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Criminal Appeal No. 509 of 1965, decided on 20th March 1968.

S. 118‑-Child witness‑Child of about 9 years found unable to give intelligible and intelligent answers to questions‑Deposition of such child held, without any value.

S. 161‑Bribe--"Illegal gratification"‑Charge must be proved beyond reasonable doubt --Mere discovery of marked currency note from person of' accused in absence of corroboration to evidence of decoy witness‑Does not necessarily prove that money was accepted as an "illegal gratification".

The evidence revealed that there was no corroboration to the testimony of decoy witness with regard to the allegations that the accused wanted money and the decoy witness paid him the five‑rupee currency note in answer to the demand. What had been proved positively and definitely is that a five‑rupee currency note, the number of which was entered in a separate paper which is called inventory was found in the upper chest pocket of the shirt of the accused and the District Anti- Corruption Officer and other officers of the trap party placed the accused under arrest and took him away. This fact does not and cannot lead to the conclusion that the five‑rupee currency note was given by decoy witness to the accused as illegal gratification.

A charge of acceptance of illegal gratification can be lightly and easily made but in the very nature of things difficult to establish, inasmuch as direct evidence is often meagre and of a tainted nature. But that is no reason why the fundamental principle of criminal jurisprudence that the burden rests upon the prosecution to establish the charge beyond reasonable doubt should be ignored.

Lt. Hector Tomas Huntley v. Emperor A I R 1944 F C 66 ; Emperor v. Anwar Ali A I R 1948 Lah. 27 and Ansar Ali Mia v. The State P L D 1961 Dacca 806 rel.

K. M. Subhan for Appellant.

Muhammad Ali for the State.

Appellant Abdul Hye alias Md. Abdul Hye has been convicted under section 161 of the Pakistan Penal Code and sentenced to simple imprisonment for 6 months and a fine of Rs. 100, or in default to simple imprisonment for a further period of one month by Mr. T. Hossain, Special Judge, Dacca.

2. The prosecution case briefly is that on 9th March 1964 complainant Dayem Choudhury, brother of P. W. 7 Lutfa Begum approached the accused who was Head Master of the Motijheel Primary Government School for admission of Lutfa Begum in Class III. The accused refused her admission on the ground that there was no seat, but suggested that if permission was accorded by the Secretary then she might be admitted. Dayem Choudhury then took the permission of the Secretary and went back with the petition for admission to the accused at his library when the latter demanded Rs. 10 as illegal gratification for admission of Lutfa Begum. Dayem Chowdhury at last agreed to pay Rs.5 and left the school saying that he would come back next day with his sister and the money. On 10th March 1964 the complainant went to the Anti‑Corruption office and filed a petition stating the facts before the District Anti‑Corruption Officer. He produced one five‑rupee currency note of which an inventory was prepared by the Anti‑Corruption Officer and the note was returned to the complainant with instruc tion to pay the same to the Head Master on the latter's demand. The complainant then went to the School with his sister and approached the Head Master while he was teaching in Class V. When the Head Master wanted money, Dayem Chowdhury made over the five‑rupee currency note to him. The accused Head Master kept the money in the upper pocket of his shirt and after having brought the register entered the name of Lutfa Begum in the same and marked her present on that day. According to previous arrangement a signal was given to the Anti‑Corruption Officer who was near about to trap accused. The District Anti‑Corruption Officer then entered into the class and caught hold of the accused and challenged him. The accused after a pause of a few seconds admitted that he had taken Rs. 5 for admission of Lutfa Begum and had kept the same in the left chest pocket of his hawai shirt. On comparison the five‑rupee currency note was found to be the same as was noted in the inventory. The accused was arrested. Dayem Chowdhury lodged First Information Report and after investigation, in course of which necessary sanction was obtained, charge‑sheet was submitted against the accused.

3. The defence of the accused was that Lutfa Begum was admitted on 9th March 1964 according to the permission of the Secretary and on the following day Dayem Chowdhury paid to him Rs. 5 on account of books of Lutfa Begum. The accused had trouble with one Rafiq and Kabir who were teachers in his school wherefrom they were transferred on the report of the accused and for this reason Rafiq and Kabir in collusion with Dayem Chowdhury who is a class friend of Rafiq brought this case falsely against this accused. Another contention of the defence was that the sanction for the prosecution of the accused was not valid.

4. The learned Special Judge on an appraisal of evidence negatived the defence contentions and held the accused guilty under section 161 of the Pakistan Penal Code. Sanction order was also found by the trial Court to be valid and in order.

5. The first point urged by Mr. K. M. S. Subhan, learned Advocate for the appellant is that demand of illegal gratification in this particular case has not been proved. On this point there is the evidence of P. W. 1 Dayem Chowdhury, the complainant which is sought to be corroborated by P. W. 2 Rafiqul Hossain. P. W. 1, has testified to the entire facts of the case as sent out above. It is not disputed that the accused was agreeable for the admission of the complainant's sister Lutfa Begum in Class III 4 the Motijheel Government Primary school of which he was the Head Master and that she was actually admitted in the said Mass of that school. The fact that the complainant obtained permission for the admission from the Secretary of the school and made over the petition for admission to the accused with that permission is also not challenged.

6. According to P. W. 1 Dayem Chowdhury all these happened on the 9th March 1964. His evidence is that when he met the Head Master at his library with the petition. Exh. 1 containing the endorsement of the Secretary, Exh. 2, the latter demanded Rs. 10 from him. P. W. 1 at first raised objection, but the accused said that everyone pays money and he also must pay. Then a settlement was made that he would pay Rs. 5. He has stated that he had to agree to the demand, as otherwise his sister would suffer loss of one year.

7. P. W. 2 Rafiqul Hossain has testified that when he and Kabir were taking tea in a restaurant near the Majar at Motijheel .on 10th March 1964, P. W. Dayem Chowdhury told them that in connection with his sister's admission into their school the Head Master raised some objections and then wanted some money. There is no further evidence on the question of demand. It thus appears that Dayem Chowdhury is the only witness of demand and a slender corroboration has been sought to be given by P. W. 2 Rafiqul Hossain alias Rafiq. It may be reiterated here that it is the defence case that this Rafiq and Kabir in collusion with Dayem Chowdhury fabricated this false case. On his own admission he was transferred from the Motijheel Government Primary School to Khilgaon school. It was suggested to him that the accused submitted a report against him for holding class with girls students in the 4th period after closing the door during summer but he could not deny the suggestion. He denied having any knowledge as to whether any sub‑committee was formed at Motijheel School for looking into his conduct. He admitted that he was not married. I am unable to accept this P. W. 2 as witness of truth. On a proper scrutiny of the evidence I am inclined to agree with Mr. Subhan that the demand of illegal gratification by the accused‑appellant has not been proved beyond reasonable doubt in the absence of any corroboration to the evidence of P. W. 1 in this regard.

8. The next question to consider in this case is whether the story of taking Rs. 5 as illegal gratification by the accused is true P. W. 1 Dayern Chowdhury has deposed to the effect that he went to the school on 10th March 1964 with his sister Lutfa Begum and when the accused wanted money he paid him the five rupee currency note of which an inventory had been made by the Anti‑Corruption Officer. P. W. 3 Poara Akhtar, a girl aged 11 years has deposed that she was a student of Class V of the Motijheel Primary School in 1964 and when the accused Head Master was teaching them on 10th March, Lutfa Begum, entered the class room with a five‑rupee currency note and went to the accused and wanted books from him paying him Rs. 5. This witness was allowed to be cross‑examined by the prosecution. But nothing came out which might discredit this witness.

9. P. W. 4 Kabir Hossain, who was another teacher of Motijheel Free Primary School in 1964 has stated that he knew nothing about this occurrence. All that has transpired in his evidence is that some Anti‑Corruption Officers went to their school on 10th March, and he saw those officers and the accused in the latter's library. P. W. 5 Sardar Azhar Ali, P. W. 8 Mozibur Rahman, P. W. 10 Ali Quashem Khan Chowdhury and P. W. 13 S. M. A. Hashem are Anti‑Corruption Officers. Sum and sub stance of their evidence is that complainant Dayem Chowdhury went to the Anti‑Corruption Office on the 9th March, and com plained about the demand of illegal gratification by the accused for the admission of his sister Lutfa Begum in Class III of the Motijheel Primary School. It has also transpired from their evidence that Dayem Chowdhury submitted a petition stating the facts at the instance of the District Anti‑Corruption Officer, P. W. 10 and an inventory was prepared of the five‑rupee currency note. Their further evidence is that on 10th March, 1964 they laid a trap for the accused and according to previous arrangement on getting a signal they went near Class III of the school and the District Anti‑Corruption Officer entered the class room, challenged the accused and after search found the five‑rupee currency note in the upper pocket of his shirt. It has also emerged in their evidence that the accused stated that this note was paid for books of Lutfa Begum who had been admitted in Class III of the school.

10. P. W. 6 Kafiluddin Bhuiya is also a teacher of Motijheel Free Primary School. His evidence shows that he saw that two persons caught Head Master by his two hands on the verandah in front of Class V and one of them said that there was a note of particular description in his pocket. That note was then brought out and its number tallied with the number noted in the inventory.

11. The endorsement made by the learned Special Judge in the deposition sheet of P. W. 7 Lutfa Begum is to the effect :‑

"The girl is aged about 9 years. She seems to be able to depose but not so much intelligent."

It thus appears that she was not able to give intelligible and intelligent answers to questions, and that being so, her deposition is without any value. The learned Judge also preferred to leave it out of consideration. I think he has rightly done so.

12. P. W. 9 Md. Sherajul Huq is another teacher of the Motijheel Free Primary School and he has testified to the fact that the Head Master was caught hold of by some Anti‑Corruption Officers and a five‑rupee currency note was recovered from his possession.

13. A scrutiny of the evidence reveals that there is no corroboration to the testimony of P. W. 1 Dayem Chowdhury with regard to the allegations that the accused Head Master wanted money while he was teaching students in Class V and Dayem Chowdhury paid him the five‑rupee currency note in answers to the demand. What has been proved positively and definitely is that a five‑rupee currency note, the number of which was entered in a separate paper which is called inventory was found in the upper chest pocket of the shirt of the accused and the district Anti‑Corruption Officer and other officers of the trap party placed the accused under arrest and took him away. This fact does not and cannot lead to the conclusion that the five‑rupee currency note was given by Dayem Chowdhury to the accused as illegal gratification. On the contrary, the defence case finds support from the evidence of P. W. 3 Poara Akhter who has affirmatively stated that a five‑rupee note was paid to the Head Master as price of books.

14. The prosecution contention that the payment of the illegal gratification was made in Class V of the School in presence of the girl students while the Head Master was teaching them appears to be absurd. It is hard to believe that illegal gratification would be demanded by the Head Master of a School while he was teaching his pupils inside a class room. A charge of acceptance of illegal gratification can be lightly and easily made but in the very nature of things difficult to establish, inasmuch as direct evidence is often meagre and of a tainted nature. But c that is no reason why the fundamental principle of criminal jurisprudence that the burden rests upon the prosecution to establish the charge beyond reasonable doubt should be ignored. Reference may be made in this connection to the case of Lt. Hector Tomas Huntly v. Emperor (A I R 1944 F C 66).

15. In the case of Emperor v. Anwar Ali (A I R 1948 Lah. 27), Cornelius, J. (as he then was), delivering judgment of the Division Bench observed as follows :‑

"The weakness of the prosecution case as has been indicated already, consists in the fact that the statement of Mr. Bahi as to the reason why Anwar Ali took the money from him is not corroborated by any other evidence, oral or circumstantial. All the evidence for the prosecution conveys the impression that it was considered sufficient for establishing a case of bribery against the accused that it should be proved that the marked notes passed from Mr. Bahi to him. Obviously, that is in fact not sufficient for establishing such an offence. Money may be passed from one person to another on a variety of pretexts, and it cannot be remembered to carefully that persons who lend themselves for use as decoys and agents provocateur possess ingenuity and suppleness of wit above the ordinary. No stupid or simple person could ever hope to perform such a function. Therefore, it is of the utmost importance in cases of this kind that there should be independent corroboration of the statement of the decoy witness, that the money was received by the accused person for an illegal purpose."

The soundness of the above principle is beyond question. In the present case P. W. 1 Dayem Chowdhury is a decoy witness and there is practically no corroboration to the evidence sought to be furnished by him as to the demand and acceptance of illegal gratification by the accused.

16. In the case of Ansar Ali Mia v. The State (P L D 1961 Dacca 806) a Single Bench of this Court has held that in a trap case mere recovery of the money from the possession of the accused will not be enough to fix him with the guilt as it has to be shown that the accused actually accepted the amount knowing it to be an illegal gratification. The prosecution must prove that there was a conscious acceptance of the money by the accused concerned. Even if the defence fails to prove the actual planting, yet the prosecution is not absolved from the duty of proving its own case beyond reasonable doubt.

17. Applying the principles laid down in the above cases to the present case, it is abundantly clear that tie prosecution has failed to bring home the charge to the accused beyond reasonable doubt. The defence case that this money was paid as price of books finds support from the admitted fact that the accused has a library or a book shop wherefrom the books of schools are sold. This is, to say the least a very plausible defence. After careful consi deration of the evidence and circumstances of the case I hold that the conviction of the accused‑appellant in this case is not maintainable.

18. The appeal is accordingly allowed. The order of conviction and sentence passed on the appellant is set aside. The appellant be discharged from his bail bond. The stay order as to fine is made absolute.

Appeal allowed.

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