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Criminal Appeal No. 180 of 1959, decided on 26th June 1959.
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------Failing in part does not necessarily entail failure of entire case.
S. 162 read with S. S, Preven tion of Corruption Act (II of 1947)‑Mere fact that certain officers were members of "trap" party‑Does not make them interested witnesses.
Where in a bribe case it was contended that some of the prosecution witnesses were members of the trap party organised for catching the accused, they were interested in the success of the prosecution and, therefore, they should not be treated as independent witnesses who could lawfully o rroborate the evidence of the bribe‑giver :
Held, that the mere fact that certain officers were members of the trap party does not make them in any way interested witnesses in the absence of anything to suggest that they bear any kind of ill‑will against the accused there is no reason why their evidence should not be accepted.
S. 162‑Gratuitious agent accepting bribe on behalf of another‑Liable under section‑Words "as a motive or reward for inducing" etc.‑Qualify word "gratifica tion" and not the words "whoever accepts."
The words "as a motive or reward for inducing" etc. occurring in section 162, Penal Code, 1860 qualify the word "gratification" and not the words "whoever accepts" and, therefore, gratuitous agents for a bribe taker would come within the mischief of section 162 of the Penal Code, 1860. In order to substantiate an offence under this section it is necessary to show that the money that was accepted was intended for the purpose of being paid by way of gratification as a motive or reward for inducing by corrupt or illegal means a public servant but it is not necessary that the gratification must have been intended to be paid to the person who accepted the money. It is sufficient if the person accepting the money knows that the object for which the money is to be used is for the purpose of paying it by way of a gratification as a motive or reward for inducing a public servant.
Queen v. Setul Chunder Bagchee 3 W R (Cr.) 69 ref.
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--‑Bribe giver‑Evidence of‑Points on which corroboration absolutely essential‑Evidence Act (I of 1872), S. 133 Penal Code (XLV of 1860), S. 162‑Prevention of Corruption Act (II of 1947), S. 5.
Although corroboration is not required in every minute detail or particular of the evidence of an accomplice or bribe‑giver, yet on two broad points such broad corroboration is absolutely essential, namely (1) as to the implication of the accused and (2) as to the offence itself.
Ishaq v. The Crown P L D 1954 F C 335 ref.
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---‑Conflicting and contradictory prose cution evidence‑Witnesses supporting defence case not declared hostile‑Accused, held; entitled to benefit of doubt.
M. M. Golam Hafez for Appellant.
B. N. Chowdhury for the State.
This appeal is against the conviction of .the appellant under section 162 of the Pakistan Penal Code by the learned Special Judge of Mymensingh who has sentenced him to pay a fine of Rs. 500 or in default to suffer rigorous imprisonment for six months.
2. The appellant who was the Ijaradar of the Fulbaria Bazar, as also one of the leading business‑men of the said Bazar, was charged on two counts, namely, under section 165‑A of the Pakistan Penal Code for having, on the 25th of July, 1956, accepted Rs. 30 from P. W. 1 Gahar Ali at his shop to offer the same to one constable Nabi Hossain as illegal gratification and thereby abetted the said Nabi Hossain in the commission of an offence under section 161 of the Pakistan Penal Code. He was further charged under section 162 of the Pakistan Penal Code with having, on the 5th of August 1956, accepted Rs. 40 from the said Gahar Ali, P. W. 1 as illegal gratification as a motive for inducing the said constable Nabi Hossain, as public servant, to release the said Gahar Ali from a case.
3. It appears that according to the prosecution the said Gahar Ali with his son Abdul Hamid went to sell five seers of rice at Fulbaria Bazar on the 6th of Sraban, 1353 B. S. There one Sabar Ali purchased the said rice for Rs. 6‑4‑0 at the rate of Rs. 50 per maund but offered to pay only Rs. 5‑8‑0: This was refused by Abdul Hamid who demanded the full amount of the price. Sabar Ali ultimately paid the price but threatened P. W. 1 Gahar Ali and his son Abdul Hamid with bitter consequences, saying that as they had charged an exorbitant price for the rice which was purchased for the Second Officer of the local police station, they would be reported to the thana. Gahar Ali and his son, however, after making their purchases at the Bazar went back to their home. Two or three days later, whilst the said Gahar Ali and his son were out working in the field a cons table and a Daroga, it is said, came to the house of the said Gahar Ali and enquired about him from his wife. Finding that Gahar Ali was not in, they left word with his wife to send him to the thana when he returned. Gahar Ali, however, on getting this information, went first to the bazar. There he met one Abdul Ghafur and one Hasan Ali master and reported every thing to them. He was taken to the shop of Hasan.Ali Master where he found two constables namely, Nabi Hossain and Azam and a dafadar Khundu present. From there he is said to have been taken to the shop of the appellant and at this place, it is said, the constable Nabi Hossain gave out that a case had already been started against the said P. W. 1. The latter wanted to have the case compromised, whereupon the appellant, it is alleged, told him that he might be released on payment of Rs. 200. Thereafter Gahar Ali informed them that a settlement had been arrived at and the said Gahar Ali would be released on payment of Rs. 70 on the following day. The appellant, stood surety for the said Gahar Ali. Gahar Ali, however, on the following' day could only procure Rs. 30 which he made over to the appellant and agree to pay the balance in seven days' time. He could not, however, procure this money within that time and was accordingly threatened with dire consequences: Being so threat ened, he, it is said, went to the Superintendent of Police of Mymensingh and there reported this fact to him. He was referred to the Deputy Superintendent of Police of the District Anti -Corruption Branch who, after ascertaining all the facts from him, arranged a trap and sent him on to procure the Rs. 40 still remaining to be paid to the appellant. Gahar Ali came home and managed to raise this sum by selling his jute. With this money he went, as previously arranged, to the office of the local Sani tary Inspector at Fulbaria. There he found the Deputy Super intendent of Police; an Inspector of Police and a constable present. They were joined latter by the local Agricultural Officer also. Gahar Ali made over Rs. 40 in four ten‑rupee notes to the Deputy Superintendent of Police. The Thana Agricultural officer then noted down the numbers of the notes on a piece of paper. The notes were made over to Gahar Ali with instruc tions to give them to the appellant. Gahar Ali left with the notes accompanied by constable Yasin Khan, P. W. 7, who it was arranged, would give the signal after the passing of the money, The latter after seeing the payment rushed back and gave information to the rest of the trap‑party. The trap‑party rushed to the shop of the appellant and there found the notes in question in the hand of the appellant. The notes were taken and their numbers compared with the numbers recorded earlier by the Thana Agricultural Officer and found to tally. The appel lant was then questioned. He admitted the receipt of the money but stated that he got them from Gahar Ali by way of repayment of a loan which was earlier advanced to him for the purchase of cattle. Thereafter a seizure list was prepared and the notes in question, as also some books of account of .the appellant were seized. Gahar Ali then lodged the first information report on the same day with the Officer‑in‑charge of the Fulbaria police station. The case was investigated' and a charge‑sheet was ultimately submitted on the 13th of July 1957 against the appellant, the constable Nabi Hossain and Azam and the dafadar Khundu alias Maher Ali under sections 162 and 165‑A of the Pakistan Penal Code read with section 5 of the Prevention of Corruption Act, 1947. Subsequently on the 19th .of September, 1957 the other accused persons were discharged; the proceedings having been stopped under section 249 of the Code of Criminal Procedure as a result of an objection taken to the validity of the investigations by a Sub‑Inspector of Police.
4. The case against the present appellant was then separated from the other cases and taken up for hearing on the 13th of January 1959.
5. At the trial the prosecution examined some ten witnesses in support of its case. Of these, P. W. 1 was Gahar Ali, the bribe giver himself, P. Ws. 2, 3, 5, and 6 were purported to be examined as witnesses of the incident, P. W. 4 was the Thana Agri cultural Officer who recorded the numbers of the notes, produced by Gahar Ali, on a piece of paper Exhibit 2, later joined the trap‑party and was present when the notes were recovered and seized. P. W. 7 was the constable who accompanied the bribe -giver when he went to pay Rs. 40 on the 5th of August 1956, P. W. 8 was the Deputy Superintendent of Police, D. A. B., Mymensingh, who arranged trap and was present at the time of the recovery of the amount from the possession of the appel lant. P. W. 9 was a Sub‑Inspector of Police attached to the District Anti‑Corruption Branch who also accompanied the trap party. P. W. 10 was the Sub‑Inspector of Police who completed the investigation in this case and ultimately submitted the charge -sheet against this appellant.
6. The appellant did not examine any witness on his behalf but put in a khata Exhibit A to support his defence that money has been advanced by way of a loan to the said Gahar Ali. In this examination under section 342 of the Code of Criminal Procedure, however, he stated that he did not take any money from Gahar Ali and that he did not meet Nabi Hossain in the market.
7. On the evidence of P. Ws. 4, 7, 8, and 9 the learned Special Judge has found that the four ten‑rupee notes which were produced by P. W. 1 Gahar Ali in the office of the Thana Agricultural Officer were in fact recovered from the hand of the appellant in his shop after they had been accepted by him from the said Gahar Ali. Further relying upon the evidence of P. W. 1 corroborated in particular by the evidence of P. Ws. 2 and 5 the learned Judge was also of the opinion that the said Gahar Ali was detained by some police officer on a charge of a case at the shop of the appellant and it was settled there that he might be released on payment of some money to the police.
8. On these facts, the learned Judge has gone on to hold that the notes recovered from the appellant were intended for payment to the Police by way of illegal gratification for inducing in particular the police constable Nabi Hossain to release Gahar Ali from the case said to have been started against him.
9. The learned Judge, however, found that on this evidence no case under section 165‑A of Pakistan Penal Code had been made out. He accordingly acquitted the appellant on the said count but convicted him only under section 162 of the Pakistan Penal Code.
10. The judgment of the learned Special Judge is now sought to be assailed before me on behalf of the appellant mainly on the ground (1) that since the case for the prosecution was that a sum of Rs. 70 had been agreed to be paid by way of illegal gratification and since the Court had not accepted the story with regard to the payment of Rs. 30 the Court should also not have accepted the story with regard to the payment of the balance of Rs. 40, (2) that the Court should have held that the evidence of payment and the recovery of the money not being corroborated by any independent evidence, should not be be lieved ; (3) that the Court below should have held that in so far as the prosecution had failed to establish that the appel lant accepted any money by way of a reward himself, the offence under section 162 of the Pakistan Penal Code had not been made out and lastly (4) that in any event the evidence on the record in this case did not establish the prosecution case beyond any reasonable doubt.
11. With regard to the first point, I need only say that the learned special Judge has acquitted the accused on the first count by giving him the benefit of doubt as in his opinion the story of the payment of Rs. 30 having been proved only by the evidence of P. W. 1, the bribe‑giver, without any other corro boration whatsoever, was not sufficient to bring home the offence under section 165‑A of the Pakistan Penal Code. In so far as the payment of the balance of Rs. 40 is concerned, that has been, according to the learned Special Judge, well corroborated by the evidence of P. Ws. 2 and 5 and therefore, could be acted upon. There is, of course, no rule that if a prosecution fails in part, the entire case must fail.
12. In the present case, it is abundantly clear that in so far as the payment acid the recovery of the money is concerned, it has been proved beyond any reasonable doubt by reliable and independent evidence. The mere fact that certain officers were members of the trap‑party does not make them in any way interested witnesses. The evidence of P. W. 4, the Thana Agricultural Officer, with regard to the recovery of the money is, in my view, unassailable and is indeed not seriously challenged by the defence.
13. The slight discrepancy between the evidence of P. W. 4 end P. Ws. 8 and 9 as to whether the seizure list was prepared then and there or later, or as to whether the slip of paper Exh. 2 was signed at the time that the numbers were noted or later on, does not make any material difference in the evidence regard to the noting of the numbers of the notes and to the ultimate recovery thereof from the hand of the appellant Osimuddin.
14. This also disposes of the second objection. The learned Advocate has, of course, contended that since the Thana Agricultural officer, the Deputy Superintendent of Police, the constable and the Sub‑Inspector of Police, P. Ws. 4, 7, 8, and 9 were members of the trap‑party, they were interested in the success of the prosecution and, therefore, they should not have been treated as independent witnesses who could lawfully corroborate the evidence of the bribe‑giver P.W.1. I do not think that there is any substance in this contention. At any rate, there is nothing to show that P. W. 4 had any interest whatsover in the prosecu tion or the bribe‑giver in the present case. There is also nothing to suggest that he has any kind of ill‑will against the appellant. In these circumstances there is no reason why his evidence should not be accepted and if that evidence is accepted, it abundantly corroborates the evidence, of the bribe‑giver in so far as the payment and the recovery of the notes are concerned. Indeed, as already pointed out, the appellant himself did not dispute these facts and his case appeared to have been that the money was paid to him and he accepted the same not as an illegal gratification for inducing a public officer in a corrupt or illegal manner but in repayment of a loan lawfully given by him to P. W. 1 Gahar Ali for the purchase of cattle.
15 The third point taken on behalf of the appellant is based on certain commentaries of Sir Hari Singh dour in his Penal Code where the view seems to have been taken that gratui tous agents for a bribe taken would not come within the mischief of section 162 of the Penal Code. No authority has, of course, been cited in support of this view, nor has the learned author added tiny comments with regard to the words whoever accepts ...for any other person any gratification whatever as a motive or reward for inducing by corrupt or illegal means any public servant to do or forbear to do any official act.
16. With great respect to the learned Author it seems to me that the words above quoted do not exclude the possibility of even a gratuitous agent being made liable under this section. It is difficult to appreciate how else a gratification could be said to have been accepted "for any other person." Again, in my view, the words "as a motive or reward for inducing etc." qualify the word "gratification" and not the words "whoever accepts" as sought to be contended by the learned Advocate for the appellant.
17. It is, in my view, necessary in order to substantiate an offence under this section to show that the money that was accepted was intended for the purpose of being paid by way of gratification as a motive or reward for inducing by corrupt or illegal means a public servant but it is not necessary that the gratification must have been intended to be paid to the person who accepted the money. It is sufficient if the person accept ing the money knows that the object for which the money is to be used is for the purpose of paying it by way of a gratification as motive or reward for inducing a public servant.
18. The decision sought to be relied upon by the learned Advocate for the appellant also supports this view rather than the view canvassed by him. Thus, it will appear, that in the said case of Queen v. Setul Chunder Begchee (1), it was held that for founding a conviction under this section it is absolutely necessary to state the person or persons for whom the gratification was obtained or the public servant who., was sought to be influenced in the exercise of his public function.
19. In that case the appellant Setul Chunder Begchee had been charged with having attempted to obtain from one person for "another person" or persons, names unknown, a gratification as a reward for inducing a public servant in the exercise of his official function" by showing favour to the person paying the money. It was held that this accusation or charge was not sufficient to warrant a conviction under this section. This decision, does not indicate that it is necessary that the person accepting the money must be accepting it as a reward. There is no substance, therefore, in this contention either.
20 Lastly, coming to the evidence in the case, it seems to me that the learned Judge has wrongly taken the view that the evidence of P. W. 1 the bribe‑giver, has been adequately and sufficiently corroborated even so far as the offence under sec tion 162 of the Pakistan Penal Code is concerned. He has, as already indicated, taken the view that P. Ws. 2 and 5 have furnished such corroboration of the evidence of the said bribe -giver. Now, the evidence of P. W. 2 was that one day on being called to the shop of the appellant, he found constables Nabi Hossain and Azam present there with P. W.1, Gahar Ali and others, that Gahar Ali told him that he was detained by the constables and then it was arranged that Rs.70 would be paid to Nabi Hossain. This is all the evidence that this witness gave. Apart from this his evidence shows nothing more than this, that this, took place at the shop of the appellant. It does not even disclose as to whether the appellant was present or not or as to whether the appellant took any part whatsoever in the agreement said to have been arrived at. Indeed, this evidence does not implicate the appellant in any way.
21. Again, the evidence of P. W. 5 is to the effect that he knows the appellant and that one day P. W. 1 Gahar Ali told him that one Nabi Hossain detained him and that thereafter the matter was settled at Rs. 70 and out of that Rs. 30 was given and the balance of Rs. 40 was to be given later. He could not, however, remember to whom this balance was to be given. Again, this evidence does not in any way implicate the appellant. The learned Special Judge, has however, taken the view that since this evidence corroborated that portion of the story of P. W. 1 which related to his detention and to his ultimate release on the agreement to pay Rs. 70, therefore, the rest of the story of the bribe‑giver could be accepted.
22. It is true that corroboration is not required in every minute detail or particular of the evidence of an accomplice or bribe‑giver, but it is certain that on two broad points such corroborations is absolutely essential, namely, (3 W R (Cr.) 69) as to the implication of the accused and (2) as to the offence itself. In the present case, as I have pointed out earlier, and as the learned Special Judge himself notices in his judgment, the evidence of P. Ws. 2 and 5 in no way implicates the appellant and, cannot, therefore, be said to have furnished a corroboration of the evidence of the bribe giver with regard to the implication of the appellant in the said offence.
23. The nature of the corroboration required in such cases has been clearly indicated by their Lordships of the Federal Court in the case of Ishaq v. The Crown (P L D 1954 F C 335), where his Lordships the Chief Justice pointed out that
"What is important to remember is that the rule dose not require the prosecution to prove by independent evidence, that the prisoner committed the crime but only to produce such reliable and independent evidence as shows or tends to show that the part of the approver's testimony wherein he states that the prisoner was one of the persons who took part in the commission of the crime is true. In other words, corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true."
The evidence of P. Ws. 2 and 5 does not, in my opinion satisfy the above test. It does not corroborate that part of the story of the bribe‑giver wherein he states that the appellant was the person to whom the payment was made for being paid to the constable Nabi Hossain by way of illegal gratification.
24. Apart from this, the learned Special Judge has also failed to notice that the bribe‑giver was a person whose veracity even on other points was not unimpeachable. Indeed, it appears that at least in three places he has been contradicted by the statements, contained in his first information report, and a very material contradiction with which he was duly confronted was that although he stated in his first information report that it was the constable Nabi Hossain who demanded the money from him for releasing him; he resiled from that statement, in his evi dence. Again‑although in his first information report he admitted, as it has also been admitted by the other witnesses, that the appellant when challenged stated immediately that the money was received by him in repayment of a loan. This witness had the audacity to deny that he made such a statement in his first inform ation report.
25. Some of the prosecution witnesses also have supported the defence case. This, of course, the learned Special Judge has brushed aside holding that the witness was supporting the defence. The witness was not, however, declared hostile and in the circums tances, the appellant was entitled to at least a benefit of doubt which was raised by such conflicting and contradictory evidence furnished by the prosecution witnesses.
In these circumstances, I allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge made against him.
K. B. A.
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