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Criminal Appeal No. 286 of 1965, decided on 26th September 1968.

S. 6 (5) read with West Pakistan Government Notification No. BRC‑111‑7/62, dated 10‑12‑1962‑Sanction for prosecution by "appropriate Government"‑Mere fact that "appointing authority" may also, under rules, give sanction for prosecution of public servant‑Does not modify statute‑Appointing authority of accused public servant, Syndicate of University-Governor, being appropriate Government, held, within his powers to accord sanction for prosecution of such public servant.

S. 161 read with Prevention of Corruption Act (II of 1947), S. 5(2)‑Trap case‑Raiding Magistrate, previously Prosecuting Sub‑Inspector, receiving training as a Magistrate III Class‑Conduct of Magistrate showing that he was not a detached and objective witness of occurrence but in posing as brother of complainant on instructions of Police and passing money to accused reducing himself to status of ordinary decoy wit ness‑Magistrate giving contradictory statements in his report and in evidence before Court-Difficult, in circumstances of case, to hold that accused accepted and pocketed tainted money--conviction and sentence set aside.

Din Muhammad v. The State P I. D 1967 Lah. 199; Emperor v. Anwar Ali, A I R 1948 Lah. 27; S. Qamar Ali Shah v. The State P L D 1963 Lah. 250 and Zafar Ali v. The State. P L D 1962 S C 320 ref.

Ijaz Hussain Butalvi and Iftikhar Ali Sheikh for Appellant.

Major Waheed‑ud‑Din for the State.

This order will dispose of Criminal Appeal No. 286 of 1965 and Criminal Revision No. 513 of 1965. The appellant, S. M. Anwar, in the above appeal was convicted under section 161 of the Pakistan Penal Code read with section 5 (2) of the Prevention of Corruption Act (II of 1947 and was sentenced to imprisonment till the rising of the Court and a fine of Rupees two thousand. In default of payment of fine he was directed to undergo rigorous imprisonment for one year. The above revision has been filed by the Government for enhancement of sentence.

2. The facts out of which the above appeal and the revision arose are these:--

The appellant Mr. S. M. Anwar was a lecturer in the Punjab University. He was appointed Superintendent of Third Professional Animal Husbandry Examination which was being held in the College of Animal Husbandry in May 1963. Abdul Ghafoor P. W. I was one of the candidates who appeared in that examination. On 16‑5‑63 at about 10‑30 a.m., while the examination was going on, the Deputy Superintendent saw Abdul Ghafoor throwing a piece of paper. This was picked up by the Deputy Superintendent from the floor. The matter was reported to the appellant. On the same day he made a report to the University that Abdul Ghafoor had used unfair means. It was also reported by him that Abdul Ghafoor had created disturbance in the Examination Hall and had refused to snake a written statement. According to Abdul Ghafoor, before the commencement of the examination, he had handed over his diary containing a cheque of Rupees two hundred and a currency note of Rupees five to the appellant. After the incident was over Abdul Ghafoor demanded from the appellant his note‑book, the cheque and the currency note who refused to return the same but on the other hand threatened him that he will hand him over to the police. Abdul Ghafoor thereupon brought Ch. Mukhtar Ahmad, D. W. 1, a Professor in the College of Animal Husbandry who asked the appellant to forgive Abdul Ghafoor and give him back his diary etc. The appellant told Ch. Mukhtar Ahmad that the matter would be hushed up and the articles belonging to Abdul Ghafoor will be returned.

3. On 7th of January 1963 Abdul Ghafoor received a show-cause notice from the University. He went to the University after receipt of this notice and enquired from the appellant as to why proceedings were being taken against him when he had already forgiven him. The appellant said that the matter had become quite complicated and it would be better if Abdul Ghafoor met him at his house. Abdul Gharoor then went to the Ouse of the appellant with Aqeel Hussain Shah P. W. 2 who had been his class‑fellow. The date of this visit was seventh or eighth of June 1963. The appellant demanded a sum of Rupees one thousand as a remuneration for saving Abdul Ghafoor from the consequences of the enquiry. The latter expressed his inability to pay such a huge amount. The appellant, however, asked him to meet him after two days with the money in case he was able to procure it. Abdul Ghafoor was not able to arrange for the money. About 15 or 20 days after Abdul Ghafoor had met appellant at his house, he went to the University to find out the position of his case. He met the appellant there who asked him about the case and Abdul Ghafoor thereupon complained that he i.e., appellant, had got him entrapped and there was little hope left for him. The appellant. however, reassured him that there was no cause for despair and that the matter could be set right if some money was paid to him. Abdul Ghafoor then went to the Anti‑Corruption Office and met Mr. Maqbool Ahmad Bajwa, P. W. 4, an Inspector of Police and told him as to what was going on between him and the appellant. Mr. Bajwa instructed Abdul Ghafoor to go back to the appellant and tell him that a brother of Abdul Ghafoor would like to see him in connection with the payment of money. Abdul Ghafoor met the appellant in the University premises and told him that his brother would talk to him about the payment of money. The appellant asked Abdul Ghafoor to come with his brother at about 1 1.00 a.m. to a shop in Anarkali known as Victory Paint House. Abdul Ghafoor took back this information to Mr. Bajwa who gave him currency notes of the value of four hundred rupees out of which three notes were of the denomination of one hundred each and ten notes were of the denomination of rupees ten each. The currency notes were produced before Mr. Anis Sadiq P. W. 3, a Magistrate of the third class. He recorded Abdul Ghafoor's statement Exh. P. 1 and noted down the serial number of currency notes and kept these with himself. The Magistrate went to his house and after changing his shirt came back.

4. A raid party consisting of Abdul Ghafoor, Mr. Anis Sadiq, Maqbool Ahmad Bajwa and an A. S. I. boarded a taxi in order to proceed to the place fixed by the appellant. A head constable of police followed them on a cycle. After reaching the destination, Abdul Ghafoor and the Magistrate entered the shop but the accused was not there. Mr. Anis Sadiq and Abdul Ghafoor came to the door of the shop. A few minutes later the appellant arrived and Abdul Ghafoor intro duced him to Mr. Anis Sadiq representing the latter as his elder brother. The appellant then led Abdul Ghafoor and the Magistrate to an ante room of the shop where none else was present. The appellant demanded Rupees one thousand but the Magistrate pretending to be the brother of Abdul Ghafoor said that he had brought only Rupees four hundred. The appellant accepted the money and put in his pocket. He demanded that the remaining money should reach him by the following Monday. Ultimately after some bargaining a further sum of Rupees two hundred was premised to be paid by the fake brother of Abdul Ghafoor. After the money had passed Mr. Anis Sadiq revealed his identity and took out the money his pocket. Meanwhile Mr. Maqbool Ahmad Bajwa P. W. 3 along with A. S. I. came in after receiving an agreed gesture from Abdul Ghafoor. The appellant was then brought to New Anarkah Police Station where the Magistrate Wrote his raid report Exh. P. D. and recorded a further statement of Abdul Ghafoor which is Exh. P. B. The appellant also gave a statement in writing which is Exh. P. E. but his case is that he was made to write this under ceercion. In this statement the appellant stated that Abdul Ghafoor had approached him a number of times to get him clearance in the inquiry pending in the University. He stated that Abdul Ghafoor and his companion i.e., Mr. Anis Sadiq had persuaded him to accept the money, but he said nothing about the actual receipt of money.

5. The prosecution have examined five witnesses in all. They are Abdul Ghafoor P. W. 1, Aqeel Hussain P. W. 2, Mr. Abdul Qadir Qureshi P. W. 3, Assistant Controller of Examina tions, Mr. Maqbool Ahmad Bajwa P. W. 4 and Mr. Anis Sadiq, Magistrate P. W. 5. P. W. 3, Mr. Abdul Qadir deposed about the proceedings which had been taken against Abdul Ghafoor while the other prosecution witnesses appeared to depose in support of as to the charge against the appellant. The appellant produced four defence witnesses, namely, Ch. Mukhtar Ahmad D. W. 1, Muhammad Inayatullah D. W. 2, Muhammad Mukhtar D. W. 3 and Khawaja Muhammad Rafiq D. W. 4. Muhammad Mukhtar stated that on the day when Abdul Ghafoor was reported against for using unfair means he had a talk about it with the appellant. He further stated that on the next day Abdul Ghafoor and his brother approached him to intercede on their behalf but he told them that the matter had been reported to University. Muhammad Inayat D. W. 2 stated that he is a friend of the brother of the appellant. He met the appellant and his brother in the University and made an appointment with the latter to see him at 11 a.m. at the Victory Paint House but was not able to keep the appointment and met the brother of the appellant at the Railway Station. He also stated that at the time when they had fixed the rendezvous and the time of the meeting another person was present and was enquiring about his case and was telling the appellant that his brother wanted to see him. Sh. Mukhtar Ahmad D. W. 3 whose shop is adjacent to the Victory Paint House where the raid was conducted stated that he went to the Victory Paint House to have some change and he saw two persons persuading the appellant to accept some money, but he was refusing to accept that. Meanwhile two persons came and one of them told the appellant that he was a Magistrate. Khawaja Muhammad Rafiq D. W. 1 is the proprietor of the Victory Paint House where this occurrence took place. He stated that the appellant came to his shop with two persons and there was some discussion going on between them. He saw one of the persons holding some currency notes in his hands. He was offering them to the accused but the accused was refusing to receive the same and there was some sharp argument about it. In the meantime two or three other persons entered the shop and asked him to come out of the shop. They ultimately took the appellant away. According to this witness the whole occurrence took place in the main shop and not in the ante room

6. The learned trial Judge believed the prosecution story and convicted the appellant as narrated above. He rejected the defence version. Ch. Mukhtar Ahmad D. W. 1 was disbelieved because .his version was at variance with that of the appellant. The appellant had stated that Mukhtar Ahmad had approached him with Abdul Ghafoor on the same day while Mukhtar Ahmad said that Abdul Ghafoor and his brother approached him on the next day. It was further observed that Mukhtar Ahmad had stated that he did not know Abdul Ghafoor previously and for this reason the learned trial Judge held that it was unlikely that Mukhtar Ahmad would intercede on behalf of a boy who is not known to him. Another factor which persuaded him to discard the testimony of Mukhtar Ahmad was that this witness and the appellant had been together in the same American University. The evidence of Muhammad Inayat was rejected on the ground that he was an intimate friend of the brother of the appellant and that he failed to keep his appointment and instead went to the Railway Station to see the brother of the appellant off. The evidence of Mukhtar Ahmad was rejected on the ground that he disclosed a story which was nobody's case. Khawaja Muhammad Rafiq D. W. was cited as a prosecution witness but he was given up as unnecessary and as having been won over. The learned trial Court referred to the possible intimate relations of the appellant with this witness and observed "who has ever heard of strangers not only forcing money as bribe on a person who is unwilling the accept it but also kicking up a row in that connection in the presence of some other persons".

7. Mr. Ijaz Hussain Batalvi, learned counsel for the appellant, raised a preliminary objection to the legality of to appellant's conviction and sentence. His argument was that the appoint ing authority of the appellant was the syndicate of the University and the sanction in this case having been given by the Governor, it was not in accordance with law. He in this connection referred to the Notification No. BRC‑111‑7/62 published in the West Pakistan Gazette, Extraordinary of 10th December 1962 which says that the power to sanction prosecution of a public servant under subsection (51 of section 6 of the Pakistan Criminal Law Amendment Act, 1958 may be exercised by any officer competent to appoint and remove such public servant from such office. This objection has been effectively met by the learned Special Judge himself. The appellant is admittedly a Public Servant. The phrase "appropriate Government" has been defined in the Act as Provincial Government in respect of the public servants belonging to the provincial sphere. Again subsection (5) of section t; says that the sanctioning authority will be the appropriate Government. The mere fact that appointing authority may also under the rules give sanction for the prosecution of a public servant does not in any way modify the statute according to which the authority to accord sanction is the appropriate Government. The Governor is the Provincial Government according to the Constitution and in my view he was within his powers to give sanction to the prosecution of t4 appellant. The preliminary objection fails.

8. The sole question for determination in this case is whether the prosecution has proved that money was passed on to the appellant and he accepted it as a bribe. Abdul Ghafoor had a clear animus against the appellant. He had been reported against for using unfair means and the matter was pending before the Committee of the University of the Punjab. The appellant had nothing to do with the enquiry and was in no position to help him. Abdul Ghafoor was a student of third year and one can presume that he knew very well that his case had gone beyond the reach of the appellant. It is hard to believe that he was duped by the alleged promise of the appellant to help him in the inquiry. Aqeel Hussain is said to have accompanied the appellant to the latter's house where a sum of Rupees one thousand was demanded as a bribe. Abdul Ghafoor did not men tion the incident of going to the appellant's house along with Aqeel Hussain in his statement made before the Magistrate on 28‑6‑1963. This evidence can therefore be rejected as a piece of padding.

The only two witnesses to the fact of the passing of money to the appellant are Abdul Ghafoor and Mr. Anis Sadiq. Abdul Ghafoor is a highly interested witness and 1 find force in the argument of the learned counsel for the appellant that his design was to wreak vengeance on the appellant. It has been further pointed out that the learned Magistrate had been a Prosecuting Sub‑Inspector and was receiving his training as a Magistrate III Class at Lahore. His conduct clearly shows that he was not a detached and objective witness of the occurrence but in posing the brother of Abdul Ghafoor on the instructions of the police reduced himself to the status of an ordinary decoy witness.

9. Mr. Ijaz Hussain Batalvi, the learned counsel for the appellant has referred to Din Muhammad v. The State (P L D 1967 Lah. 199) wherein it was held that a decoy witness is an accomplice and his evidence cannot be relied on without corroboration. The learned Single Judge who decided the above case relied upon Emperor v. Anwar Ali (A I R 1948 Lah. 27) wherein it was observed by Mr. Justice Cornelius (as he then was) that a decoy witness will extremely be keen that his trap should not fail and having in the fore‑front of his mind the central idea that the marked money should be passed on to the intended victim, there ii a real danger that he may pass on the money under some pretext not indicating the guilty mind of the receiver.

The learned counsel for the State, Mr. Wahiduddin has relied on S. Qamar Ali Shah v. The State (P L D 1961 Lah. 250) wherein it was held that the bribe‑giver was not an accomplice. In this case the learned Single Judge relied upon Zafar Ali v. The State (P L D 1962 S C 320). It was held by the Supreme Court in the precedent case that a decoy witness was not an accomplice in the legal sense and that there is no firm rule of Law which requires that the Courts should always seek corroboration of a decoy witness. It was further observed by the Supreme Court that it would depend upon the circumstances of a case as to what weight is to be attached to the evidence of a particular witness. As stated above Abdul Ghafoor in this case is an inimical witness. The conduct of the learned Magistrate clearly shows his complete subservience to the scheme of the raid. He went to the length of making an incorrect representation to the appellant that he was the brother of the complainant, The case of the appellant was that the Magistrate tried to shove in the money in his pocket but he resisted. The trial Court was right in holding that Inspector Maqbool Ahmad Bajwa did not actually see the recovery of the tainted money. I also find that the learned Magistrate during his statement before the Court departed from his own report drawn up at the time of the raid in which he had clearly stated that Inspector Maqbool Ahmad came when he had already recovered the tainted money. Before the Court he stated that as soon us he revealed his identity to the appellant the Inspector came in and recovery was made in his presence. It is not possible to reconcile these two contradictory statements. On this state of evidence, I find it extremely difficult to hold that the appellant accepted and pocketed the tainted money.

14. I have also a feeling that the testimony of Mukhtar Ahmad D. W. G, and Khawaja Muhammad Rafiq D. W. 4 was not given proper weight by the learned trial Judge. It was the case of the prosecution as well as the defence that Mukhtar Ahmad had interceded on behalf of Abdul Ghafoor on the same day. Mukhtar Ahmad was naturally reluctant to make an admission to this effect but the fact that he interceded unsuccess fully on behalf of Abdul Ghafoor is clearly proved. The appellant had shown from the very start that he was not amenable to influence in this regard. The reasons for completely discarding the evidence of Khawaja Muhammad Rafiq are not convincing.

He was admittedly present in the shop and was cited as a prosecution witness. He says that there was some argument between the appellant and the two persons when the appellant was refusing to accept the money. The learned trial Judge observed that there was no reason for the two persons to insist on giving the money when the appellant had refused it in the first instance. To me it will be a natural conduct on the part of decoy witnesses who were keen for the accomplishment of their design to make the raid a success.

In view of the above facts I allow this appeal and set aside the conviction and sentence of the appellant. The fine, if realized, may be refunded. The revision petition filed by the State fort enhancement of the sentence fails and is hereby dismissed.

Appeal accepted.

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