1969 PLP 574 (SCMR)

S. 5 (2)‑Evidence of accomplice‑Cannot be accepted without independent corrobora tion. Tasadduqe Hussain, Senior Advocate Federal Court instructed by Virasat Hussain Naqvi, Attorney for Appellant. A. S. Faruqui, Advocate Federal Court, instructed by Zahir Abbas, Attorney for Respondent. Date of hearing : 17th January 1955. MUHAMMAD MUNIR, C. J.‑Qadir Baksh and Ghulam Qadir were tried and convicted by the Special Judge, Sukkur, for an offence under section 5 (2) of the Prevention of Corruption Act, 1947. The former was sentenced to 18 months' rigorous imprisonment while the latter was ordered to pay a fine of Rs. 5,000 or to undergo imprisonment for 18 months. The convictions and the sentences of both were upheld by the Chief Court of Sind on appeal. According to the prosecution one Thigri Shah among several others was trafficking in contraband charas at Sukkur under certain arrangements with the officers of the Excise Department including Ghulam Qadir who was an Excise Inspector and Qadir Bakhsh who was an Excise Constable. On the 18th October 1951, the Deputy Commissioner of Excise came to Sukkur and Thigri Shah was ordered during that officer's visit to go away from there. When Thigri Shah returned on the 29th October 1951, he was asked by Ghulam Qadir to pay Rs. 750 for the period of his absence from Sukkur in accordance with the arrangements under which he had been selling charas. He was further told that under the orders of the Deputy Commissioner Excise he was also to be prosecuted and that a fictitious case would be framed against him but that arrangements would be made for his acquittal. Thigri Shah refused to pay the money because none was due under the agreement which he had with Ghulam Qadir and others. On the 24th November, he was actually arrested and admitted to bail. The demand for the money was repeated but he still refused to pay. On the contrary, Thigri Shah went to Haji Muhammad Maluk, an Inspector in the Anti‑Corruption Department, and made a complaint to him on the following day, disclosing the manner in which he had been carrying on business and the demand which had been made on him for the money. Accordingly, a trap was arranged and on the 29th December 1951, marked currency notes of the value of Rs. 360 were recovered from Qadir Bakhsh who, according to Thigri Shah, had been sent by Ghulam Qadir to receive it. Qadir Bakhsh was produced before a Magistrate before whom he made a confession which was recorded under section 164 of the Criminal Procedure Code. Leave to appeal was granted in this case because on a perusal of the appellate judgment of the Chief Court of Sind it appeared to us that Thigri Shah was an accomplice and there was no corroboration of his evidence against the appellant, Ghulam Qadir, apart from the confession of Qadir Bakhsh. After hearing arguments of the learned counsel we are satisfied that Thigri Shah's position was that of an accomplice and that there is no independent corroboration either of his evidence or of the confes sion of Qadir Bakhsh. Admittedly Thigri Shah was a party to an agreement to sell contraband charas under which appellant Ghulam Qadir was to receive a certain amount of money. The charge against the appellant was not that of bribery but of misconduct under section 5 of the Prevention of Corruption Act and that misconduct consisted in his promoting the illicit sale of charas. To these arrangements Thigri Shah was undoubtedly a party and thus an abettor of the offence charge. The position would perhaps have been different if the charge against the appellant had been one of bribery simpliciter, but that is not the position. Therefore, there being no evidence against the appellant beyond the confession of a co‑accused and the evidence of an accomplice his conviction cannot be maintained. The learned Judges of the Chief Court of Sind thought that the raid coupled with the large amount of money that was recovered in consequence thereof, was sufficient corroboration. That is true, but that corroboration does not tend to implicate the appellant in the offence charged. We, therefore, allow the appeal, set aside the conviction of the appellant and acquit him. The amount of fine, if paid, shall be refunded to Ghulam Qadir's widow, Mst. Mehrun Nisa, who has prosecuted the appeal under section 431 of the Criminal Procedure Code. Appeal accepted.