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Criminal Appeal No. 15 of 1961, decided on 5th October 1961.
‑‑Corruption cases Informer Bahawalpur State-- Triable as from 14th October 1955, under Prevention of Corruption Act (11 of 1947) and not under Bahawalpur Prevention of Corrup tion Act (V of 1950)
Held, that the Legislature has clearly replaced the Bahawalpur Prevention of Corruption Act (V of 1950) by the Prevention of Corruption Act (11 of 1947) from the date the Bahawalpur State was merged into the Province of West Pakistan, i.e., the 14th of October 1955.
The prosecution of an accused, who was alleged to have accepted a bribe on 19‑12‑1956, under section 5(2), Prevention of Corruption Act (II of 1947), was therefore in order.
The act of the accused was punishable under an analogous law, the provisions of which are almost identical with Act II of 1947. The mere fact that there were no Special Judges appointed in Bahawalpur area at the time of the commission of the offence would not, in any way, give a right to the accused, to claim the trial by the ordinary criminal Court.
The intention of the Legislature as enacted by sections 3 and 4 of the Central Laws (Statute Reform) Ordinance, 1960, is that the Bahawalpur Prevention of Corruption Act (V of 1950), which has the corresponding provisions of Act II of 1947, shall stand repealed from the 14th day of October 1955 and replaced from that date by Act 11 of 1947.
The right claimed by the accused that he should have been tried by the ordinary criminal Courts fundamentally relates to proce dure and according to well‑established principle of interpretation, the accused is not entitled to such a right
Maxwell on Interpretation of Statutes 10th Ed. p. 225 and The State v. Said Ahmad P L D 1957 B J 1 considered.
‑Case of corruption tried by Special Judge on transfer of case from A. D. M.'s Court‑Transfer irregular‑Accused not objecting to trial before Special Judge‑Irregularity covered by S. 537‑Trial not vitiated.
‑Defence‑Special Judge proceeding to examine accused over again, after arguments and before pronouncing order‑Examination more detailed than former examination‑Fresh opportunity for defence not accorded‑Trial, held, not affected by omission to provide such opportunity‑Criminal Procedure Code (V of 1898), S. 342.
K. E. Chauhan for Appellant.
Dilawar Mahmud and M. Mushtaq Hussain, Additional A. G. on 14‑9‑61, 15‑9‑61, 19‑9‑61 and 20‑9‑61 for Respondent.
Dates of hearing : 13th, 14th, 15th, 19th and 20th September 1961.
Dr. Abdul Khaliq Shukrani appellant has been convicted under section 161, P. P. C. and section 5(2) of the Prevention of Cor ruption Act (II of 1947) and sentenced to rigorous imprisonment for one year and a fine of Rs. 500 under each count. In default of the payment of fine he is to undergo rigorous imprisonment for three months. Both the sentences have been ordered to run con currently.
2. The appellant was posted as Medical Officer, Civil Hospital, Ahmadpur East, District Bahawalpur. Ghulam Haider (P. W. 2) of village Ahmad Naich, and injured person. was admit ted in the hospital on the 4th of December 1956 at 6 p.m. He was examined by the appellant the next day at 8 a.m. The appellant sent information to the police that Ghulam Haider P. W. had been admitted in the hospital and kept under obser vation and that a complete report would be sent later on. On the 14th of December 1956, Yar Muhammad, S. H. O. Police Station Chani Goth (P. W. 9), returned the said report to the appellant and asked him for a final report regarding the nature of the injuries on the person of Ghulam Haider P. W. The appellant examined Ghulam Haider on the 15th of December 1956 and,, reported that Injuries Nos. 1, 2, 4 and 5 were simple and that the result of injury No. 3, which is on his hand, would be reported after the stitches were removed. On or about the 17th of December 1956, Ghulam Haider P. W. enquired from the appellant as to what report he had made to the police regarding his injuries. It is alleged that the appellant told him that he had kept his hand injury under observation, while the rest of the injuries had been reported to be simple. Ghulam Haider there upon asked the appellant as to why he had not reported the result of his hand injury. Thereupon the appellant told him that if he paid him Rs. 200 as bribe he would report that injury to be grievous. Ghulam Haider offered to pay Rs. 100 only which was ultimately agreed by the appellant and be promised that in case he was paid Rs. 100 he would report the injury to be grievous. On the 18th of December 1956, Ghulam Haider P. W. brought this fact to the notice of Shakir Ali, Sub‑Inspector, Anti‑Corruption Department, through 0hulam Hussain, Foot Constable. Shakir Ali P. W. told him to come to the Courts the next day. Under orders of the District Magistrate, Bahawalpur, Mr. Muhammad Aslam, Magistrate 1st Class (P. W. 13), was deputed to supervise the raid. Ghulam Haider and Ghulam Hussain P. Ws. Approached the appellant in the hospital. The appellant enquired from Ghulam Haider If he had brought the money, thereupon Ghulam Haider paid him the tainted currency note of Rs. 100. The appellant put it in the pocket of his coat which he was wear ing. On a signal given by Ghulam Hussain, Foot Constable, the Magistrate and Shakir Ali Sub‑Inspector, came up. The Magistrate told the appellant that he would search his person and then enquired from Ghulam Haider P. W. as to where the tainted currency note was. Ghulam Haider told him that it was in the pocket of the appellant. The appellant denied having accepted any bribe from Ghulam Haider, but on a search of his coat the tainted money along with currency notes of value of Rs. 54 were recovered vide memo. Exh. P. G. The coat of the appellant was also taken into possession vide memo. Exh. P. H. A case was registered against the appellant on the basis of a formal first Information report Exh. P. H., recorded by Zahoor Mohy‑ud‑Din (P. W. 14), Inspector, Anti‑Corruption Department, Bahawalpur.
3. The appellant was initially challaned in the Court of Malik Abdur Rashid, A. D. M. and Special Judge. Bahawalpur. Malik Abdul Rashid was transferred and succeeded by Mr. Durrani, but it was doubtful whether Mr. Durrani could hear the case. Consequently a reference was made to the High Court praying for the transfer of the case to the A. D. M. Lahore. On the 14th of April 1960, it was urged before the High Court that Mr. Durrani was competent to hear the case and consequently the reference was declined. Ultimately the case somehow or other reached the Court of Sheikh Farooq Ahmad, Special Judge, Multan, who recorded the rest of the evidence in the case and convicted the appellant as stated above.
4. It is also the case of the prosecution that the appellant prepared a report after the raid, but he ante‑dated it by a day and then despatched it to the Police Station where it was received on the 20th of December. The postal stamp on the envelope Is that of the 18th December 1956, 3 p.m., but the allegation of the prosecution is that the appellant had got the seal of the 18th December 1956, affixed on the 19th of December 1956, in collusion with the postal authorities. It may also be mentioned that the currency note was stolen from the police station along with some other articles.
5. The sanction for the prosecution of the appellant under section 161, P. P. C. and section 5(2) of the Prevention of Corrup tion Act (II of 1947), was granted by the Government in January 1959 in exercise of the powers conferred by subsection (5) of section 6 of the Pakistan Criminal Law (Amendment) Act, 1958.
6. The learned counsel for the appellant before arguing the case on merits has raised some law points in this appeal. The learn ed counsel contended that at the time of the commission of the offence, the Bahawalpur Prevention of Corruption Act (V of 1950) was in force in the areas formerly comprising the Bahawalpur State and consequently the appellant could not have been tried under the Prevention of Corruption Act ((I of 1947), nor the sanction could have been granted for his prosecution under section 161, P. P. C. and section 5(2) of the Prevention of Corruption Act (II of 1947). The learned counsel has cited The State v. Said Ahmad (P L D 1957 B J I) in support of his contention. The learned counsel has argued that by the Central Laws (Statute Reform) Ordinance, 1960, (XXI of 1960) all the Central Acts and Ordinances have been made applicable to the areas formerly comprising the Bahawalpur State, but in spite of the provisions of that Act, the appellant could only be tried under the Bahawalpur Prevention of Corruption Act. Section 3(1) of Ordinance XXI of 1960 runs as follows: ‑
"Save as otherwise expressly provided in any Central Act or Ordinance, the Central Acts and Ordinances specified In the Second Schedule shall extend to the whole of Pakistan, and shall be amended in the manner indicated in the fourth column thereof, and shall be deemed to have been so extended and amended on the fourteenth day of October 1955."
It is contended that section 4 of this Ordinance which provides for repeal and re‑enactment of certain laws in force in certain acced ing States before their incorporation into West Pakistan provided that where the operation of any Central Act or Ordinance has been extended by an amendment indicated in the Second Schedule to any area which before the 14th day of October 1955, formed part of the territories of an acceding State, any law in force in that area before that date and corresponding to the provisions of such Act or Ordinance shall stand repealed, and shall be deemed to have been re‑enacted by such Act or Ordinance, as amended by this Ordinance, as if such law were a Central Act and the provisions of the General Clauses Act, 1897 (X of 1897) shall apply accordingly. To this a proviso In subsection (2) had been added which lays down that notwithstanding the provisions of subsection(1) anything done, action taken, right accrued, or liability, penalty, forfeiture or punishment incurred, under any such law as aforesaid during the period commencing on the fourteenth day of October 1955, and ending with the commencement of this Ordinance shall be deemed to have been validly done, taken, accrued or incurred, as the case may be, and the Central Act or Ordinance be deemed not to have come into force during the said period in the area to which such law applied immediately before the commencement of this Ordinance. The Schedule to this Act at page 287 of P L D 1960, Central Statutes, contains an amendment to the effect that in section 1, for subsection (2) the following shall be substituted, namely, "it extends to the whole of Pakistan and applies to all citizens of Pakistan and persons in the service of Government wherever they may be". The contention of the learned counsel is that as the General Clauses Act has been made applicable by section 4 of Ordinance XXI of 1960, under section 6 (e) of the General Clauses Act, Act 11 of 1947 would not be applicable to him and that the appellant could be tried under the Bahawalpur Prevention of Corruption Act only. In order to further strengthen this argument the learned counsel relies on section 5 of the Criminal Law (Amendment) Act, 1958, which lays down that notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge, is contended that in the Schedule the Bahawalpur Prevention of Corruption Act (o of 1950) has not been mentioned and that this has been intentionally omitted by the Central Government. The Criminal Law (Amendment) Act, 1958, came into force on the 23rd of September 1958, almost about three years after the inclu sion of the Bahawalpur State in the Province of West Pakistan. It is contended that in case the appellant was tried under the Bahawal pur Prevention of Corruption Act, 1950, the case would have been tried as a warrant case by an ordinary criminal Court. There were no Special Judges appointed in the former State of Bahawal pur, and, therefore, the present trial, which has been held by a Special Judge, was invalid. The appellant has been prejudiced by the trial of his case by a Special Judge as a summons case because his offence under the Bahawalpur Prevention of Corruption Act, 1950, was triable as a warrant case by an ordinary Magistrate. The learned counsel has further urged that section 6 of the General Clauses Act (X of 1897), clauses (c) and (e), lay down that the repeal of any enactment unless a different intention appears shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceed ing or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. The learned counsel elucidating this point has also placed reliance on section 4 of the West Pakistan General Clauses Act, 1956, which reads as under
(1) Where this Act or any other West Pakistan Act repeals any enactment then, unless a different intention appears, the repeal shall not‑
(a) revive anything not in force or existing at the time at which the repeal takes effect ;
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investiga tion, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed.
(2) The provisions of subsection (1) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor under section 88 of the Government of India Act, 1935, as if it had been repealed by a West Pakistan Act."
He has urged that since the rights created earlier than the repeal of an enactment were kept alive by the operation of the General Clauses Act unless there was a different intention indicated in the repealing Act, the appellant could not have been tried by a Special Judge under the Prevention of Corruption Act (II of 1947).
7. The learned Additional Advocate‑General contended that by means of the Prevention of Corruption Act (West Pakistan Extension) Ordinance, 1958, the Prevention of Corruption Act (11 of 1947) was extended to the whole of the Province of West Pakistan, and by section 4 of the same Ordinance, the Bahawalpur Prevention of Corruption Act, 1950, was repealed. Consequently, it was essential that the sanction to prosecute the appellant should have been granted not under the repealed Act but under the Act prevalent at the time of the granting of the sanction. As a matter of fact a prosecution under section 5(2) of the Prevention of Corruption Act (1I of 1947) only materialises after the Govern ment grants sanction for prosecution, because if the sanction is not granted, the prosecution shall not start at all. In January 1959, when the sanction to prosecute the appellant was given, the Bahawalpur Prevention of Corruption Act, 1950, had been repealed. It was perfectly valid to accord sanction for the prosecu tion of the appellant under section 5(2) of the Prevention of Corruption Act, 1947. The rights and privileges to an accused person in such a case will accrue only after the grant of the sanction of his prosecution, and since at that time the Bahawalpur Prevention of Corruption Act, 1950, had been repealed and Prevention of Corruption Act (II of 1947) had been promulgated, the prosecution of the appellant under section 5(2) was perfectly legal. Moreover, Central Laws (Statute Reforms) Ordinance (XX1 of 1960), leaves no doubt‑in this respect. Section 3(1) of the Ordinance reads as under: ‑
"Save as otherwise expressly provided in any Central Act of Ordinance, the Central Acts and Ordinances specified in the Second Schedule shall extend to the whole of Pakistan and shall be amended in the manner indicated in the fourth column there of and shall be deemed to have been so extended and amended on the fourteenth day of October 1955."
The closing sentence of this subsection is very significant, because it lays down that the extension as well as the amendment shall be deemed to have become operative on the 14th day of October 1955, the date of the creation of the Province of Vest Pakistan. Section 4 of this Ordinance which deals with the repeal lays down clearly that where the operation of any Central Act or Ordinance has been extended by an amendment indicated in the Second Schedule to any area which before the 14th day of October 1955 formed part of the territories of an acceding State any law in force in that area before that date and corresponding to the provisions of such Act or Ordinance shall stand repealed and shall be deemed to have been re‑enacted by such Act or Ordinance as amended by this Ordinance. This clearly indicates that the intention of the Legislature as enacted by sections 3 and 4 of this Ordinance is that the Prevention of Corruption Act (V of 1950), which has the corresponding provisions of Act II of 1947, shall stand repealed from the 14th day of October 1955 and replaced from that date by Act 11 of 1947. There is no doubt that to such a repeal the provisions bf the General Clauses Act, ‑1897. (X of 189 1), shall apply. Subsection (2) of section 4 of this Ordinance validates anything done, action taken, right accrued or liability, penalty, forfeiture or punishment Incurred under the repealed law during the period commencing on the 14th day of October 1955 and ending with the announcement of this Ordinance. The argument of the learned counsel for the appellant that this subsection created a right in the appellant to claim his trial under the old act is based on an incorrect analysis of these sections. Here the Ordinance clearly lays down that the repealed Act shall be deemed to have been replaced from the 14th of October 1955. The right claimed by the appellant fundamentally relates to the procedure, but as hash been laid down in Maxwell on Interpretation of Statutes 10th Edition p. 225, appellant has no such right. It runs as follows: ‑
" a law which merely alters the procedure may, with perfect propriety, be made applicable to past as well as future transactions, and no secondary meaning is to be sought for an enactment of such a kind. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being, by or far the Court in which he sues, and, if an Act of Parliament alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or the tort; it takes away no vested right, for the defaulter can have no vested right in a state of the law which left the injured party without, or with only, a defective remedy."
The act of the appellant was punishable under an analogous law, the provisions of which are almost identical with Act II of 1947. The mere fact that there were no Special Judges appointed in Bahawalpur area at the time of the commission of the offence would not, in any way, give a right to the appellant to claim the trial by an ordinary criminal Court. I pointedly asked the learned counsel for the appellant as to what other meaning could be given to the closing sentence of section 3 (1) of Ordinance XXI of 1960, the learned counsel for the appellant candidly admitted that he was unable to reconcile this portion of section 3 with the provisions as contained in section 4 (1) and (2) of the Ordinance. To me the meanings are absolutely clear. The Legislature has clearly replaced the Bahawaplur Prevention of Corruption Act (V of 1950) by the Prevention of Corruption Act (II of 1947), from the date the Bahawalpur State was merged into the Province of West Pakistan, i.e., the 14th of October 1955. I would, therefore, overrule this objection of the learned counsel for the appellant.
8. The second contention of the learned counsel is that the case had not been validly transferred from the Court of the A. D. M., Bahawalpur, to the Court of Sheikh Farooq Ahmad, Special Judge, Multan. There is no doubt that the case pending before one Special Judge could have been transferred to another Special Judge either by the High Court or by an order of a Senior Special Judge. The learned Additional Advocate General has failed to produce any such order. What seems to have happened is that the Government of West Pakistan, Home Department, by a notification dated the 19th of August 1961, ordered the appoint ment of a Special Judge at Multan with jurisdiction extending to the Districts of Multan, Montgomery, Muzaffargarh, Dera Ghazi Khan, Bahawalpur, Bahawalnagar and Rahimyar Khan. By means of the order of the Government No. ACS‑E(E)‑44/59 dated the 16th March 1960, Sheikh Farooq Ahmad was appointed as Special Judge, Anti‑Corruption, Multan, and he assumed charge of his duties on the 9th March 1960. It was remarked in his appointment order that arrangements may be made to entrust him the cases pending at present with various officers for speedy trial. This letter was sent to the Com missioners Multan and Bahawalpur Divisions. As a result of this order it appears that all the cases that were pending with different Special Judges in that area were sent to Sheikh Farooq Ahmad. There is no doubt that this transfer was irregular. However, it is clear that Sheikh Farooq Ahmad had jurisdiction to try any case under the Prevention of Corruption Act, 1947, as a Special Judge, from Bahawalpur area. When the case came up before Sheikh Farooq Ahmad, the appellant did not object to the irregular manner in which it was transferred to his Court. The learned counsel for the appellant relied on section 530 of the Code of Criminal Procedure and urged that the case not having been validly transferred the proceedings were vitiated. The trial of a case by Sheikh Farooq Ahmad who had jurisdiction to try cases from that area is not covered by any of the subsections of section 530, Criminal Procedure Code, as Sheikh Farooq Ahmad was empowered by law to try such cases. There is no doubt that his Court was of competent jurisdiction. Consequently, section 537, Criminal Procedure Code, cures the irregularity that has been committed in the conduct of the trial. I would, therefore overrule, this objection of the learned counsel as well.
9. The third legal objection raised by the learned counsel is that the appellant was examined by the learned Special Judge, Multan, on the 22nd of December 1960, but after this examination he was not afforded an opportunity to lead any evidence in defence and that this has caused material prejudice to the appellant. A perusal of the record shows that the case for the prosecution was closed on the 5th of December 1960 and the appellant was examined on that very day. He was questioned "If he would like to produce any evidence", to which he replied in the affirmative, and the case was adjourned to the 16th of December 1960 for defence evidence. On this date the appellant closed his defence and the case was argued and adjourned to the 22nd of December 1960 for orders. Before pronouncing orders the appellant was once again examined. This examination is more detailed then his previous examination and all the circumstances appearing in the evidence against the appellant were put to him for the purpose of enabling him to explain those circumstances. The appellant entered upon his defence after the close of the case for the prosecution and he was entitled to produce evidence under section 256, Cr. P. C. Under section 257, Cr. P. C., he had a right to call for examination or cross‑examination even the witnesses who had been earlier cross‑examined. The appellant was given full facility to produce his defence. The Court has power to examine the accused at any stage. Consequently, he could have been examined by the Special Judge on the 22nd of December 1960. If the accused at that time had changed his mind and he wanted to examine any evidence in defence he could have asked for it, but he did not do so. There is nothing, in the Criminal Procedure Code which makes it incumbent upon the trial Magistrate to ask the accused a second time if he would like to lead any evidence, unless any other evidence for the prosecu tion was examined against him at a latter stage. Therefore, the omission of the learned trial Judge to ask the appellant if he would like to lead any defence after his examination on the 22nd of December 1960 does not affect the trial in any manner. During arguments it has not been shown as to who were the defence witnesses that the appellant wanted to examine. This contention of the learned counsel has, therefore, no force.
10. The last objection raised by the learned counsel is that the sanction has not been granted after applying the mind to the facts of the case and that it has been granted almost by a mechanical process. This argument of the learned counsel also has no force, as a perusal of the sanction order clearly indicates that the sanctioning authority had applied its mind to the facts of the case before according sanction, The order is to be found at page 71 of the file of exhibits. It clearly narrates the circum stances in which the appellant demanded and accepted Rs. 100 as a motive or reward for showing favour to Ghulam Haider Naich. It has been specifically mentioned in the order that after consider ing the facts constituting the offence and other circumstances of the case, the Governor o ' West Pakistan is satisfied that the grant of sanction for prosecution is necessary and expedient. The appellant has failed to prove on the record anything to show that this sanction was issued by means ox any mechanical process. The argument of the learned counsel is contradicted by the order of sanction.
11. In support of the above case of the prosecution the following witnesses were examined. Abdur Rahim, Head Constable (P. W. 1), stated that the tainted hundred rupee currency note was stolen from the police station on the night between the 26th and 27th of December 1956 from the Malkhana. Ghulam 4aider (P. W. 2) is the decoy witness and has given the details of the case of the prosecution. Ghulam Hussain, Foot Constable (P. W. 3), is the only witness who saw the passing of the tainted money and also heard the talk between the appellant and the decoy witness bet re the passing of the tainted money. It was upon his signal that the Magistrate and the investi gating officer came to the place where they were and conducted the search. Shakir Ali, Sub‑Inspector (P. W. 4), and Mr. Muhammad Aslam Sukhera, Magistrate 1st Class (P. W. 13), are the other two witnesses of the raid, The rest of the witnesses are more or less of a formal character, except Muhammad Hafiz 'P. W. 8) and Muhammad Abdul Khaliq (P. W. 11) who were the dispensers In the Civil Hospital, Ahmadpur East, at the relevant time.
12. The appellant when questioned if he had received the hundred rupee currency note from Ghulam Haider stated as follows: ‑
"Yes. He had given me a currency note of Rs. 100 saying that he wanted to show a patient to me who was in Ahmadpur Town and that I should deduct Rs. 10 as my fee and return the balance of Rs. 90 to him."
When questioned as to what was his version about the occurrence, he stated that he was holding the currency note of Rs. 100 In his hand and had called his peon to get the change from the bazar when Shakir Ali, Sub‑Inspector, Anti‑Corruption Department, came up alone. He snatched the currency note from his hand. The Magistrate. Mr. Muhammad Aslam Sukhera, reached two or Shakir Ali. The Magistrate told him that he would search his person, whereupon he handed over the currency notes of the value of Rs. 54 which were in his pocket. The Magistrate then asked him to take off his coat which he did. He searched the pockets of his coat, but he found nothing therein. He then enquired from Ghulam Haider if he had gone into his house, to which the complainant replied in the negative. The Magistrate then threw the coat towards Shakir Ali saying that there was nothing in it, but Shakir Ali said that the currency note was in the coat and produced that very currency note which he had snatched from him before the Magistrate. He stated that be had told the Magistrate as to what had actually happened and also told him that he had already sent the medico‑legal report to the police. He admitted the report Exh. P. H. to be in his hand writing. He was also asked to explain as to how could it have been possible to post the letter before 3 p.m. on the 18th of December 1956 when the report showed that the stitches of Ghulam Haider were opened at about 4 p.m. the same day. The explanation given by the appellant was that the post‑office people go on affixing 3 p.m. seal of the post office on all letters received even after 3 p.m. The appellant did not lead any evidence in defence.
13. On merits the learned counsel for the appellant has argued that Muhammad Hafiz (P. W. 8) and Muhammad Abdul Khaliq (P. W. 11) were not declared hostile by the prosecution and that they have supported the defence version. No doubt, these witnesses have nod beta declared hostile, but that would not mean that what they had stated would be accepted as gospel truth. These witnesses were working under the appellant. It is very likely‑ that they were share‑holders in the illegal gains of the appellant. I am not prepared to accept their evidence and hold that they have given false evidence in order to help the appellant. It has been urged by the learned counsel that Ghulam Haider had filed a complaint (Exh. D. B.) against one Manzoor Ahmed and he had stated in that complaint that under the influence of Manzoor Ahmad, who was a big Zamindar in the Illaqa, he had falsely implicated the appellant in a bribery ;'case and that in the statement Exh. D. C. of Ghulam Haider, which was recorded in pursuance of the complaint Exh. D. B., he had admitted that he had falsely implicated the appellant at the instance of Manzoor Ahmad. The learned Additional Advocate‑General has objected to the admissibility of Exh. D. B. and D. C. There is no doubt that the complaint could note be admissible unless the original was called and duly proved. However as for as the statement Exh. D. C. is concerned, that being a certified copy of a public document would be admissible. Ghulam Haider when examined during the trial admitted that he bad filed a complaint against Manzoor Ahmad, but when the subject‑matter of the complaint and the statement Exh. D. C. were put to him, he denied having made any such complaint or having made a statement as contained in Exh. D. C. In view of his denial, it was incumbent upon the defence to prove conclusively that the complaint and the statement were In fact made by this witness. His thumb‑impression could have been easily got compared. The Magistrate who recorded his statement could have been called to Identify if the statement was made by Ghulam Haider P. W. Such a complaint and a statement can very easily be got recorded by anybody posing himself to be Ghulam Haider. I would not, therefore, accept that the state ment Exh. D. C. is that of Ghulam Haider P. W. The admissibility of Exh. D. C. cannot add to its evidentiary value.
14. The learned counsel has further argued that there is no corroboration of the statement of the decoy witness to prove that the money had really been passed on as illegal gratification. There is the statement of Ghulam Hussain, Foot Constable, who has positively stated that the appellant had questioned Ghulam Haider If he had brought hundred rupees upon which Ghulam Haider replied that he had and then he took out the hundred rupee currency note from his pocket and handed it over to the appellant who put that note in the pocket of his coat. Thereafter Ghulam Haider asked the appellant that he should now give him the medico‑legal certificate. Upon this the appellant replied that he would sent it to the police. Ghulam Haider was insisting to take it by hand, but the appellant was telling him that the report would be sent to the police direct and it was at that time that he gave the signal to the Magistrate and Shakir Ali, Sub‑Inspector. The learned counsel has contended that Ghulam Hussain, Foot Constable, is a friend of Manzoor Ahmad, a Zamindar of that Ilaqa, and that the appellant was inimical towards Manzoor Ahmad, as has been stated by Muhammad Hafiz (P. W. 8). I have already held that Muhammad Hafiz (P. W. 8) cannot be relied upon as he is out and out to help the appellant. The enmity of the appellant with Manzoor Ahmad is not proved on the record of this case as I have not accepted the statement of Muhammad Hafiz (P. W. 8). The mere fact that Ghulam Hussain is a Foot Constable is no ground to disbelieve his evidence. We have the evidence of Shakir All and Mr. Muhammad Aslam Sukhera, Magistrate 1st Class, that upon a signal by Ghulam Hussain, Foot Constable, both of them came up to the appellant and recovered the tainted hundred‑rupee currency note from the pocket of the appellant. There is no reason to doubt the testimony of Shakir All and Mr. Muhammad Aslam Sukhera, Magistrate 1st Class, on this point.
15. The learned counsel has further pointed out some dis crepancies in the statements of witnesses as regards the exact spot where the tainted money was passed on to the appellant. The passing of the tainted money is an admitted fact. The only dispute is whether it was given as bribe or as payment of the fee for an anticipated visit of the appellant to an ailing relation of Ghulam Haider. It has been further urged that Ghulam Haider stated that the raid was carried out at l0‑00 a.m., while Ghulam Hussain stated that it was at 1‑00 p.m. and that Ghulam Haider stated that the appellant was taken by the Magistrate along with him, while Ghulam Hussain stated that the appellant was not taken away by the Magistrate. These minor discrepancies are possible due to lapse of time and they do not materially affect the case.
16. The learned counsel has vehemently argued that Mr. Muhammad Aslam Sukhera (P. W. 13) had stated that he got the coat of the appellant removed and upon search he only recovered Rs. 54 and that after that he threw the coat towards Shakir Ali and asked him as to where was the money. Upon this Shakir Ali picked up the coat from the ground and searched the coat and produced the hundred‑rupee currency note. This state ment of the learned Magistrate is not supported by the recovery memo. Exh. P. G., prepared by him at the time of the recovery of the tainted money. However, whether the currency note was recovered by the Magistrate himself or by Shakir Ali P. W., the defence version of the appellant that he was holding the hundred rupee currency note in his hand is disproved, because if Shakir Ali had snatched the hundred‑rupee note from the hand of the appellant, as stated by him, this would have been seen by the Magistrate. I am not prepared to accept that the Sub‑Inspector of Police reached near the appellant before the Magistrate. The raid was to be conducted by the Magistrate and not by Shakir Ali, He was only to accompany the Magistrate.
17. For another reason the defence version appears to be false. It is common experience that the fee of a doctor is paid after he has visited a patient. The tainted money was never seen in the hand of the appellant by the Magistrate, but it was re covered from his pocket. The defence version is baseless.
18. It has further been argued that Mr. Muhammad Aslam Sukhera stated that a Sub‑Inspector of Police, two constables in uniform, Mr. Ashaq Muhammad Advocate, and Mr. Mahmood Ahmad and several other persons were also present near the appellant before the raid. It is argued that it could not have been possible for the appellant to accept bribe in the presence of so many persons. Ghulam Haider and Ghulam Hussain were never questioned as regards the presence of these persons in the hospital at the relevant time. The appellant summoned Mr. Muhammad Ashaq, Advocate, and Mr. Mahmood Ahmad as his defence witnesses, but he did not examine them, which fact would show that they knew nothing about this incident. Moreover, the learned Magistrate has not stated that they were so close to the appellant that they could have noticed the passing of the money by Ghulam Haider to the appellant.
19. Lastly, it has been urged by the learned counsel that the complainant had been In the hospital for a number of days and it was admitted by him that nobody had asked for any bribe from him. But this would not mean that the appellant did not ask for bribe at the time stated by Ghulam Haider. It has also been urged that the appellant had already sent the medical certificate on the 18th of December 1956 and consequently there was no occasion for him to demand the bribe on the 19th. This argu ment also has no basis because it is very doubtful that the appellant sent the report on the 18th. The report was received in the police station on the 20th. It does not take more than a day for a letter to reach from Ahmadpur East to village Chani Coth. Moreover, the report in itself has intrinsic evidence of not having been sent on the 18th, because it is mentioned in the report that Ghulam Haider was examined at 4 p.m. on the 18th of December 1956. The certificate must have been prepared after that and posted much later than 3 p.m. The postal stamp bears the date and time as the 18th of December 1956, 3 p.m. The defence plea that the postal authorities go on affixing 3 p.m. seals even after 3 p.m. is not proved on the record. Moreover, after the clearance of the post from the letter box before 3 p.m., the second clearance would be only the next day.
20. The learned counsel has also urged that Mr. Muhammad Aslam Sukhera admitted that the appellant had represented at the time of the raid that he had sent the certificate a day earlier, but the mere assertion would not prove that it had been done. I find no force in these contentions of the learned counsel for the appellant and I would, therefore, dismiss this appeal. The appellant, who is on bail, shall be arrested to undergo the remain ing term of imprisonment.
21. Upon a careful reading of the statement of Mr. Muhammad Aslam Sukhera, I am thoroughly convinced that in his statement he has positively tried to help the appellant. In the report Exh. P. G., which is in his handwriting, It is nowhere mentioned that when he searched the coat of the appellant, he did not recover the hundred‑rupee currency note, and, then he threw the coat to Shakir Ali, who took out the note, from the pocket of the coat of the appellant and produce it before him. In the raid report it is clearly written that he conducted the search and recovered the tainted currency note and some other currency notes, the details of which have been mentioned in the report Exh. P. G. In cross‑examination he has made further concessions to help the appellant. He has stated: "I did not form any impression at that time if the currency note had been concealed somewhere in the coat of the accused which I could not discover or if Shakir Ali, S. I. had put it there, Shakir Ali P. W. did not enjoy a good reputation for it had been complained that he had been harassing the people. I don't think that he was a straight forward officer. It is probable that he might have put the currency note in the coat of the accused while shuffling and reshuffling it. It is equally probable that the currency note was in one of the coat pockets of the coat and I could not discover it." The Magistrate was directed to conduct the raid himself, which I am sure, he did, but at the time of his statement, in order to help the appellant, he has tried to make these improvements. When he was confronted with the statement marked 'A' to 'A' in his raid report Exh. P. G., he stated that the statement did not represent the actual facts, inasmuch as it did not contain the explanation that he had at first searched the pockets of the coat, did not find the tainted money in it, threw it towards Shakir Ali and Shakir All, after shuffling and reshuffling it, produced the currency note of Rs. 100 before him. He did not give any explanation, but he stated that the currency note was not recovered by him from the appellant or his coat, but by Shakir Ali after he had thrown the coat to him. He gave these replies when he was cross‑examined by the trial Judge. I consider that his state ment in cross‑examination : "Just before the raid one S.I. and two Foot Constable in uniform were present with the accused Inside the hospital. Mr. Ashiq Muhammad, Advocate, Ahmadpur East, Mr. Masud Ahmad Zamindar and a few other persons were also present with the accused at that time", has also been made with a deliberate intention of providing defence witnesses to the appellant and also providing an argument to the appellant that it could not have been possible for him to accept the bribe in the presence of so many persons. The defence never asked about the presence of these persons from the other three witnesses, namely, Ghulam Haider, Ghulam Hussain and Shakir Ali. The accusations made by him against Shakir Ali also seem to have been prompted with the same desire. If he knew that Shakir All to be a dishonest officer, why did he hand over the coat to him for search, as stated by him in the Court. I would, therefore, order that a copy of this judgment along with a copy of the raid report and the state ment of the Magistrate be sent to the Chief Secretary for persual and such action as he might deem fit.
A. H.
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