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(On appeal from the judgment and order of the High Court of Judicature at Dacca in East Bengal, dated the 8th June 1955, in Criminal Appeals Nos. 429 and 430 of 1954).

Penal Code (XLV of 1860),

S. 161‑Bribery‑Benefit of doubt‑Charge of obtaining illegal gratification on promise of getting more money, for Union from Government‑Prosecution witnesses and accused sailing in same boat and conclusion unavoid able that part of amount paid to accused for execution of Union's work was utilised by prosecution witnesses for their own benefit either in conjunction or with active connivance of accused‑No independent corroboration forthcoming in material respects‑Criminal conviction, held, not safe on tainted evidence of one against other‑Accused given benefit of doubt and acquitted.

S. A. Ghani, Advocate Federal Court instructed by Abdul Hye, Attorney for Appellant.

Aziz‑ul‑Islam, Advocate Federal Court instructed by A. N. M. Nasiruddin, Attorney for the Crown.

Date of hearing : 15th February 1956.

MUHAMMAD SHARIF, J.‑

This is an appeal by our special leave. The appellant was convicted by the Special Judge, Rajshahi, under section 161, Pakistan Penal Code, and sentenced to two years' rigorous imprisonment and a fine of Rs. 1,000. On appeal, the High Court at Dacca by their judgment and order, dated the 8th of June 1955, dismissed the appeal, but the conviction was altered to one for an attempt to obtain illegal gratification, as the charge of actual payment of money was not found established and the sentence was consequently reduced to one year's rigorous imprisonment and a fine of Rs. 500. The present appeal is against this order.

For the preservation and repair of the embankments in Khulna District local committees were constituted by the appellant who was an Inspector of the Civil Supplies Department at Rajshahi and was appointed as Relief Officer or Supervisor in charge of Lata Union for the purpose. In the course of distri bution of Government money for the above object, it is alleged that the appellant while advancing Rs. 2,000 to the Hari Bandh Committee on 9th of February 1952 obtained Rs. 500 for himself and Rs. 50 for his peon as illegal gratification on the promise of getting more money for the Union from the Government. It is further alleged that sometime after (the period is not specified) Abani Kanta Roy, the Secretary of the Bandh Committee, complained to the Special Officers in charge of the operations against the appellant. Some inquiry was made followed by Police Investigation, which culminated in the conviction of the appellant.

The case against the appellant rests upon the evidence of Satish Chandra Gosh, Cashier, examined as P. W. 1, and Kazi Bazlul Karim, President of that Union, examined as P. W. 12. The learned Judges of the High Court agreed with the trial Court that it P. W. 1 was reliable and an independent witness and could not be said to be an accomplice. The other witness P. W. 12 was technically an accomplice, but he had "agreed to the proposal under stress of circumstances", and a slight degree of corrobo ration would suffice. This was found from the evidence of Mr. Turner, P. W. 9 (Special Officer) in the circumstances‑

(1) that a report against the accused was made to him: (2) that he took action on the report;

(3) that he had the account books brought into his boat by the accused and looked into them; and

(4) that the accused was put under suspension and after obtaining 10 days' leave he did not return to his duty and had to be replaced by another officer.

As there was some discrepancy between the evidence of P. Ws. 1 and 12, the learned Judges of the High Court came to the conclusion that there was some doubt as to the actual payment of money, but that the case as regards the attempt was sufficiently proved.

It was contended for the appellant that there was no proof that any money was paid or attempted to be obtained; that the two witnesses relied upon by the prosecution were accomplices in the fullest sense of the term ; that the circumstances relied upon as corroborative evidence of the testimony of the prosecution witnesses did not furnish the necessary corroboration and that the circumstances themselves either individually or collectively did not connect the accused with the crime. It was further urged that the evidence as to payment having been disbelieved, it was not fair and proper to convict the appellant for an attempt to commit offence under section 161, Pakistan Penal Code.

This case has some special features. Abani Kanta Roy, the Secretary of the Bandh Committee, who had made a complaint against the appellant, has himself disappeared and was not available for evidence at any stage. He is reported to have left Pakistan for good. According to P. W. 1, the appellant placed the full amount of Rs. 2,000 on the table. He further stated "Abani kept Rs. 900 out of this amount and I came away with Rs. 1,100. Abani kept this nine hundred rupees for payment to the officer and also for some Bandh work. After much haggling, Jafar Mian (the appellant) agreed to take Rs. 550; Rs. 500 for himself and Rs. 50 for his peon." He added "Abani and Bazlul Karim remained with the accused when I came away. I waited outside along with others. Abani made a statement to me after he came out. I had no talk with Bazlul Karim." His information, therefore, was derived from Abani only. 1t is significant that at no subsequent stage did P. W. I ever ask for an account at least of Rs. 400, which still remained with Abani Kanta Roy. This conduct of his does not reveal him in favour able light, and he was as much hand and glove with the Secretary as the other members of the Committee were.

The account book remained in the custody of P. W. 1. It shows that a sum of Rs. 2,000 was entered on the credit side and that of Rs. 900 on the debit side at the time of the opening of the account. The evidence of P. W. 12, Kazi Bazlul Kaim, shows that the entire amount of Rs. 2,000 was made over to the Secretary Abani Kanta Roy, Abani in his turn made it over to the Cashier Satish Chandra Ghosh. Thereafter, Abani said that some amount had to be paid to the supervisor (the appellant) and Satish (P. W. 1) should leave it. It was settled already that the supervisor should be given Rs. 500, and this sum was paid out of Rs. 900 left with Abani by Satish. It was admitted that the witness was present throughout the transaction. Prosecution witness 12, therefore, was clearly a party to the alleged transaction between the appellant and the members of the Union.

The evidence of P. Ws. 1 and 12 does not really agree and this was also noticed by the High Court. If the main story of the witnesses that the amount was actually paid, as they say, to the appellant be discarded, it is difficult to see on what basis the conviction of the appellant "for attempt" could be based.

Some distinction, no doubt, has to be made between one accomplice and another. One may be dyed more black and the other may appear in a lighter hue. The amount of corroboration needed in the case of one may not be necessary in the same degree in that of the other, and more so where one person is an active participant and the other is merely a victim. The conduct of P. W. 1 would not show that he had not taken the same part as played by his other colleagues, and if corroboration was insisted upon in the case of P. W. 12, the evidence of P. W. 1 could not be easily accepted without it.

The circumstances referred to in support of the testimony of the accomplice do not furnish the necessary amount of corrobo ration needed to act upon it, that is, there must be some independent evidence or circumstances connecting the accused or tending to connect him with the crime. The fact that Abani Kanta Roy made some report to the Special Officer would only show that some action was intended to be started against the appellant by the very person, who had, according to the prosecution evidence, kept behind Rs. 900 partly for payment to the appellant and partly for no purpose that is realiably explained. It appears that there were either some complaints or rumors about the misapplication of funds advanced by the Government and it might be that Abani Kanta Roy to save his own skin surreptitiously went and made a report against the appellant. This alone would explain his own subsequent conduct in not having had the courage to come forward and give evidence. Looking to the circumstances of this case it is difficult to avoid the conclusion that a part of the amount paid for the repairs and the upkeep of the Bandh was utilized for their own benefit by the members of the Union either in conjunction or with the active connivance of the appellant. All the persons concerned in the affair are in the same boat, and a criminal conviction would not be safe to sustain on the tainted evidence of one against the other. There is no independent corroboration in material respects. The appellant must, therefore, get the benefit of the doubt and the appeal is accepted.

Appeal accepted.

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