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Petitioner: NOOK NABI AGHA VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Durab Patel, Ghulam Rasool K. Shaikh Title: NOOK NABI AGHA vs THE STATE Case No.:Criminal Appeals Nos. 169 and J-212 of 1971 Criminal Appeal No. 169 of 1971
JUDGMENT
Reported As: PLD. 1972 Karachi 292 Result: Appeal allowed Judgment JUDGMENT 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
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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.
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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,
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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!
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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
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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
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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.…
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