P L D 1956 Supreme Court (Pak (PLP)

CORNELIUS, .J.‑‑-- This is an appeal by special leave by one Munawar Ahmad, an Ahmad of a Magistrate's Court in Montgomery district, and calls in question the correctness of his conviction under section 161 P. P. .C., which was confirmed on appeal by the High Court of West Pakistan. The bribe in the case was four packets of cigarettes of the value of Rs. 2.2‑0, and the sentence awarded was imprisonment till the rising of the Court and a fine of Rs.

100. Those features may give an impression of unimportance, but on examination of the case, with the aid of learned counsel, it appears that there have indeed been errors of a serious nature in the disposal of the case which call for interference by this Court in the exercise of its special jurisdiction in criminal matters. For a conviction under section 161, P. P. C., one necessary element is that the gratification received should have the character of being "a, motive or reward for doing or forbearing to do any official act". (There are other alternatives as well, enumerated in the section, but these are not relevant in the present case). In the judgment of the High Court, the statement on this point is contained in the following words "A case under the Railways Act was pending against Nizam Din P. W. 2, who went to the appellant and asked him to have a date fixed in his case in the absence of the presiding officer. The appallant intimated that he would do so only on the receipt of four packets of cigarettes". There is no discussion of the evidence on this point, and it seems to us that this was a serious omission, for it is clear that there is a lacuna on the point which, in the circumstances of the case, cannot be filled up with the aid of speculations or presumptions. In order to ascertain this lacuna, it is necessary to state certain of the facts and pleas with some particularity. On the 10th January 1955, Munawar Ahmad was engaged in giving adjourned dates to parties appearing in the Court of the Treasury Officer for their cases. This was necessary because the Court had no presiding officer at the time, the previous in cumbent having been transferred, and his successor not having been appointed yet (Syed Jaffar Hussain, Advocate, P. W.4). Among those who appeared to receive dates were Nizam Din (P. W. 2) and his co‑accused Qasu (P. W. 3) who were accused persons in a case under the Railways Act. What passed between these persons and the accused may only be ascertained by their statements in Court; and these may be corroborated or cont radicted in case of the two witnesses, by statements made by them at or about the relevant time concerning the particular event. Nizam Din's statement on the point is as follows :‑ "The presiding officer was not in Court on that day. The accused now present in Court asked me to bring 4 packets of cigarettes. I went to my Pleader Syed Jaffar Hussain Shah and told him that the Munshi of the Court wag not giving me the date for the next hearing of the case but was demanding 4 packets of cigarettes". It clearly appears from this statement that what the witness conveyed to his pleader was in excess of what was said to him by the accused. This was said in examination‑in‑chief but it seems that in answer to a Court question, this witness said later :‑‑ "I asked my lawyer Syed Jaffar Hussain Shah that I did not have the money and that he may pay the amount to the shopkeeper on my behalf. The Babu (accused) has asked me that he will give date if I brought him the cigarettes and I went to my lawyer and a Magistrate was sitting near and I told my lawyer that I did not have the money, and the cigarettes were obtained on loan from the shopkeeper". Qasu (P. W. 3), although he admitted that his name was called out by the accused and that he went there himself said nothing on this point. As for the accused, when questioned regarding the recovery of the four packets of cigarettes from his possession, he replied as follows: ‑ I bad got these myself having been purchased from the shop of Ghulam Muhammad, the contractor in district Courts. It was made clear by means of questions in the cross‑examination of Nizam Din and Qasu that the case for the accused was that he gave either Nizam Din or Qasu a chit to the contractor for four 'packets of cigarettes, on the strength of which the cigarettes were procured. Nizam Din admitted that he got the cigarettes from "the contractor whose shop is near the Bar room" and it may be safely presumed that this is none other than the District Court contractor Ghulam Muhammad (P. W. 1), who deposed that on the day in question, Munawar Ahmad sent him a chit (Exh. D. A. 1) [which he preserved since the transaction was on credit] through a zamindar, and that he supplied the four packets of cigarettes and entered the amount in his register which he produced. Corroboration of the statement of Nizam Din was sought from the evidence of Syed Jaffar Hussain (P. W. 4) and Khan Faiz, Muhammad Khan, Additional Deputy Commissioner (P. W. 6). The former said that Nizam Din and Qasu com plained to him "that the Munshi of the Court of the Treasury Officer was demanding four packets of cigarettes, otherwise the case would be adjourned for next day and long date would not be given". Neither Nizam Din nor Qasu said anything about a threat of harassment by short dates. In the later statement of Nizam Din it was suggested indeed that the demand was made as a reward for giving a date at all, but as will be presently seen, that is embedded in a series of false statements, and is hardly entitled to any weight. As for the statement of Khan Faiz Muhammad Khan, it is that in his presence, Nizam Din complained to Syed Jaffar Hussain Shah that the Ahlmad "was not prepared to give him the next hearing date of the case unless he was given four packets of cigarettes". Thereupon, the witness recorded two statements by Nizam Din which are proved on the record as Exh. P. H. Neither of these was put to Nizam Din, but they exhibit a serious discrepancy which cannot be overlooked. In the first statement Nizam Din merely said that he had been asked by the Ahlmad to fetch four packets of cigarettes for him. In the second statement, it was added that this was required by way of muawza i.e., gratification. The reason for so close an examination of the evidence on these points is that they have not received the necessary treatment in the judgment of the Court below. The evidence of Nizam Din on the point of the demand is clearly of a shaky character, and this is emphasised indeed by firstly the clear evidence, supported by documents, given by Ghulam Muhammad contractor as D. W. 1, and by very marked uncertainty on Nizam Din's part regarding payment for the cigarettes. In a short statement, he gave three separate versions on this point. At first he said that he had paid for the cigarettes out of his own money, but could not remember how much he paid. Next he said that he bad promised to pay the shop‑keeper the cost, which he said was Rs. 2‑8‑0, but that he had not done so on the date of his, evidence, which was some months after the occurrence. Thirdly he said that he asked his lawyer Syed Jaffar Hussain Shah to pay the money on his behalf. His friend and co‑accused Qasu (P. W. 3) made a different statement viz., that he advanced Its. 1‑4‑0 to Nizam Din to enable him to pay for the cigarettes and that Nizam Din had not returned the money to him. Syed Jaffar Hussain Shah denied that he had been asked by Nizam Din for a loan of the price of the cigarettes, or that he had obtained the cigarettes for Nizam Din on credit, or that he had paid the price himself. When Ghulam Muhammad appeared in the Court, he was asked no question which could have supported any of the three versions of Nizam Din. When this uncertainty is weighed against the clear evidence of Ghulam Muhammad supported by the evidence of the chit (Exh. D. A. I) and the account book (Exh. D. B.) the possibility becomes plain that Nizam Din's difficulty in explaining the manner in which he got the cigarettes was due to his being unwilling to state the truth on the subject. If he got the cigarettes against Munawar Ahmad's chit, there would be no occasion for him to approach Syed Jaffar Hussain Shah for a loan or for assistance in getting the cigarettes on credit. There would also have been no occasion for the discrepancy, regarding an advance by Qasu, and his error in stating the price paid for the cigarettes would also become explicable. When asked to explain the case against him, the accused said it was due to a misunderstanding and having considered the evidence and circumstances of the entire case with care, it seems to us that this could only have reference to a mis understanding by Nizam Din of the function which he bad to perform in connection with the procurement of the cigarettes. On the version of the accused it would appear that Nizam Din, when he was asked to bring the cigarettes and given only a chit for the purpose, but no money, at once concluded that he would be required to pay for the cigarettes himself, and this would explain his subsequent behaviour in complaining to his lawyer and later co‑operating in what has been described as a trap. In the state of the evidence, there is more than enough room for reasonable doubt that any official act was involved, the doing or not doing of which depended upon the furnishing of cigarettes to the Ahlmad. And, there is at least equal foundation for the possibility that the cigarettes obtained by Nizam Din and delivered to Munawar Ahmad did not possess the character of illegal gratification at all. The learned single Judge of the High Court disposed of the defence case as follows :‑ "The defence theory cannot be sustained, the stumbling block being the fact that the packets of cigarettes recovered from the appellant bore the signature of Mr. Manzur Ahmad Siddiqi, and the date." If the accused's plea of misunderstanding on the part of Nizam Din had been given due weight against the background of the evidence, it would have appeared with sufficient clearness that the fact of the packets having passed through the hands of the Magistrate Mr. Manzur Ahmad Siddiqi was by no means sufficient to invest them with the character of illegal gratification. The learned single Judge relied upon the confession of the appellant said to have been made to Mr. Manzur Ahmad Siddiqi. The following passage from his judgment deals with this matter :‑ There is also the confession of the appellant to the Magistrate at the time of the raid. Dr. Nasim Hasan Shah pointed out that the confession in question had not been put to the appellant under section 342, Criminal Procedure Code, but in the latest view of the Federal Court, omission to put to the appellant any circumstance relied on against him by the prosecution is only fatal if prejudice has been caused to the appellant. In the present case there was no such prejudice. In the absence of a reference to the judgment of the Federal Court on which the learned single Judge has expressed his reliance, it is not possible to assertain whether that reliance is well‑founded. The present is a case which proves upon analysis of the evidence to rest entirely upon the confession which the Magistrate Mr. Manzur Ahmad Siddiqi declares was made to him by the accused at the time of the raid. The principles of law governing the matter, in the light of the provisions, of section 342, Criminal P. C. have been elucidated in two judgments of this Court namely the cases of Rahim Bakhsh v. Crown (P L D 1952 F C 1) and Amin‑ul‑Hoque v. Crown (P L D 1552 F C 63). In the former case, it was held by Sir Abdul Rashid, C. J. that where a confession or admission is the sole basis of the judgment convicting an accused person, failure to question him about it must be held to have prejudiced his case substan tially. In a dissenting judgment, a slightly different opinion was expressed on this point by Muhammad Munir J. (as he then was) viz., that the omission to put a particular incriminating circumstance to the accused person in his examination under section 342, Criminal P. C. does not of itself vitiate a conviction, but the appellate Court must consider whether omission occasioned any prejudice to the accused. In the case of Amin‑ul‑Hoque, Sir Abdul Rashid C. J., made the following observations :‑ "It is true that section 342 was not intended for the purposes of cross‑examining the accused or for filling up gaps in the case for the prosecution. But it is no less serious an error to go to the opposite extreme and, by excess of restraint, to defeat the primary object of the section which is to assist the accused in explaining the circumstances which are relied upon by the prosecution as establishing the case against him ..In the present case, the attention of the accused was never invited to the extra‑judicial confession which has been relied upon by the learned Judges of the High Court as a vital piece of evidence". In the present case, there can be no room for doubt that since the sole support for the accusation of bribery against the accused proves upon analysis to consist in the alleged oral confession made to Mr. Manzur Ahmad Siddiqi, it operates to the direct prejudice of the accused that he was nave, afforded an opportunity of explaining this circumstances appearing against him. It was pointed out that in the cross-examination of Mr. Siddiqi it was suggested that the accused was told by him that if he confessed he might be dealt 'with departmentally. It was sought to argue that thereby, an opportunity for an explanation had been offered to the accused. We are unable to agree with this contention. A question put in the course of cross-examination by counsel cannot have the same weight as an answer given by an accused person in reply to a pointed question bringing to his notice a matter raising an inference of guilt against him, and this applies in our opinion with exceptional force where the matter consists of an. alleged direct admission of guilt. Nor do we consider that any purpose useful to the dispensation of justice is served by the Court attempt ing to speculate as to the answers which the accused might conceivably have given had the question been put to him. For these reasons we allow this appeal and acquit the appellant. A.H. Appeal allowed.