P L D 1962 Supreme Court 320 (PLP)

Z. KAIKAUS J.‑

This is an appeal by special leave by Zafar Ali who was convicted by a Special Judge appointed under the Criminal Law (Amendment) Act of an offence under section 5 (2) of the Prevention of Corruption Act II of 1947 and sentenced to undergo two years' rigorous imprisonment and a fine of Rs. 200 or, in default, to further rigorous imprisonment for two months and whose appeal to the High Court was dismissed. The appellant was a temporary Overseer in the P. W. D. Rehabilitation Circle, Okara, The prosecution story is that Abdul Aziz P. W. who is an approved contractor of the P. W. D. and who had been granted a contract for repairing an evacuee house in Okara approached the appellant for taking measure ments and preparing his bill after he had properly executed the repairs. The appellant put him off for some time and ultimately demanded the payment of Rs. 40 for the taking of measurements and preparation of the bill. Abdul Aziz P. W. approached Ch. Muhammad Akbar, Sub‑Inspector of the Anti‑Cor ruption Department, and apprised him of the demand made by the appellant. Ch. Muhammad Akbar submitted an applica tion to the Additional District Magistrate, Montgomery, who passed orders that the Resident Magistrate, Okara, should organise a raid. On the 3rd March 1957, Abdul Aziz, in anticipation of the raid told the appellant that he would pay the sum demanded in the evening of the same day. Ch. Muhammad Akbar took Abdul Aziz to the Resident Magistrate. The Resident Magistrate recorded the statement of Abdul Aziz P. W., who pro duced eight currency notes of Rs. 5 each which were marked by the Magistrate. A raiding party was formed consisting of the Magistrate, Ch. Muhammad Akbar, Sub‑Inspector, Dil Muhammad Sub‑Inspector and Muhammad Taqi Shah, Assistant Sub‑Inspector of Police. The Magistrate then sent Abdul Aziz P. W. and his father, Hassan Muham‑rjad P. W. ahead for delivering the currency notes to the appellant at his house which is a chaubara in Okara while the Magistrate and Ch. Muhammad Akbar waited in the baithak of one Muhammad Zahid which is situated in the same street in which the house of the accused is situate. It was arranged that when the money was paid a signal would be given and then the raiding party will arrive at the scene. Abdul Aziz and Hassan Muhammad went to the residence of the appellant but did not find film there, the house being locked. They then went to the neighbouring hotel and found the appellant dining there with a friend of his. The appellant then went along with his friend and Abdul Aziz and Hassan Muhammad to a cinema and leaving his friend in the cinema came to his house. He inquired from Abdul Aziz on the way as to whether he had brought the money and received an answer in the affirmative. Reaching the house the appellant as well as Abdul Aziz went into the chaubara while Hassan Muhammad stayed outside. Abdul Aziz then paid the money to the appellant and coughed which was a sign to Hassan Muhammad that the money had been paid. Hassan Muhammad signaled to the raiding party which then arrived. White the raiding party was ascending the stairs which lead to the chaubara of the appellant the appellant on hearing the sound of footsteps left the chaubara and went to its roof. When the Magistrate and the other members of the raiding party entered the chaubara they found that the appellant was not here, The Magistrate asked Abdul Aziz as to where the appellant was and Abdul Aziz said that he had gone upstairs and that the money had been paid. The Magistrate went to the stairs that were leading to the roof of the chaubara and when he had ascended a step or two he found the appellant descending the stairs. The Magistrate inquired from him whether he had receive, a sum of Rs. 40 as bribe from Abdul Aziz but he denied. The person of the appellant was searched but nothing was found in it. The chaubara of the appellant was searched and still no many could be found. The persons of Abdul Aziz and Muhammad Hassan were searched and there too the marked currency notes could not be found. The Magistrate then went to roof of the chaubara along with others, Muhammad Taqi, Assistant Sub‑Inspector, who had a toreh with him leading the party. On the roof of the chaubara also no money was found Then a search was made in the stairs and Muhammad Taqi found some currency notes under a brick which had been proved from its place on one but the last step of the stairs leading to the chaubara. The currency notes were then taken into possession. From underneath the pillow of the appellant a measurement book was recovered which contained entries with regard to the measurements of the repairs executed by Abdul Aziz. In it appeared entries relating to all the repairs excepting that relating to the flooring. The appellant was then arrested and a raid report prepared. Ultimately with the sanction of the Superintending Engineer the appellant was prosecuted. The prosecution story was supported inter alt, by Abdul Aziz, his father Hassan Muhammad, Syed Muhammad Taqi, Chaudhri Muhammad Akbar and Ch. Ghulam Hussain Magis trate 1st Class. The appellant, when examined, denied his guilt and filed a written statement wherein he pleased that the flooring prepared by Abdul Aziz was defective and he had refused to prepare his bill and, in consequence, there had been a quarrel between him and Abdul Aziz. On the evening of the occurrence while he was in his chaubara he went upstairs to ease himself and a little later he heard the sound of some body ascending the stairs. Coming down he found Abdul Aziz and the whole of the raiding party. His person and chaubara were searched and nothing was found. The Magistrate asked Muhammad Taqi A. S. I. to make a search for the tainted money and Muhammad Taqi accompanied by Abdul Azlz P. W. went up the steps and after 10 or 15 minutes called out that the tainted money had been found at which the Magistrate went upstairs and found Muhammad Taqi holding a displaced brick from underneath which the Magistrate recovered currency notes. The suggestion apparently was that while the Magistrate was there in the room Muhammad Taqi Shah and Abdul Aziz went upstairs and either Abdul Aziz or Muhammad Taqi Shah or both had put the money underneath the brick. The appellant examined three defence witnesses. Muhammad Salim (D. W. 1). an Overseer of the Municipal Committee, and Abdul Latif (D. W. 2) a clerk in the same Committee, stated that in their presence there had been a quarrel between the appellant and some person, at the place where they were playing Volley Ball over the refusal of the appellant to pass his bill and there had been grappling between them and a challenge had been thrown by that person that he would see to it. Mehnga (D. W. 3), the allottee of the house, the repairs of which were to be executed by Abdul Aziz, stated that the flooring of the house had not been properly repaired by the contractor and that he had complained of it to the appellant. Both the Special Judge and the High Court accepted the prosecution version and rejected the defence story of the planting of currency notes by Abdul Aziz or Muhammad Taqi Before the High Court a contention was raised for the first time that the sanction for the prosecution of the appellant which had been granted by the Superintending Engineer was void, for it should have been granted by the Chief Engineer. The contention was rejected. Leave to appeal had been granted in this case for a consideration of two questions, the first being whether the sanction for the prosecution granted by the Superintending Engineer was in accordance with law; and the second being whether in view of the fact that the tainted money was not recovered from the possession of the appellant the lower Courts had applied correct principles in the appraisal of the evidence. As regards the first of the grounds, the contention on behalf of the appellant is that under the rules an Overseer can be appointed only by the ‑Chief Engineer and in fact the appointment in this case was made by the Chief Engineer and therefore the sanction granted by the Superintending Engineer is of no avail and the proceedings against the appellant are void and liable to be quashed. Under section 5(5) of the Criminal Law (Amendment) Act sanction of the appropriate Government is required for the prosecution of the public servant under the Act. The " appropriate Government " means the Central Government in cases where public servant is serving in connection with the affairs of the Federation and in other cases the Provincial Government. But in accordance with section 11 (a) the Government can authorize any person to exercise the power of grant of sanction on its behalf. It has been conceded before us that the appointing authority has, by a notification of the Provincial Government, been authorized to grant sanction for prosecution. The question, therefore, which has to be decided in connection with the grant of sanction is whether the appellant was appointed by the Chief Engineer or the Superintending Engineer. The contention that only the Chief Engineer could appoint the appellant can be shortly disposed of. It is true that members of the Subordinate Engineering Service are to be appointed by the Chief Engineer, but the appellant was note a permanent Overseer but a temporary Overseer and temporary Overseers are not members of the Subordinate Engineering Service. The rule, therefore, regarding the appointment of the members of the Subordinate Engineering Service has no appli cation to the case of the appellant which case is covered by the provision contained in Para. 1.7 of the Public Works Department Code wherein it is provided that the authority for appointing temporary engineering subordinates is the Superintending Engineer. We will now consider whether the appellant was in fact appointed by the Chief Engineer. The procedure adopted for the appointment of the appellant and some other temporary officers who were relisted at the time, and which Is probably the procedure ordinarily adopted for the appointment of temporary Overseers was this. The Chief Engineer made a selection out of the students who had passed the examination in the Government Engineering School at Rasul of the same number as were to be appointed and forwarded those names to the Principal of the Government Engineering School for information to the students and to the Superintending Engineer for the appointment. On the 4th of December, 1952, the Chief Engineer, P. W. D. (B & R) Branch wrote to the Principal of the Engineering School the following letter :‑‑ " Reference: Continuation of this office Memo. No. 47‑E/22/ 10739 E. 1, dated 17‑10‑1952. (2) The following students who have passed the re‑test of the final examination held !n September 1952 have been selected for appointment as temporary Overseers in Rehabili tation Circle of this Department. They may please be offered appointment as temporary Overseers and instructed to report for employment to the Executive Engineer concerned at the place where the Superintending Engineer directs :‑ Serial No. Name Roll No. (1) M. Zafar Ali 222 (2) M. Muhammad Anwar‑ul‑Gani 104 (3) M. Muhammad Anwar 102 (4) M. Faruq Butt 49 (5) M. Abdus Sattar 22 (6) M. Faqir Muhammad 48 (7) M. Muhammad Iqbal 138 (8) M. Muhammad Zahir 188 (9) M. Abdul Wahid 114 (10) M. Amanullah Khan 30 " No. 3S‑E/32/12829 E. I. (4) dated Lahore the 4th December 1952 Copy forwarded to the Superintending Engineer, Rehabili tation Circle for information with the request that the Principal, Government School of Engineering, Rasul should please be informed at a very early date as to where and to whom the Overseers should report themselves for appointment as apprentice Overseers. The following particulars of the Overseers should please be intimated to this office in due course :‑ (1) Date of birth. (2) Date of joining (FN or AN): (3) Division or Sub‑Division in which employed. (4) Home district in Pakistan. Attention is invited to the provisions in Rule 3.1 of the C. S. R. (Punjab) Vol. I Part 1 regarding oath of allegiance and instructions contained therein should please be complied with. In compliance with this letter the Superintending Engineer wrote the following letter to the Principal :‑ "Reference:‑

Continuation of this office letter No. 3256/E, dated 13‑12‑1952. (2) M. Zafar Ali, Roll No. 222 may please be posted in the office of the Executive Engineer Rehabilitation Division, P. W. D. (B & R) Branch, Multan and instead Mr. Farooq Butt Roll No. 49 may be ordered to report for duty in the office of the Executive Engineer, Rehabilitation Division, P. W. D., B & R Branch Rawalpindi The Principal then wrote to the appellant and the other selected candidates letters in the following words :‑ "Subject : Employment of Rasul passed students. You are hereby offered the post of a temporary Overseer on the following terms and conditions :‑ (a) The post is temporary and terminable at any time with one month's notice on either side. (b) No traveling allowance is admissible to join the post. (e) You will be entitled to pay from the date you actually assume charge of your duties. (d) You will be appointed as apprentice Overseer for the first three months at Rs. 60 (Rupees sixty only) in the scale of Rs. 120‑10‑220/10‑300 with other allowances admissible under rules. (e) Should you fail to give satisfaction during the .training period, you will either be discharged without notice or your period of training on Rs.60 p.m. extended as considered necessary. (f) You will be subject to the rules and regulations appli cable to the temporary employees of the Punjab P. W. D. Buildings and Roads Branch. If you accept the post on the above conditions will you please report for training to the Executive Engineer, Rehabili tation Division, Rawalpindi, by the 27‑12‑1952 under intimation to this office." Before proceeding further the position of Principal may be explained. As is provided in para. 1.2 of the Public Works Code the posts of the Principal, Vice Principal and Lecturers are posts included in the Establishment of the Public Works Department. Ordinarily, an Executive Engineer is appointed as the Principal, but some times it may be a Superintending Engineer. In the present case, the person holding the post of the Principal was a re‑employed Superintending Engineer. It is clear that when a Superintending Engineer is appointed as a Principal he does not remain a Superintending Engineer of any Circle, and the Principal was not in the present case empowered to make an appointment of a temporary overseer. It was the Superintending Engineer of the Circle in which the temporary Overseer was to be employed who could appoint the temporary Overseer. The Principal was being used as a Post Office for conveying orders to the students probably because he had their addresses or was otherwise regarded as the proper person through whom orders should be conveyed to them. The contention on behalf of the appellant is that it is the Chief Engineer who should be regarded as the authority that has made the appointment in this case, for whatever has been done by the Principal and the Superintending Engineer has been done under the directions of and in obedience to the orders of the Chief Engineer. We are quite prepared to accept that the Superintending Engineer and the Principal have acted only in obedience to the directions of the Chief Engineer, but this in our opinion is not conclusive for determining the authority that makes the appointment. The Chief Engineer may give directions to a subordinate of his to make an appointment. If that subordinate has authority otherwise to make that appoint ment the appointment will still be deemed to have been made by him and not by the Chief Engineer. It is possible to conceive even of a case where the Chief Engineer says expli citly that he is not making the appointment and that he is directing his subordinate to make one because he has power to do so. In such a case the appointing authority will not be the Chief Engineer. One thing is quite clear. It could not be said that by the letter written by the Chief Engineer any appointment had been made. Obviously an order for appointment had yet to be passed. The High Court reached the conclusion that the posting order made by the Superintending Engineer was the order of appointment and, after consideration of the whole material, we are in agreement with the learned Judges of the High Court. It will be observed that in the letter which he wrote to the Principal the Chief Engineer stated in the endorsement that the Superintending Engineer Rehabilitation Circle should inform the Principal as to where the Overseers should "report themselves for appointment as Apprentice Overseers." This clearly shows that as yet the appointment had to be made. As the Chief Engineer did nothing further in the matter and the Principal was a person who had no authority to make any appointment and the Superintending Engineer was a person who was empowered to make the appointment under the rules it seems quite reason able to hold that when the Superintending Engineer was making the posting orders in the letters which he sent to the Principal he was making the appointments. If the Superintending Engineer had proceeded in a technical manner he should have said expressly that the appellant was appointed and posted. He did not say so but that is the effect of his order. It may have been possible to hold if directions for appoint ment had been given by the Chief Engineer to a person who himself had no authority to make an appointment that an appointment made in accordance with the orders of the Chief Engineer should be regarded as having been made by him. This interpretation will perforce have to be put on the action of the Chief Engineer and of the person acting in obedience to his orders if the appointment is not to be invalidated. In such a case one could say that if an appointment results from the directions of the Chief Engineer it is the act of the Chief Engineer. But If the person to whom directions are being given has authority himself to make the appointment to put such a forced construction on the orders that are passed does not become necessary and the person who actually makes the appoint ment should be regarded as the appointing authority. We find no force In the objection to the sanction. On the merits the main contention on behalf of the appellant is that the position of Abdul Aziz P. W. is that of an accomplice whose statement requires corroboration before it is acted upon and in the present case the money not having been recovered from the person of the appellant there is no sufficient corro boration of the statement of Abdul Aziz so as to justify a conviction. We are unable to agree that the position of Abdul Aziz P. W. is that of an accomplice. An accomplice is a person who in fact participates in the commission of an offence, and not one who is simply party to a scheme for the detection of a crime. This position appears to be accepted in all cases decided in pre‑partition India, England and America. It will be sufficient to refer to some well‑known commentaries on the subject in Wigmore's Law of Evidence, Vol. II, Para. 2060. The distinction is thus stated :‑ " When the witness has made himself an agent for the prosecution before associating with the wrong‑doers or before the actual perpetration of the offence, he is not an accomp lice but he may be, if he extends no aid to the prosecution until after the offence is committed. A mere detective or decoy or paid informer is, therefore, not an accomplice." In Monir's Law of Evidence there appears the following passage at p. 849:-- " There is a distinction between an accomplice and an informer, and the distinction should be borne in mind, because whereas the evidence of an accomplice requires corroboration, that of an informer does not. An accomplice is a genuine offender; but if a person enters into a conspiracy for the sole purpose of detecting the offenders and bringing them to book, he cannot be called an accomplice. Such person is a mere informer and his evidence may be accepted without corroboration. The rule requiring corroboration does not apply to Informers, i.e., persons who have joined in, or even provoked or instigated, the crime as police spies, as the object of the instigation in such cases is not the per petration of the offence, but the detection of it, not the transgression of law, but the securing of evidence for the enforcement of public justice. The rule requiring corrobora tion does not apply also to a person who, though he did not enter the conspiracy with an original determination to frustrate the enterprise, and was, therefore, originally a genuine confederate of the conspirators, has, in consequence of subse quent repentance but before the perpetration of the crime, turned an informer." In Sarkar's Law of Evidence the following statement appears at p. 1117:-- " To one class of persons, apparently accomplices, the rule requiring corroborative evidence does not apply namely, persons who have entered into communication with conspirators, but who, in consequence of either a subsequent repentance, or an original determination to frustrate the enterprise, have disclosed the conspiracy to the public authorities, under whose directions they continue to act with their guilty confederates, till the matter can be so far matured as to insure their conviction, The early disclosure is considered as binding the party to his duty ; and though a great degree of disfavour may attach to him for the part he has acted as an informer, yet his case is not treated as that of an accomplice (R. v. Despard, 1803, 28 How. St. Tr. 489 ; Tay. S. 971). It has been held in America that one who only enters into communication with criminals without any criminal intent himself, and solely for the purpose of detecting them in a criminal act, is not an accomplice (Com. v. Downing, 4 Gray 29 M ; State Meckean, 1873, 36 Iowa 349 Am). In any case to be an accomplice, one must be indictable as a participator in the offence (Com. v. Wood 1858, 11 Gray, 85 Am), (Com. v. Boynton 1874, 11 Mass, 343 Am)." It is not necessary to labour the matter further because an accomplice is obviously a person who takes part In the commission of an offence. It Is true that Courts do not look with favour on the statements of an informer or agent provo cateur 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 F each case, and no hard and fast rule can be laid down. The Court may having regard to the antecedents or character of a person concerned refused to act on his uncorroborated testimony but that relates to appreciation of evidence and is not governed by any rule like the one which applies to an accomplice. If there be no violation of a principle by the Courts below in the assessment of the evidence before them this Court would not Interfere, for it is not the practice of this G Court to enter Into an appreciation of evidence In criminal appeals. But we have gone through the whole record and we find a number of considerations supporting the conclusions reached by the Courts below. What has now been urged before us on behalf of the appellant is that the marked currency notes may have been planted either when Abdul Aziz and Hassan Muhammad P. Ws. went to the house of the appellant the first time and did not find him there or they may have been planted by Abdul Aziz while he was in the room a second time before the raiding party arrived. So far as the first alternative is concerned, Abdul Aziz and Hassan Muhammad both had stated that when they went to the house of the appellant the first time they found it locked. This statement had been accepted by both the Courts and It is in accord with the ordinary course of events that when a person goes out of his house It is usual for him to lock it. In order to make sure that the place where the money was found were not accessible if the house was locked, the Special Judge inspected the spot and found that the stairs could be approached only through the courtyard of the chuubara of the appellant. As regards the second alternative, namely, that the marked currency notes had been placed by Abdul Aziz below the brick in the steps at a time when Abdul Aziz was alone in the chaubara and the raiding party had not yet arrived it will be observed that this plea is, in the first place, inconsistent with the story put forward by Abdul Aziz and Hassan Muhammad that not finding the appellant in his house, both of them had gone to the hotel where the appellant was dining with a friend, that from the hotel they had gone to a cinema and from the cinema they had gone to the house of the appellant. On this part of the case there was admittedly no cross‑examina tion and the Courts were fully justified in accepting it as correct. Hut if this part of the statement of Abdul Aziz and Hassan Muhammad is accepted the second alternative put forward on behalf of the appellant is automatically ruled out. At the same time, this alternative was never suggested either to Abdul Aziz or to Hassan Muhammad during their cross‑examination. While some other suggestions were made during cross‑exami nation it was not put forward that Abdul Aziz having arrived In the chaubara in the absence of the appellant had placed the currency notes In the chaubara before the arrival of the raiding party. During argument before the Special Judge or the high Court this specific plea had not been urged and there is no discussion in their judgments of this plea. What had in urged before the Special Judge and the High Court was a at Muhammad Taqi Shah, Assistant Sub‑Inspector of Police and Abdul Aziz complainant and Dil Muhammad, Sub‑Inspector, had gone upstairs and remained there for ten or fifteen minutes and at the end of that time they had said that the tainted money had been found. The Magistrate had then gone upstairs and picked up the currency notes. Both the Special Judge and the High Court found that this plea was inconsistent with the statement of the Magistrate according to whom all the members of the raiding party had remained with him and had not separated from him at any time. There are further difficulties In the way of the acceptance of the theory that Abdul Aziz alone might have planted the notes when there was no one else in the chaubara. If he was to plant the notes there was no need for him to go to the last but one step of the stairs when he knew that the appellant was on the roof. If he came up and planted the money there the appellant could very well see and probably this Is the reason why this plea had never been put forward before. If Abdul Aziz was to plant the money he could have very well done so at some other place In the chaubara. At the same time, this plea presupposes that Abdul Aziz went to the chaubara anticipating that the appellant would be on the roof of the chaubara and not to the chaubara and that he would get an opportunity of planting the tainted money In his absence. The story as to there having been a grappling between the appellant and Abdul Aziz was regarded by the Special Judge as a fabricated one. In the judgment of the High Court there is no reference to it. The story was that while the appellant was playing Volley Ball with Muhammad Saleem and Abdul Latif D. Ws. a person came and called the appellant away and after there was a talk between them for about two minutes they grappled with each other. On inquiry that person told the witnesses that he had on several occasions asked the accused to pass his bill but he was not doing so. It is not usual for contractors to grapple with the Overseers for not passing their bills. As the assault on the appellant related to the performance of his duties it would be an offence under section 353 of the Pakistan Penal Code and it is significant that neither was any case registered nor did the appellant make any complaint in writing to his superiors. Another considera tion In this connection is that while the Magistrate was In the chaubara of the appellant for quite a long time and the appellant was arrested by the Magistrate for having received a bribe from Abdul Aziz it is not the case of the appellant that he ever informed the Magistrate or any member of the raiding party as to there having been a quarrel between him and Abdul Aziz. As he was being proceeded against on the allegations made against him by Abdul Aziz it was quite natural for him to bring to the notice of those who were putting him under arrest or who were taking proceedings against him that Abdul Aziz was a person inimical to him. We find no force in, this appeal which is dismissed. A.H. Appeal dismissed.