P L D 1954 Lahore 494 (PLP)

This appeal is directed against the judgment, dated 20‑2‑1984, delivered by the learned Special Judge, Anti‑Corruption for Sargodha and Faisalabad, Divisions whereby the appellant Hafazat Alt Shah was convicted and sentenced to undergo R. 1. for a term of six months, and to pay a fine amounting to Rs. 1,000 on a charge under section 161, P. P, C. It was further ordered by the learned trial Judge, that in the event of default in the payment of fine, the appellant shall further suffer R. 1. for another period of two months.

2. The circumstances leading to the prosecution of the appellant on the aforesaid charge are, that in the year 1982, the appellant was performing duties in the capacity of Pension Clerk in the Office of the District Education Officer, Faisalabad. The complainant P. W. 1 Lal Muhammad an employee of the Education Department, was performing duties as Physical Instructor in the Government High School, Samanabad, Faisalabad. The complainant Lai Muhammad P. W. 1 had to retire from service as he was about to attain the age of superannuation. Before proceeding to retirement, the complainant in accordance with the Rules sought leave preparatory to retirement. The service record of the complainant, and other relevant papers were sent to the office of the District Education Officer, Faisalabad, and the appellant as a Pension Clerk had to deal with the same. It was alleged that for about four months, the complainant had been visiting the office of the District Education Officer, and had been contacting the appellant, who kept on putting of the appellant on one pretext or another. Such delay in the sanction of leave was depriving the complainant to receive his monthly salary. Allegedly the appellant raised number of objections with the result that more than five months elapsed but the relief prayed for by the appellant could not be granted to him.

3. According to the complainant Lai Muhammad P. W. 1, 10/12 days before the raid and recovery of tainted money from the appellant, the demand was made by the appellant for the payment of Rs. 200 as illegal gratification for the finalization of the sanction of leave preparatory to retirement. The complainant allegedly paid Rs. 100 and promised to pay the remaining Rs. 100 on 27‑1‑1982.

4. On 27‑1-1982 the complainant Lal Muhammad appraised Martial Law Authorities with regard to his harassment, and the demand of illegal gratification by the appellant. The grievance of the complainant was referred to the Anti‑Corruption Establishment at Faisalabad. Rana Amanullah P. W. 4 an Inspector P; lice, in the above establishment, produced the complainant before Ch. Muhammad Ashraf, P. W. 3 a Magistrate at Faislabad. A written intimation Exh. P. B./1 containing the complaint against the appellant was referred to the Assistant Commissioner, Faisalabad, who deputed Ch. Muhammad Ashraf P. W. 3, a Magistrate to supervise the raid.

5. After completing the usual formalities a raiding party consisting of Amanullah P. W. 4 and Major Muhammad Hussain an Army Officer in the office of S. M. L. A., Faisalabad, and Muzammal Hussain a Foot‑Constable was formed. On 28th February, 1982 the raiding party proceeded to the office of the District Education Officer, situated in Mai Dhe Jhuggi, Faisalabad.

6. According to the prosecution versions, the complainant entered the office of the appellant, and after a little while, the complainant and the appel lant both came out and proceeded to the nearby tea stall. The complainant in view of the raiding party, passed the tainted currency note of Rs. 100 which was accepted by the appellant, and the same was put by him in the pocket of his shirt. In the meanwhile the raiding party reached there, and recovered the tainted currency note. The appellant soon thereafter made statement Exh. P. F. The appellant thereafter was sent up to face his trial on a charge under section 161, P. P. C.

7. At the trial the prosecution gave up Major Muhammad Hussain and Muzammal Hussain, Foot‑Constable as unnecessary, and relied upon the statement of the complainant P. W. 1 and P. W.

3. Ch. Muhammad Ashraf, a Magistrate who supervised the raid and who saw the passing of the tainted currency note. Rana Amanullah, Inspector Police Anti‑Corruption appeared as P. W. 4 at the trial, who also had seen the passing of the tainted currency note, and bad witnessed the recovery of the same from the appellant. The prosecution had also cited one Muhammad Tufail, the Superintendent in the Office of District Education Officer, Faisalabad as prosecution witness, but had given him up, as an unnecessary. The learned trial Judge summoned him as a Court witness.

8. The appellant denied the allegations as disclosed by the prosecution evidence in his statement recorded under section 342, Cr. P. C. The appel lant further stated that a colleague of his namely Zafar Ali a Clerk had been promote, and to celebrate promotion, the appellant bad to arrange a tea party on behalf of the office. The appellant further stated, that in the morning of the day of raid, he had given Rs 100 to the complainant for the purchase of sweets from Ludhiyana Sweets Shop. According to the appellant he had done so, because the owner of Ludhiyana Sweets Shop like the com plainant hailed from Ludhiyana, and both were good friends. According to the appellant, the complainant promised to bring the sweets, but he came back and returned him Rs. 100 and regretted his inability, by folding his both hands, to bring the sweets. According to the appellant, the amount paid by him was returned by the complainant, which was recovered from his possession by P. W. 3 Muhammad Ashraf, Magistrate.

9. Besides this plea, the appellant further stated, that witnesses had deposed against him under the influence of Martial Law Authorities. The appellant also stated, that since he had raised certain valid objections, in the case of the complainant, with regard to the sanctioning of leave preparatory to retirement, and because the disposal of objections took some time, the complainant had manoeuvred the registration of a false case against him.

10. In his defence the appellant produced Ghulam Sarwar his colleague who appeared as D. W. 1 to produce certain documents, and he also supported the defence plea with regard to the tea party.

11. The learned trial Judge discarded the plea raised by the appellant, and believing the prosecution evidence as true, convicted the appellant.

12. The learned counsel for the appellant has vehemently argued, that the statements of P. W. 3 and P. W. 4 are of no avail to the prosecution, inasmuch as, since both had not heard the conversation, between the com plainant and the appellant, therefore, these statements cannot be used to corroborate the complainant who was a decoy witness. It was also argued that on the basis of uncorroborated testimony of the complainant, the con viction cannot be recorded.

13. The learned counsel cited the case as Emperor v. Anwar All (A I R 1948 Lah. 72). To determine this crucial question, it is necessary to consider with exactitude the category in which, a complainant in trap cases would fall. Essentially the complainant in such a like cases lays information, with regard A to the illegal demand to receive illegal gratification. and is then becomes a decoy witness, because such witness allures, entrap:, or lures into a trap, a person who demands such illegal gratification, for being apprehended by the law enforcing agency. Only such witness has the exclusive knowledge, with regard to the demand of illegal gratification, that being so, can such witness be termed as an accomplice. The term accomplice has not been defined in the Criminal Procedure Code. One can only seek help from the perusal of section 337, Cr. P. C. and section 201, P. P. C. The heading of the former section is "Tender of pardon to accomplice" and the aforesaid provision envisages, the grant of pardon with a view to obtain the evidence of any person, supposed to have been directly or indirectly concerned in, or privy to the offence, on the condition of his making the full and true disclosure of the whole of the circumstances, within his knowledge relating to the offence, and to every other person concerned whether as principle or abettor in the commission thereof. The perusal of section 337 clearly indicate that an accomplice must be a conscious participator in the crime about which he is required to give evidence. The perusal of section 201, P. P. C. makes a person liable if he had the knowledge, or had reasons to believe that an offence had been committed, and that he had taken steps to do away with the evidence, with the intention of screening the offender from legal punishment, or with that intention, he lays information which the knows or believes to be false. It is thus clear that the guilty intention and knowledge, has been made as essential ingredient of the offence made punishable under section 201, P. P. C. B Without further going into details, an accomplice is a guilty associate, or partner in crime, or who in some way or the other whether before, during or after the commission of the offence, is consciously connected with the offence, or who admits that he had a hand in the offence. In other words accomplice is a person involved in the criminal act done by his associate, and on account of the presence of mens rea and his participation in the crime can be tried alongwith his associates. Judged in the light of above discussion, it is thus clear that a person who cannot be charged, on account of the absence of mensrea cannot be held to be an accomplice. Applying the criteria referred to above, it is to be seen whether a decoy witness to the bribe case is an accomplice. In my humble view the decoy witness would not be an accomplice in stricto senso, because in a way he is rendering useful service, by laying such information with the law enforcing agency, for upholding the supremacy of law. The matter does not end here, inasmuch as, as expressed by this Court in the case Emperor v. Anwar All the possibility cannot be ruled out, for an attempt on the part of such a decoy witness, to plant the tainted currency on a person for personal vendetta, and that is why in the reported case, the emphasis has been laid on the necessity on the part of the prosecution, to adduce evidence with regard to the hearing of conversation, between decoy witness, and the accused. It is further important to note, that in each and every case, the evidence with regard to the conversation, may not be possible to be produced, before the Court, because, sight cannot be lost of those cases, where the hearing of such conversation, may not be possible, on account of variety of reasons, or due to the understanding having already been arrived at, in pursuance of the demand for illegal gratification, and acceptance thereof. In the case of Emperor v. Anwar Ali, the learned Judges had laid emphasis on the necessity of hearing the conversation, between the decoy witness and the accused, because in the said case, allegedly the bribe was received on Lahore Railway Station Platform. That is why, the learned Judge observed, that on such a busy place, it was not difficult for the prosecu tion to adduce the evidence as to the conversation. On this aspect of the case, suffice it would be to mention, that the production or non‑production of evidence, as to the conversation, on the part of the prosecution, and its effect in relation to the fate of the prosecution case, would rest upon the facts and circumstance of each case.

14. Adverting to the question of corroboration I would hold that in the case of the decoy witnesses, the golden rule to seek corroboration is a sins qua non for the conviction. In this regard though as discussed above, strictly speaking a decoy witness is not an accomplice, but yet the rule of law laid down for judging the credibility of the testimony of an accomplice in section 133 of the Evidence Act, read with `Illustration (b) to section 14 of the Evidence Act, would be strictly applicable. In this regard the theory of double test for the appraisal of the evidence of decoy witness, would be fully applicable. After having gone through the case law on the subject reported as Balmok and others v. Emperor (A I R 1915 Lah.16), Chatt a Malik v. Emperor (A I R 1928 Lah.681), Major Egbersay v. The State of Bombay (A I R 1961 SC 1762) and Dr. Muhammad Bashir v. The State (P L D 1967 S C 447). I am of the view that the criteria and guiding principle on this subject, was most elaborately laid down by the Supreme Court of Pakistan in Dr. Muhammad Bashir v. The State and respectfully following the dictum reproduced hereunder' I would hold that the rule of law laid down in these cases, is fully applicable to the case of decoy witness. In the case of Dr. Muhammad Bashir v. The State. The following rule of law was laid down. "As a rule of prudence, which has almost hardened into a rule of law, it is dangerous to act on the uncorroborated testimony of an approver, who is a self‑confessed criminal, having betrayed his former associates under the temptation of saving his own skin. Suffering from this stigma and marked depravity of character, an approver's evidence cannot be viewed without natural reaction of distrust and incredulity. His evidence must first be treated on its basis probabilities or impro babilities like the evidence of any other witness, and more suspicious credentials. His evidence needs corroboration for the simple reason that it cannot be accepted without mental reservation and distrust, and it must, therefore, gather support from other sources to induce faith in its veracity. The corroboration, which is, thus, needed, must confirm in material particulars not only that the crime has been com mitted, as alleged by the approver, but also that the accused concerned has, or have, committed it. The type of corroboration needed must differ with different cases, but such corroboration, although not required to be adequate and sufficient by itself to prove the charge I must tend to show a strong link between the crime and its perpetrators, as alleged by the approver:- Respectfully adopting of the above‑quoted rule of law, it is further necessary to mention that as laid down by Supreme Court in the case reported as Nazir v. The State (P L D 1962 S C 269) that corroborative evidence does not necessarily means, evidence through spoken words, but it may consist of any such circumstance, which tends to connect the accused with the crime.

15. Applying the above criteria, ample corroboration of the statement of the decoy witness the complainant, is available on the record of this case. The complainant is a Physical Instructor in a School, and had applied for obtaining leave preparatory to retirement. The circumstances clearly prove that the appellant, as a dealing official in the capacity of Pension Clerk, was creating obstruction in the sanction of such leave. The demand of illegal gratification, was fulfilled in part, and the appellant knowing fully well, had to accept part payment i.e. the remaining amount of illegal gratification amounting to Rs. 100 on 27‑2‑1982 i.e. the day on which the leave was sanctioned, and on the game day the case had been sent to the Despatch Section, for intimation be sent to the complainant. The complainant instead of paying the illegal gratification on the said day i. e. 27‑2‑1962, brought the matter into the notice of law enforcing agency, and on the next day, the tainted money was passed and recovered from the appellant. Another corro borative piece of evidence is that according, to the evidence on record, after the passage of the tainted currency, the complainant folded his hands before the appellant. It clearly shows that the complainant desired not to be further put of and harassed on one pretext or the other. It is further important to note that the sanction of leave on 27‑2‑1982 was not known to the com plainant, otherwise after such sanction, the question of payment of the remaining portion of illegal gratification would not at all have arisen.

16. Another important aspect of the case is the raising of presumption of law, as enjoined by section 4 of the Prevention of Corruption Act, 1947. Under the said provision, unless contrary is proved, the Court has to draw the presumption, that the appellant accepted, or obtained illegal gratification, as a motive or reward, as is mentioned in section 161, P. P. C. The appellant to rebut such presumption, and also by way of defence plea, introduced in his statement recorded under section 342, Cr. P. C. the story of arranging a tea party, and the purchase of sweets by the complainant, for which the appellant paid Rs. 100 to the complainant. I need not dilate upon it, because such plea is most unconvincing and unnatural. Another circumstance justifying, the raising of said presumption, is available on the record, in the form of the statement of the appellant, which he made before P. W. 3 the Magistrate, soon after the raid and recovery. In the aforesaid statement Exh. P. F., the appellant admitted to have obtained tainted currency note, for getting the case of the complainant processed and cleared from the Accounts Section. Per statement of the appellant, the said amount was paid to him by complainant, to entertain the staff in the Accounts Section. When confronted with this aspect, the learned counsel for the appellant stressed, that the said statement Exh. P F. could not be taken into consideration, because the said statement was not put to the appellant in his examination under section 342, Cr. P. C. The learned counsel placed reliance‑upon Gulzur Ahmad v. The State (1975 P Cr. L J 1207). I am afraid that the contention of the learned counsel is untenable, because the learned trial Judge did not proceed, to record the conviction, on the basis of the variance between the statement of Exh. P. F., and the one recorded under section 342, Cr. P. C.

17. The learned counsel for the appellant contended, that even this Court, cannot look into the statement of Exh. P. F. because of the aforesaid reasons. It is important to note that the appellant was represented by a counsel, the evidence was led in his presence, and Magistrate P. W. 3 deposed about the recording of the statement of the appellant Exh. P. F. soon after the raid and recovery. The appellant had cross‑examined all the witnesses including the Magistrate at length. I fail to understand as to why the state ment of appellant Exh. P. F. cannot be looked into by this Court The inadequacy of the examination, or defect therein cannot vitiate the judgment,' nor can always be held fatal to the prosecution case. The more possibility that prejudice was caused, is not enough. The appellant has to satisfy this Court, that in fact prejudice was caused to him, on account of failure to confront him with his statement Exh. P. F. in his examination under section 342, Cr. P. C.

18. In support of my view I would respectfully rely upon the rule of laid down in Abdul Wahab v. The Crown (P L D 1955 F C 88), Ibrahim Bhak and another v. The Crown (P L D 1955 F C 113), Yakub v. The Crown (P L D 1956 F C 143), Sher Jhang v. Emperor (A I R 1931 Lah.178), AM. Sonafar All v. The State (1969 S C M R 461), Allah Dad and 2 others v. The State (PLD1978SCI) and Salehon and another v. The State (1971 S C M R 260).

19. Be that as it may, this Court can look into the statement Exh. P. F. In my view, no prejudice was caused to the appellant, because the trial Court did not consider Exh. P. F. as the sole basis for recording conviction. In my view, Exh. P. F., read with the statement of the appellant recorded under section 342, Cr. P. C. can be taken into consideration, for raising presumption of law under section 4 of the Prevention of Corruption Act, and the appellant has failed to rebut it.

20. For the foregoing reasons, this appeal must fail and is hereby rejected. M. Z. M. Appeal rejected.