P L D 1957 (W (PLP)

MUHAMMAD SHAFI, J.‑

Maqbul Hussain, aged about 28 years, son of Mahmud Hassan, of Chah Burewala, Multan Cantonment, was the Stenographer, and Imtiaz Khan, aged about 30 years, son of Nazir Khan, of Krishna Nagar, Lahore, was the peon of the Additional Rehabilitation Commissioner, Multan Division. Sharif Husain (P. W. 8) was a refugee from Jullundur and had been allotted about fourteen acres of land in Mian Channu urban area. This land was re allotted to Mst. Islamun-nissa and others. As a result thereof, Sharif Hussain filed an appeal in the Court of the Additional Rehabi litation Commissioner and was trying to get a stay order to avoid his ejectment. For this purpose, it is alleged that he requested Maqbul Hussain on several occasions to help him, The latter at last consented to do so but on the payment of illegal gratification. Sharif Hussain claimed to have paid him Rs.

15. On the fateful day, viz., the 2nd of May 1956, Maqbul Hussain is alleged to have told Sharif Hussain to pay him Rs. 50 more, and that he would then get the stay order on that very day. Sharif 'Hussain agreed to pay this money. When he came out of the district Courts, he met a person to whom he related the whole story and inquired from him as to where the Anti‑Corruption people were. That person introduced him to Muhammad Sharif Cheema, Inspector Anti Corruption Department (P. W. 5), to whom he repeated the same story. Mr. Cheema took him to Chaudhri Niaz Ali, Magistrate First Class, Lahore, who was at the time posted as Magistrate First Class, Multan (P. W. 1), where he made a statement and then produced three currency notes of Rs. 10 each. The Magistrate noted down the numbers of these currency notes and directed Sharif Hussain to pass them on to Maqbul Hussain. He went to the office of the Additional Rehabilitation Commissioner and gave the currency notes to Maqbul Hussain, who in his turn, passed them on there and then to Imtiaz Khan peon, the second accused, who left the office immediately after. Sharif Hussain then 'returned to the Inspector who took him to the Magistrate, where he disclosed that the money had already been paid. It was about 1 p.m. the same day that Sharif Hussain again met Maqbul Hussain who told him that if he had paid the balance of Rs. 20 he would immediately get him the stay order. Sharif Hussain went to Mr. Anwar Aulakh, his counsel, and borrowed from him Rs. 10 in two currency notes of Rs. 5 each. He then went to the Inspector and from there to the Magistrate' who again noted down the numbers of these currency notes and directed him to go and pay them on to Maqbul Hussain. On his return, he found Maqbool Hussain talking to Imtiaz Khan accused near the office of the Superintendent Commissioner, Multan. On demand, the latter paid in his presence Rs. 30 which he had earlier paid to the former. Sharif Hussain rushed back to the Inspector. The Inspector in the meantime had persuaded the Magistrate to come out of the Court room and follow the accused. The Magistrate took his seat in a car while the Inspector went ahead. ,They found Maqbul Hussain standing on a betel‑shop passing away some money to him. The Inspector snatched the money from the betel seller's hand, and handed it over to the ‑Magistrate, who on comparison, found that the numbers of these currency notes did not tally with those of which he had already noted. They both then took Maqbul Hussain to the Additional Rehabi litation Commissioner's Office and there the Magistrate wanted to search him, but Maqbul Hussain himself took out the entire money which he had on his person and handed it over to the Magistrate. This money, which was about Rs.200. contained the three currency notes, the numbers of which the Magistrate had noted down. Maqbul Hussain and Imtiaz Khan were both arrested and challaned. They were tried by Sayed Hasnat Ahmad, Special Judge, Lahore, who acquitted Imtiaz Khan, but convicting the second accused under section 5 (2) of the Prevention of Corruption Act, 1947, sen tenced him to rigorous imprisonment for one year, and a fine of Rs. 50, or in ‑default to undergo further rigorous imprisonment for one month. Maqbul Hussain has come up on appeal to this Court. The history has shown that corruption has destroyed many mighty nations which before they became corrupt claimed supremacy over all other nations. Corruption is like an octopus which takes its prey into its tentacles and devours it slowly and gradually until it is completely annihilated. No effort is too great to combat this evil whenever and wherever it makes its appearance, because it is a calamity of the worst kind that can befall a nation. All individuals forming a nation, high or low, big or small, entities or non‑entities, who show the slightest sign of corruption, should be crushed and dealt with an iron hand without any kindness or clemency. There should, however, be no tendency on the part of those entrusted with. the task of cleansing the Augean stables to spend all their time in catching the sprat while the mackerel swims free in the ocean. In order to combat this monster, we here in Pakistan have two special departments, the Special Police and the Anti Corruption. It is their job to detect this particular kind of crime. In certain cases where they are informed that a certain official is demanding bribe they lay traps; seek the assistance of a Magistrate and the potential victim is required to produce the money in currency notes the numbers of which are noted down, and is then asked to pass them on to the official concerned. The actual payment is sometimes witnessed by the Magistrate or the officers of the department concerned who keep themselves at a respectable distance so that they may not be seen by the official intended to be caught. They appear on the scene soon after the payment, reveal their identity and recover the tainted notes from the possession of such official, Laying down such traps is not only desirable but absolutely essential in the cases of those officials, who are known to be habitually accepting or obtaining illegal gratifications as a motive or reward for doing or appearing to do any official act for them showing or appearing to show in the exercise of their official functions favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, or who have accumulated fabulous wealth quite disproportionate to their own sources of income a fact provable under section 5 of the Prevention of Corruption Act, 1947, because they plan their diabolical crime with such fiendish care that the detection of the crime becomes almost impossible. They must, therefore, be furnish ed opportunities for the display of their activities and incli nations. The danger of laying traps, however, being carried to the extreme must be recognised and not underestimated. This method should be adopted only with reluctance and discretion and should not be allowed to corrupt the stream of justice. Such dangers in the cases of those persons who are not known to be corrupt are very great indeed. The judges in dealing with such cases must be far more concerned than they are in ordinary cases of the responsibility that lies on their shoulders as judges of fact and law. They must screen the evidence most carefully. In Muhammad Nasir v. The State (P L D 1957 (W. P.) Lah 414), Akhlaque Hussain, J remarked that it is a rule of prudence that the testimony of witnesses, who lay a trap for a person by inducing him to commit a crime, e.g., accept a bribe, requires careful scrutiny. In another case, Manzoor Ahmad Khan v. The State (P L D 1957 (W. P.) Lah. 473), the same learned Judge again struck a note of caution in estimating the evidence in trap cases. One sentence which occurs in this judgment and which is more significant is the following :‑-- "I have no desire to comment upon these circumstances or cast any aspersion whatever, directly or indirectly, on the integrity of Mr. Zafar Yasin, which I must presume, and do presume, to be of the highest order. I have mentioned these facts only to point out the risk which the Magistrates run in allowing themselves to become involved in such affairs". The application of the principles of such evidence will have of course to be determined with reference to the facts and circumstances of each particular case, for no hard and fast rule can really be formulated. It must not be forgotten that in trap cases the officials are snared in the net by the agent provocateurs under the pretence of preventing the crime. They deliberately create opportunities for the commission of the offence. Sometimes it so happens that the Anti‑Corrup tion Department or the police think any manoeuvre is fair and desirable which secures a conviction. In such a case the remedy will be worse than the disease. A judge must not be unconscious of the fact that the police in their zeal to prevent the crime may be victimising an absolutely innocent and honest official who may have been involved in the case as a result of political intrigue or personal jealousy. Experience has taught us that in this part of the country it is not at all difficult to hire the services of apparently most independent witnesses, ready to say that a certain official has been bribed by them, or in their presence, on the payment of very small amount of money. The judges must not ignore that the official concerned may have harmed the person who has lodged a complaint or may not have illegally helped him which may, have filled his heart with unquenchable thirst of vengeance. It must be remembered that a person bent upon putting another person to grief is very cunning and thorough in his design. He is quite capable of not giving‑any sign that the annoyance caused to him by such official was registered and was being stored in his memory and pretending to be the friend of that official looks for an opportunity he knows would some day come his way. He may himself, or through some friend of his, hand over the money to the unfortunate official, after securing the services of the Anti‑Corruption Department and the 'Magistrate, requesting him to keep it for a few hours on the pretext that it was not safe for him to carry it to the place he was going, or he may, taking advantage of some existing difficulties of the official pretend to help him out of them, or give him the money to pass it on to some other person, or pay him in the discharge of the debt which he may have incurred as a preclude to the raid. It may not multiply eventualities because they will be numerous. But one last but not the least that I can think of is the possibility of the time between the passing of the money and the arrest of the official being so short that he may not have been able to decide what to do under the circumstances flung upon him so suddenly and surprisingly whether to return the money to the giver, or report the matter to the higher authorities or the police. In other words, there may not have elapsed enough time between the said two times for the official to form an intention, or for the judge, who later on tries his case, to come to a conclusion with that precision that is required in judicial' cases as to whether guilty intention was in fact formed or not. A man is not to be made criminally liable for an offence which he never intended to commit, nor could by reasonable care have avoided. It is not the deed that makes the wrongdoer but the wrongful intention (Actus non facit reum nisi men sit rea). It will be wrong to hold an official responsible in law for that for which he cannot ex pothesi be responsible in fact. It is in the light of these observations that I proceed to examine the case. The vital question which needs determination in this case is whether Sharif Hussain paid Rs. 30 in three currency notes, the numbers of which had been noted down by Ch. Niaz Ali (P.W.1) to Maqbul Hussain as illegal gratification. Immedi ately after the recovery was made, the Magistrate recorded the statement of Maqbul Hussain who had stated that Imtiaz Khan, the peon, had borrowed from him Rs. 40, which he had repaid on the 2nd of May 1956, and that these notes were included in the notes surrendered, He added that he had no knowledge as to from where Imtiaz Khan had taken these notes. Maqbul Hussain has stuck to this statement in the trial Court. He, however, denied that any search of his person took place in the Additional Rehabilitation Commis sioner's office, adding that he had handed over the entire money, including the tainted money to the Magistrate at the betel‑seller's shop. In order to prove the payment of Rs. 30 as bribe to Maqbul Hussain, the prosecution examined Sharif Hussain, the complainant, and Muhammad Siddiq (P. W. 7). So far as the former is concerned, he claims to have paid Maqbul Hussain Rs. 15 some time prior to the occurrence, which is not proved by any satisfactory evidence and Rs. 30 on that day. Giving the bribe is just as much an offence as taking) it. For that reason Sharif Hussain is an accomplice, and according to the well settled principle of law, he must receive corroboration from some independent source, before he is accepted as a true witness. In Ghulam Muhammad. The Crown (P L D 1957 (W. P.) Kar. 410), Mr. Justice Lari disbelieved the evidence of the) person who had given the bribe and held that the statement of a bribe‑giver, who is an accomplice, in the eye of law cannot be relied upon unless it is corroborated in material parti culars by independent evidence. Sharif Hussain's antecedents are that he was an octroi Moharrir at Mian Channu from where at the time of giving the evidence he had been suspended on account of having been charged fur criminal misappropriation of the municipal funds. He was also being prosecuted for lurking house‑trespass by night into the house of one of his neighbours. It is admitted by him that prior to the demand of illegal gratification he had repeatedly asked Maqbul Hussain to assist him in getting the stay order and for this purpose he had already paid him Rs. 15, He, however, made a dubious statement as to when this payment was actually made, whether one day prior to the day of 2nd May 1956, or a month or so earlier. If he had really paid this money then I see no reason as to why should he have not remembered the date of its payment. He could at least say whether it was paid on the 1st of May 1956, or not because 2nd May 1956, is the most important date in this case. The fact remains that in spite of repeated requests to Maqbul Hussain. who was entrusted to put up notes on applications for allotment of urban property by the Additional Rehabilitation Commissioner, for obtaining stay orders of the ejectment proceedings, Sharif Hussain had not succeeded to get such an order. The applica tion for this purpose was actually made by him on the 26th of January 1956. I have no doubt in my mind that Sharif Hussain attributed the non‑passing of the stay order to Maqbul Hussain, and for this reason he nursed a grudge against him. J have also no doubt in my mind that on the 2nd of May 1956, he again approached Maqbul Hussain for the necessary stay order, and when he did not get any encouraging reply from him he made an attempt to involve him in this crime. Sharif Hussain deposed in his evidence that when Maqbul Hussain demanded a sum of Rs. 50 from him, he came out of the Additional Rehabilitation Commissioner's office and met a person whom he narrated the whole story. According to him, it was that person who introduced him to Inspector Muhammad Sharif Cheema. Who is that mysterious person is not revealed. All that could be extracted in cross‑examina tion from Sharif Hussain about that person was that he would be able to identify him if he came before him. The Inspector, on the other hand, did not corroborate him on this point and deposed that Sharif Hussain P. W. met him in the Court compound and told him the facts of the case. The question which automatically suggests itself to a judge is as to why Sharif Hussain narrated the story to an absolute stranger and what led that stranger to take such a keen interest in the case as to introduce him to the Inspector and then to com pletely disappear from the drama which was subsequently enacted The prosecution story that follows the above incident is that Sharif Hussain produced the notes before Ch. Niaz Ali Magistrate who rioted down their numbers and then directed him to pass them over to the appellant. It is difficult for me to understand' as to why did the Magistrate or the Inspector not himself go to witness the passing of the money. If that course had been adopted, no doubt would have been left in my mind that illegal gratification was in fact paid to Maqhul Hussain. So far as the Magistrate is concerned, he thought that the statement of Sharif Hussain alone that the money had been paid to the appellant would be quite enough to prove a case of payment of illegal gratification to the appellant For that reason he did not ask any uninterested and respect able person to accompany Sharif Hussain on this most vital errand. Ch. Muhammad Sharif Cheema (P. W'. 5), however. thought otherwise, and so he deputed Muhammad Siddiq (P. W.7) to witness the payment, but what a person to select for this purpose. He is the son of Sharif Hussain's brother‑in- law and at the time when he was giving evidence he was being prosecuted for stealing some electric goods from Textile Mills Ismailabad of which he was an employee since the 27th of January 1950. On account of that theft he had already been discharged from service. He was also a witness in another trap case against Niaz Ahmad, Head Assistant of the Commissioner's office. What has surprised me most is as to why did the Inspector not bring this fact to the notice of the Magistrate that he had deputed the said Muhammad Siddiq to witness the payment. There is no mention of Muhammad Siddiq in the notes which the Magistrate prepared prior to and after the search of the accused. There is no mention of this most important villain of the whole drama to the statement of the Magistrate made in Court. From the evidence of the Inspector and Muhammad Siddiq it appears that it was he who not only witnessed the passing of the money but subsequently saw the repayment of the money by the peon to the appellant in the verandah of the Commissioner's office. It was he who carried the necessary information and gave signals at material times to the Inspector and was present at the time when the Inspec tor snatched the currency notes from the hand of the betel -seller and subsequently when the tainted money was handed over by the appellant to the Magistrate. If he had taken such a prominent part in the raid, one would expect his name to be mentioned to the Magistrate. The omission of the Inspec tor to inform the Magistrate that the services of the witnesses had been secured creates a serious doubt in my mind about the presence of this witness at any important times during the raid. Coupled with this fact there is' the admission of this witness that he did. Dot make any statement before the police on that day but did so on the following day. It creates a serious impression in my mind that this witness was subse quently procured when the Inspector thought that Sharif Hussain's evidence, being that of an accomplice, would not be enough to secure conviction. In any case, even if this witness was present, on account of his relationship with Sharif Hussain it will be travesty of judgment to say that he is an independent witness. There is thus no independent anti satisfactory evidence produced upon the record to prove that Sharif Hussain actually paid Rs. 30 to Maqbul Hussain. Even if it is conceded for the sake of argument that the money was paid as alleged by Sharif Hussain, then what baffles me is as to why did the Magistrate and the Inspector not go immediately to the office of the Additional Rehabilitation Commissioner and make a search for Maqbul Hussain. The excuse which has been pat forward for not taking this action was that these gentlemen were informed that Maqbul Hussain no sooner he got the money than he passed it on to the peon, but then they should have searched for the peon and make an effort to recover the money from him. If that had been done it would have been a material corroboration of Sharif Hussain's statement. We, however, find that the Magistrate adjourned the raid proceedings to 8th of May 1956, because Sharif Hussain had informed him that he had promised the appellant to give the balance of Rs. 20 on that day. This is what is stated by Sharif Hussain (P. W. 8) and is also clear from the proceedings which the Magistrate recorded when Sharit Hussain went to him and informed him that he had paid Rs. 30 and as for the balance he had promised to pay on the 8th of May 1956. The Magistrate has'' noted down "the case should, therefore, be put up to me on the 8th of May 1956." The statement of Ch. Muhammad Sharif Cheema (P. W. 5) on this point that the proceedings were not adjourned to the 8th of May 1956, appears to be false. This postponement of apprehending the accused red‑handed took place at about 10‑30 a.m. From this time onward then there was nothing also to be done, and yet we find the Inspector and Muhammad Siddiq (F. W. 7) remaining of their respec tive posts persistently, the latter obviously saving Maqhul Hussain all the time. That shows their anxiety to secure Maqbul Hussain that very day. Suddenly at 1 p. m. for reasons best known to Shard Hussain, he again approached Maqbul Hussain who is said to have told him that if the balance of Rs. 20 was paid on that very day, the' stay order would be obtained on the following day. Shari.( Hussain then went to his counsel. Mr. Anwar Aulakh, and borrowed from him not Rs. 20 but RS.

10. Mr. Anwar Aulakh curiously enough has not been produced into the witness‑box although he was an im portant witness in the case, because when Sharif Hussain went to him to borrow the money, he must have told him what was the urgent necessity for the same. This borrowing of Rs. 10 is also un under stand able for the reason that even if he paid this sum to Maqbul Hussain, still he would not have been able to get the stay order, because it was not the full amount. Apart from that, as has already been stated. the application for the stay order was made on the 25th of January 1956, and it was ordered to be put up on the 12th of March 1956. On the 17th of March 1956, the applicant was directed to produce the Deputy Rehabilitation Commissioner's order dated the 27th of December 1955. It would have been absolutely impossible for Maqbul Hussain to get the stay order without the copy of the order of the Deputy Rehabilita tion Commissioner or without a fresh application having been put in for that purpose. Sharif Hussain neither put in the copy of the said order, nor made a fresh application for the stay of the ejectment proceedings, and yet he expected to get the stay order. At 1 p.m. then Sharif Hussain again went .to Maqbul Hussain and when the latter demanded the balance of the amount on that very day, he went back, accompanied by the he had Inspector and Muhammad Siddiq, to the Magistrate. By then borrowed Rs. 10 from his counsel. After the numbers of the two notes of is. 10 were noted down by the Magistrate, he and Muhammad Siddiq again went to Maqbul Hussain who vas found standing in the verandah demanding back Rs. 30 paid to him early in the morning. Now this story appears to be most incredible. That the money should have been paid by the peon to Maqbul Hussain just at that particular time when Sharif Hussain and Muhammad Siddiq were near the spot will be quite amusing and exciting if, it appeared on the screen in a cinema slow, but it certainly is a happening of an unusual kind in Actual life. Again, when the Magistrate directed Sharit Hussain to pay two currency notes of Rs. 5 each to Maqbul Hussain, neither he nor the Inspector, made any attempt to be present at the time of the actual payment. On the suggestion of the Inspector, however, the Magistrate came out of his Court room and took a seat in the car. He ‑deposed in evidence that he did so because "Muhammad Sharif Inspector informed me that I should accompany him to follow up the accused, Maqbul Hussain, when he came out of his office as it was possible that these five‑rupee currency notes given later might be found on his person". He further deposed "I went up to the shop of a cycle‑dealer as I was told that Maqbul Hussain accused would be present on the shop of a betel‑seller close to the shop of 'a cycle‑dealer". Who gassed this information to the Magistrate is another mystery That this person knew that Maqbul Hussain after taking the tainted notes back from th3 peon would go to the betel‑seller's shop is amazing. The Inspector and Muhammad Siddiq, on the other hand, did not say that they know that Maqbul Hussain, after he came out of the office, would go to the betel‑seller: Then the question arises as to why the Magis trate was informed that Maqbul Hussain would be at the betel. seller's shop and that lire should, therefore, follow him up to that place. At this shop then Maqbul Hussain was arrested. Sharif Hussain, the complainant in the case, had already dis appeared. Why did he do so is shrouded in mystery. A suggestion was made to him in the cross‑examination that it was perhaps that his conscience revolted against his involving au innocent person in such a heinous crime. He denied it, but if that was not the reason, then he should have come out with more satisfactory explanation. He definitely did not pass on the two subsequent currency notes to Maqbul Hussain. The Magistrate did not make a search of Maqbul Hussain at the betel‑seller's shop. He made him sit in the car and took him to the Additional Rehabilitation Commissioner's office where the appellant himself took out the money and handed it over to the Magistrate. Simultaneously therewith he made a statement which has been referred to earlier in this judgment. Now the question which needs to be determined is whether the tainted currency notes were paid to Maqbul Hussain by Sharif Hussain or by the peon. I feel convinced that the accused's story on this point is more probable and fits in aptly in the circumstances brought upon this record. He made this statement before he had any time to fabricate one. He did not say that Rs. 30 had been paid to him by the peon which would have been the case, if his story was else, but he mentioned this amount as Rs.

40. The peon's state ment was also recorded immediately after the statement of Maqbul Hussain and he denied that he had paid the money to Maqbul Hussain which is also a very significant point. He did not support the prosecution story even in his statement in Court which he would have most surely done after knowing that Maqbul Hussain was involving him falsely, provided. he had really been given Rs. 30 immediately after it was given by Sharif Hussain to the appellant. In fact I am certain that if the facts alleged by the prosecution were correct, this accused would have at once turned into a witness and the prosecution would have welcomed him. It is possible that the peon was paid the money to pass it on to the appellant without his knowing that there was snag in it or he also nursed some grudge against Maqbul Hussain and he joined hands with Sharif Hussain and Muhammad Siddiq to put the appel lant to grief, but the fact remains that the tainted currency notes were handed over to Maqbul Hussain by the peon and not by Sharif Hussain, as is alleged by the prosecution. I do not wish to make this judgment cumbersome by pointing out several discrepancies which have occurred in the statements of the different witnesses. They‑create a reasonable apprehension in one's mind that the witnesses are not telling the truth on several points. Two, however, may be mentioned here, T he Inspector in his evidence made a categorical state ment that Sharif Hussain at the time when he was informing the Magistrate that Rs. 30 had been paid to Maqbul Hussain, further added that Maqbul Hussain had told him that if he paid the balance of Rs. 20 on the same day he would have his work done on the next day. This statement contradicted the Magistrate who had been examined earlier and so the Public Prosecutor started putting him further questions and brought him round to make a statement in conformity with the one made by the Magistrate. The learned counsel for the defence for that reason put a question to him and got the following reply:‑-- "I informed the Magistrate that the complainant and his companion had arrived. It was not at the time of this visit but at the time of the second visit that the complainant informed the Magistrate that the accused had demanded the payment of the balance of Rs. 20 and promised to do the work on the next day. I have stated this fact above at the place marked A to A in my statement, but this was with reference to my second visit but not the first visit. If this fact is recorded otherwise, it is due to the change of sequence, but not in reply to any leading question that I corrected the position.." Again the Magistrate had said that Maqbul Hussain himself produced all the contents of his pocket to him and he had not made any search of his person. The record of the proceedings, however show that the Magistrate had actually made the search of the accused. Rao Abdul Hassan, who was with the Magistrate when he came out of the Court at 1 p.m. in order to arrest Maqbul Hussain, has also made a statement to the same effect. The evidence produced by the prosecution thus has not convinced me at all that Rs. 30 were paid as bribe to Maqbul Hussain. I, consequently, for the reasons given above, hold that no case against the appellant has been proved. His appeal is, therefore, accepted and he is acquitted of the charge. He shall be set at liberty at once. The judgment was announced by S. A. Rahman, C. J. Announced by me in the absence of Muhammad Shafi, J. who has left for Peshawar. (Sd.) S. A. Rahman, C. J. A.H. Appeal accepted