P L D 1964 Supreme Court 823 (PLP)

CORNELIUS, C. J. The appellant in this case is one Sheikh Muhammad Akram, who was Deputy Superintendent of the Rawalpindi Jail on the date on which it has been found by the Courts below that he received a bribe of Rs. 100 through a Head Warder, Fazal Ahmad, who was tried along with him but was acquitted. The story told is simple. A prisoner, Mohammad Hayat, who was undergoing trial on a charge of murder, felt that unnecessary difficulties were being placed in the way of his receiving visits from his relations. He complained to Mr. Muhammad Akram and was told that the facilities he required would be provided if he gave him a tin of ghee and two goats which he required for the forthcoming marriage of his daughter. Having once previously been tried and acquitted on a murder charge, Muhammad Hayat was certainly familiar with the inner working of a prison, but at the same time he is clearly not a person on whom a great deal of reliance can be placed, when he makes a statement incriminating a person who had to exercise a strong discipline over him for prolonged periods. The demand was conveyed to Muhammad Hayat's father-in-law Khuda Bakhsh. P.W. 2, who with an associate of his, Sher Bahadur, P. W. 5, the principal witness in the case, procured a he-goat and a sheep, which were delivered to Mr. Muhammad Akram some three or four days before the passing of the bribe. Khuda Bakhsh and Sher Bahadur both said that on this occasion Mr. Muhammad Akram enquired about the ghee and was told that they were trying to get some. He thereupon said that if they could not get ghee, they must pay him the equivalent in money, viz., Rs.

100. On the same day, according to Sher Bahadur, he met a person to whom he told this story, and who induced him to report the matter to the Anti-Corruption office and get the Deputy Super intendent trapped. Despite this, Sher Bahadur made a further effort to get pure ghee, but failing, he came back to Rawalpindi after three days bringing Rs. 100 with him, and went to the Anti-Corruption Department. The date was the 17th October 1960. He was then taken before a Magistrate, Malik Jahangir Khan, P. W. 4, and the usual precautions of signing the notes, removing all other money from his person, and recording his statement were taken, after which, at about 1 p.m., Sher Bahadur waited outside the Jail gate for the Deputy Superintendent to come out. The Deputy Superintendent's house is to the east of the Jail, and the compound has two gates, at the east and the west. The Magistrate Malik Jahangir Khan and an Inspector of the Anti-Corruption Department, Syed Sardar Shah, P. W. 7, took seats in a Stationary tonga outside the eastern gate of the compound, i.e., the one farthest from the Jail. The Deputy Superintendent was seem to come out of the Jail, in company with the co-accused Fazal Ahmad, and as they walked towards the house, Sher Bahadur joined them. The Deputy Superintendent was walking ahead with the Warder Fazal Ahmad a little behind. Sher Bahadur walked by the side of Mr. Mohammad Akram for sometime talking to him and then in the words of the Magistrate "by lagging behind, he passed on the said money to the Head Warder accused Fazal Ahmad." Thereupon, the Magistrate went up and took the money from Fazal Ahmad, and recorded some statements. He found a goat and a lamb grazing outside the compound of the Deputy Superintendent's house in an open plot of land. (No charge was preferred in respect of these animals). Mr. Muhammad Akram made a statement to the Magistrate saying he did not know the man, Sher Bahadur and had never previously spoken to him, nor had he had any dealings with him. He denied having anything to do with the goat and the lamb, and could not say how they happened to be found there. Slier Bahadur admitted in his statement that no demand for money had been made by Fazal Ahmad. Fazal Ahmad stated that he did not know on what account the money was being paid which he had taken into his hand at the request of Sher Bahadur that he should make it over to the Deputy Superintendent, because he "could not get the ghee". Certain discrepancies in the descriptions of the occurrence given by the Police officer Syed Sardar Shah, by Slier Bahadur and by the tonga-driver Noor Muhammad will be considered presently. Here it will be convenient to reproduce the report made by Mr. Muhammad Akram to his own superior on the same day, that is the 17th October 1960. It reads as follows: "At about 13-20 hours when I was going out for meals one man whom I did not recognize (I now learn that his name is Feroze an ex-convict who is related to Hayat Khan an accused in Murder case in Jail) met me a few yards away from the Main Gate and told me that he had come to return Rs. 100 I had given him for purchase of Ghee, as Ghee is not available. I told him that I never gave any such money to anybody for purchase of ghee and there is therefore no question of returning the amount. At that time Head Warder Fazal Ahmad was also with me. I had gone a few yards inside the outer gate of my residence when the fellow put Rs. 100 cur rency notes into the hands of Head Warder Fazal Ahmad. When still Fazal Ahmad was holding these notes in hand the Magistrate who was sitting in a tonga announced himself and asked H. W. Fazal Ahmad to give him the notes. Hd. Warder Fazal Ahmad gave these notes to the Magistrate. The com plainant reported to the Magistrate that he also had given two goats to me and they were grazing outside the premises of my residence. The place where these goats were grazing is the property of the Railway Department, and is outside the outer walls of my residence and I have nothing to do with it. Anybody can go there and do anything, and I cannot be held responsible for that." The explanation went on to say that the cause of the trouble was that he had offended an important Pir by refusing his request to interview certain prisoners in a murder case after closing hours of the Jail. The Pir Sahib had taken this as an insult and "hatched this conspiracy". One of the prisoners whom the Pir wished to interview was "Hayat Khan", presumably Muhammad Hayat, who has already been mentioned. Fazal Ahmad in his statement gave the following description of the occurrence: "I do not know anything about the tainted money but I did give Rs. 100 to Mr. Jahangir Khan because the fat fellow of whom I have spoken in my statement, Exh. P. W. 4/C before Mr. Jahangir Khan has been found to be Sher Bahadur (P. W.) who came to me and told that the ghee was not avail-able and that he had come to return the money. I took the money and told the Deputy Superintendent, that this fellow has brought Rs. 100 and says that he has come to return the money to him which he had earlier received for the purchase of the ghee but the Deputy Superintendent told me that he had not advanced any money for the purchase of the ghee at which moment the Magistrate came up and I gave the money to him. I also made a statement to him to that effect." The evidence of Sher Bahadur, the Bribe-giver may now briefly be considered, so far as it relates to the passing of the bribe. It may be said at once that his story that he was not able to procure pure ghee cannot be accepted. Pure ghee is now a standard product and is freely available at a quoted price in the markets. Sher Bahadur himself had suffered imprisonment in this very jail. In his time, he has been involved in three murder cases and spent many years in jail, several of them in this very prison. It can be immediately concluded that he is not a person inclined to be sympathetic to those such as Mr. Muhammad Akram under whose discipline he has had to spend so many hard years in prison. It may also be predicated that an incriminating statement by him against one of those who exer cised such discipline over him must be accepted with caution. His account of the occurrence is as follows: "Muhammad Akram accused came to the gate and enquired about the work. I told him that ghee was not available and that I had brought the money. While talking we proceeded towards the residence of the said accused. I was giving the money to Muhammad Akram accused. He summoned Fazal Ahmad accused and told him to take the money from me for the purchase of ghee. I passed on the money to Fazal Ahmad accused. He was counting the currency notes when the raiding party arrived and recovered the money from Fazal Ahmad accused." The fact that there was a gap between Mr. Muhammad Akram and Fazal Ahmad appears also from the fallowing statement in cross-examination by this witness: "Fazal Ahmad accused followed us from the gate of the jail when we were going to the residence of Muhammad Akram." This witness's statement clearly differs from that of the Magist rate, inasmuch as he deposed that Muhammad Akram sum moned Fazal Ahmad and himself told him to take the money from Sher Bahadur for the purchase of ghee, whereupon the money was passed. The Magistrate's version was that having said a few words to Mr. Muhammad Akram, Sher Bahadur "lagged behind and passed on the money to Fazal Ahmad," whose version was that Sher Bahadur told him that the ghee was not available and he had come to return the Deputy Superintendent's money, which Fazal Ahmad accordingly took. It is a question for consideration in this case, to which no attention has been paid by the Courts below, whether this might not be the usual kind of trick played by chests, that is inducing a person to do something, by getting him to believe that the action has been already approved by someone else, possibly a superior. The mere fact that Sher Bahadur had been talking to Mr. Muhammad Akram for a little while within the sight of Fazal Ahmad would have been enough to enable Sher Bahadur to play this confidence trick on Fazal Ahmad and induce him to accept the money on the statement that his superior officer had authorised it. If there were nothing but the statement of Sher Bahadur to connect the receiving of the money by Fazal Ahmad with any act or order on the part of Mr. Muhammad Akram, then in the face of the statements made by Mr. Muhammad Akram and Fazal Ahmad immediately after the occurrence, and the known character and antecedents and probable motives of a person like Sher Bahadur, the case of bribery would necessarily fail. It might be merely a case of acceptance of money being induced on a false representation, and thus the receipt of illegal gratification as such could not be safely concluded. The defect is sought to be made good in the statements of two other eye-witnesses, namely, Noor Muhammad, the tonga-driver, P. W. 6 and Syed Sardar Shah, the Police Officer, P. W.

7. Each of these persons stated that they saw Sher Bahadur while speaking to Mr. Muhammad Akram, stretching out his hands to him presu mably to hand over the money and at this, Mr. Muhammad Akram made a gesture towards Fazal Ahmad who was following behind them, whereupon Sher Bahadur went to Fazal Ahmad and handed over the money to him. The connection between Mr. Muhammad Akram and Fazal Ahmad is sought to be estab lished on the basis of this gesture. No mention of a gesture is contained in the evidence of the Magistrate, or seriously enough even in the evidence of Sher Bahadur, who of course attempted to establish a direct connection by saying that Fazal Ahmad as summoned by Mr. Muhammad Akram who ordered him to take the money. It has been pointed out by learned counsel that the mention of a gesture was made in the statements recorded by the Police some six months after the occurrence, in the month of April, for the first time. The tonga-driver Noor Muhammad gave a remarkably detailed description of the incident, although he was not at all concerned with what was passing. His evidence is however prejudiced greatly by a positive statement that at the time when the money passed, he himself was only two paces away from Fazal Ahmad and the Magistrate and the Inspector were only one pace away, having already alighted from the tonga. Syed Sardar Shah contradicted this when he said "When the money was passed on to Fazal Ahmad accused, it was then that we moved inside the compound in the tonga." But Syed Sardar Shah's statement itself is affected by exaggeration, for he gave the following description: "The complainant was talking to Muhammad Akram accu sed. We could not hear them. Complainant strechted out his hand towards Sh. Muhammad Akram accused. At this Sh. Muhammad Akram accused made gesture with his right hand. At this the complainant stepped backward and gave the money to Fazal Ahmad accused. Thereafter the complainant again came to Sh. Muhammad Akram accused and engaged him in a talk. Fazal Ahmad accused also came forward and stood in front of them. Fazal Ahmad counted the currency notes and then pocketed them." No one else has suggested that after the money was taken by Fazal Ahmad, the three men came together and the currency notes were then counted etc. Nothing of the kind appears in the report entered at the police-station immediately after the occurrence, The trial Judge acquitted Fazal Ahmad on the ground that he did not know that the money was being received as a bribe. He accepted the evidence of the witnesses as to the allegations against Mr. Muhammad Akram, without anything in the nature of analysis or attempt at evaluation of the nature and quality of the evidence of Sher Bahadur. He accordingly convicted Mr. Muhammad Akram, who appealed in the High Court, where a learned Single judge accepted the story of the gesture and excused the absence of mention of it in the statement of the Magistrate on the ground that he may have failed to observe the gesture. The learned Judge appears to have relied on Noor Muhammad because he was a tonga-driver who had no motive to implicate the appellant. No notice was taken of the visible discrepancy in his account of the occurrence, as compared with those of the Magistrate and Syed Sardar Shah, or the fact, that being at a distance, he was not concerned to observe the incident closely, or that his police statement was recorded as late as the 24th April 1961. The point was not examined at all as to the possibility that Sher Bahadur, a practised criminal bearing no sympathy whatsoever towards Jail officials, could hardly be relied upon without corroboration as to the conversation which passed between him and Mr. Muhammad Akram, but on the other hand that he was a person who could very well be expected to play a confidence trick upon Fazal Ahmad, to induce him to receive the money. It is a trick which every tout practises, e.g., to be seen talking to or in the company of a person of influence, within the sight of the dupe, after which he can say what he likes to the dupe, as to what was said by the other persons. The whole thing here appears to have happened very quickly, and if due account be taken of the straight forward behaviour of Fazal Ahmad and Mr. Muhammad Akram on the spot when they made their statements there is no question but that the statement to be doubted must be that of Sher Bahadur. In accepting his evidence and over-looking a number of serious discrepancies and improvements in the other corrobora ting statements, there has been departure from a basic principle which is germane to the safe dispensation of justice in cases of this kind where money is passed under some pretext or another by some characterless crook to an official, and it is later represented that this was done on demand by that official for a bribe. Nowhere in the judgments of the Courts below is any reference to be found to the evident fact that men such as Muhammad Hayat and Sher Bahadur, who have spent appreciable portions of their lives undergoing imprisonment in jails are the last persons upon whom implicit reliance can be placed when they prefer charges of mal-practices against the jailors. It is for these reasons that we have found it necessary to re-examine and re-assess the entire evidence in the case. We find that the evidence is insufficient to establish the charge beyond reasonable doubt, and accordingly, we allow this appeal and acquit Mr. Muhammad Akram. A. H. Appeal allowed.