P L D 1992 Lahore 45 (PLP)

Allah Ditta appellant, who at the relevant time was Revenue Patwari of village Pir Ashab Daggar in District Bhakkar, was tried by the learned Special Judge, Anti‑Corruption, Sargodha, on the charge of receiving a bribe of Rs.300, in connection with his official duty, from Muhammad Afkal complainant. On the conclusion of trial, vide his judgment, dated 1‑6‑1987, he was convicted under section 161, P.P.C. and sentenced to two months' S.I. and a fine of Rs.3,000 or in default to further undergo 1‑1/2 months' S.I. and the tainted money was directed to be returned to the complainant.

2. The prosecution case was that Muhammad Afzal complainant, in order to get a joint piece of land situated in the area of said village demarcated, made the application (Exh. PA.) to the Tehsildar, Bhakkar. He marked it to the Girdawar Circle, who in order to carry out demarcation was to associate Allah Ditta Revenue Patwari, the appellant herein, with the demarcation proceedings. The complainant contacted the appellant for the demarcation and the latter demanded bribe. The complainant allegedly paid him a sum of Rs.500 but the latter was not satisfied. On the repetition of demand of more bribe by the appellant, the complainant promised to pay a sum of Rs.300 more but he also thought of reporting the matter to the Anti‑Corruption Department.

3. Eventually on 5‑6‑1986 at 9 a.m. Muhammad Afzal complainant reported the matter to Inspector Said Amir (P.W.3) of Anti‑Corruption Department, who recorded his statement (Exh.P.B.). On the basis of this statement he registered a case against the appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. Then he referred the complainant to the Additional Deputy Commissioner (G) who deputed Malik Abdul Rashid, Magistrate 1st Class, Bhakkar, for further proceedings. He recorded the statement of the complainant, marked the currency notes of Rs.300 supplied by him, and chalked out the programme for the raid by making him a decoy witness for passing the tainted money to the appellant. On the same day he fixed the time and place and organized a raid party accordingly.

4. The Patwarkhana of the appellant, during those days, was located on the upper storey of the Chishti Hotel in Bhakkar City. In accordance with the agreed programme the complainant went up to the Patwarkhana, gave the agreed signal and the raid party headed by the Magistrate, which was waiting in the vicinity of the hotel, went upstair and the Magistrate disclosed his identity. Under his order Inspector Said Amir, Circle Officer, searched Allah Ditta appellant and recovered from his possession the tainted currency notes. he appellant was taken into custody and after necessary investigation was se up for trial to the Court of learned Special Judge, Anti‑Corruption, Sargodha 5.On the commencement of trial the appellant was charged under section 161, P.P.C. and, on the denial of allegations contained there, the prosecution led evidence by producing as many as six witnesses. To be little more precise, Muhammad Afzal complainant appearing as P.W.1 narrated the whole story from start to finish as referred to above. Constable Muhammad Afzal proved the recording of formal F.I.R. on the basis of complaint (Exh.P.E.) and registration of the case. He was also member of the raid party and witnessed the recovery of the tainted currency notes from the appellant. He testified accordingly. Inspector Said Amir, Circle Officer of Anti- Corruption Establishment, Bhakkar, as P.W.3 narrated his role in the case from the recording of the complaint till the investigation of the Malik Abdul Rashid Magistrate (P.W.4) gave the details of the rec i of the complaint, the organization of the raid party and of the raid proceedings. Inspector Mehr Khan P.W.5 had partly investigated this case and described his role as such. Allah Ditta Tarar, who at the relevant time vas Tehsildar Bhakkar, deposed about the receipt of application (Exh.P.A.) for the demarcation of the land and his having marked the same to the Girdawar for demarcation.

6. The appellant, in the statement recorded under section 342, Cr.P.C., stated that Muhammad Afzal complainant had given him Rs.300 on the day o raid, with the remarks that this money was due from him (complainant) as debt to Ghulam Ali Lamberdar and others and he had received the same from the complainant for the purpose of delivering it to Ghularn Ali Lamberdar. He also alleged his false implication on account of enmity with the complainant. He produced Ghulam Ali Lamberdar (D.W.1), Muhammad Amin (D.W.2) and Muhammad Khadini (D.W.3) in his defence who supported his version.

7. On the conclusion of the trial the appellant was convicted and sentenced in the manner aforesaid and he came up in appeal to this Court.

8. The learned counsel for the appellant with reference to "Muhammad lqbal alias Bala v. The State" (1989 P Cr. IJ 1334), an authority of the Federal Shariat Court, contended that Islamic law never accepted the existence of decoy witness, as Muhammad Afzal complainant in this case was, and his testimony could not be made a basis for appellant's conviction because he (complainant) was almost a partner of the appellant in the crime as he had enticed or lured him to commit the offence if the same was proved to have been so committed.

9. The cited case was under the Prohibition (Enforcement of Hadd) Order, 1979, wherein a raid party consisting of Police and Excise officials had deputed an Excise Constable to purchase from the accused some quantity of heroin as a fake purchaser. He had accordingly purchased the same from him by paying him Rs.30 and brought it back to S.I. Qamar Zaman who had provided him the marked currency notes for purchasing it. Then the raid party raided, the accused and recovered from his possession 250 grams of heroin besides some money, including the marked currency notes. He was prosecuted on these allegations and was convicted and sentenced under Articles 3 and 4 of the said Order. On appeal where his conviction under Article 4 for his having been found in possession of 250 grams of heroin was upheld, his conviction under Article 3 for selling the heroin to the fake purchaser was set aside by the Federal; Shariat Court. While disapproving the practice of procuring evidence against the accused by setting up a fake purchaser by the prosecuting agency by using their own man and money, it was observed as under:‑‑ 1t is highly desirable that we should, as far as possible, try to eliminate an unethical or unworthy practice for procuring evidence against the accused. We can hardly lay hand on a single case in Islamic history where punishment was awarded to the offender on the testimony of decoy witness or fake purchaser. On the contrary Islamic jurisprudence has introduced a revolutionary concept of to, ensure a clean trial. A dacoy witness or fake purchaser is a self condemned liar. How his version can inspire confidence when tested on the touchstone of (TAZKIA-AL-SHAHOOD)? Secondly, prosecuting agency is a medium between State and the offender to secure justice in a case by marshalling all true evidence before the Qazi or the Court. When by using its own men as fake purchasers, the prosecuting agency itself renounces the role of an impartial investigating agency and adopts the role of an interested party pitched against the accused with the set object of securing conviction, the whole exercise becomes vitiated and open to question. We, therefore, cannot encourage the practice of a prosecuting agency sending its own man as a fake purchaser and then booking up the person as a seller of the narcotics."

10. In coming to this conclusion the learned Judges not only placed reliance on two authorities of foreign jurisdiction, one of Indian origin reported as AIR 1952 SC 332, and the other of British origin cited as (1974) 2 All England Reports 569, but they were also pleased to consider the principle of of Islamic Law of Evidence. They observed that Excise Constable, being a decoy witness or a bogus purchaser, his version could not inspire confidence when tested on its touchstone. No doubt, the august Court laid down an important rule on a question of wider application but it may be pointed out, with respect, that the principle of purgation of witnesses (TAZKIA-AL-SHAHOOD) as it appears from the Hudood Laws promulgated 1979, is relevant only to the cases of Hadd and it has nothing to do with cases of Ta'zir and the case under their consideration was that of Ta'zir.

11. The complainant in this case, in order to get his land demarcated, had, on demand by the appellant, who figured materially in the demarcation proceedings to be carried out by his senior, the Girdawar Circle, paid him Rs. 500 as bribe and when the latter demanded Rs.300 more, he reported the matter to the Anti‑Corruption Department which, under the supervision of a local Magistrate, laid a trap and got him caught red‑handed while accepting illegal gratification from him. He was then cited as one of the prosecution witnesses. He deposed against him as such and the latter was convicted.

12. Thus, the cited case is distinguishable from the one in hand inasmuch as in the former the Police‑cum‑Excise party itself had organised the raid after setting up a member of their staff as a bogus purchaser by providing him even the tainted money, while in the latter case, the complainant, being pestered by the appellant, himself went to the Anti‑Corruption Department, lodged the complaint, requested them for its redress, supplied the tainted money, of Rs. 300 himself and then played the role assigned to him during the raid and recovery proceedings. So, the role and status of Excise Constable in the precedent case was quite different from that of the complainant in this case and the latter can, by no stretch of imagination, be termed as a decoy witness, particularly when his role and conduct be judged in the light of 'Shariah' which is now the supreme law of the land under the recently enacted Enforcement of Shari'ah Act, 1991, despite some of its apparent infirmities in the form of certain vague and exclusionary provisions aiming at saving the present political and economic system which is being perpetuated by a particular class to safeguard its own vested interest in violation of the basic concept of 'Shariah' embodied in God's explicit command in the Holy Quran:‑‑

13. Here I come across the question of jurisdiction and before proceeding further to examine the status of a decoy witness in the light of Shariah, I would like to briefly dilate upon this aspect of the matter.

14. Under Article 203‑G of the Constitution of 1973, Federal Shariat Court has exclusive jurisdiction in certain matters and under Article G its decisions are binding on all Courts, including the High Courts.)So, apparently the said decision of the Federal Shariat Court has a binding fork e so as this Court is concerned. But with the subsequent addition of Article 2‑ to the Constitution and the recent enactment of the Enforcement ot Shariah Act, 1991, the position seems to have radically changed. The e provisions, particularly those of Article 2‑A, have enlarged the jurisdiction of the High Court in matters relating to Islam to such an extent that in certain fields, where the jurisdiction of even Federal Shariat Court stands ousted that of the High Court stands restored and enlarged. For instance, under Article 203‑ D read with Article 203‑B (c) the Federal Shariat Court has no jurisdiction to examine the vires of Muslim personal law but under Article 2‑A High Court, as held in Mirza Oamar Raza v. Mst. Tahira Begum, etc. PLD 1988 Kar. 169, has the jurisdiction even to examine the vires of this law and it has declared section 7 of Muslim Family Laws Ordinance; 1961, as un‑Islamic. The Federal Shariat Court in its ruling reported as Muhammad Sarwar, etc. v. The State PLD 1988 F'SC 42 has specifically accepted the competency of the High Court in this field and relying on the aforesaid authority of Karachi High Court, has reiterated that section 7 ibid is ultra vires. I am, therefore, of the view that under Article 2‑A read with sections 2 and 4 of the Enforcement of Shari'ah Act, 1991, this Court can also examine the true status of a decoy witness in the light of Islamic Law‑or Shariah as a Court of competent jurisdiction.

15. Now I proceed to examine, purely in the light of Shariah, the supreme law: whether Muhammad Afzal complainant in this case was a decoy witness?

16. The phrase 'decoy witness', has nowhere been defined. These are two separate words and in legal parlance this phrase is commonly used. The word 'decoy, as per Corpus Juris Secundum, means to allure into a net, ensnare, entice, entrap, to lead into danger by artifice. This term is used to denote a person employed by law enforcing agencies to obtain evidence upon which criminal prosecution is based. A decoy witness, therefore, means a witness who is set up by some agency to lure or entice another person to commit a crime with a view to involve him in that crime by' participating in that unlawful transaction in such a manner that they almost become partners therein and after the commission of the unlawful act he gets him caught up and then becomes a prosecution witness to secure his conviction.

17. To my mind, the real test to judge: as to whether a person is decoy witness or not, is his intention or ultimate aim. If his intention or ultimate aim is to get an innocent person entrapped humiliated and convicted for some of his personal ends emanating from some ulterior motives such as to wreak his own vengeance on account of some previous inimical background or to act as a tool for someone else for some consideration or personal benefit or reward, other than the discharge of his official duty as a functionary df State charged with the duty of detecting crimes and bringing the offenders to book, then he is a decoy witness and his testimony is to be discarded. But if such a witness is not motivated by any such desire or mala fide intention and his ultimate aim is to bring to book a public servant who is thriving on bribe in the perfomance of his official acts and in that context is demanding bribe from him, then such a witness is not a decoy witness and he is worthy of reliance and conviction be based on his testimony as also of those who participate in the proceeding with him. Such a witness is not submitting to the evil, rather, he is acting in obedience to the repeated command of Allah Almighty in the Holy Qur'an to bid the good and forbid the evil ( Amer bil Maroof Anil Nahi Munkar).Here I may [refer to section 13 of the Enforcement of Shari'ah Act, 1991, which enjoins the State to enact law for eradicating social evils (like bribery) and promoting Islamic virtues on the principle of 'amr bil Ma'roof wanahi anil Munkar' as laid down in the Holy Qur'an. Under section 5 of this Act all Muslim citizens of Pakistan are bound to observe Shariah and to act accordingly. Section 4 thereof enjoins the Courts to adopt that interpretation which is consistent with the Islamic principles and jurisprudence if; while interpreting the statute law, more than one interpretation are possible. Similarly, where two or more interpretations are equally possible, the one which advances the principles of policy and Islamic provisions in the Constitution shall be adopted. 'Shariah' in section 2 of the Act has been defined to mean the Injunctions of Islam as laid down in Holy Qur'an and Sunnah.

18. Besides the above command of Allah Almighty, which is of general nature addressed to all Muslim adults, males and females, there is a specific command to the people prohibiting them from giving bribe or illegal gratification to the persons in authority In Sura Baqr, Verse No. 188 of the Holy Quran He ordained:‑‑ And do not eat up your property among yourselves for vanities, nor use it as a bait for those who are in authority, with an intent that you may eat up wrongfully and knowingly a little of (other) people's property.

19. The Holy Prophet in this connection was pleased to observe:‑‑ I "God's curse in on the person who gives the bribe (Rashi) as well as on the one who receives the bribe (Murtashi)

20. It may be mentioned here that a person who resist's the demand of bribe made by some official and takes recourse to the official agencies to prevent him from taking bribe, can, for no earthly reason, be termed as bribe giver ( Rashi ) or partner in crime, merely by complaining to, and co operating with, the official agency in trapping the bribe reciever because it is not his intention or ultimate aim to give him bribe, rather his aim is to discourage or prevent him from indulging in this malpractice. If he pays or agrees to pay any part of the bribe, as in this case, he does so under ‑Iztrar' or compulsion and is excusable‑ Therefore any person, who at any level makes some efforts ‑aganist this formidable monster 'should not be dubbed as a decoy witness, particularly when the method of laying trap to catch a bribe receiver is legally permissible in view of the peculiar nature of the crime, necessitating special measures to tackle it. To discourage corrupt State functionaries, especially at the higher level, who at public expense have become so fabulously rich that they are virtually rolling in wealth, such like measures need to be G encouraged. It is a pitty that no serious effort has been made by any organ of State to squarely deal with this crime which has sucked the vitality of this nation. Trap‑laying is one of the legally recognised methods of catching a bribe receiver red‑handed but it is made use of only against the petty officials like clerks, peons, constables and Patwaris (though the last one, so far his authority and mischief is concerned, is not petty), who generally bargain and receive the bribe personally, often for themselves and some times also for their seniors The 'big fish', whether they are from politicians or bureaucracy (civil and military both), are not touched as their devices are more sophisticated and 1 foolproof besides being horrifying and terrifying. For them there seems to be': no law, no agency or organization to catch hold of them and no Court to try them. In fact, since the British days till now a particular class, rather, a few privileged families of feudal lords and business magnates, by exploiting the poor masses with fascinating slogans, have hereditarily been the repositery of all political and regal powers and prowess. To save their self‑interest they have neither made or enacted any effective Anti‑Corruption law, nor they have earnestly enforced the existing laws on the subject .To cap it all, whenever the occasion has arisen to apply, enforce and interpret anti‑corruption laws in the cases of often petty officials the same have often not been applied, enforced and interpreted in their true spirit and perspective. One can say without any fear of contradiction that special rules of evidence enacted in these laws, placing the onus, in certain events, on the accused to prove their innocence, have never been given effect on the basis of abstract principles which those statutory rules specifically sought to exclude. The result of the interplay of all these half‑hearted measures is now before us and we all are at bay, looking helplessly at the malady as incurable.

21. In a dismal situation like the one depicted above, if some one against heavy odds plucks courage against any corrupt official and moves official H machinery against him to vindicate his own rights, which also entails common good indirectly, he should not be maligned as a decoy witness.

22. There is yet another aspect of the matter, perhaps more important than the ordinary transactions of bribe. We all know that a host of intelligence agencies work for the defence and security of the State and to perform their duty internally as also externally they employ various methods and devices, including decoy witnesses. If we rule that the whole process is unIslamic, which in fact is not as this system has been in vogue eversince the advent of Islam for the larger interest of the State as a part of statecraft, then the entire system shall stand paralysed. We would not be able to punish the enemy agents, infiltrators, saboteurs and terrorists. So, on the theory that 'welfare of the people is the supreme law' we cannot condemn those who are working for their safety and security, as decoy witnesses when they enter the witness‑box to support a just cause.

23. Now I take up the next contention of the learned counsel for the appellant. After comparing the two versions of the incident, one pressed into service by the prosecution and the other put forth by the defence, he contended that the latter was more plausible than the former but even if there was any infirmity therein, preference was to be given to the latter on the principle of benefit of doubt. He submitted that there was also an element of old animosity between the parties emanating from a murder case and in fact it was in that inimical background that the complainant got the appellant falsely implicated in this case. In this connection he referred to the cross‑examination of the complainant. His second leg of argument was that in fact the complainant did not own any land in the khata to be demarcated and the application made by him was only a ruse to involve the appellant in this case.

24. To my mind, there is no substance in the above contentions of the learned counsel for the appellant. Had there been any enmity between the complainant and the appellant emanating from the murder case of a near relation of the former and its aftermaths still existed, there could be no possibility of their being on speaking terms with each other and having dealings inter se. In that event there could be no question of Lambardar's asking the complainant to give the money due from him to the appellant from whom he would receive or recover in due course and the complainant's all the way going from the village to the Patwar Khana of the appellant at Bakhar for that purpose and entrusting the money to this enemy for passing the same on to the Lambardar. If the complainant owed the money to the Lambardar of his village or of the adjoining village, why he should not have paid the same to him directly instead of through an intermediary, who figured nowhere in that transaction, rather, he was his alleged enemy? The complainant by admitting a suggestion seems to have given a concession to the appellant in cross-examination from which the latter cannot be allowed to take any benefit of. The defence version was obviously unfounded and the defense evidence a mere concoction, prosecution version was decidedly more plausible.

25. The other argument of the appellant's counsel was equally fallacious. If the complainant did not own any land in the village or in any khata, there was no question of his going to the revenue authorities for its demarcation. He acutally went there with an application Exh. PA which was duly entertained by the Tehsildar and admittedly marked to the Girdawar for demarcation. This fact by itself shows that the complainant wanted to get his land demarcated for whatever purpose he liked and his move in that respect was genuine. It is a matter of common knowledge for all those who have rural background and having dealings with the revenue authorities on account of their owning some agricultural land, that an application for demarcation of the land made to the concerned Revenue Officer, Tehsildar or Niab‑Tehsildar incharge of the area, is marked to concerned Girdawar Circle for carrying out demarcation in the presence of the parties. The Girdawar Circle invariably associates the Revenue Patwari concerned with the demarcation proceedings as the record and other paraphernalia such as chain ( ), flags etc. are in the custody of the latter. In fact in the demarcation proceedings he is the central figure with whom the applicant has to come into contact in this matter more than anyone else in the revenue hierarchy. It is, therefore, the Revenue Patwari who is to chalk out the program for the demarcation in consultation with the Girdawar Circle and he is to issue and serve notices on the parties and is to be present at the time of demarcation. Because of his pivotal position it is he who is in a bargaining position and actually strikes the deal and receives the money for himself and his high‑ups i.e. Girdawar Circle and some time for the Revenue Officer as well. In our set‑up, who does not know that he is the 'provider of the lion', Therefore, whatever the appellant was doing was in line with the well‑established practice and there is no substance in the contention of the learned counsel for the appellant that the demarcation was to be carried out by the Girdawar Circle and the appellant, as a Revenue Patwari, had nothing to do with it.

26. As a last resort an effort was made by the learned counsel for the appellant to argue that it was necessary for the Magistrate heading the raid party to have overheard the conversation between the complainant and the appellant but since he did not or could not do so, it was an inherent defect in the proceedings, creative of a doubt. He quoted a few precedents. There is no substance in this contention either. In my opinion, in trap cases it is fatuous to require or expect a Magistrate, who is also a judicial officer of considerable status and performing an onerous duty to help a person for a just cause, as discussed above, to conceal himself ignobly somewhere near the person to be raided for overhearing the conversation between him and the complainant. Such a conduct is certainly below human dignity, much less for an officer of his status. This is not the requirement of the enacted law on the subject; nor it can be a rule of prudence; nor in the nature of the crime, which is highly secretive, this course is practible; nor the bribe receiver and the bribe‑giver, particularly the former, are expected to describe the money changing hands as bribe or (Rishwat). The former can receive the money even without uttering a single word because he can do so even by gestures of hands, nodding his head etc. In that situation: what the Magistrate would be overhearing? However, if in routine he happens to overhear the conversation, it is well and good, otherwise it cannot be made a condition precedent for a successful raid, nor failure to overhear the conversation can entail any sort of doubt to be availed of by the accused. In this case, which was on different footing, it was even otherwise not necessary for the Magistrate to overhear conversation between the appellant and the complainant at the time the tainted money was changing hands because the receipt of money by the former from the latter was an admitted fact, giving rise to two versions and their plausibility or otherwise, which is to be judged by this Court, is a decisive factor.

27. In view of the above, there is no substance in the appeal and the same is dismissed. Since the appellant is on bail, a copy of this judgment should be sent to the learned District Magistrate, Bhakkar, who shall immediately cause his arrest and send him to prison for serving out his remaining sentence. As he has already been awarded ridiculously low sentence of imprisonment, including the one in lieu of fine, by the learned trial Judge, which only due to lapse of sufficient time that I have not deemed it proper to enhance, he shall not be entitled to the benefit of section 382‑B, Cr. P.C. M.B.A./A‑15/L Appeal dismissed