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Criminal Appeal No. 573 of 1960, decided on 12th March 1963.

Trap case-Testimony of recovery witnesses (mashirs)-Principles to be applied in assessing evidence.

In a corruption case where a person has been arrested for accepting bribe by a trap set for the purpose, it is essential that panch witnesses should be independent, unbiased and without being in any way under the control of the police; as far as possible the police and the investigating officers should avoid utilizing panch witnesses when they have already acted as such in another case ; and those should be panch witnesses whom the police officers do not know at all, and about whose independence and impartiality there can be no question at all. If a mashir's evidence weighed in the light of these principles is found wanting his testimony cannot be much relied upon.

Simon Kaitan Fernandez v. The State A I R 1951 Bom. 468 ref.

Court when justified in drawing presumption under S. 4-Accused offering reasonable and acceptable explanation supported by evidence and circumstances-Decision not to be taken in relation to accused's pleadings alone but must rest on examination of entire evidence- Reasonable possibility of defence version being true-Accused entitled to benefit of doubt.

The presumption against the accused under section 4 of the Prevention of Corruption Act, 1947 is not to be drawn until the explanation offered by the accused is considered and found unsatisfactory. Where the accused offers a reasonable explanation which is acceptable and which raises a doubt as to the truth of the prosecution case, the presumption cannot be drawn. But if the Court feels justified in drawing a presumption against the accused after due consideration of the explanation, then the burden is on the accused to displace the presumption of criminal misconduct.

Where there is a question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances, the decision must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the "whole case, and the accused is entitled to the benefit of such doubt on the ground that the prosecution has not proved its case beyond reasonable doubt.

Ikramuddin v. The State P L D 1958 Kar. 21 and Mir Ahmed v. The State P L D 1962 S C 489 ref.

Muhammad Hayat Junejo for Appellant.

Murtuza Hussain for Respondent.

Date of hearing: 11th March 1963.

The appellant has been convicted for offences punishable under section 161, P. P. C. and section 5(2) of Act II of 1947, and sentenced to R. I. for 9 months, in addition to a fine of Rs. 500, in default of payment of fine, further R. I. for three months.

2. The prosecution case is that the appellant is a topedar of tapo Dilipoto in the taluka of Naushahro Feroz. On the 6th of April 1960, one Saffar Machi applied to the Mukhtiarkar, Naushahro for true copies of certain entries in the revenue record regarding Survey Nos. 334 and 335 in which Saffar's father had allegedly a share. The application was endorsed to the appellant who demanded a bribe of Rs. 100, which amount was reduced later at the entreaties of Saffar. This amount Saffar promised to pay within a day or two. In the meantime, Saffar lodged a report with the Anti-corruption Police, Nawabshah. A trap was arranged, the trapping party consisting of H. C. Illahi Bux, Saffar and a mashir Piaro Khan, a pan-bidi seller from Nawabshah boarded the evening train from Nawabshah on the 7th of April and alighted the next morning at Naushahro Feroz. Rs. 50 in marked currency notes were given to Saffar in the otak of an Overseer, where the party had stationed themselves. Piaro was detailed to accompany Saffar to the Mukhtiarkarate where the appellant sat, a short distance from the officer's otak. Piaro had been instructed to relay a signal if the appellant accepted the amount. The signal consisted of Piaro wrapping a turban round his neck after the amount had been accepted. Saffar went up to where the appellant sat on a mat in the verandah near the Mukhtiarkarate beside several other tapedars and members of the public. Piaro took his stand in the compound. Within his seeing Saffar went up to the appellant and gave him the marked amount. The appellant accepted it and put the amount in his pocket. Piaro then gave the arranged signal to the Anti corruption police constable, who in turn relayed it to the Over seer's otak. The Head Munshi of Kandiaro, one Mr. Ali Muhammad, who had also been detailed to accompany the party, and was with H. C. Illahibux at the time, together with H. C. Illahibux, rushed up to the appellant. At lllahibu'xs demand, the appellant took out three wads of currency notes from his pocket, including the marked currency notes of Rs.50. Mashirnamas were prepared of the securing of this amount. Illahibux also secured several other chits, documents, miscellaneous papers and currency notes with details in the presence of the mashir, and then recorded the statements of the witnesses, and arrested the appellant. After the necessary sanction to prosecute the appellant had been received, the appellant was challaned on the 1st of August 1960.

3. The defence at the earliest stage was enmity of the complainant Saffar, and his Zamindar Faiz Muhammad Almani, to involve him in a false case of which the present was the result. In his 342-statement, Exh. 21-, the appellant admitted that he was a tapedar at the relevant time, that Saffar had actually applied for true copies of the revenue record in respect of S. Nos. 334 and 335 which had been endorsed to him for compliance, but denied that he had demanded a bribe of Rs. 50 for the purpose. He had informed Saffar that the S. Nos. stood in the names of some Hindus, that he had no share in them, and that he would make further inquiries. Saffar then went away saying that he would make inquiries from his father. On the 8th April, one Faiz Muhammad Almani against whoa: proceedings under section 141, Land Revenue Code, had been ordered paid him Rs. 192 against Land Revenue assessment, Faiz Muhammad stating to him that he had already credited Rs. 242 with the tapedar of Tharushah, and that the balance of Rs. 225 he would pay within a day or two. In the meantime, H. C. Illahibux and others arrived at the scene and asked him to produce the Rs. 50. Appellant took out Rs. 192 from his pocket and handed them over to the constable and informed him and all others present that the amount had been paid by Faiz Muhammad Almani towards the assessment, to prevent the appointment of a chowkidar on the disputed land. Faiz Muhammad was present at the time. The papers connected with the section 141 Land Revenue Code proceedings were with the appellant at the time which he handed over the money to the Anti-corruption Police. Appellant denied knowing Piaro, mashie of the incident, and contended that he was being implicated by Faiz Muhammad Almani, who had arranged with his predecessor to have the names erased from the record and to have his own (Faiz Muhammad's) name shown instead. These erasures the appellant had noticed and reported to the Mukhtiarkar. On the 6th of April, Faiz Muhammad had brought a letter from the Mukhtiarkar inquiring about certain other survey numbers, and the appellant had reported that the entire matter was suspicious as the names originally borne on the record were those of Hindus, For this reason. Faiz Muhammad, in conspiracy with Saffar, his hari, had falsely implicated him in this case. Appellant has contended that there was a dispute between Saffar's father and his uncle regarding some land in respect of the allegations that Saffar's father was an illegitimate child, made by the opposite-party on acccuni of which Saffar's father was not entitled to a share in the land. Appellant had recorded statements of the opposite-party.

4. Three witnesses were examined by the appellant to support the various grounds of enmity, and false implication by Saffar in conspiracy with Faiz Muhammad Almani., They were: Ghulam Hussain, Exh 23, a clerk who was posted in the office at Naushahro who produced the records relating to the reports made by the appellant in respect of the 141 Land Revenue Code proceedings against Faiz Muhammad Almani and others, and the various endorsements made in the course of it, Shahbux, Exh. 30, who produced Field Book in respect of deh dettha partly owned by Faiz Muhammad Almani, indicating that Saffar Machi complainant in this case, was his hari, and Muhammad Saleh, Exh. 41, a Zamindar, who owns land within the jurisdiction of tapa dalipota, who supported the defence contention that in his presence Faiz Muhammad Almani had paid Rs. 192 for the removal of the karava on Faiz Muhammad Almani's land. Appellant did not issue any receipt in Faiz Muhammad's favour. He was also present when P. W. Ali Muhammad, Head Munshi accompanied by H. C. Illahibux arrived at the scene and demanded the amount from the appellant. Faiz Muhammad Almani was at the time sitting with the appellant. The amount was handed over by the appellant to the Head Constable. Muhammad Saleh is a Zamindar owning 60 or 70 acres of land, and the learned Special Judge disbelieved his testimony as he had no satisfactory explanation to offer for his presence at the relevant time of the occurrence, since "it is not difficult for a tapedar who had remained for long in a beat to produce such witnesses in support of a concocted defence."

5. The point for determination in this appeal is whether on the evidence recorded, the prosecution can be said to have established the case against the appellant beyond reasonable doubt of having accepted Rs. 50 in marked currency notes as a bribe for letting Saffar have copies of certain documents o: entries from the revenue record. It is clear on being taken through the R & P that this is a case where under no circum stances can the prosecution be said to be free from several material doubts. For a beginning, it is strange that although Saffar contends that he had applied for true copies of Form No. 6 in respect of S. Nos. 334 and 335 for the year 1958-59, where he alleges his father had a share, he has not pursued his request for the copies even after the appellant was apprehended. Besides in his cross-examination, he has stated that his father's name does not appear in the record-of rights. He has denied that he is a hari of Faiz Muhammad Almani. The defence has consistently been that Faiz Muhammad Almani has enmity with the defendant in respect of the 141 Land Revenue proceedings instituted obviously on the statements made by the appellants, and that Saffar is his hari. The official records produced by the defence witness Shahbux, who is a tapedar and who produced the field books of deh dettha for the years 1957, 1958 and 1959, were the three entries, Exhs. 31, 32 and 33 established that Saffar was and has been shown as Faiz Muhammad's hari.

6. The enmity between Faiz Muhammad Almani and the appellant is also in my view established. Faiz Muhammad's presence at the time of the incident, namely, when appellant accepted the tendered money is established from the testimony of Saffar himself. It is also admitted through the prosecution witnesses that immediately after the appellant was asked to hand over the amount of money, he produced Rs. 192, and immediately contended that these had been paid to him by Faiz Muhammad Almani towards his revenue dues, and in an effort to forestall the order of the Mukhtiarkar dated the 3rd March 1960, Exh. 24, following the report by the appellant requesting permission to appoint a Karao' of those his khatedars who were hesitating in making payments of the Land Revenue, and had not paid the assessment of the Kharif crop. Notices under section 141, Land Revenue Code were signed by the Mukhtiarkar, and permission was accorded for appointing a Karuo' but not until two months were over, to indicate that the Karao' would not be actually appointed if the Land Revenue Assessment arrears were paid. Thereafter there is Exh.25, where the Barrage Mukhtiarkar of Naushahro, has inquired from the Mukhtiarkar of Naushahro, as to the owners of the survey numbers mentioned, and if they originally belonged to Hindu khatedars, if they had left for India, and how Faiz Muhammad Almani had his name entered in the khata and the record connected therewith. Then there is Exh. 27 addressed to the Mukhtiarkar of Naushahro in reply to Exh. 26, stating that the entries in the survey numbers had been accused and were suspicious, and that the right of Faiz Muhammad Almani to the land was suspicious and unreliable, there being no entry in these survey numbers regarding Faiz Muhammad's claim. Besides, there is an obvious contradiction in the testimony of mashir Piaro as to who originally paid the currency notes which were marked and given to Saffar before he accompanied this mashir to pay the amount to the appellant. riaro stated that Rs. 50 were taken from complainant Saffar, whilst P. W. Ali Muhammad who is the Head Munshi, who accompanied the trapping party, stated that one Ali Bux paid this amount to H. C. Illahibux. It has been rightly contended by Mr. Junejo for the appellants that the testimony of Piaro mashir, Exh. 14, should be accepted with great caution, for he has admitted that he has acted as a mnshir in an Anti-corruption case challaned by the same H. C. Illahibux, and it is strange that the trapping party should pick up this witness who is a pan-bidi seller from Nawabshah and take him all the way to Naushahro, about 30 miles away, by train.

7. In this connection reference has been made to Simon Kaitan Fernandez v. The State (A I R 1951 Bom. 468), where the entire law in regard to the importance to be attached to panch witnesses or mashirs has been discussed. It was held that it was essential that panch witnesses should be independent, unbiased and without being in any way under the control of the police, that as far as possible the police and the investigating officers should avoid utilizing panch witnesses when they have already acted as panch witnesses, that those should be panch witnesses whom the police officers do not know at all, and about whose independence and impartiality there can be no question at all. Piaro's testimony read as a whole, suffers greatly indeed, and is found wanting if weighed in the light of these principles.

8. It was further contended on behalf of the appellant that at the very outset, the appellant has given a reasonable expla nation for the acceptance of Rs. 50 that day. This in the context of his consistent defence that the amount was paid by Faiz Muhammad Almani. There is overwhelming evidence of the presence of Faiz Muhammad Almani and his son in the Mukhtiarkarate on the day of the incident. I, therefore, find it difficult to agree with the remarks of the learned trial Judge that the testimony of D. W. Muhammad Saleh, Exh. 41, should be discarded. He appears to be a respectable person. There seems no doubt as to his presence at the time of the incident, and his reasons for doing so then. He has definitely stated that Faiz Muhammad Almani was sitting with the appellant at the time the police raiding party came over, and while handing over the money the appellant had asserted that he had received them from Faiz Muhammad Almani.

9. In 1kramuddin v. The State (P L D 1962 S C 489), Bachal, J., in respect of similar matter under the Anti-corruption Act, opined that the presumption against the accused under section 4 of the Act is no 1t to be drawn until the explanation offered by the accused is considered and found unsatisfactory. Where the accused offers a reasonable explanation which is acceptable and which raises a doubt as to the truth of the prosecution case, the presumption cannot be drawn. But if the Court feels justified in drawing a presumption against the accused after due consideration of the explanation, then the burden is on the accused to displace the presumption of criminal misconduct.

10. Their Lordships of the Supreme Court in Mir Ahmed v. The State (P L D 1958 Kar. 21) held

"where there is a question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances, the decision must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case, and the accused is entitled to the benefit of such doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt.

11. There is no doubt that in the present case there was more than a reasonable possibility and indeed, in my opinion, an establishment of fact that the defence put forward by the appellant may be true. The defence examined by the appellant read with the admissions made by the prosecution witnesses, the unreliability of the main prosecution witnesses, the interested nature of the testimony of Saffar and the overwhelming circum stance of Faiz Muhammad Almani being inimical towards the appellant undoubtedly points to more than a reasonable doubt of the prosecution case. In my view, therefore, the prosecution have definitely failed to bring home the charge against the appellant of having accepted Rs. 50 as bribe towards supplying true copies of the record of survey numbers requested for by Saffar Machi. There is more than a reasonable possibility that the appellant was being falsely implicated, and that there was a conspiracy to that effect. The learned A. A.-G. appearing for the State has admitted that there are several grave and important contradictions between the prosecution witnesses as to who gave the amount to the appellant, and that the enmity between Faiz Muhammad Almani and the appellant is established. So is Faiz Muhammad's presence at the time. He also admits at the Bar that the testimony of mashir Piaro is unreliable and he cannot, therefore, support the conviction.

12. In the result, the appeal is admitted (sic) and the conviction and the sentences are set aside. The appellant who is on bail is forthwith set at liberty, and his bail bonds cancelled.

K. B. A.

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