Victor Murray Coutts Trotter, C.J.
1. In this case one Lilaram Ganganmull brings up in revision a conviction and sentence of the Chief Presidency Magistrate sentencing him to six months' rigorous imprisonment. Another man called, Sibagtullah, who was charged with him, was convicted along with him and sentenced to three months' rigorous imprisonment. The matter came in revision before two learned Judges who argeed in rejecting Sibaagtullah's petition, but differed as to Lila ram's, my brother Krishnan J., being in favour of setting aside the conviction and my brother Waller J., in favour of upholding it. The charge and the only charge against the accused was of conspiring together to bribe a public servant, to wit Mr. Auston, Superintendent of the Preventive Service, Customs Department, in order that he might return certain account-books of the Firm of Lilaram Brothers which hehad seized under a warrant and that he might show favours in future to Lilaram; and the charge proceeds to set out that in pursuance of this conspiracy Sibagtullah offered to Mr. Auston a bribe of Rs. 8,000. This charge was treated as, one under the combined, effect of Sections 116 and 161, Indian Penal Code. The offence is said to have been committed on the 1st March and the story begins a few days before that. Two bales of silk had arrived by a steamer apparently consigned to Lilaram's firm. Of one we know nothing it disappeared. But the second was seized by the Customs Officials, was appraised and adjudged to be undervalued, and Lilaram was accordingly called upon to pay a considerable sum in excess of what he had declared to be its value. Mr. Auston seems thereupon to have suspected that this might be only one instance of a systematic course of smuggling, and he accordingly obtained and executed a search warrant on Lilaram's business premises and removed 14 books of account. Those books have been in the possession of the Authorities for a very long period and no one has thought fit to frame a charge upon them. The explanation that, as they are written in the Sindhi language, the expense of having them translated would be prohibitive does not commend itself to me. The facts as found are that Sibagtullah, the second accused, called on Mr. Auston about noon on the 1st March, 1923, and offered to make it worth while to Mr. Auston to hand over Lilaram's books to him. There was a second visit from Sibagtullah at 3 o'clock when again professing to act on behalf of Lilaram, he made a definite offer of Rs. 8,000 for the books. Mr. Auston played the part of an agent provocateur and arranged for a subsequent interview in the evening when Sibagtullah would present himself with the cash, at the same time reporting the matter to his superior officers, Mr. Richardson and Mr. Byod. It was arranged that Mr. Auston should interview Sibagtullah and that Mr. Richardson should be in a position to witness the tender of the money to him. In due course Sibagtullah presented himself that night, was interviewed by Mr. Auston and handed to him Rs. 8,000 worth of notes, an act which was witnessed by Mr. Richardson. The consideration is alleged to be, first, the return of the account-books, and, secondly, the granting of further favours in the future of passing consignments of silk without levying the proper customs duties. It is a curious story with some remarkable features in it. First, Mr. Auston appeared extremely anxious to pin Sibagtullah down to the story that he was definitely acting on behalf of Lilaram. In this connection a promissory note was put in evidence drawn by Lilaram in favour of Sibagtullah for Rs. 3,000. It is dated 1st February, and is explained by Lilaram as being given by him to Sibagtullah to raise money upon it. The prosecution did not and obviously cannot rely upon it, because apart from its date, the account of it given by Sibagtullah according to Mr. Auston's evidence of what he said is hopelessly at variance with the written statement that has been put in this case. In the second place, it is difficult to believe that Lilaram should be ready to pay so large a sum as Rs. 8,000 for the return of books which, after having been in the hands of the Authorities for months have not proved capable of founding a criminal charge. Finally, if the real consideration is the granting of future indulgences, Mr. Auston according to his own account indicated that the bribe was useless because he said:
2. 'I watch preventive officers, preventive officers watch me and the Assistant Collector watches everybody.' Moreover, it is difficult to believe that two men embarking in a dangerous game of this kind should not have known that Mr. Auston had been gazetted for a substantial period of leave in the very near future, and would be useless to them for their purpose. At the trial Sibagtullah put in a written statement in which he admitted that he had offered a bribe to Mr. Auston aid that he did so at the instigation and on behalf of Lilaram though he denies that he said anything about the future favours to come.
3. This being a charge of conspiracy, the law of evidence relating to it was clearly laid down as early as the case of Reg. v. Blake (1844) 6 Q.B. 128 : 13 L.J.M.C. 131 : 8 Jur. 145 : 115 E.R. 49 : 66 R.R. 311 and I do not conceive that the Indian Evidence Act meant to depart from the law as there expounded. See also Rex v. Baskerville (1916) 2 K.B. 658 : 86. L.J.K.B. 28 : 115 L.T. 453 : 80 J.P. 416 : 60 S.J. 696. The rule is this: that if prima facie evidence of the existence of a conspiracy is given and accepted, the evidence of statements made by any one of the conspirators in furtherance of the common object is admissible against all. On this view of the case the statement made by Sibagtullah to Mr. Auston established by the evidence of Mr. Auston and Mr. Richardson would be directly admissible as against Lilaram. What took place in the Police Court I do not know. But the Magistrate had expressed his opinion that the evidence which alone could possibly be treated as prima facie evidence of the conspiracy, outside the statement of Sibagtullah, is unreliable and he does not profess to accept it. One is not surprised that he was unwilling to act on that evidence because Abdul Ohani Nawazi, who is the chief witness to speak to frequent meetings between the two accused shortly before the offence, himself stated that he and the two accused had been intimate friends for a number of years, which goes a long way to rob such meetings of any significance. In any event sitting in revision, I do not think it is competent for me to look at the case from a point of view which has practically been given up by the prosecution. The case as presented to my learned brothers was put in a different way altogether. It was said that the written statement of Sibagtullah handed in at the trial was a confession within the meaning of the Evidence Act and, therefore, by Section 30 may be taken into consideration as against the other co-accused. I have always thought that that was a most unsatisfactory section and was, a needless tampering with the wholesome rule of the English Law that a confession is only evidence against the person Avho makes it. The Courts of India in construing it have laid it down that a conviction of an accused based solely on the confession of another accused cannot stand and there must be independent evidence entirely outside if the confession before it can be used. Here, there is none on which the Magistrate has professed to rely; and it is obvious that the corroboration of Sibagtullah must come from another source than himself which would, of course, exclude all his statements made in the hearing of Mr. Auston and Mr. Richardson. I have carefully gone through the judgment of Mr. Justice Waller, to see what circumstance independent of Sibgatullah's statements he might have relied on as corroboration of him and the only thing I can find is the fact that Lilaram's books had been seized and were in the possession of the Customs Authorities. That seems to me wholly inadequate to support the prosecution story as that is explained as being the out come of the smuggling of silk with which we are not concerned and with which Lilaram has never been charged. I may add that the prosecution are really in a logical dilemma. If the evidence outside Sibgatullah's con fession was enough to corroborate it, it was sufficient prima facie evidence of conspiracy to make his statements to Mr. Auston available as admissions not only as against himself but as against Lilaram, under the doctrine of Reg. v. Blake. But that has never been suggested throughout the course of these proceedings. In my opinion there is no legal evidence to support this conviction, however suspicious a case it may be, and agreeing with my brother Krishnan, J., I set aside the conviction of the first accused and order his bail-bond to be cancelled.
4. There are two other observations which I desire to make, first, that the trial was loaded with inadmissible evidence, the presence of which on the record the Crown Prosecutor explains by saying that to the legitimate questions put by him, answers were given by the witnesses who volunteered irrelevant matter. I refer particularly to the evidence given to the eirect that Sibagtullah was an old and confirmed sumuggler. I find it difficult to believe that such evidence was volunteered merely in answer to a question directed to show that Sibagtullali was short of funds and unable from his own resources to produce Rs. 8,000. But if it be so, it was clearly the duty of the Magistrate to keep the witness in hand and in any event even if he could not stop him from blurting out matter of this sort, not to have put it on the record. The whole trial appears to nie to have been mishandled from start to finish and I should be sorry to come to, any other conclusion than that its result Cannot stand. I also feel constrained to point out that although the petition of the second accused has been rejected and his conviction confirmed and I believe he has actually served part of his sentence, he stands convicted of the abetment of an offence, viz., that of conspiring with Lilaram which in the judgment of the majority of this Court was never committed at all. The judgment will be forwarded to (Government to take such steps as they may be advised with regaid to him.