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Petitioner: MUHAMMAD SALEEM--Convict VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Aslam Riaz Hussain Title: MUHAMMAD SALEEM--Convict vs THE STATE Case No.: Criminal Appeal No, 795 of 1970 Date of Judgment:1971-02-18 Reported As: PLD 1971 Lahore 799 Result: Appeal dismissed
JUDGMENT
JUDGMENT This is an appeal against the order of Mr. Ihsanul Haq Sethi, Special Judge, Anti-Corruption Multan, dated the 23rd of November 1970, whereby he convicted the appellant for offences under sections 161, P. P. C. and 5(2) of the Prevention of Cor-ruption Act, 1947, and sentenced him to four months' R. I. on each one of the two counts and fined him to a sum of Rs, 100 (on one of the two counts but not in both) and another one month's R. I. in default of payment of fine. The substantive sentence were ordered to run concurrently. 2. The facts of the case briefly stated are that about 3 or 4 months before the day of occurrence (i,e, the 22nd of October 1966), a theft had taken place in the house of Muhammad Shah (D. W. 1), resident of Raqba Sarkar, Tehsil and District Muzaffargarh. Kalu Shah, the son of Ali Muhammad complainant (P. W. 1), was suspected of the theft. A gathering of brotherhood took place and instead of lodging a report with the police it was decided that in case the suspicion was confirmed within 15 days, Kalu Shah (the son of the complainant) would have to make up the loss. Muhammad Saleem appellant was at that time posted as a constable at Police Station, Keenjar. It is alleged by AU Muhammad, complainant that the appellant had taken some bribe from him in this connection and ultimately asked for an other sum of Rs, 20 from him and threatened that in the event of non-payment he would take him (Ali Muhammad complainant) to the police station, for the theft. The latter reported the matter to Mehr Allah Bakhsh P. W. 4, Inspector, Anti-Corruption, who produced the complainant before Mr. Amjad Wasti, Naib Tehsildar P. W. 3 who recorded the state-ment Exh. P. A. of the complainant the same day. Thereafter Ali Muhammad complainant produced two currency notes Exh. P. 1 and Exh. P. 2 of the value of Rs, 10 each Mr. Amjad Wasti, P. W. 3 took down the serial No, of the two currency notes and returned the same to the complainant. A
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raid was then arranged. The raiding party which consisted of Mr. Amjad Wasti, Naib Tehsildar, Mehr Allah Bakhsh, Inspector Anti-Corruption and a foot-constable accompanied the complainant up to the saimnala which is situated at some distance from the shop of Muhammad Bakhsh, Ali Muhammad complainant then proceeded alone to the shop of Muhammad Bakhsh P. W. 2 where Muhammad Shafi the brother of Muhammad Bakhsh P. W. 3 was also present. Muhammad Saleem appellant also came there. The complainant handed over the two currency notes Exh. P. W. 1 and Exh. P. 2 to him. On getting a pre-arranged signal Mr. Amjad Wasti the raiding officer came up along with Mehr Allah Bakhsh Inspector, Anti-Corruption and recovered the tainted money from the appellant. He then recorded the statements of the persons present there including the statement Exh. P. 2 of Muhammad Saleem appellant. The appellant was then arrested and after the completion of the investigation he was sent up for trial. The result of the trial has already been mentioned above. 3. In support of his case the prosecution produced All Muhammad complainant (P. W. 1), Muhammad Bakhsh shopkeeper (P. W. 2) as the persons who had seen the passing of the money Mr. Amjed Wasti the Naib Tehsildar appeared as P. W. 3 and Inspector Mehr Allah Bakhsh (who has in the meantime been promoted as D. S. P.) appeared as P. W. 4. All of them except Muhammad Bakhsh P. W. 2 supported the prosecution case. Muhammad Bakhsh P. W. 2 resiled from his previous statement and was therefore declared hostile. He was cross-examined by the prosecuting Inspector as well as the defence counsel. 4. Muhammad Saleem, appellant when examined under section 342, Cr. P. C. denied the allegations made against him and stated that he had given Rs, 20 for purchase of ghee, to Jan Muhammad P. W. who in turn gave the same to All Muhammad complainant "as the latter was not able to purchase the ghee he returned the money to him on the day of the occurrence, at the shop of Muhammad Bakhsh P. W. 2. He admitted however that Mr. Amjad Wasti Naib Tehsildar recovered the tainted currency notes from his hand but when asked whether Mr. Wasti had recorded his statement Exh. P. B he stated that as he was confused he had asked the Magistrate to write the statement himself and the Magistrate then wrote out the statement himself. He stated further that had been involved on account of party faction. He did not however give any details of the said party faction. He produced three witnesses in defence namely Muhammad Shah D. W. 1, Imam Bakhsh D. W. 2 and Jan Muhammad D. W. 3. 5. The learned counsel for the appellant raised the following contentions before me:-- "(1) That Muhammad Bakhsh P. W. 2 (the shop-keeper) has not supported the prosecution version and the sole evidence of the complainant with regard to the passing of the tainted money to the appellant is not sufficient to show that it was paid to the appellant as bribe or illegal gratification; and further that under these circumstances a presumption under section 4 of the Prevention of Corruption Act, 1947 cannot be made against the appellant. He relied on Ansar Ali Mia v. The State PLD 1961 Dacca 806 and Ikraniuddin v. The State PLD 1958 Kar. 21 in support of this contention. (2) that Mr. Amjad Wasti D. W. 3 was only a Naib Tensildar, who had admittedly not been invested with magisterial piwers at the relevant time and therefore the statement Exh. P. E. of the appellant, recorded by him after the raid is not admissible in evidence and the learned trial Judge has erred in relying on that statement in paragraph 8 of his judgment, (3) that there are discrepancies in the statements of the witnesses, particular reference was made to the following:-- (a)According to P. W. 1 the raid took place on the next day of his making report Earl. P. A. while according to Mr. Amjad Wasti aad Mohr Allah Bakhsh inspector it was con- ducted on the same day, and
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(b)although according to the first statement (Exh. P. A), of Ali Muhammad complainant Muhammad Saleem appellant had been harassing the complainant by taking him and his brother to the Police station on a number of days and ultimately asked him for a bribe of its. 20 but is his statement at the trial he has stated that Muhammad Saleem appellant had been occasionally taking money from him with regard to the suspicion of theft against his son and ultimately asked him for a sum of Rs, 20 and told him that in the event of the non-payment he would take the complainant to the police station for theft, (4) that Muhammad Shah D. W. 1 has stated that neither any theft had taken place in his house nor had there been a gathering of the brotherhood (Panchayat) in that connection. This according to the learned counsel has completely knocked out the very basis of the very prosecution story. (5) that the statements of D. Ws. produced before the Court go to show that the appellant had not accepted the amount in question as bribe and that the learned Special Judge has erred in not relying on their statements. 6. I have carefully gone through the evidence on the record and have heard the learned counsel for the parties at length. As already mentioned while narrating the facts in para-graph 3 above the prosecution produced Ali Muhammad complainant P. W. 1 and Muhammad Bakhsh shopkeeper P. W. 2, as witnesses of the actual passing of the tainted money but while the complainant supported the prosecution case. Muhammad Bakhsh P. W. 2 the shopkeeper resiled from his earlier statement. He was declared hostile and was cross-examined by the prosecuting inspector. Therefore the only witness who has fully supported this aspect of the prosecution case is Ali Muhammad complainant. The learned defence counsel has argued that the evidence of a single witness without any independent corroborating is not sufficient for proving an allegation of accepting bribe against a public servant beyond reasonable doubt because in such a case there is only the word of one man against that of another and it cannot be said with any certainty as to which one of them is telling the truth. 7. It is true that as a measure of prudence or abundant caution corroboration of a decoy witness is generally required by the Courts but this is not an inflexible rule and where such a witness is otherwise found to be truthful his statement can be relied upon for basing a conviction. This view finds support from All Ahmad v. The State . In that case a public servant who had misappropriated Rs, 20 from the funds of a Union Board in Tippera District in East Pakistan by falsely showing the said amount as having been disbursed to one ChowkidaT, Dhariram Saiyal, as his salary was tried in accordance with the provisions of Pakistan Criminal Law (Amendment) Act, 1958 for an offence under section 409, P. P. C. and conviction was based on the evidence of the Chowkidar alone. The accused ultimately went up in appeal to the Supreme Court and it was urged on his behalf that the conviction could not have been based on the evidence of a single witness, particularly when the case against the appellant had been initiated by that witnesses. While repelling this argument, the Supreme Court was pleased to observe as follows :- "Prudence of course requires that the evidence of an interested witness should be scrutinised with care and conviction should not be based upon such evidence alone unless the Court can place implicit reliance thereon. But in the present case there is nothing to indicate that he is an interested witness in that sense." 8. It may be pointed out that in the present case also Ali Muhammad complainant is not said to have had any previous enmity with the appellant. He had, therefore, no reason to implicate the appellant falsely. When asked, at the close of the prosecution evidence, as to why this case had been brought against him, the appellant did not make any specific allegation of enmity or hostility against the complainant but stated only he had been involved on account of 'party faction'. A suggestion was made to the complainant during the cross-examination that his son Kalu was a bad character of Bundle 'B' of Police Station Keenjar and that the appellant used to check his1
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(Kalu's) attendance in the village; but the complainant denied the suggestion as incorrect. No evidence was produced by the appellant to prove the correctness of this suggestion. There is, therefore, no reason for disbelieving the solitary statement of Ali Muhammad complainant in support of the prosecution case, notwithstanding the fact that Muhammad Bakhsh P. W. 2, the shop-keeper, who was the other witness present at the spot at the relevant time, did not support it. It may, however, be mentioned here that even though Muhammad Bakhsh P. W. 2 resiled from his earlier statement and tried to help the appellant by making a statement in his favour, yet he had to admit, during the cross-examination by the Prosecuting Inspector, that his earlier statement, Exh. P. D. (in which he had fully supported the prosecution case and which was read out to him by the Prosecuting Inspector at the trial) had been correctly recorded and was thumb-marked by him and that the tainted money had in fact been recovered by the Naib Tehsildar from the appellant. He also admitted that the appellant had approached and asked him to say before the trial Court that the amount received by him was that which he (i,e, the appellant) had given to the complainant for the purchase of ghee. He admitted further that the appellant had also contacted his (Muhammad Bakhsh P. W.'s) brother Shafi, with the same request. His statement, therefore, corroborates that of All Muhammad complainant to a considerable extent. 9. Coming now to the contention that there are certain discrepancies and contradictions in the evidence of Ali Muhammad, complainant (which have been mentioned in paragraph 5 above), I am of the view that the same do not in any way damage the prosecution case. In this context it may be mentioned that Ali Muhammad, complainant, is an old man of about 80 years of age. He is an uneducated person, being a labourer by profession. The occurrence took place on the 22nd of October 1966, while he and the remaining witnesses made their statements at the trial on the 21st of May 1970, i,e, after about 3 (1/2) years. The fact, therefore, that there are some minor discrepancies or contradictions between his statement and those of P. Ws. 2 and 3, at the trial, or his own previous statement Exh. P. A., is not of much significance. In any case, irrespective of the evidence of the above-mentioned prosecution witnesses with respect to the passing of the tainted currency notes, in question, the appellant has himself admitted in his statement under section 342, Cr. P. C. that he had received the money (Rs, 20) from the complainant which was, shortly afterwards, recovered from him by Mr. Amjad Wasti, the Raiding Officer. The passing of the tainted money is, therefore, not only established through the evidence of the P. Ws., but is also admitted by the appellant himself. According to the prosecution, therefore, a presumption under section 4(1) of the Prevention of Corruption Act, 1947, would immediately arise and it could be presumed legally that he had accepted the same as 'illegal' gratification, as a motive or reward, such as is mentioned in section 161 of the Pakistan Penal Code. 10. The learned defence counsel, however, argued that the mere recovery of money from the possession of the appellant is not enough to hold him to be guilty and it is obligatory on the prosecution to prove that he consciously accepted it as bribe. For this contention he relied on the following observation in Ansar Ali Mia v. The State . : "The learned Advocate for the State has been frankly enough to concede that in a trap case like this, mere recovery of the money from the possession of the appellant will not be enough to fix him with the guilt as it has to be shown that the accused actually accepted the amount knowing it to be an illegal gratification. The prosecution has, therefore, to prove successfully that there was a conscious acceptance of the money by the appellant concerned." The learned defence counsel also urged that the presumption against an accused person under section 4 of the Prevention of Corruption Act, 1947, should not be drawn by the Court unless the explanation offered by him is considered and found unsatisfactory. For this argument he relied on Ikrain-ud-Din v. The State . I am afraid I am not persuaded to agree with these arguments. It is noteworthy that the2 3
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observations relied upon by the learned defence counsel in the case of Ansar Ali Mia which have been reproduced above, are based on a concession made by the counsel appearing on behalf of the State and the proposition put forward by the defence was not analysed or discussed by the learned Court. If the contention of the learned defence counsel, that it is not enough for the p 'osecution to prove that a public servant accepted or obtained money (or any valuable thing) and it must also prove that he accepted it knowing it to be illegal gratification (being gives to him as a reward for some favour shown by him), is held to be correct, then there would be no occasion for raising a presumption under section 4 of the Act, because in that case all the necessary ingredients constituting the offence shall stand proved and the offence shall have been established without having to raise any presumption of guilt. This view if accepted will only have the effect of rendering section 4 of the Act redundant and useless. The above-noted view, 1 that in a trap case the recovery of money from the accused is not enough to fix him with the guilt and it is obligatory on the prosecution to show further that the accused bad accepted it knowing it to be illegal gratification), is based on the confusion created by the use of the word 'gratification' in the expression, "any gratification other than legal remuneration", occurring in section 4 of the Prevention of Corruption Act, 1947. On a cursory reading of the said section one is apt to construe the word 'gratification' as meaning some 'reward' or `recompense' obtained in return of something done by the public servant. Read in conjunction with the expression "other than legal remuneration", it tends to create an impression the word 'gratification' means some illegal or undeserved reward, obtained by a public servant, in return of his having shown some special favour. Thus the expression gratification other than his legal remuneration" is wrongly understood, as meaning an illegal gratification. However, on looking up any authentic dictionary (e.g. Oxford Dictionary), one would find that the primary meaning of the word `gratification' is 'to please' or 'to satisfy'. It is in this sense that the word has been used in section 4 of the Act and the above-mentioned expression means, only, that whenever a public servant accepts or obtains anything (including money) which would be pleasing or satisfying then, if the same is not a part of his pay or legal remuneration, it shall be presumed to have been obtained as a bribe, even though it may not, in fact, be so, and may have been received by him innocently in some other connection. The use of the expression "or any valuable thing", immediately after the expression, 'any gratification other than legal remuneration' support the above-noted view expressed by me. (Refer: Promod Chandra Sheikhar v. Rex ) : 11. With utmost respect, I cannot, bring myself to agree with the view expressed by a learned Single Judge in Akram-udDin v. The State: "The presumption against the accused under section 4 of the Prevention of Corruption Act, 1947 is not to be drawn until the explanation offered by the accused is considered and found unsatisfactory. Where the accused offers a reasonable explanation which is acceptable and which raises a doubt as to the truth of the prosecution case the presumption cannot be drawn. But if the Court feels justified in drawing a presumption against the accused after due consideration of the explanation then the burden is on the accused to displace the presumption of criminal misconduct." It is pertinent to note that the learned Judge in that case has himself observed a little earlier at page 22 of the reported judgment that-- "Under section 4 of the Prevention of Corruption Act, 1947, as soon as the prosecution had proved that the public officer accepted the sum offered, which was 'admittedly, in this case not part of the legal remuneration, the presumption in section 4 would apply and in the absence of any evidence on the side of the accused it must be held that the same accepted as bribe." Besides, there appears to be an inherent contradiction in the observation relied upon by the learned defence counsel, quoted above, that a presumption under section 4, is not to be drawn4
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until the explanation given by the accused is considered and rejected as unsatisfactory; because if presumption of guilt is not to be made against him, immediately on the proof of the passing of the tainted money or the acceptance of gratification, then where is the need or occasion for the accused to offer an explanation. On the other hand, if the explanation put forward by the E accused is once accepted by the Courts as reasonable, then the accused must be taken to have discharged the onus placed by him and he is entitled to an acquittal even if the prosecution has actually led evidence to prove the motive or reward such as mentioned in section 161, P. P. C., and the question of raising a presumption would not arise. 12. In my opinion the presumption under section 4 of the Prevention of Corruption Act, 1941, arises as soon as it is proved that the public servant in question has accepted of obtained the money or any other valuable thing (which is not a part of his legal remuneration). A presumption under this section can however be displaced by "proof to the contrary". See The Crown v. Amjad All , M. C. Mitra v. The State and Promod Chandra Shekhar v. Rex. Prior to the coming into force of the Prevention of Corruption Act, 1947, when a public servant was tried for an offence under section 161, P. P. C. the burden of proving his guilt would lie heavily on the prosecution, and before asking for a conviction it would have to prove all the ingredients of the offence i,e,- (1)that the accused at the time of the offence was, or expected to be a public servant, (2)that he accepted or obtained or agreed to accept, or attempted to obtain from some person a gratification, (3)that such gratification was not a legal remuneration due to him, (4)that he accepted or obtained etc., such gratification, as a reward or motive such as mentioned in section 161, P. P. C. for doing or showing, inter alia, an undue favour in return for the gratification in question. By virtue of section 4 of the Prevention of Corruption Act, 1947, however, it has been made easier for the prosecution to establish the offence because if the prosecution succeeds in proving the first three of the above-mentioned ingredients, the 4th is automatically presumed as having been established. It must, however, be emphasised that the facts from which the presumption is sought to be drawn must be proved beyond reasonable doubt, through reliable and trustworthy evidence. The presumption is, of course, a reputable one and is subject to proof to the contrary. The proof required to displace the presumption, however, need not, necessarily, be in the shape of oral or documentary evidence. The onus on the accused, as in all criminal cases, is very light and can be properly discharged even by giving a reasonable and satisfactory explanation. He is not required to prove his innocence and it would be enough if he can show that the explanation offered by him is a plausible one and might reasonably be true--See Dr. Waoolmington v. Director of Public Prosecution , Safdar Ali v. The Crown and Rex v. Carr Briant . It is sufficient even if he can raise a reasonable doubt, and he would then be entitled to the benefit of doubt. 13. I now proceed to consider the objection of the learned defence counsel with regard to the admissibility of the statement of the appellant recorded by Mr. Amjad Wasti P. W. 3. His contention is that Mr. Amjad Wasti Naib Tehsildar (P. W. 3), has admitted during his cross-examination that magisterial powers had not been conferred on him at the time when he conducted the raid, he was therefore, not a 'Magistrate' and as such had no power to record the statement of the appellant; and further that the statement in question was, therefore, not admissible in evidence and the learned trial Court had erred in relying upon it in paragraph 8 of his judgment. This contention is wholly devoid of force and is misconceived. The learned defence counsel conceded that it is not required by any law or rule, that the raid in such cases must necessarily be supervised by a Magistrate. A Magistrate is generally deputed to carry out raids in cases where there is an allegation of demand of bribe by a public servant so that the proceedings are supervised by a5 6 7 8 9
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responsible person and chances of fabrication or false involvement are eliminated or minimised. The question of admissibility of a statement made by the concerned public servant to the raiding Magistrate, immediately after the recovery of the tainted money from him, has been considered by this Court in several cases, culminating in a Full Bench case, titled Ghulam Abbas v. The State wherein the majority view was that since the raid in such cases is conducted after the lodging of a report to the police by the complainant, therefore, it forms a part of the investigation of the case under Chapter XIV of the Cr. P. C. and further that the statement of the accused recorded by the Magistrate during the course of the investigation is nothing but a confession recorded under section 164, Cr. P. C. It was, therefore, held that such a statement if recorded without complying with the requirements of section 164, Cr. P. C., was inadmissible in evidence. The matter was, however, ultimately set at rest by the Supreme Court in Muhammad Sarwar v. The State overruling the majority view in the case of Ghulam Abbas and it was held by their Lordships that the demand of bribe by a Government Officer is entirely separate from and not related to the offence of receiving bribe at a subsequent stage; that the statement of a Government servant recorded at the time of the recovery of tainted money from him by a Magistrate is not made during…
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