1975 P Cr (PLP)

At the trial the appellant was found guilty of an offence under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947 and he was convicted for the said offence arid sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 500 or in default or payment of fine to undergo R. I. for three months.

6. The appellant being aggrieved by such finding of conviction and sentence a of the learned Special Judge has riled this appal through Mr. M. A. Hamid who has appeared for him. The State is represented before me by Air. Nooruddin Sirki.

7. At the trial the prosecution examines four witnesses, namely, Taj Muhammad, Manzoor Hussain, Gul Muhammad Shah and Muzafar Hussain Shah to prove the various entries in the Station diaries showing that on the 27th August 1969, the complainant A. S. I. Gul Rahman had been deputed for security duty at the President's House. There appears to be no dispute on this point of fact. I may only refer to the evidence of Head Constable Gul Muhammad Shah who has produced and proved the entry dated 27th August 1969, vide Exh. ; and this entry shows that on account of absence of A.S.I. Gul Rahman from the police station the appellant Shahid Ali was accordingly informed. The significance is only to the extent that the appel lant Shahid Ali had something to do in regard to the complainant being posted on security duty at the President's House. The evidence otherwise of these four prosecution witnesses is of a formal nature and there has indeed been hardly any cross‑examination. Both the complainant as well as the appellant have stated that the complainant A. S. I. Gul Rahman had been detailed for security duty at the President's House on 27th August 1969. The other witnesses examined by the prosecution were the Magistrate Mr. Imdadullah, the complainant Gul Rahman, the Investigating Officer Abdul Rahman and Deputy Superintendent of Police Pir Bux who had recorded the first information report. It is not necessary to give any sort of summary of the evidence of these witnesses as facts in detail have already been stated in the foregoing para.

8. The appellant in his statement under section 342, Cr. p. C. has admitted the recovery of the tainted money from his possession. He has further admitted that the Superintendent of Police, Security, had fixed the duty of complainant Gul Rahman at the President's House and that the complainant had not been posted for duty by the appellant but what the appellant had done was to have communicated the orders of the Superinten dent of Police for information to the complainant through Police Control Office. With regard to the recovery of tainted money from him the appellant stated that about 2 months before the incident the appellant had paid a sum of Rs. 50 to the complainant for bringing some ghee from Peshawar and the complainant had not brought ghee from there and for that reason he had demanded Rs. 50 that had been given by him to the com plainant, and the amount that was recovered from his possession was the same amount, which the complainant had paid on the pretext of returning the amount that had been earlier given by the appellant to the complainant for purchase of ghee. The appellant bad also alleged that the complainant wanted to avoid security duty on the pretext that he was a patient of as -thama and that the complainant had contacted him earlier to get him relieved of any such security duty but that the appellant could not help him in that behalf and for that reason also the complainant was annoyed with the appellant.

9. The appellant had examined four witnesses in his defence. The first defence witness is Muhammad Khalil, a Senior Clark is the office of the Superintendent of Police, West Division who stated that the report made by the Superintendent of Police, Central Division-cum‑Security was received in the Office of the Superintendent of Police West (under which Officer the complainant was working at the relevant time) at about 9 a.m. on 3rd September 1969. The significance of this evidence appears to be that earlier to the raid the report had already been sent by the appellant to the Superin tendent of Police West for taking action against the complainant Gul Rehman in regard to his absence from duty and for that reason the appellant could not possibly have helped the complainant and therefore, there was hardly any necessity for the complainant to pay bribe to the appellant. The remaining three defence witnesses namely, Moinullah Khan, Faiz Muhammad and Police Constable Muhammad Iqbal have been examined to substantiate the defence plea that the amount of Rs. 50 which was paid by the com plainant to the appellant on the 3rd September 1969, was the same amount which the appellant had earlier paid to the complainant for bringing ghee or him from Peshawar. Moinullah Khan who is a clerk in the office of the Superintendent of Police, Headquarters Karachi stated that about 21 months before the date of this incident the complainant Gul Rahman had come to his office and he bad sent for some be from the complainant and at that time the appellant was also present and the appellant expressed a desire of getting ghee through Gul Rahman. It is further stated by Moinullah Khan that appellant wanted to pay Rs. 50 to the complainant, and he demanded a sum of Rs. 50 as a loan from Moinullah Khan, and since the latter did not have so much of money, all the three of them namely, Moinullah Khan, the complainant, and the appellant proceeded to the shop of defence witness Faiz Muhammad, who sells chappels near Empress Market. Karachi and a sum of Rs. 50 was borrowed by the appellant from Faiz Muhammad, the shopkeeper and paid to the complainant. The evidence of Faiz Muhammad shopkeeper is also to that effect. The evidence of the last defence witness Police Constable Muhammad Iqbal is to the effect that in the month of August 1969, the appellant had asked him to go to the house of. complainant Gul Rahman and bring ghee from there. Constable Muhammad Iqbal stated that he did go to the house of Gul Rahman to bring ghee.

10. The facts as have been stated by me above the scope with regard, to enquiry in regard to the payment of Rs. 50 by the complainant to the appellant is considerably narrow. On that point I have, the evidence of Mr. Imdadullah, the Magistrate who led and supervised the trap and prepared the mashirnamas of entrustment of the tainted money to the complainant, and the subsequent mashirnama showing the recovery of the same money from the shirt pocket of the appellant. This evidence is corroborated by the evidence of Inspector Abdul Rahman who has also given similar and consistent evidence. This evidence is also corroborated by the evidence of Deputy Superintendent of Police Pir Bux who recorded the first information report. In fact the appellant himself has not disputed the recovery of the tainted money from his possession. The appellant has attempted to explain the recovery of the tainted money from his possession. I have read the evidence of all these witnesses and I have no doubt in. my mind that a sum of Rs. 50 was secured from the shirt pocket of the appel lant and that this amount was the same that had earlier been entrusted by the Magistrate to the complainant Gul Rehman for payment to the appellant as a bribe. I have also examined the judgment and I entirely agree with the trial Court in regard to the finding of fact that this amount of Rs. 50 which had earlier been given by the Magistrate to the complainant for the payment as a bribe to the appellant, has been recovered from the appellant. I have, however, found from the judgment of the trial Court that statement viz. Exh. 26 which was made by the appellant to the Investigation Officer after the trap and during the investigation was exhibited on the record. This statement has been admitted by the trial Court and even relied on by the trial Court in its judgment. The trial Court was of the view that the statement was admissible in view of the Supreme Court in the case of Muhammad Sarwar v. The State (P L D 1969 S C 278). The facts in that case were entirely different because that was a statement recorded immediately at the time of the recovery of the money from the accused person. In the present case that is not so. What has happened is that after the arrest of the appellant he was taken to the Anti‑Corruption Office and thereafter, a state ment was either written out by the appellant himself, or taken down by the Investigating Officer at the dictation of the appellant. This was clearly statement that wag hit by section 162, Cr. P. C. and not admissible. I he facts of the Supreme Court case are entirely different and this statement was not admissible on the record. For the purposes of this judgment I will not consider this statement.

11. The most important and I may say the only question that arises for consideration in this appeal is whether this amount of Rs. 50 that was recovered from the appellant at the time of raid was the bribe money paid by the complainant to the appellant or the amount that had earlier been obtained by the complainant, from the appellant for the purchase of ghee. As it is there is abundant material on record to show that on the 27th August 1969, the complainant had been detailed for security duty at the President's House. It is also very clear on the record that the complainant did not proceed for performance of that duty and there are circumstances on the record to indicate that the complainant had been avoiding such duties even on previous occasions. In fact it has been brought out in cross-examination of the complainant himself that on an earlier occasion when he had been detailed for security duty he had made an application chat he was a patient of asthma and should not be detailed for such duty. Such application was found to be false on medical examination and the request for his exemption from such duty was rejected. The appellant also in his statement has spoken about such earlier application having been made by the complainant for his exemption from security duty and, that the reason given by the complainant for such exemption was found to be false. In fact the appellant has stated in his statement that the complainant bore a grudge against him on account of such facts. Be that as it may, the fact of the matter is that on the 27th August 1969, the complainant had been detailed for security duty and the complainant did not attend such duty and thereby he made himself liable for any action that the Department may have taken against him and indeed there are documents on the record to show that the Superintendent of Police, Central Division‑cum‑Security Division, had made a report against the complainant to the Superintendent of Police, West Division under whom the complainant was working for taking departmental action against him on account of his negligence from duty. All this had happened between 27th August 1967 and 3rd September 1969. The later date is of significance because it was on that day that a report was actually sent by the Superintendent of Police Security to the Superintendent of Police West complaining against the negligence of the complainant. There is also no dispute that the appellant was working in the office of the Superintendent of Police, Central‑cum‑Security Division and had to deal with the case of the complainant in so far as his negligence in performance of his duty was concerned. In fact the document which is a report made by the Superintendent of Police, Security to the Superintendent of Police West Division was found on the table of the appellant at the time of raid. It has, however, been argued by Mr. M: A. Hamid that the appellant was too small to help the complainant and moreover, the report had already been made by the Superintendent of Police, Security to the Superintendent of Police, West Division for taking action against the complainant and for such reasons there was hardly a probability of the appellant being able to help the complainant or the complainant paying him in order to acquire such help. On the other hand the circumstances of the case show and indeed there is direct evidence on the point that earlier to 3rd September 1969, the appellant bad contacted the complainant and asked him to pay a bribe if he wanted such action to be withheld. In fact the complainant has said in his evidence that he had received a message from the appellant on an earlier occasion, and that the complainant had actually promised to give to the appellant and paid him Rs. 50 as demanded by the appellant. To what extent the appellant could have helped the complainant is besides the point. The question is whether the appellant was in such a position as to create an impression in the mind of the complainant that the former could help the latter. As is well known that in official routine the papers concerning a case have to pass through several hands and each one of such persons has to reform such function in regard to the case itself. In such cases it can hardly be said that since the final order or the ultimate order has to be passed only by the higher authority in the office the persons who are subordinate of such higher authority cannot possibly help and if they do even make a pretence of being able to help a person whose case may be pending, they shall not be considered to be guilty of the offence. Raking such a view of law would indeed be repugnant to the very essence and spirit of law relating to bribery. Suffice to say that the appellant being a senior clerk‑cum‑stenographer in the office of the Superintendent of Police, Central‑cum‑Security could create an impression in the mind of the complainant and indeed such impression had been created in this case that the former could help the latter. It is further argued by Mr. M. A. Hamid that there was no point in the complainant paying the bribe money to the appellant on the 3rd September 1909, when the report had already been despatched by the appellant to tine Superintendent of Police West Division. The facts disclose that this bribe had been demanded a few days earlier. The facts also disclose that it was in the early hours of 3rd September 1969, that the appellant attempted to contact the complainant on telephone at Napier Police Station but perhaps he came to know that the complainant had gone to the Office of the Deputy Superintendent of Police, West Division, Karachi, and therefore, the appellant again contacted him at that office. The facts also disclose that the complainant told the appellant that he would be reaching within an hour and within that hour the complainant had reported the matter to the Anti‑Corruption Police. However, the letter that has been sent by the Superintendent of Police, Central‑cum‑Security to the Superintendent of Police, West Division bears the seal of 3rd September 1969, viz., the date on which the appellant was trapped for taking the bribe amount. In my view such arguments advanced by the learned Advocate for the appellant are entirely misconceived and have no substance.

12. The next point for consideration is whether this amount of Rs. 50 that was recovered from the possession of the appellant was the amount paid by the appellant to the complainant on an earlier occasion for the purposes of bringing ghee from Peshawar. On that point the appellant had cross‑examined the complainant and the complainant had stated that he had can earlier occasion brought some articles like socks etc. for the appellant from Peshawar but in regard to Rs. 50 having been paid to him for bring ing ghee for the appellant from Peshawar, he categorically denied the suggestion. The appellant had in his statement stated that he had paid some money to the complainant about 2 months before the date of trap for bringing ghee from Peshawar side. He went on to say that the complainant did not bring any ghee and therefore, he demanded the return of his money from him and the complainant had paid Rs. 50 to him as the amount which he bad earlier taken from the appellant. The Magistrate who has supervised a raid in this case has been examined. There has been no suggestion in the cross‑examination whatsoever either of the Magistrate or even of the Investigation Officer, that the appellant at the time of recovery of this amount mentioned that the amount recovered from him was the same that had been paid by him to the come plainant earlier for bringing ghee. Such a statement if it had been made by the appellant at the time of trap, would certainly have been admissible an relevant, but there is not even a suggestion to that extent. The learned trial Judge also adverted to the police statement made by the appellant after hi arrest and when he had been brought to the Anti‑Corruption office in the context such statement of course is inadmissible. However, the fact cannot be overlooked that the appellant at the time of trap did not give any such statement nor did he make any such allegation.

13. However, the appellant has examined defence witnesses on that point and I have already stated a gist of the evidence of such defence witnesses in the earlier part of this judgment. The first defence witness on the point is Moinullah Khan who is a clerk in the office of the Superinten dent of Police, Headquarters, Karachi. His evidence is that about 21 months before September 1969, complainant Gul Rahman had come to his office and at that time the appellant also came there. He went on to say that he informed the appellant that Gul Rahman could get him ghee if he wanted, and the appellant was interested in getting ghee but had no money and therefore, he demanded some money as a loan from him for giving to complainant Gul Rahman. The witness added that he had no money and therefore, the appellant, complainant Gul Rahman and defence witness Moinullah Khan proceeded to Empress Market where the appellant obtained a sum of Rs. 50 from defence witness Faiz Muhammad, and paid the same to Gul Rahman. The next defence witness is Faiz Muhammad who has stated that he has a cabin where he sells chappals. He went on to state that about 21 years before the date on which he gave evidence viz. 1 7‑3‑1969, the appellant had come to his cabin along with Sub‑Inspector of Police and one another person and had obtained a loan of Rs. 50 and paid the same to the said Sub‑Inspector for the purposes of ghee. This amount according to the defence witness was returned by the appellant to him on the next day. The third defence witness is a Police Constable by name Muhammad Iqbal who stated that in the month of August 99, the appellant had asked him to go to the house of the complainant Gul Rahman to bring ghee from there and that the witness did go to the house of Gul Rahman but was told that ghee had not yet been received by him.

14. The learned trial Judge has fully discussed the evidence of the defence witnesses and has come to the conclusion that these witnesses were not giving true evidence. I am myself of the same view. First of all I have not been able to understand the urgency of the appellant paying a sum of Rs. 50 to the complainant on the very day on which the complainant met him for the first time in the office of Moinullah Khan. There is no evidence that the complainant was leaving Karachi on the same day or on the next day. The money could well have been paid on the next day or few days later and in fact defence evidence is that the appellant did return the alleged loan of Rs. 50 which he bad obtained from Faiz Muhammad on the very next day. If that be so, he could have well paid Rs. 50 to the complainant Gul Rahman on the next day. In any case there was no such urgency which should have compelled the appellant to proceed all along from Police Head quarters to a place near Empress Market at a distance of about 2 miles just to borrow a sum of Rs. 50 from Faiz Muhammad for paying the same to the complainant Gul Rahman. What is more that there was hardly any interest for Moinullah who is a resident of New Karachi which is on the Northern side of the City of Karachi to have proceeded along with the appel lant and complainant Gul Rahman to Empress Market which again is on the Southern side of the Police Headquarters solely with the object of obtaining Rs. 50 for the complainant. I am doubtful in my view as to whether the appellant had ever gone to the office of the Superintendent of Police Headquarters where Moinullah was working because in the evidence of Moinullah nothing is said as regards the purposes of the visit of the appellant and even with regard to the coincidental visit of complainant Gul Rahman at that time. All that Moinullah stated was that he had gone to meet him, perhaps casually only. Coming to the evidence of defence witness Faiz Muhammad I must say that I have not been impressed by his evidence. It appears that he is a got‑up witness and in his evidence he clearly admitted that he did not even remember the name of the market where his cabin was located. In fact he has no cabin allotted in his name and he went on to explain that allotment in respect of cabin stood in the name of some other person and he was carrying his business in the same cabin. When he was asked to name that person, he went on to say that he did not even remember the name of the said person. On a reading of the evidence of Faiz. Muhammad I have no doubt whatsoever that he is a got‑up witness and his evidence is false. In fact it is absolutely doubtful whether he has a cabin in Empress Market at all. Moreover, on his own showing he knows the appellant since 12/13 years as the appellant used to come to the shop of his father also in Liaquatabad. The evidence of the next defence witness Muhammad Iqbal is also not reliable. He was working in the office of the Superintendent of Police West Division and there was hardly any reason for the appellant who was working in the office of the Superintendent of Police Central Division to have asked him to contact the complainant Gut Rahman for ghee. In fact it would have been more convenient for the appellant, if he indeed had to get some ghee from the complainant, to have contacted the complainant on telephone and found out whether the ghee had actually come. I find that even his evidence is not reliable. I have perused the judgment of the trial Court and find that the evidence of defence witnesses has been discussed and I entirely agree with the con clusions that have been reached by the trial Court. However, I must state that the trial Court has wrongly taken into consideration the fact that the statement made by the appellant to the Investigating Officer did not mention, the fact of the appellant having received this amount as the amount had been advanced by him to the complainant earlier for purchase of ghee. This statement, as I have stated earlier is clearly inadmissible. The learned trial Judge also approached the case in an incorrect manner by stating that the appellant had not mentioned such a fact in the bail application that was moved before him. As is well known bail applications are always written by the Advocates, and on the basis of instructions received from persons other than accused because accused are in actual custody. However the fact that the appellant did not disclose to the raiding Magistrate at the time of' his arrest that the amount recovered from him was returned by the com plainant, because the complainant had earlier obtained this amount for the purchase of ghee on his behalf would certainly be relevant. Be that as it may I have myself carefully considered the evidence of the defence witnesses and I have no doubt that the defence that has been set up by the appellant is false.

15. The last point that has been urged by Mr. M. A. Hamid, the learned Advocate for the appellant is that the evidence of the complainant Gul Rahman in this case was uncorroborated. What he actually meant was that since the Magistrate and the police officer have not heard the conversa tion that preceded the recovery of the tainted money from the appellant on the actual point in issue, there was no corroboration of the word of the c complainant. In addition the learned Advocate has said that since the complainant is in the nature of accomplice, his evidence requires corrobora tion. I must say that the nature and extent of corroboration may be from sources which are direct or even circumstantial. It is not necessary that there should be another witness also who may have heard the talk that preceded the recovery of the tainted money from the appellant. It would be sufficient if the circumstances clearly show that the amount that has been recovered from the accused is the amount received by him as bribe. In such cases the presumption under section 4 of the Prevention of Corruption Act will arise. On such presumption arising the burden shifts to the accused. No doubt the burden is not as heavy as the harden of the pro secution and that is because while the prosecution has to prove a case beyond reasonable doubt, all that an accused has to do is to cast a doubt on the story of the prosecution. That once again would mean appraisal of the evidence as it exists. In the present case I find that the evidence of the complainant is strongly corroborated by circumstantial evidence which is of documentary nature. In fact with regard to such circumstances there is no dispute absolutely. There is no doubt that the appellant was working in the office of the Superintendent of Police, Central‑cum‑Security Division, and there is also no doubt that the complainant had been guilty of absence of his duty and was likely to be punished for the same. This kind of circum stantial evidence would be sufficient to corroborate the evidence of the complainant.

16. Having considered all the aspects of the case I am clearly of the view that the guilt of the appellant has been established beyond any reasonable doubt. I therefore dismiss this appeal. Appeal dismissed.