P L D 1984 Peshawar 107 (PLP)

This appeal is directed against the judgment dated 29‑8‑1983 of Special Judge, Anti‑Corruption, Peshawar whereby the appellant Muhammad Yousaf was convicted under section 161, P. P. C. read with section 5(2), Prevention of Corruption ‑Act and sentenced to undergo 2 years R. I. and to pay a fine of Rs. 6,000 or in default to undergo further 1 year's R. I.

2. The accusation against the appellant was that as Patwari Circle Nartopa he had demanded Rs. 600 as illegal gratification for entering the mutation of sale in favour of the complainant Hassan Din (P. W. 1) but the latter reported the matter to the Anti‑Corruption Establishment and a raid was conducted under the supervision of D. S. P. Mir Asghar Shah (P. W. 2). It is alleged that the complainant had passed on the tainted money to the appellant and the same was recovered from his possession in the presence of the complainant and Muhammad Shah (P. W. 3) Circle Officer of the Establishment. Soon after its recovery the appellant made a written statement to the D. S. P. whereafter the case was registered against him.

3. The remarkable feature of the prosecution case is that the raid was conducted under the supervision of the D. S. P. of the Anti‑Corruption Establishment (hereinafter called the Establishment) and the tainted money was allegedly recovered in the presence of the complainant and the Circle Officer of the Establishment: The learned counsel for the appellant strenuously contended that neither the Magistrate was associated with the raid nor any respectable person of the locality with the recovery of the tainted money and, as such, the entire proceedings were confined to the members of the Establishment, it brought the proceedings under a cloud of doubt and the learned trial Court fell into an error in recording the conviction of the appellant. The general procedure followed in .the trap‑cases is that on receipt of an, information by the Establishment that a public servant had demanded illegal gratification a Police Officer of the Establishment moves the District Magistrate or the Sub‑Divisional Magistrate for nomination of a Magistrate to supervise the trap. The nominated Magistrate after recording the statement of the complainant and noting down the particulars of the currency notes and putting marks of identification thereon hands over the same to the complainant for delivery to the public servant concerned. The Magistrate heads the raiding party and on receipt of the signal by the complainant rushes to the public servant to whom he discloses his identity, searches his person or the articles in his possession and if the tainted money; is recovered prepares the recovery memo. records the statement of the public servant and the witnesses and draws up a raid report. He hands over the tainted money and the relevant documents prepared by him to the officer of the Establishment. Permission is granted by him for investigation of the case and the Officer of the Establishment on the strength of the proceedings of the Magistrate lodges a report at the police station. It is evident that the, Magistrate occupies a prominent position and plays a significant role in the entire proceedings. It is true that there is no requirement of any law or rule that the raid must necessarily be supervised by a Magistrate. He is, however, associated with the raids "so that the proceedings are supervised by a resp onsible person and chances of fabrication or false involvement are eliminated or minimise as remarked in Muhammad Salim v. The State (P L D 1971 Lah. 799). In the instant case the Police Officers of the Establishment took upon themselves to undertake the entire proceedings for the trap to the exclusion of all‑others and I am not inclined to approve of the procedure adopted by them. It is said that a Magistrate was not available at Haripur as all the Magistrates were busy in connection with the visit of a Minister. The D. S. P. had travelled down to Haripur from Abbottabad and the services of a Magistrate could be requisitioned for supervising the raid. There was no dearth of Magistrates at Abbottabad or Haripur. Nothing prevented the D. S. P. from conducting the raid but it was desirable that the local Tehsildar or any other Revenue Officer exercising the Magisterial powers should have been associated with the raiding party.

4. Soon after the raid the appellant submitted a written statement to the D. S. P. and whatever the contents of it may be it was tantamount to a C statement before a Police Officer and I wonder if it would be admissible in evidence. It was held in Ghulam Abbas v. The State (P L D 1968 Lah. 101) that offence is committed the moment demand for bribe is made by the public servant and the Police Officer on receipt of such an information is bound to comply with the requirements of Chapter XIV of Code of Criminal Procedure relating to cognizable offences and when he takes steps towards the entertainment of the offence and the culprit thereof, then investigation will be deemed to have commenced. This view was not approved of in Muhammad Sarwar v. The State (P L D 1969 S C 278) wherein it was observed that the Special Police was not bound to comply with the requirements of Chapter XIV of the Code of Criminal Pro cedure and the police officer and the Magistrate were competent witnesses to commission of crime and the statement made in their presence was admissible in evidence notwithstanding provision of section 164, Cr. P. C. which was not attracted in such case. Since the appellant in his statement did riot confess his guilt it would not be a confession, judicial or extra judicial. The question of its admissibility or otherwise on the ground that it was not recorded by a Magistrate would not, therefore, arise.

5. A look at the recovery memo. Exh. P. W. I /2 shows that the tainted money was recovered from underneath the left foot of the appellant and the witnesses to the recovery memo. are the complainant Hassan Din, the Circle Officer Muhammad Shah and the Sub‑Inspector of the Establishment Aftab Ahmed. It was desirable that some respectable persons of the locality should have been associated with the raid to witness the recovery of the tainted money from the appellant. I feel myself reluctant to rely on the testimony of the D. S. P. the Circle Officer and the complainant in connection with the recovery of the tainted money from the appellant. It is true that a Police Officer is as good a witness as any other citizen of the land is but it is equally true that the Courts have looked for independent evidence in connection with the recovery of incriminating articles from the possession of an accused.

6. Apart from the statement of the complainant Hassan Din there is nothing on the record to indicate that the money was paid to the appellant as illegal gratification. The extent of reliability of a decoy witness in a trap case came up for consideration in Hafiz Aziz Ahmad v. The State (1974 P Cr. L J Note 45 at p. 29) and it was remarked that the reason why the. Courts look upon the evidence of complainant in a trap case with some degree of suspicion is that he is a person who has arranged the very circumstances constituting the crime and, therefore, the Courts do not place upon him that full reliance which inde pendent witness of unimpeachable character would normally otherwise be entitled to expect. In Abdur Rehman v. The State (1978 P Cr. L J 247) there was no evidence on record other than the complainant of money being paid and received as bribe by the accused Government servant and in the presence of independent corroborative evidence available to support the complainant the conviction and sentence were set aside. In Muhammad Ishaq v. The State (1978 P Cr. L J 257) the Magistrate had not heard the conversation between the complainant and the accused and the factum of demand of illegal gratification and receipt by the accused lacked corroboration from independent evidence and, as such, the conviction was not maintained. Similarly in Qamarul Islam v. The State (1978 P Cr. L J 32) transaction was not witnessed by the Magistrate and the Police Officer accompanying him in the raiding party and the benefit of doubt was given to the accused. In Muhammad Bashir v. The State (1972 P Cr. L J 836) the raiding Magistrate bad neither heard the conversation between the complainant and the accused nor had seen passing of money whereas in Muhammad Sadiq v. The State (1975 P Cr. L J 1286) neither the Magistrate nor the inspector bad heard conversatio3 between the complainant and the accused nor had seen passing of money. In both these precedents the benefit of doubt was extended to the accused. In the instant case too the D. S. P. and the Circle Officer neither heard the conversation between the appellant and the complainant nor saw the passing of the tainted money to the former. This is a circumstance which cannot be lost sight of and the complainant cannot, therefore, be relied upon with confidence. With the exclusion of the D. S. P. and the Circle Officer the testimony of the complainant stands uncorroborated altogether and it is remarked in Noor Muhammad v. The State (PLD1963SC 38) that where the case rested mainly on the evidence of the bribe‑giver it must be scanned with much caution.

7. The learned trial Court, however, exclusively relied on Zafar Ali v. The State (PLD1962SC32) but the following observation made by their Lordships had probably escaped his notice :- It is true that Courts do not look with favour on the statements of an informer or agent provocateur but they cannot be placed in the class of accomplices and the rule requiring corroboration does not apply to them. What weight is to be attached to the evidence of a particular witness of this category must depend on the circumstances of each case, and no hard and fast rule can be laid down. In the instant case the complainant Hassan Din was accompanied by a posse of the Police Officers of the Establishment and neither a Magistrate or any respectable person of the locality joined the raiding party. The passing of the tainted money, as remarked above, was not witnessed by any member of the raiding party and the recovery of the tainted money from underneath the foot of the appellant was not testified by any independent witness. The entire fabric of the prosecution case rested on the solitary testimony of the complainant which, in the circumstances cannot be relied on with confidence. It follows that the prosecution could not bring home he charge to the appellant beyond reasonable doubt and he is entitled to the benefit of doubt. As a result of the foregoing discussion I would accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He be set at liberty if not required in any other case. M. Y. H Appeal accepted.