P L D 1962 Dacca 441 (PLP)

7. The learned Judge, on a consideration of this evidence, has come to the conclusion that the case against the appellant has been proved beyond reasonable doubt and he accordingly convicted and sentenced him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 50 or in default to suffer further rigorous imprisonment for 15 days, as a consolidated punishment for offences under both the counts charged.

8. In this appeal the learned Advocate appearing for the appellant has firstly urged that in the facts proved by the prosecution in the present case no offence under section 161 of the Pakistan Penal Code has been made out. He has relied upon the evidence in this case to show that in the present case the release on bail was in fact made on the 2nd of July, 1957, that is to say even before the date arranged for the payment of the alleged bribe on the 3rd of July, 1957. Therefore, it cannot be said that the alleged payment made on the 4th of July, 1957, was as a reward for showing any favour to the complainant for the favour had already been shown and there was nothing more left for the appellant to do thereafter. I regret, however, that I am unable to accept this argument for the bribe or illegal gratification may well be a bribe even if it is paid as a reward for favour shown in the past. The learned Advocate then contends that since an offence under Act V for obstruction to road and public pathway is a bail-able offence, the appellant was bound to grant bail and there was no question of showing any favour at all.

9. This point has been dealt with in the case of Abdul Bari Sikdar v. The Crown ((1955) 7 D L R 457) by a Division Bench of this Court where it has been held that whether the act to be done in consideration of the reward amounts to a favour or not; or an official act or B not, is not Very relevant, if the person giving the bribe is led to believe that the act would go against him if he did not give the bribe. In the present case the release of the arrested persons on bail was without any doubt an official act and an official act which could have been performed by the appellant.‑ Now, there is nothing before me from which I can say that P. W. 1 Meher Ali was not led to believe that if he did not give the bribe demanded by the appellant, the arrested persons would not be released on bail.

10. Indeed, the evidence is that he was there at the Kotwali Police Station in furtherance of his attempt or endeavour to get these arrested canvassers released on bail. For this purpose he saw the appellant as well as the Officer‑in‑Charge of the Police Station. The latter referred him back to the appellant and then the appellant demanded money for the specific purpose of releasing these arrested persons. It is, therefore, clear that the reward that was agreed upon to be paid for this official act, was in the belief that if P. W. 1 Meher Ali did not agree to the payment of the said sum, the arrested persons would not be granted bail.

11. The learned Advocate has next challenged the evidence of the demand itself. According to him, the whole story of the alleged demand is so absurd that it ought not to' be countenanced for moment. It is urged that it is fantastic to think that Police Officer will agree to accept a bribe two days after showing the favour. It is further pointed out that there is no consistency in the evidence as to the amount or quantum of the bribe demanded. The evidence of P. W. 5 the Director of 'the Anti‑Corruption Branch, as relied upon for the purpose of showing that P. W. 1 the bribe‑giver actually told him that the bribe demanded was Rs. 10 and not Rs.

5. A reference, however, to P. W. 1 will show that the appellant originally demanded Rs. 10 but ultimately the figure was settled at Rs.

5. The Director P. W. 5 also states that on the next day when the complainant P. W. 1 came back to the Anti‑Corruption Office he came with only five rupees and stated that he had made arrangement to pay that amount in a tea‑stall near Sadarghat. There is no real discrepancy, therefore, in the evidence of these two witnesses.

12. It is then urged that the solitary evidence as to the demand of the bribe by P. W. 1 should not be accepted without corroboration. The learned Advocate appearing for the State has contended that in this case although P. W. 1 was a decoy, he had been abundantly corroborated with regard to the demand both by P. W. 2 and P. W. 5 as well as by the circumstances that the appellant, a police officer, came to the River View Cafe and was actually found having a cup of tea at the same table with the complainant. P. W. 2 has corroborated him in that in his cross‑examination he has stated that when he met the appellant on the 4th of July, 1957, he told him about this settlement of monthly payment and he also told him that Meher Ali was waiting in the River View Cafe. This supports the evidence of P W. 1 that there was also a demand for the payment of a monthly amount for allowing the hawkers to hawk at Sadarghat. So far as P. W. 5 is concerned, I have already referred to his evidence to show that when on the 2nd day P. W. 1 went back with Rs. 5 only and stated that the arrange ment had been made to pay that amount.

13. The learned Advocate has also urged that the evidence of these bribe‑givers should be taken with caution, for consider ing to one of the witnesses for the prosecution, namely, P. W. 10 when they were released on bail they have threatened that they would teach the police a lesson. If this be so, then it is difficult to appreciate why the appellant being a Police Officer himself would still come to the River View Cafe on just being summoned thereby the bribe‑giver. The story of the alleged vengeance does not also bear conviction. On the other hand, the conduct of the appellant suggests that there was no such fear in his mind that the hawkers were trying to wreak vengeance upon him.

14. Now, so far as the payment is concerned, as I have already stated, the recovery is, in fact, admitted but the learned Advocate appearing for the appellant contends that mere recovery is not sufficient, for money may be paid upon a variety of pretexts which may not all be guilty and may even be wholly innocent purposes, for it must also be remembered that a charge of this nature can be often very lightly made against innocent persons. I am not unmindful of these considerations, but in the present case, when I find that as many as four police officers, a Magistrate and an absolutely independent person, namely, a student of the Engineering College have proved the payment of the money and its recovery, why the same should not be believed.

15. It is also argued that since there is some evidence that the Thana Police and the Anti‑corruption Police were at some kind of logger‑heads this evidence should not be accepted. This evidence was given by the Officer‑in‑Charge of the Kotwali Police Station in his cross‑examination. But all that he stated was that the relationship between the two branches was not cordial. This is not the same thing as animosity or hostility. One may not be cordial and yet may not be hostile. Even this witness did not however, say that any one of these Anti‑Corruption Officers had any particular reason to bear any particular grudge or animosity against this particular appellant. The fact that this suggestion was not put to anyone of these Anti‑Corruption Branch witnesses or to the complainant, seems rather to suggest that the Officer‑in‑charge of the Police‑Station. P. W. 3 was going out of his way to assist his own subordinate Officer, the appellant in this case.

16. It is further urged that there is a serious lacuna in the prosecution evidence, since the prosecution has not clearly established how the appellant came to know that the time and the venue for the payment would be in the evening at the River View Cafe. So far as this is concerned I must point out that the evidence of P. W. 2 is that when he went out to fetch the appellant on 4‑7‑57 he met him on the way and told him that Meher Ali was waiting at the River View Cafe. The appellant informed him that he would be going there soon. So far as P. W. 1 is concerned, he has of course stated that the appellant had approached P. W. 2 at Sadarghat on 3‑7‑57 and demanded the money agreed to be paid on 2‑7‑57 as reward for releasing the arrested persons on bail. But since this P. W. 2 was not asked this question, and did not give this specific answer, it would not be safe to rely upon that portion of the evidence of P. W. 1.

17. It is also in evidence that on the previous day i.e. 3‑7‑57 Inspector Makbul Hussain had visited Sadarghat together with P. W. 1 and it had been arranged that the Cafe would be the venue for the payment. This information was duly conveyed by P. W. 2 to the appellant when he met him on the way. So far as the offence is concerned, this fact would not have any great bearing in view of the admission of the appellant that he was present at the Cafe at this particular time and that he did receive the sum of Rs. 5 from the complainant P, W, 1 Meher Ali, The defence that this sum was paid by way of change for a five rupee note is, of ‑course, without any foundation whatsoever. There is no evidence to even give a remote support to this suggestion and in my view, it is a wholly improbable suggestion. In a tea shop if change of a five rupee note was required, the person that could have been approached for giving such change, would have been the stall keeper himself and no one else. In the present case the defence was in this difficulty when explaining how the marked notes came into the pocket of this appellant and hence, they had to say that this was given by P. W. 1 the complainant.

19. The evidence in this case is overwhelming. After making all allowances in favour of the appellant and considering every argument that can legitimately be advanced in his favour. I am of the opinion that the evidence has sufficiently excluded every reasonable possibility of innocence and established the guilt of the appellant beyond any reasonable doubt.

20. Lastly, it is urged that a consolidated sentence is illegal. Without going into the validity of this argument, I am of the view that it would be sufficient to meet the ends of justice in the present case if the sentence imposed is reduced to one of three months and a fine of Rs. 50 or in default a further rigorous imprisonment for 15 days in respect of the offence under section 161 of the Pakistan Penal Code and no separate sentence is imposed in respect of the conviction on the second count under the Prevention of Corruption Act.

21. With this modification of the sentence, therefore, this appeal is dismissed. The appellant will now surrender to his bail bond and serve out the remainder of his sentence as also pay the fine required of him. Appeal dismissed K. B. A. Sentence modified.