P L D 1957 (W (PLP)

AKHLAQUE HUSAIN. J.‑

This is an appeal against the judgment and order dated the 5th of January 1957, passed by the learned Special Judge, Lahore, convicting the appel lant of an offence under section 5 (2) of the Prevention of Corruption Act, 1947, and sentencing him to nine months' rigorous imprisonment and a fine of Rs. 250 or to a further rigorous imprisonment for two months in default. P. W. 3, Ghulam Mohy‑ud‑Din applied to the Lahore Improvement Trust for the lease of a plot situate in Changar Mohalla in the city of Lahore. This application (Exh. P. A.) was marked to the Qanungo on the 4th of May 1956, who, in his turn, sent it on the 7th of May to the appellant, who was then serving as a Patwari in the Nazul Department of the Lahore Improvement Trust. It appears from the statement of P. W. 3 that he approached the appellant on the 31st of May in order to enquire whether his application Exh. P. A. had been granted or not. The appellant replied that he had been unable to find out the plot applied for and that Ghulam Mohy‑ud‑Din should come again on the third day. On the 2nd of June Ghulam Mohy‑ud‑Din was again told by the appellant that the latter would have "to hunt up the number from the Corporation Office" and "for this he demanded about Rs. 100 as bribe but agreed to accept Rs. 25." He was paid Rs. 5 in cash and was promised the remaining Rs. 20 "at a later stage'". (It might be mentioned here that this witness had stated before the Magistrate who conducted the raid that the appellant had at first demanded Rs. 50). The rest of the story is stated by Ghulam Mohy‑ud‑Din as follows :‑ "I visited the accused on several occasions after this but he put me off on one pretext or the other. I then contacted Inspector Dildar Husain because he was known to me since the time he was posted as S. I. Mochi Gate. This happened on the 3rd of June 1956. He told me to see him on the 4th of June. I had settled with the accused to pay him the balance of Rs. 20 as bribe on the 5th of June 1956. On the 3rd of June when I met the Inspector he told me to see him on the 4th. I related the facts to Dildar Husain Inspector who brought me to the District Courts and met Mr. Zafar Yasin Magistrate. It was decided to go for the raid on the 5th of June". It is alleged that during the raid on the 5th of June the Magistrate, Mr. Zafar Yasin, found the appellant accepting Rs.20 in currency notes, the numbers of which had been noted by him earlier, and the appellant was thereupon arrested. I might mention at the very outset that the device of laying snares for persons in order to catch them red‑handed has received from time to time the severest condemnation from eminent judges and Courts. A High Court judge once observed :‑ "Come to my parlour, said the spider to the bee' is a sort of conduct against which my consience revolts." But whatever may be the ethics of the matter, it cannot be doubted for a moment that the proceedings, as well as the evidence of the persons participating in it, is, from the purely legal point of view, un‑exceptionable At the same time 'however. it must be noted that the evidence persons taking part in such proceedings must regardless of their position and status, a subjected to minute a careful scrutiny. This is so because o an important psychological actor, People who plan and prepare the grounds to facilitate the commission of an offence and then set out with the express purpose of catching the criminals red‑handed are, in the over whelming majority of the cases, bound to be swayed by a psychological zeal in the achievement of their object Such being the position it is hardly necessary to say that it is highly undesirable that Magistrate whose very position requires that they should inspire the greatest confidence in the min s or the public and who should, therefore keep themselves above all suspicion and criticism, should become witnesses an dramatis personae in such proceeding unless of course they are so compelled by some rules rules relating to their service. The District Magistrates should not readily allow the Magistrates to take part in such proceedings and thereby run the risk of adverse criticism of their conduct by Courts. As far as the complainant's statement is concerned, I f am unable to accept it without strong corroboration by other reliable testimony or circumstances. The story related by him is not convincing and suffers from internal improba bilities and contradictions. A few of them may be mentioned. If, as alleged by Ghulam Mohy‑ud‑Din, the appellant had accepted Rs. 5 on the 2nd of June and the remaining Rs. 20 were to be paid to him subsequently, why should the latter have "put off the complainant on one pretext or the other" when the former met him subsequently ? And why did not the complainant pay the remaining Rs. 20 to the appellant when he saw him "on several occasions', after the 2nd of June ? In fact after reading his whole statement I have no doubt in my mind that the story of his having seen the appellant on several occasions after the 2nd is false. He met the appellant on the 2nd and contacted the Sub‑Inspector Dildar Husain the next day. He does not allege that he saw the appellant between the 3rd and the 4th of June. His assertion that he "had settled with the accused to pay him the balance of Rs. 20 as bribe on 5th of June 1956" appears, when read with his earlier statement, to be extremely incredible. Again, the complainant has known Sub‑Inspector Dildar Husain since 1945 or 1946 and the latter who is working in the Anti‑Corruption Department must always be on the lookout for persons he has confidence in, in order to help him in catching suspects red‑handed and making his raids successful Ghulam Mohy‑ud‑Din is an employee of the Sadiq Engineer ing Works and was getting Rs. 4‑12‑0 as his daily wages. When confronted with these facts in his cross‑examina tion, he admitted that he did not want the land, for the lease of which he had applied to the Improvement Trust, for himself. He asserted that he wanted it for his younger brother; but subsequently admitted that the latter too was also in service somewhere on a daily wages of Rs. 2‑8‑0 per day. Considering all the circumstances of the case there is room for reasonable suspicion that Ghulam Mohy‑ud‑Din was acting only as an agent of the Sub‑Inspector. As to the actual taking of the bribe, the case rests mainly upon the evidence of the Magistrate, Mr. Zafar Yasin. He stated :‑‑ "A raid party was then formed consisting of Ghulam Mohy‑ud‑Din complainant, two other persons Muhammad Amin and Muhammad Siddique, who were to be with him to witness the payment of the bribe money, Inspector Dildar Husain and Rashid Shah F. C. under my supervision. We proceeded to the office of the accused and reached at Sarwar Building at about 7‑40 a.m. I took my seat outside a hotel near Sarwar buildings in which the Nazul Office is situated. Inspector Dildar Husain took position in a shop nearby. Ghulam Mohy‑ud‑Din and his companion Muhammad Amin went inside the Sarwar Building to see the accused. A little after they brought the accused outside the office in my view and had a talk for about 2 of 3 minutes with him. The accused also showed some papers to the complainant and his companion, and the accused then went inside again accompanied by his two companions i.e., the complainant and one other witness. The accused accompanied by Ghulam Mohy‑ud‑Din and Muhammad Amin came out again 10 or 15 minutes later and they took their seats outside the same hotel where I was sitting The complainant Ghulam Mohy‑ud‑Din placed orders for being served with syrup glasses. In the meantime when the syrup had not yet been served, Ghulam Mohy‑ud- Din gave Rs. 20 in currency notes Exhs. P. 1 to P. 4 to the accused which the accused held in his hand and accepted the same. The complainant while giving the notes requested. the accused that he should do his work, The accused while holding the notes however formally stated, "no, no, don't worry your work will be done and you should feel satisfied". By this he did not mean to refuse to accept the bribe money but he meant to assure the complainant that his work would be done". It will be observed that, excepting his impression which is contained in the last sentence in the above passage, there is nothing in the evidence of this witness to bring home the guilt to the accused. Every incident and occurrence deposed to by him is consistent with the innocence of the appellant. His impression and opinion cannot he treated as evidence. I have carefully considered the deposition of Mr. Zafar Yasin and his report Exh. P. F/3, written on the spot imme diately after the alleged occurrence, and find the conclusion inescapable that the sequel of events as seen by the witness was this: The complainant handed over Rs. 20 to the accused while sitting at the table; when the accused held the currency notes in his hand the former asked him to do his work ; thereupon the latter said 'no, no' (meaning thereby that he will not accept the money) and that he will do his work all the same, and then Mr. Zafer Yasin "pounced upon" the appellant in order to snatch the currency notes from his hand. In view of these facts it is impossible for me to hold that the appellant had accepted the bribe. In fact, it is clear that the story of Ghulam Mohy‑ud‑Din that the appellant had taken Rs. 5 and had asked for another Rs. 20 seems to be extremely improbable, if not altogether impossible, in view of the unquestionable fact that when given Rs. 20 he expressed unwillingness to take it‑whether sincerely or, as alleged by the learned Magistrate, "formally" or "takallufan". He would have readily taken it if he had himself asked for it previously. Learned counsel for the appellant pointed out to me that this Magistrate had accompanied S. I. Dildar Husain on several raids before the one in question‑a fact which was not remembered by the learned Magistrate in the witness box but was admitted by the Sub‑Inspector. The District Magistrate had, on the application of the Sub‑Inspector for the services of a Magistrate in connection with the raid, endorsed the following order :‑ "Mr. Abdul Jabbar, M. II. C. or Mr. Zafar M‑II, C. may please do the needful". In spite of the fact that Mr. Abdul Jabbar's name was mentioned first in the order, the Sub- Inspector went to Mr. Zafar Yasin straightaway. It does not appear from the evidence whether the Sub‑Inspector went to Mr. Zafar Yasin's Court room because it happened to be the first one on coming out of the District Magistrate's Court room. From the statements of the learned counsel at the Bar, both of whom have considerable professional practice in the Magistrates' Courts, it appears that Mr. Abdul Jabbar's Courtroom was more easily accessible. Be it as it may, I have no desire to comment upon these circumstances or to cast any aspersion whatever, directly or indirectly, on the integrity of Mr. Zafar Yasin. which I must presume, and do presume, to be of the highest order. I have mentioned these facts only to point out the risk which the Magistrates run in allowing themselves to become involved in such affairs. After a careful consideration of the evidence on the record I am constrained to hold that there is no satisfactory evidence on the record to hold that the appellant had either asked for, or accepted a bribe; or had taken the Rs. 20 currency notes with the intention of accepting them as bribe. I, therefore, allow his appeal and setting aside the judgment and order of the Court below direct that he be set at liberty forthwith. A.H. Appeal accepted.