding Magistrate to accompany him to the office of the Anti-Corruption Department to record the statement of the complainant. The raiding Magistrate accompanies the Sub-Inspector to the office of the Anti-Corruption Department and records the statement of the complainant there. It is rather unusual and wrong that the Magistrate {{FOOT NOTE}}
(1) PLD 1971 Kar. 78 (2) 1975 P Cr. L J 1286
(3) 1973 P Cr. L J 313 (4) 1974 P Cr. L J 833
(5) 1973 P Cr. L J 1036 (6) 1969 SCMR 574
(7) 1974 P Cr. L J Note 45 at p. 29 {{FOOT NOTE}} should accompany the Sub-Inspector and go to the latter's office to find a complainant and record his statement. Thirdly, the entire proceedings are in the hand of the Sub-Inspector and the learned raiding Magistrate had put down his signatures on places left blank. At the relevant time, the learned raiding Magistrate was serving as a Magistrate,IInd Class. The house to which the raiding party reaches in the village is that of Sultan Ali who is a retired Patwari. If the learned Magistrate conducting the raid was a Magistrate IInd Class, he would normally be a Revenue Officer as well, and the fact that the raiding party reaches the house of a retired Patwari leaves much to be desired to inspire confidence. Then, nothing concrete happens at the house of the Patwari, or, in the presence of the raiding party. The passing of the money and what had happened at that time had already occurred before the complainant and the appellant reached the house of the Patwari.
Consequently, it is obvious that the owner of the house Sultan Ali, P. W. 2, nor, the Sub-Inspector and the Magistrate had seen, or, heard as to what had happened when the money had passed and for what purpose. No doubt, it is in the proceedings of the raiding party and the statements of Sultan Ali, the Sub-Inspector, and, the raiding Magistrate, that the appellant had said at the house of Sultan Ali that he had been served and that Adalat Khan had said that he had given Rs. 200 and further that the appellant had said that the money he collected was to be shared with the higher officers who did not do any thing without being paid, but all that, in the context of the circumstances, does not inspire confidence because the proceedings as observed earlier had been written down by the Sub-Inspector on which the learned raiding Magistrate had affixed his signatures, and naturally the proceedings had to be supported by the prosecution witnesses when they appeared in Court. The appellant from the very beginning had said that he had been brought to the village by the complainant for getting him a Visa for England and that the tainted amount of Rs. 200 had been returned to him by the complainant which the latter had earlier taken as a loan.
The appellant produced two witnesses D. W. 1 Muhammad Sultan and D. W. 2 Ghulam Haider about dealings in relation to obtaining a Visa for the appellant. The plea may or may not be quite correct but it is exiomatic that an accused has not to prove his innocence but it is for the prosecution to prove the guilt beyond reasonable doubt. In the circumstances in which the Sub-Inspector to whom the report is alleged to have been made by the complainant at Gujrat, a place other than his ordinary place of office i. e. Rawalpindi, and the manner in which the learned Magistrate conducted himself by accompanying the Sub-Inspector to the latter's office to record the statement of the complainant instead of asking the complainant to come to his Court for recording of the statement and further the entire raid proceedings being in the hand of the Sub- Inspector which detract from normal course of official business inspiring no confidence, the matter had proceeded in an unusual manner. The beginning being abnormal and there being no evidence other than that of the complainant alone that the money was paid and received as bribe, it is difficult in the circumstances to find the petitioner guilty in the absence of any reliable corroborative evidence. A person who lays a trap for others and plays a double role can hardly say that he is a straightforward honest man entitled to be believed in all what he says. A Without corroboration, such man cannot be implicitly be believed to convic another. Corroborative evidence has to be from normal and natural circumstances inspiring confidence. In the present case, the prosecution fails as the foundation is laid, to say the least, on accidental visit of the Sub- Inspecto to Gujrat from Rawalpindi and in an unusual manner of a Magistrate going to the office of a Sub-Inspector to carry out, what is after all, semi-judicial proceedings. The superstructure is supported by none too reliable evidence. Therefore, this appeal succeeds and the appellant is acquitted. The appellant is in jail and he shall be released forthwith, if not wanted in any other case.
Fine, if recovered, shall be refunded. The appeal thus stands disposed of.