P L D 1954 Sind 126 (PLP)

LARI, J.‑This Government appeal has come before me under rather unusual circumstances. The respondent, Amjad Ali, a refugee from Lucknow and Head Clerk in the Contract Branch of the Karachi Telephone District was tried under section 161 P. P. C and section 5 (1) (d) of the Prevention of Corruption Act 1947 for accepting from Rehmatullah P. W. 1, Rs. 400 as bribe on 26th November 1948, Agha Muhammad Sultan Mirza, Special First Class Magistrate and acquitted of the said charges by the learned Magistrate on 29th December 1950. The Public Prosecutor, Karachi, under instructions from the Karachi Administration filed this appeal. When the appeal came up for hearing before a Bench comprising of Muhammad Bachal, J. and Muhammad Bakhsh J. Mr. Tufail Ali A. Rehman, Assistant Advocate General for Sind appearing on behalf of the prosecution did not want to press the appeal and expressed an opinion that the respondent deserved acquittal. My brother Muhammad Bachal, J. also was of the view that the respon dent was entitled to acquittal and the judgment of the trial Court acquitting the respondent could not be reversed but my brother Muhammad Bakhsh, J. took a contrary view and recorded s finding of conviction. Hence this appeal before me as a third judge. Human ingenuity has yet failed to desire (devise ?) a process of judicial reasoning which could be considered infallible. In view ‑of the fact that the learned Magistrate who tried the case recorded a finding of acquittal, the Public Prosecutor did not favour reversal of this judgment of acquittal and a learned judge of this Court concurred with the views taken by the trial Court and Public Prosecutor. I would not be inclined to hold that the case of the respondent was not free from reasonable doubt even though I were of opinion that a different view was possible on the basis of evidence recorded in the case. This by itself would be decisive so far as the appeal before me is concerned, but considering that my brother, Muhammad Bakhsh, J. expressed himself rather strongly and observed to use his own words: "I have no doubt that the judgment is not only perverse but wilfully so on the very face of it as I will presently show. In the first place the learned Magistrate .has ex hibited hopeless ignorance of law". I would deal with the points arising in the case rather briefly. The prosecution case is that complainant Rehmatullah P. W. 1 is Manager of a firm known as Adam Dawood & Co.' situate in New Challi, Frere Road, Karachi. By the end of 1947 this firm took on rent an office in the building of a Hindu Holaram Dalchand. The office was at that time fitted with a telephone bearing No. 2258. The complainant's firm used this telephone for some time, but they were apprised subsequently by the Telephone Mistry to have the telephone officially transferred in their name as its use was illegal. In July 1948, Rehmatullah applied to the Divisional Engineer Telephone for‑ transfer in their name by means of an application dated 6th July 1948. The department, however, disconnected the telephone and the application was rejected. The complainant presented another appli cation on 3rd September 1948, praying for the connection. It so happened that on the same day two other firms viz. Adam Haji Umar and Muhammad Haji Ibrahim applied for a similar transfer of telephone connections in their premises: The applications of Adam Haji Umar and Muhammad Haji Ibrahim were sanctioned but the petition of the complainant was rejected by the Board, which had the authority to sanction telephone connections. It may be pertinent to note here the procedure for granting of new telephone con nections or restoring old telephones. The necessary appli cation is presented to the Contract Officer who makes enquiries as to whether the application should be granted or not. The contract officer endorses his remarks on the application and then they are to be put up before a Board. The Board generally acts in accordance with the note of the Contract Officer. The Contract Officer notes either C. D or makes a cross mark against particular application letter D indicates that the case is deserving and is recommended for acceptance. Letter C indicates that it is a case tit for consideration by the Board, while cross mark means that the application deserves to be rejected. Nasrat Ali was the Director‑General of Posts and Telegraphs and Mr. Zafar was the Contract Officer while the respondent was Head Clerk of the Contract Branch of the Telephone District. The prosecution case further is that Rehmatullah after knowing of the rejection of his application dated 3rd September 1948, met the respondent and complained that while applications of Adam Haji Umar and Muhammad Haji Ibrahim had been sanctioned his own had been rejected. The respondent is alleged to have told him that other people had spent money for getting the connection and that he had not done so. The respondent advised the complainant to pay a reasonable amount if he was anxious for the connection. The complainant said that he would consult his master. He consulted his master Seth Adam Dawood who permitted him to settle the amount with the respondent upto Rs. 100 if there was no way out to get the connection. The complainant made a fresh application on 1st October 1948, and after having some talk with the respondent agreed to pay Rs. 200 after the complainant had got the connection. Nothing particular happened after 4th October 1948, but the complainant went to Mr. Nasrat Ali, Director of Post and Telegraphs on 28th October 1948, and narrated to him the whole story from beginning to end. Mr. Nasrat Ali contacted the Special Police on the telephone and Mr. Ghulam Mohiuddin, Special Police Inspector came upon the scene. The story was narrated to him by the complainant. It is alleged that Ghulam Mohiuddin asked the complainant to go and settle the matter with the respondent. The complainant then went to the respondent and complained that he had not got the connection. Thereupon the res pondent is said to have told him that his application was not in a proper form and that was responsible for the delay. The respondent thereupon supplied the complainant with a draft application and asked him to put an application in that form. The complainant came with a draft to Ghulam Mohiuddin, Inspector who got the draft typed out. This is Exh. 1‑D in this case. The complainant presented the petition on the lines of the draft given to him by the respondent and presented it to the respondent on 4th November 1948. The respondent accepted the petition but asked the complainant to return the draft to him. The complainant came back to Ghulam Mohiuddin and told him that the respondent wanted the draft back. Then the Inspector got the draft photographed and returned the original to the complainant for delivery to the respondent. The complainant did so on 8th November 1948. The respon dent on that date gave him a draft of another application to be submitted by the complainant. A photo of that draft was taken. An application was prepared on the lines of the draft and the application as well as the draft was made over to the complainant. The complainant saw the respondent with these two. The respondent took back the draft and gave the application along with the Chit for presentation to Mr. Zafar, the Contract Officer. The complainant took it to Mr. Zafar who sent for the respondent. There was some talk between Mr. Zafar and the respondent but the com plainant being unaware of English language could not understand it. The respondent, however, told the complainant that he would get the connection by the following morning. The complainant, however, did not get the connection next day and went to the respondent who told him that the Supervisor Rizvi and Conslaves had to be paid Rs. 100 each before the connection could be affected. The complainant agreed to pay this further sum and the connection was restored on 17th November 1948. The Police Inspector asked the complainant to verify if the re‑connection was genuine. Accordingly, a trunk call was booked to Hyderabad and it was demonstrated thereby that connection was geniune one. The complainant then went to the respondent's office and he was asked by the respondent whether he had brought Rs. 200 as promised for the supervisors. The complainant replied in the negative and it was then settled that the respondent would go to Gulshan Restaurant between 4 and 5 p.m. on 22nd November 1948, for the purposes of having the money. The complainant informed the Police Inspector about this and he came to his office on 22nd November 1948. Currency notes of Rs. 200 were taken to the Magistrate who noted out the number and he kept himself saying that he would give them in the afternoon. A trap was organised but the respondent did not turn up. He informed the complainant that he would come to the complainant's office at 6‑30 p.m. and not to the Gulshan Restaurant as promised earlier. The respondent accordingly came at 6‑30 p.m. and the complainant took him upstairs and offered him tea. The complainant gave him, Rs. 200 but the respondent refused to accept the amount as he wanted the full amount of Rs.

400. The respondent then went away telling the complainant that the meeting of the Board was to take place soon and he would let him know when he would come to take the money after the connection had been formally sanctioned. This time it is admitted by the complainant that the respondent told him that he was hard pressed for accommodation and could not get a good flat. On 25th November 1948, the respondent informed the complainant that the telephone had been transferred in his name and that he would come in the morning of 26th November 1948 to take the money The complainant told the Police Inspector who said that the time was not convenient to him and accordingly got it changed to 3‑30 p.m. A trap was arranged this time with currency notes of Rs. 400, the numbers of which were duly noted by the Magistrate. The Magistrate and the police came punctually. The complainant, however, came a bit late. The respondent also came in time. The complainant took the respondent upstairs and after some ordinary courtesy gave him currency notes of Rs. 400 to the respondent who accepted the amount and put it in his pocket. The complainant gave the signal already settled between them. The Magistrate and the Police Inspector rushed in and recovered Rs. 400 from .the res pondent. These were the same currency notes which had been noted by the Magistrate and handed over to the complainant for payment to the respondent. The respondent admitted that the complainant had contacted him with an application for the restoration of Telephone No. 2258 and that he had supplied the two drafts of the applications made by the complainant. He further admitted to have delivered the telephone reconnection order Exh. 1‑J. to the complainant not at the complainant's place but at his own office. The respondent admitted having received currency notes in question from the complainant but alleged that this money was not given to him as a bribe as alleged by the complainant. His case was that he had deposited Rs. 600 with the complainant for getting him a flat fully furnished. The complainant told him subsequently that the flat had been taken away by another refugee. The complainant then returned only Rs. 200 to the respondent. The respondent went on 26th November 1948, to receive the balance of Rs. 400 which he had given him. The learned Magistrate reviewed the evidence and came to the conclusion that the prosecution case suffered from improbabilities and certain suspicious circumstances and implicit reliance could not be placed on the statement of the complainant whose testimony was the main evidence in this case. The learned Magistrate pointed out that there was no reason why Rehmatullah should approach Mr. Nusrat on 28th October 1948 when the settlement had been reached as far back as 4th October 1948 and nothing had happened to antegonize the complainant; the amount to be paid had been settled on 4th October 1948 and there was no reason why Ghulam Mohiuddin Inspector should ask the complainant on 28th October 1948 to go to the respondent and settle the matter with him. According to Rehmatullah complainant the respondent had asked him on 17th November 1948 as to whether he had brought Rs. 200 to be paid to the supervisors and 22nd November 1948 was fixed for payment of the sum by Rehmatullah to the respondent but curiously enough when the amount is actually offered to the respondent on 22nd November it was not accepted by him. It had been settled that the amount of Rs. 200 were to be paid to the respondent after telephone connection had been sanctioned by the Board and con sequently it is not understandable why that amount should be demanded by the respondent on 22nd when the application had not yet been sanctioned by the Board and this amount had not been demanded by the respondent on 17th when only Rs. 200 had been asked for by the respondent and further through reconnection order is alleged to have been delivered to the complainant, the reconnection order itself was not handed over to the police on that date but was given to the police the next day. The learned Magistrate further held that there was an ill feeling between the res pondent and some responsible officers in the department and ultimately held that the prosecution case is not proved beyond doubt. It is well established that presumption of innocence of an accused is further reinforced by his acquittal by the trial Court and findings of the trial Court which had the advantage of seeing the witnesses and hearing of their evidence can be reversed only for very substantial and compelling reasons. Reference may be made to the decision of Supreme Court of India Surajpal Singh v. The Crown reported in (AIR 1952 SC 52) and in a decision of our own higher Court, I mean the Federal Court of Pakistan Khairdi Khan and others v. The Crown reported in (PLD 1953 FC 223.). His lordship the Chief Justice Sir Abdur Rashid approved of the observations of the Full Bench of the Lahore High Court in the case Partap Singh and others v. Harnam Singh reported in (I L R 1942 Lah. 85.) to the following effect :‑‑ "In actual fact, however, the Court seldom exercises this discretion except as laid down in a number of rulings namely that an order of acquittal will not as a rule be interfered with merely because the High Court disagrees with the findings of the Magistrate. It is only when the record is incomplete or there is a flaw in jurisdiction or when the finding is manifestly wrong or perverse that the High Court will interfere in such cases". My brother Muhammad Bakhsh, J. thought that the provisions of section 4 of the Prevention of Corruption Act 1947 had been ignored and consequently the judgment of the trial Court was vitiated by an error of law. My brother observed, once it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself or any other person any gratification (other than legal remunerarion) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained that gratification as a motive or reward as is mentioned in section 161 without consideration or for consideration which he knows to be inadequate

The payment of Rs. 400 is .proved by the evidence of the complainant and the evidence of the Police Inspector and the Magistrate. It is also admitted by the respondent. In my opinion the prosecution fully discharged their burden as required by section 4 of the Act. It was then for the respondent to prove that this money was not paid as a bribe and that it was the return of the deposit money". The above reasoning comes to this that once passing of money is proved the prosecution shall be held to have discharged its initial burden required by section

4. Section 4 runs as follows: "Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code, it is proved that an accused person was accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161 or as the case may be, without consideration or for a consideration which he knows to be inadequate Provided that the Court may decline to draw such pre sumption if the gratification or thing aforesaid is in its opinion so trivial that no inference of corruption may fairly be drawn". To my mind before presumption contemplated in the latter part of the section can arise it must be established ']d beyond doubt that the accused person had accepted or obtained or agreed to accept or attempted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person. The point was considered by a Bench of the Calcutta High Court in a case reported in M. C. Mitra v. The State (A I R 1951 Cal. 524.). Their Lordships observed "Presumption in this case arises only upon "proof" that the accused person has accepted or agreed to accept or obtained or attempts to obtain for himself or any other person any gratification or any valuable thing from any person. Such presumption over‑rides sections 101 to 114, Evidence Act, relating to the burden of proof and pre sumption. But this statutory presumption under section 4, Prevention of Corruption Act, 1947, is only with regard to motive or reward mentioned in section 161, Penal Code or with regard to absence or inadequacy of con sideration presumably with reference to section 165, Penal Code. Ordinarily, the prosecution would be liable to prove the motive or reward under section 161, Penal Code, absence or inadequacy of consideration under section 165, Penal Code, because such motive or reward or such absence or inadequacy of consideration is part of the very offence under section 161 or section 165, Penal Code respectively. But now by reason of section 4, Prevention of Corruption Act, 1947, that presumption will be made against the accused the moment the prosecution proves that the accused accepted or agreed to accept or obtained or attempted to obtain any gratification or valuable thing. In my judgment this does not mean that the burden of proof on the prosecution to establish the acceptance or the agreement to accept or the obtaining or the agreement to obtain the gratification or the valuable thing is at all displaced by this section. That burden still remains on the prosecution and it is only when the prosecution has discharged that burden that the presumption of (a) motive or reward or (b) absence or inadequacy of consideration will be made against the accused. This Burden still remains upon the prosecution to prove first that the accused has accepted or agreed to accept or has obtained or agreed to obtain the gratification or the valuable thing and this proof must be in accordance with the standard of proof laid down by section 3, Evidence Act". The question was further considered in case (The State v. Minaketan Patnaik) reported in (A I R 1952 Orissa at p. 267,). His Lordship Justice Panigrahi observed in para. 9:" Section 4 of Act II of 1947 requires that the prosecution should prove that the accused accepted or agreed to accept the amount as a gratification. " Accept " means " to take or receive with a " consenting mind ". It is, therefore, upon the prosecution to prove not only the passing of money into the hands of the accused, but also that he took it with a " consenting mind". This would necessitate proof of either an agreement to accept prior to the actual acceptance, or of his consent to accept the same as gratification 'at the time the money was offered." It was necessary for the prosecution to establish beyond reason able doubt that Rs. 400 were accepted as gratification and not otherwise before a presumption contemplated by section 4 could arise. The learned Magistrate had discussed the evidence and come to the conclusion that the theory of acceptance of Rs. 400/‑ as gratification had not been prove beyond reasonable doubt. In this view of the matter the presumption contemplated by section 4 could not arise and there was no occasion for discussing the defence evidence and whether the presumption arising under latter part of section 4 had been displaced or not. Assuming for a moment that the presumption contemplated by section 4 of the Act could arise in the circumstances of the case it must be borne in mind that such a presumption would be a rebuttable presumption. The burden of proof which lies on the accused is not so heavy as the burden of proof in the case of the prosecution and this presumption does not negative the primary presumption of innocence of the' accused. A similar provision is to be found in English Act known as Prevention of Corruption Act, 1916. The question came up for consideration before Court of Criminal Appeal in case (R. v. Carr‑Braint) reported in (The All England. Law Reports 1943 Vol 2 at p. 156). Their Lordships observed :‑ " In our judgment, in any case where, either by statute or at common law, some matter is presumed against an accused person " unless the contrary is proved," the jury should be directed that it is for them to decide whether the contrary is proved, that the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish." Their Lordships of the Federal Court had to consider in Safdar Ali's case (P L D 1953 F. C. 93.) the effect of section 105 of the Evidence Act on the principles laid down in Woolmington's case reported in 1935 A C at p.

462. Their Lordships came to the conclusion that section 105 of the Evidence Act had been enacted in order to make it clear that it was not the duty of the prosecution to examine all possible defences that might be taken on behalf of the accused and to prove that none of those defences could be of any assistance to him and that the principles laid down in Woolmington's case were applicable with full force in Pakistan in spite of the provisions of section 105 of the Evidence Act. The presumption mentioned in section 4 of the Prevention Act is analogous to burdens of proof in particular cases on the accused by virtue of section 105 of the Evidence Act. The result is that burden of general issue i.e., of establishing the guilt of the accused beyond doubt still remains on the prosecution. Their Lordships of the Calcutta High Court in the case S. C. Mitter v. State (supra) mentioned above held that the pre sumption may be rebutted by the accused not only by any oral testimony of witnesses called on behalf of the accused but also by a statement of the accused under section 342, Cr. P. C. and by any document produced on behalf of the defence of the accused or by the surrounding circum stances. The learned Magistrate considered the prosecution evidence and on that very basis was of the opinion that payment of Rs. 400 as bribe was not established. It may be that a different view of evidence was possible but when the learned Magistrate considered and came to the conclusion that the very story of payment of any sum as gratification was not established beyond doubt no question of application of section 4 of Prevention of Corruption Act did arise and as such to my mind, no illegality was committed by the learned Magistrate in appraising the prosecution evidence in this case. Having held that no illegality was committed by the learned Magistrate in appraising the evidence on the record and considering that the trial Court; the Prosecutor and one brother Judge were of opinion that the prosecution case had not been proved beyond doubt I cannot but hold that there are no weighty or compelling reasons to warrant reversal of the order of acquittal. I, accordingly, dismiss the appeal and confirm the acquittal of the respondent. A. H. Appeal dismissed.