P L D 1957 (W (PLP)

AKHLAQUE HUSAIN, J.‑

This is an appeal against the order, dated the 4th of December 1956 of Ch. Qadir Bakhsh, Special judge, convicting the appellant Muhammad Nazir under section 5, subsection (2). of the Prevention of Corruption Act and sentencing him to one year's rigorous imprisonment and a fine of Rs. 200 or in default to a further period of three months' rigorous imprisonment. At the relevant time Muhammad Nazir was in the employ of the Municipal Committee Chawinda, in the district of Sialkot, as Octroi Sadar Muharrir‑cum‑Inspector. P. W. 4 Muhammad Ishaq was working under him as an Octroi Muharrir. Muhammad Ishaq was arrested some time in July 1955, on account of the alleged recovery of some illicit opium from his possession. Thereupon the Municipality, by a resolution dated the 28th of July 1955, dispensed with his services on the grounds that he was only a temporary employee and that it was not in the interest of the Committee to retain him in the circumstances. It is alleged that thereafter he saw the appellant Muhammad Nazir from time to time and requested the latter to help him in getting re‑employed. The accused eventually agreed to do so on payment to him of a sum of Rs. 50; Rs. 20 out of which were to be paid in cash and Rs. 30 on receipt by Muhammad Ishaq of his first month's pay after re‑employment. Muhammad Ishaq thereafter contacted the Sub‑Inspector Bahar Ali Shah of the Anti‑Corruption Department on the 3rd of September 1955. The Sub‑Inspector took him to Sialkot and got his statement recorded by Mr. Abdul Majid. Magistrate 1st Class (P. W. 5). It was decided to lay a trap for Muhammad Nazir the same day and catch him red‑handed. The Magistrate, the Sub‑Inspector and Muhammad Ishaq, therefore, returned to Chawinda by rail and took with them from the railway station P. Ws. 6 and 7, Sana Ullah and Ghafar Ahmad. The Magistrate and the Sub‑Inspector stayed at the dera of one Muhammad Yusuf and the three persons, namely, Muhammad Ishaq, Sana Ullah and Ghafar Ahmad were sent to Muhammad Nazir for the payment of the bribe. It is alleged that the above‑named three persons met Muhammad Nazir at the back of the khokha of one Barkat and Muhammad Ishaq paid him three currency notes, one of Rs. 10 and two of Rs. 5 each, whose numbers had been previously noted by the Magistrate. Thereupon P. W. 7 Ghafar, went to inform the Magistrate and Muhammad Ishaq and Sana U1lah, accompanied by Muhammad Nazir went to the office of the Municipal Committee where Muhammad Nazlr sat down at a table in the room adjoining that of the Head Clerk. D. W.

1. When the appellant started writing a report on the application of Muhammad Ishaq for re‑employment (Exh. P. B. 1) the Magistrate, accompanied by the Sub‑Inspector and P. W. 7 Ghafar, entered the room. On seeing them Muhammad Nazir dropped the marked money on the table and ran towards the adjoining room where he dropped down the application Exh. P. B/1 which was picked up by the Magistrate. The first contention of the learned counsel for the appellant is that the whole trial is illegal for want of a proper sanction by the Municipal Committee under section 5 (5) of the Pakistan Criminal Law Amendment Act (XIX of 1948), The facts relating to the sanction relied upon by the prosecution are these: The Superintendent Police of the Anti‑Corruption Department sent a letter (Exh. P. J.) on the 28th of September 1955, to the President of the Municipal Committee, Chawinda, along with the police file and challan papers, requesting for sanction for the appellant's prosecution under section 161, P. P. C, and section 5 (2) of the Prevention of Corruption Act (II of 1947). As would appear from a copy of the resolution passed by the Committee on the 30th of September 1955, (Exh. P. K./1), the letter and the accompanying papers were placed before the Committee on that date and the Committee resolved that the Superintendent Police may be informed that Muhammad Nazir had already been suspended by the Committee and that it was not for it, but for the Court: to decide whether he was guilty or not. The Superintendent of Police again addressed a letter to the Committee on the 16th of October saying that the resolution of the 30th of September 1955, "does not amount to an order sanctioning prosecution" and that if it is satisfied that "a prima facie case on evidence collected" "exists". "it should grant sanction and allow the case to proceed in Court". This letter and the relevant papers were again laid before the Committee on the 30th of November 1955. The Committee resolved on that date that its resolution of the 30th of September 1955, was a clear decision in which there was no room for any modification but that if the police was unable to adopt the case as its own without the permission of the Committee then in that case the Committee agrees to permit the case to be placed before a Court (Ex. P. K/7). In view of the facts stated in the preceding paragraph, I am unable to agree with the appellant's contentions that all the requisite material was not before the Committee or that it had not been considered by it before passing its resolution of the 30th of November 1955, contained in Exh. P. K/7. All the papers were placed before it on two separate occasions and the second resolution clearly states that they had been "again carefully considered". There is, however, one other matter which requires consideration. It would have been noticed that the Superintendent of Police, in his letter of the 16th of October 1955, had told the Committee " . . . . . The function of . . . . . . the Committee is to see whether a prima facie case on evidence collected by us and produced before the Committee exists or‑‑ not. If it finds that such a case is made out, it should grant sanction and allow the case to proceed in Court". It was on the basis of this letter, and with specific reference to it, that the Committee passed its second resolution of the 30th of November. There cannot be the slightest doubt that the Superintendent of Police was under a grave misapprehension of law relating to the "function" of the sanctioning authority. As was pointed out by my Lord, the Chief Justice, in Tufail Muhammad v. The Crown (PLD1954Lah37). ,"The sanctioning authority should apply its mind to the facts and circumstances of the case and although, pima facie, some offence may be revealed by the evidence collected, the authority in question would not be bound to accord sanction for the prosecution unless it came to the conclusion that it would be expedient in the interest of justice to do so". In Gokalchand Dwarkadas Morarka v. King (AIR 1948PC82:PLD1948PC11) relied on in Tufail Muhammad's case, their Lordships of the Privy Council observed :‑ "The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient". It is true that upon the plain language of section 5 (5) of Act XIX of 1948, as also on the basis of, the decided cases, the Court has only to see whether the sanction has been granted after a knowledge of all the material facts. The Courts are obviously not concerned with the degree of judgment or cafe exercised in according the sanction. The point, however, which arises for consideration in this case is whether a sanction can be deemed to be a legal sanction if it is apparent, or is proved, that the sanctioning authority was suffering under an erroneous notion of its function, e.g that it was bound to accord sanction if the evidence disclosed a prima facie case. That such a conception of the function) of the sanctioning authority is erroneous and could not have been in the contemplation of the Legislature is obvious from the fact that the case is put up for sanction of the authority concerned only after a prima facie case has been made out against an accused. Nor has the power to, sanction been circumscribed by any such limitation or' condition. I am, therefore, of the opinion that a sanction avowedly based upon such a misconception of law cannot` be valid because it is not of such a nature as contemplated by the law. I am, however, of the opinion that the prosecution case fails also on merits. The case rests, apart from the evidence of the Magistrate (P. W. 5), Malik Abdul Majid, upon the evidence of P. W. 4 Muhammad Ishaq, P. W. 6 Sana Ullah and P. W. 7 Ghafar Ahmad. It is a rule of prudence that the testimony of witnesses, who lay a trap for a person by' inducing him to commit a crime, requires careful scrutiny. I Apart from the fact that all the three witnesses connected with the appellant's crime, namely, P. Ws. 4, 6 and 7, are, by virtue of the part played by them, persons whose words cannot be taken at their face value, there are also other reasons to make their testimony suspect. They and one Muhammad Butt who is alleged to have advised the complainant, Muhammad Ishaq, to contact the A. C. D., Sub‑Inspector, Syed Bahar Ali Shah, but was not produced by the prosecution, are closely connected with each other. P. W. 2 Gul Muhammad, P. W. 7 Ghafar Ahmad and one Muhammad Yusu: are real brothers. Muhammad Butt is their cousin anc Ata Ullah and Noor Muhammad their nephews. P. W . 6 Sana Ullah was admitted by P. W. 2 to be a servant of Muhammad Yusuf whose tonga he drives although Muhammad Ishaq attempted to suppress this fact by alleging that Sana Ullah "used to drive' Muhammad Yusuf's tonga, but subsequently started a shop. It seems that all these persons have been in the habit of helping the police in Anti‑Corruption cases. ‑ A case was started E against one Dr. Niaz Ahmad; P. W. 6 Sana Ullah was the com plainant and P. W. 2 Gul Muhammad a prosecution witness. P. W. 4 admitted in his cross‑examination : "I do not know if Sana Ullah and Muhammad Butt were witnesses in another case of raid on a ration depot. A raid, however, did take place." In another bribery case against one Dr. Sarfraz, P. W. 4 Muhammad Ishaq, his cousin Muhammad Butt and one Ibrahim were prosecution witnesses. P. W. 2 Gul Muhammad and P. W. 7 Ghafar Ahmad were convicted under section 353, P. P. C. but were acquitted on appeal. P. W. 4 Muhammad Ishaq stated in cross‑examination. "The police may have opened my history sheet and I do not know if any such record exists against me". Similarly, Sana Ullal: (P, W. 6) said : "My history sheet may have been opened by the police. I do not know". It is the prosecution case that Muhammad Ishaq had approached the appellant for help in getting him employed with the municipal committee, because Sheikh Lai Din, the grandfather of the appellant, was a member of the committee. It appears, however, that the relations between the appellant and his grandfather on the one hand and Muhammad Ishaq and the prosecution witnesses and their relations on the other, had been inimical. P. W. 7 Ghafar Ahmad, his two brothers and three sons of one Muhammad Ismail filed a suit against one Muhammad Shah and others for possession of a vacant site. In that case Sheikh Lai Din appeared as a witness against the plaintiffs (vide P. W. 2). About two months before the occurrence Ata Ullah and Nur Muhammad, nephews of Ghafar Ahmad and Gul Muhammad, quarrelled with the appellant. The appellant's uncle, Muhammad Yusuf, lodged a report with the police against P. W. 4 Muhammad Ishaq accusing him of committing theft at his place. Muhammad Ishaq, while serving under the appellant, was involved in a case of recovery of illicit opium, as a result of which he was dismissed by the municipal committee. Before his removal and about two months prior to the occurrence, Muhammad Ishaq is alleged to have been persuaded by the appellant not to appear as a witness against Dr. Sarfraz against whom the Anti‑Corruption police had started a case. Muhammad Ishaq refused to yield to the appellant's persuasion. Muhammad Ishaq was dismissed from the service of the municipal committee on the 18th of July 1955, and, according to him, he had approached the appellant, for the first time, about 8 or 9 days after, that' is, on or about the 26th of July 1955. The appellant at once promised to help him, His story does not seem to be plausible Muhammad Ishaq had, only a few days before, refused the appellant's request not to appear as a witness against Dr. Sarfraz. Further, the relations between Muhammad Ishaq and Muhammad Ishaq's friends on the one hand and the appellant and his grandfather on the other could not have induced in Muhammad Ishaq hope for any help or sympathy from the appellant. Thereafter Muhammad Ishaq saw the appellant in that connection for about ten times ; but the latter did not demand any bribe. It was only 8 or 9 days before the raid that Muhammad Ishaq saw the appellant for the last time and then the latter is alleged to have demanded a bribe of Rs. 50, out of which only Rs. 20 were to be paid in cash. Muhammad Ishaq's and his friends' connection with the Anti‑Corruption police, on account of the part played by them in several previous cases, must have been a matter of common knowledge and it is not easy to believe that the appellant would have been so foolish and indiscreet as to have taken the grave risk of demanding and accepting a paltry sum by way of bribe from such a person. Again, it is not clear as to why the appellant, if he did want a bribe, did not demand it on any of the previous ten occasions when Muhammad Ishaq saw him. Muhammad Ishaq does not appear to be a man of any great moral calibre and it is unlikely that he would have thrown away his chances of re‑employment, on which he admittedly was very keen, by refusing to give Rs. 20 to the appellant and getting him entrapped. Assuming that he was averse to committing the offence of giving a bribe, why did he take eight or nine days in reporting the matter to the police ? He says that he had not asked Sana Ullah and Ghafar Ahmad to be present at the Railway Station and yet, surprisingly enough, they were there when he got down from the train along with the Magistrate and the Sub‑Inspector. It seems quite probable that, on account of some grievance or other against the appellant, Muhammad Ishaque, in league with Sana Ullah, Ghafar and Muhammad Butt, hatched the plan to get the appellant into trouble long after the alleged demand of bribe. In view of what has already been stated, it is unnecessary to point out the numerous contradictions between the statements of P. Ws. 4, 6 and

7. A careful perusal of their statements leaves no room for doubt that they are of a highly suspicious character. There remains the evidence of the Magistrate. He himself was not a witness to all that may have passed before the dropping of the currency notes by the appellant on the table. This by itself is quite consistent with the innocence of the appellant. The appel lant's subsequent behaviour again does not necessarily point to his guilt. Even an innocent person may have behaved similarly in similar circumstances. For the above reasons, I accept this appeal and setting aside the order of the lower Court, acquit the appellant. He shall be released forthwith. A.H. Appeal accepted.