P L D 1960 Supreme Court (Pak (PLP)

Law of Evidence by Monir, Vol. I (Fourth Edition) p.

207. H. S. Suhrawardy, Senior Advocate Supreme Court (Muhammad Ashfaq, Advocate Supreme Court with him) ins. tructed by Siddiq & Co., Attorneys for Appellant. Iftikharul Haq Khan, Advocate Supreme Court instructed by Ijaz Ali, Attorney for Respondent. Date of hearing : 10th May, 1960. S. A. RAHMAN J.‑The appellant, Maqbool Hussain, was tried along with Yasin Ahmad Girdawar and Ghulam Yasin and Abdul Hamid Patwaris, for an attempt to bribe Maqbool Hassan Khan, Tehsildar, Multan. The offence was punishable under Martial Law Regulation No. 30 read with Regulation No.

5. Abdul Hamid accused was acquitted, but the other three persons were convicted. Maqbool Hussain was sentenced to five years' rigorous imprisonment, while Yasin Ahmad and Ghulam Yasin. The convicted persons went up in revision to the High Court of West Pakistan. A learned single Judge of that Court dismissed the revision petitions. Special leave to appeal was given to Maqbool Hussain to consider the question whether there was legal evidence on the record on the basis of which Maqbool Hussain's conviction could be sustained. It appears that Qadir Bakhsh, father of the appellant, wanted to make gifts of some of his lands to his sons from different wives, including the appellant, and for that purpose got mutations entered by the Patwari. The prosecution alleged that the appellant was very anxious to have the mutation in his favour sanctioned by a very early date and to achieve his object he offered a sum of Rs. 5,000 to the Tehsildar Maqbool Hassan Khan through Ghulam Yasin and Yasin Ahmad, co‑accused. The Tehsildar brought the facts of the attempt to the notice of his superior officers and it was arranged that the culprits should be arrested in the act of passing the bribe. On the 14th of October 1958, Ghulam Hussain and Yasin Ahmad visited the house of the Tebsildar and tendered to him the sum of Rs. 5,000 in the shape of currency notes contained in a bag. The Tehsildar made a show of willingness to accept the money and asked Yasin Ahmad and Ghulam Yasin to take their seats in his Drawing Room. Yasin Ahmad is said to have placed the cloth bag containing the money under the table cloth on a table. Ghulam Yasin then went out and brought the mutation register containing mutation No. 332 in favour of the appellant. Earlier the Tehsildar had apprised the Revenue Assistant of the position on the telephone. He knew, therefore, that some officers may be on their way to his place. To pass the intervening time, the Tehsildar picked up the mutation register and after going through the entries began writing something therein. Just then, Mr. M. A. Majid, Additional District Magistrate, Ch. Muhammad Iqbal, Revenue Assistant and Mr. A. B. Siddiqi, C. S. P., Assistant Commissioner, entered the room. The Tehsildar pointed out the money to these officers and made a statement which was recorded by the Addi tional District Magistrate. The revenue papers that lay there were also taken into possession. The statements of Ghulam Yasin and Yasin Ahmad were also taken down by the Additional District Magistrate. They repudiated the allegation that they had brought any money to bribe the Tehsildar. They suggested, on the contrary, that they were being made the victims of an intrigue by the Tehsildar. The prosecution sought to establish their case by the evidence of Maqbool Hassan Khan, Tehsildar, Barkat Ali (P. W. 5) who was present when Ghulam Yasin and Yasin Ahmad are said to have tendered Rs. 5,000 to the Tehsildar, and Mr. M. A. Majid, Additional District Magistrate. The accused persons asserted their innocence at the trial and Ghulam Yasin and Yasin Ahmad adhered to their allegation that the Tehsildar was inimically disposed towards them. No evidence was adduced on behalf of the prosecution that the appellant, Maqbool Hussain had at any time come into personal contact with the Tehsildar. The case against him, entirely on what Ghulam Yasin and Yasin Ahmad are supposed to have stated to the Tehsildar before or at the time of offering the money. The learned Judge who dealt with the case in the High Court took the view that these state ments of the co‑accused of the appellant, mad:., to the '1'ehsildar, could be taken into consideration against him both under section 10 and under section 30 of the Evidence Act. The learned Judge went on to observe that, if these statements had stood alone, it was "obvious that the conviction of Maqbool Hussain would not have been justified." He, however, was of the opinion that the only person who could gain by the attestation of the mutation was Maqbool Hussain, appellant, and it was "therefore very probable that the money which reached the house of Maqbool Hassan Khan, Tehsildar, through Ghulam Yasin and Yasin Ahmad, had been given by Maqbool Hussain." The learned Judge rejected the suggestion that the step‑brother of Maqbool Hussain might have had him named falsely. The question of law, raised in this appeal, is whether the alleged statements of Ghulam Yasin and Yasin Ahmad, as proved by the Tehsildar, were available to the prosecution as against the 'appellant, by virtue of sections 10 and 30 of the Evidence Act. Section 10 of the Evidence Act declares that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact, as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. A plain reading of this section makes it clear that apart from the act or statement of the co‑conspirator, some prima facie evidence must exist of the antecedent conspiracy in order to A attract section

10. Such evidence of a pre‑existing conspiracy between the appellant and the two Revenue Officers is conspicuous by its absence in this case. Indeed in the questions that were put to Yasin Ahmad and Ghulam Yasin at the beginning of the trial, it was not even put to them that they had offered money to the Tehsildar in pursuance of any conspiracy with Maqbool Hussain appellant. On the contrary, the questions addressed to them clearly mention that the two Revenue officials had approach ed the Tehsildar with a request to attest mutation No. 332 in the name of Maqbool Hussain on the promise that they would pay him the sum of Rs. 5,000 as illegal gratification for this favour. In the circumstances, it was idle for the prosecution to throw up any suggestion of a conspiracy" at the conclusion of the trial. The argument that as appellant was to get the benefit of the mutation, he must have inspired the attempt to get its sanction expedited, is not impressive. There is a good deal of evidence on the record indicating that the appellant and his step‑brothers were not on the best of terms and that they were trying to over‑reach each other in obtaining gifts from their father. An abortive attempt to have a gift deed registered in favour or tcanrm Baxnsn ana iqnal Hussain, step brothers or the appellant and their sister, in respect of the land covered by the mutation in question, was made, while Maqbool Hussain was in the judicial lock‑up in this case. There is also evidence that the father of the appellant, Qadir Bakhsh, who was alive till a few days before the occurrence, had met the Naib Tehsildar in charge of the Circle on one occasion and requested him to sanction mutations of gifts in favour of his sons. There could thus have been more than one person anxious to obtain sanction of the mutation. Moreover the suggestion that the appellant's step‑brothers might have also made efforts to involve him in a criminal case, was not so far‑fetched as might merit summary dismissal. Mr. Iftikharul Haq Khan, who appeared for the State, very fairly conceded that in these circumstances section 10 of the Evidence Act could not have been pressed into service against the appellant. We are, therefore, unable to agree with the opinion, of the learned Judge that the statements made by the co‑accused B were relevant within the meaning of section 10 of the Evidence Act, against the Appellant. We next take up consideration of the question whether section 30 of the Evidence Act could not be called in aid of the pro secution in support of the appellant's conviction. Assuming that statements of a confessional nature were made by the co‑accused of the appellant, to the Tehsildar, affecting themselves and the appellant, section 30 of the Evidence Act merely provides that the Court "may take into consideration" such confessions as against the appellant, as well as against their makers. The language of the section is very guarded and lends no warrant to the inference that such a statement made by a co‑accused could be treated as substantive evidence against the other person, sufficient to sustain his conviction. It is well settled that there ought to be other evidence, whether direct or circumstantial, linking such a person with the crime, before a confession made by a co‑accused could be adverted to, in adjudging the guilt of that person. The case law on the subject would be found summarised at p. 207 in Monir's Law of Evidence, Vol. I (Fourth Edition). The persuasive efficacy of such confessional statements would be further weakened by y the circumstance that their makers have themselves resiled from them. As has been mentioned above, all that the prosecution could muster against the appellant, by way of evidence in this case, is confined to the statements of his co‑accused to the Tehsildar. In this state of affairs it would be impossible to maintain the appellant's conviction for an attempt to bribe the Tehsildar. The appeal of Maqbool Hussain, is in consequence allowed and his conviction and sentence set aside. If still in Jail, he will be entitled to be released forthwith. A. H, Appeal allowed.