1989 PLP 4215 (MLD)

This appeal under section 10 of the Pakistan Criminal Law Amendment Act, 1958, calls into question the conviction of the appellant, a vaccinator in Karachi Metropolitan Corporation, Health Department Karachi, by the learned Special Judge Anti-Corruption (Provincial) Karachi, for an offence under section 161, P.P.C. read with section 5 (2) of the Prevention of Corruption Act, 1947, on the finding that he demanded and accepted a sum of Rs, 250 as illegal gratification for the issuance of birth certificate in-the name of Muhammad Akram. The appellant was sentenced to suffer R.I. for three months and to pay a fine of Rs. 1,000 or in default to suffer R.I. for one month,

2. There were complaints against the present appellant that he was indulging in corrupt practices by issuing false birth certificates in favour of those persons whose names were not registered in the record, after getting Rs 250 per certificates as illegal gratification. On 30-1-1984 Aziz Umar Inspector Anti- Corruption Establishment, Karachi, received such information and in order to verify the same he deputed Muhammad Aslam Constable to contact the appellant for getting a birth certificate in the name of Muhammad Akram, a fake person. On the same day Muhammad Aslam Constable contacted the appellant who demanded a sum of Rs. 250 as illegal gratification for the issuance of birth certificate. The appellant also directed the said constable for making an application duly supported by an affidavit. Muhammad Aslam Constable brought this fact to the notice of Aziz Umar Inspector A.C.E. who directed him to complete the formalities. On 1-2-1984, a raiding party was organised under the supervision of Mr. Samuel Joseph A.C.M. The tainted money was passed on to Muhammad Aslam Constable and such memo was prepared in presence of mashirs Muhammad Arif and Inayat-ur-Rehman. The party then went to the office of appellant situated at Gujranla Nazimabad. Aziz Umer Inspector and Mr. Samuel Joseph stationed themselves in the verandah of the building, While Muhammad Aslam Constable and one of the mashirs went inside the room where the appellant was found sitting. On the demand of the appellant the tainted money was passed on to him. The appellant and Muhammad Aslam Constable then came out of the room where the appellant was apprehended in presence of the Magistrate while he was still holding the tainted money in his hand. The numbers of the currency notes were checked and they were found to be the same. Such memo was prepared on the spot. The appellant was bought to the office of Anti-Corruption Establishment, where F.I.R. was registered against him. After usual investigation and obtaining requisite sanction the appellant was sent up to stand trial.

3. The appellant pleaded not guilty to the charge and claimed a trial. At the trial the prosecution examined Mr. Samuel Joseph A.C.M. (P.W.-1), Inayat-ur- Rehman (P.W.-2), Muhammad Aslam Constable (P.W.-3), and Aziz Umar Inspector (P.W.-4).

4. In his statement recorded under section 342, Cr.P.C., the appellant has disputed the case of the prosecution. According to him Muhammad Aslam Constable had asked him to deposit the fee in the bank and for that purpose he kept the money on table and immediately thereafter the trap party reached there and secured the money. The appellant has also examined S. Agha Jafar (D.W.-2) in his defence.

5. It is the case of the prosecution that the appellant had demanded and accepted Rs. 250 for issuing a birth certificate in .the name of Muhammad Akram. Muhammad Aslam Constable (P.W.-3), who figures as decoy witness speaks of the demand of Rs. 250 made by the appellant on 30-1-1984, when he had approached him for the first time under the directions of Aziz Umar Inspector (P.W.-4). The evidence of this witness further shows that the appellant had also asked him to bring an application duly supported by an affidavit. The appellant also admits about the visit of Muhammad Aslam Constable (P.W.-3) to his office, but states that the said Muhammad Aslam had approached him to enquire about the procedure for - obtaining birth certificate. There is solitary word of Muhammad Aslam Constable (P.W.-3) on the point of demand of Rs. 250 as bribe. Implicit reliance on the testimony of the decoy witness cannot be placed for safe dispensation of justice. His evidence is to be viewed with suspicion and cannot be acted upon unless there is independent corroboration. Muhammad Aslam 'Constable (P.W.-3) claims to have informed S.P. Anti-Corruption A Establishment about this demand of appellant and under his direction he proceeded to City Courts and got the affidavit prepared. He, however, admits that non-judicial stamp paper was purchased by him on 31-1-1984 and he got it I attested from the Magistrate on the same day. The appellant when examined a is his own witness (D.W. 1), has testified as follows:-- "On 30-1-1984, 1 was sitting in my office and was doing my work. Muhammad Aslam had come to my office on 30-1-1984, for obtaining birth certificate for his child Muhammad Akram. He had brought an application on a plain paper. I explained the procedure to him. I also told him about the fee. Muhammad Aslam went away on 31-1-1984 he came again. He brought the affidavit alongwith the application, which was attested by an Oath Commissioner. I told him that affidavit should be attested by Magistrate. He told me that he was in police and that I should get the affidavit attested by the Magistrate. I refused to do it."

6. The perusal of affidavit (Ex.9) fully confirms the statement of appellant made on oath. The stamp paper was purchased on 30-1-1984. It was attested by an Oath Commissioner on 30-1-1984. The same affidavit was again attested by Mr. Maula Bux Memon A.C.M. Court No. VIII (East) Karachi on 31-1-1984. Muhammad Aslam Constable (P.W.-3) is, however, silent about his visit to the appellant on 31-1-1984.

7. The record also shows that Rs. 200 is the official fee for the late entry in the birth register. The fee for first copy of certificate is Rs.2 and for the second and third copies is Rs.

5. The Akhbar-e-Baldia (Ex.21) and photo copy of Sind Government Gazetted (Ex.22) are clear on this point. Thus, a sum of Rs. 202 was the official fee for late. entry in birth register and a copy of birth certificate. The defence of the appellant when examined in the above context appears to be plausible.

8. Mr. Samuel Joseph A.C.M. (P.W.-1), Inayat-ur-Rehman mashir (P.W: 2), and Aziz Umar Inspector (P.W.-4) have stated on oath that the appellant was apprehended in the verandah of the office of appellant when he was still holding the tainted money in his hand. Muhammad Aslam Constable (P.W.-3), who is the star witness of the prosecution, however, speaks otherwise when he states:-- "I had contacted the accused who enquired from me if I had brought the money and the affidavit, to which I replied in the affirmative. I handed over the tainted money amounting to Rs. 250 to the accused alongwith the affidavit. One of the two mashirs, was standing at the distance of 2/3 paces from me when I had handed over the tainted money to the accused, while the other mashir was standing in the verandah outside the office of the accused on the first floor. The place where I was standing inside the room of the accused was visible from the place where the" Magistrate and Inspector were standing. The accused after taking the money, and affidavit from me, was holding the same in his hand. One of the mashirs who was standing at the gate of the room of the accused gave pre-arranged signal on which the Magistrate, Inspector and the Anti -Corruption staff rushed towards the place where the accused was sitting."

9. This version in fact lends support to the plea of the appellant when h states that Muhammad Aslam Constable (P.W.-3) placed the money on the table asking him to deposit the same in bank and immediately thereafter the raiding party caught hold of him.

10. The evidence of a Magistrate is not to be taken as gospel truth without appraising its real value. Its acceptability always depends upon its un-equivocal character. There is nothing in law which even faintly suggests that a Court has to surrender its judgment to the evidence of a Magistrate, who is to be treated like an ordinary witness. I am fortified in my view by the observations made by Fazal- e-Mehmood, J. in the case of Khursheed Ahmad Zaidi v. The State, reported in PLD 1983 Lab.

514. The cases reported as Baqir Hussain v. The State (1983 P.Cr.LJ 2556) and Muhammad Ashraf v. The State (1983 P.Cr.L.J. 2559), are also relevant in this behalf. The following observations made in the 'case of Baqir Hussain are important:-- "The mere recovery of the same currency notes from an accused person in the absence of any statement that the same were accepted as an illegal gratification is not sufficient to give rise to a presumption that the same were, in fact, received as an illegal gratification. It is well-settled that presumption contemplated, in the later part of section 4,of the Prevention of Corruption Act, 1947, can arise only if the prosecution proves that the accused accepted or obtained any gratification. In the instant case the defence was that the money received by the accused from the complainant was part of an amount due from Fateh Muhammad complainant, as a sale price of the buffalo and, as such, it was necessary for the prosecution to establish beyond reasonable doubt that Rs. 400 were accepted as gratification and not otherwise before a presumption contemplated by section 4 could arise. In the instant case, there is nothing to show that the currency notes were received by the appellant as gratification."

11. From the evidence which has come on record, I am clear that the appellant has explained satisfactorily the circumstances leading to his involvement in this case. The charge against him is not proved beyond any reasonable doubt. The conviction and sentence awarded to the appellant are set aside and he is acquitted from the charge. The appeal is accordingly accepted. Appellant Malik Zafarullah who is on bail is discharged from his bail bond. SA./Z-100/K Appeal allowed.