1970 P Cr (PLP)

Mufti Nazar Mohd. for the State. Date of hearing: 14th March 1969. Muhammad Ramzan son of Rehmat Ali, Gujjar, aged about 28 years, formerly employed as Lance Naik in the West Pakistan Rangers, Lahore, has been convicted by the Special Judge, Anti Corruption Establishment, Lahore, under section 161, P. P. C. read with section 5, subsection (2) of the Prevention of Corruption Act of 1947 and has been sentenced to pay a fine of Rs.

100. The convict has appealed against his conviction and sentence. The prosecution case against the appellant is that while employed in the West Pakistan Rangers, Lahore, as an enrolment clerk his duty was to prepare the list of recruits after preliminary examination of the applications and to submit it to higher officers for processing, interview and final selection. One Muhammad Nawaz (not produced) was, at the relevant time, a Foot Constable in the West Pakistan Rangers. He happened to visit his village and there on the 27th of July 1961, he came across Bahawal Bakhsh P. W. 1 of the neighbouring village who showed keenness to be enrolled in the West Pakistan Rangers as a foot constable. Muhammad Niwaz asked him to accompany him to the Head quarters and take some money with him. Bahawal Bakhsh P. W. had Rs. 250 with him when he accompanied Muhammad Niwaz to Lahore. At the Headquarters of the Rangers, the next day, Muhammad Niwaz obtained from Bahawal Bakhsh a sum of Rs. 120 telling him that it was to be paid to the person who was incharge of the recruitment. Muhammad Niwaz actually 'produced Bahawal Bakhsh before the appellant Muhammad Ramzan who in turn promised that Bahawal Bakhsh would be recruited. As during the next few days, Bahawal Bakhsh was not recruited, he became disappointed seeing the evasive attitude of Muhammad Niwaz. Ultimately he asked him to return his money. Muhammad Niwaz told the complainant Bahawal Bakhsh that the appellant wanted and Rs. 80 more. Bahawal Bakhsh P. W. was unwilling to pay any more and was even prepared to return to his village if he were paid back the amount which he had advanced. Muhammad Niwaz took Bahawal Bakhsh to the appellant and the appellant himself assured that if he were paid Rs. 80, Bahawal Bakhsh would be enlisted. At this Bahawal Bakhsh paid Rs. 80 to Muhammad Niwaz who passed it on to the appellant. On 4-8-1961, Bahawal Bakhsh was measured for his height, and other formalities were completed and on the next day, he was sent along with other candidates for interview and medical examination. Thereafter Bahawal Bakhsh returned to his village and reported for duty on I1-8-1961. Aurangzeb P. W. 6, was the incharge of the Barracks where Bahawal Bux was lodged and on being informed that Bahawal Bakhsh had paid Rs. 80 to Muhammad Niwaz for securing his enrolment, he reported the matter further up and the information reached Havaldar Major Sher Muhammad P. W. 5, Subedar Major Fazal Hussain Shah P. W. 4 and Adjutant Major Salamat Ullah P. W. 2.

3. The appellant was first tried by his Commandant who ex officio exercised the powers of a Magistrate and was convicted to four months' rigorous imprisonment which punishment he suffered. On disclosure of the illegality that an offence under section 161 read 'with section 5(2) of the Prevention of Corruption Act could not be tried by an Ex Officio Magistrate but by a Special Judge appointed under the Act his case was submitted to the appropriate forum for disposal. It appears that while the appel lant had been placed in the quarter guard he had orally confessed and at one time his confessional statement was also got reduced to writing.

4. The appellant denied the allegations. `He said Muhammad Niwaz was not even known to him. He admitted having written out the confessional statement (Exh. P. C.) but explained that he had done so at the instance of Subedar Major Fazal Hussain Shah while he was confined in the barracks. He attributed this case against him to the enmity of Subedar Major Fazal Hussain.

5. The learned trial Judge held that the verbal as well as the written confessional statement (Exh. P. C.) were inadmissible in evidence but proceeded to convict the appellant on solitary statement of Bahawal Bux P. W. 1. mentioning as corroborative the statement of Aurangzeb.

6. Bahawal Bakhsh P. W. 1 was the giver of the bribe and as such an accomplice in the commission of the crime and the statement required corroboration on material points by independent evidence as held in Jalal Khan v. State (P L D 1959 Kar. 714) and Ghulam Muhammad v. Crown (P L D 1957 Kar. 410). Aurangzeb P. W. 6 is a witness to only what Bahawal Bakhsh told him and nothing more. In the case of Muhammad Ayub Khuro v. Pakistan (P L D 1960 S C 237) their Lordships held that law requires corroboration of an accomplice by independent evidence and an accomplice's own previous statements are not Corroboration by independent evidence.

7. The trial Court had ordered the production of the other list of recruits in which the name of Bahawal Bakhsh was allegedly not entered but Fazal Hussain Shah P. W. 4 made a statement subsequently that "document in question could not be traced". It is not without significance that Muhammad Niwaz was neither cited nor produced as a witness in the case. Besides, though Bahawal Bakhsh P. W. is alleged to have secured 'his recruitment by unfair means he was not dealt with in the matter.

8. I find that the testimony of the accomplice is uncor roborated. I accept the appeal set aside the conviction and sentence fine paid shall be refunded. Appeal accepted.