P L D 1957 (W (PLP)

LARI, J.

Ghulam Muhammad, the Tapedar in the old Province of Sind has preferred this appeal against his conviction and sentence under section 5 of the Prevention of Corruption Act for accepting Rs. 100 as a bribe from Akbar Khan on 6th February 1954. Risaldar Jafer Khan is a landlord. He received a bill amounting to Rs. 2,134-10 signed by the appellant in respect of the first instalment of land assessment payable by him. On 4th February 1954 the appellant came to the residence of Risaldar to realise the amount. Akbar Khan P. W. 1, who is son of Risaldar Jafer Khan, offered to pay Rs. 2,134-10-0 but the appellant refused to accept it unless it was accom panied by a bribe of Rs.100. Akbar Khan lodged a complaint before the Anti-Corruption Inspector Jacobabad on 6th February 1954 at about noon. It was arranged between Akbar Khan and Mr. Dost Muhammad Anti-Corrup tion Police Inspector that a trap be laid on that very day. The scheme was that the appellant should be called to the Otak of the Zamindar. Mr. Dost Muhammad along with Mashirs should be there to witness the payment of Rs. 2,134-10 in currency notes whose numbers had been already noted. Akbar is said to have approached the appellant and settled with him that he would come to his Otak at about 2 p.m. to receive payment. The trap was laid as arranged. The complainant along with Illahi Bux stayed in one room while Mr. Dost Muhammad with other police staff stayed in another room. The appellant came at about 2-30 p.m. with his Kotar. Rs. 2,234-10 were paid to the appellant who issued two receipts Exhs. 6 and

7. Shortly after Mr. Dost Muhammad came up on the scene and recovered these notes as well as the bill from the possession of the appellant. The appellant was subsequently sent up, tried and convicted. The plea of the appellant was that the additional Rs. 100 found on his person had been paid due from one Abdullah. His story was that Abdullah had to pay him by Akbar towards amount Rs.

765. He came with money and told him that he had brought the entire amount. He accordingly issued a receipt for Rs. 765, but when he counted the money he found that it was only Rs.

665. About this time Akbar appeared. Abdullah suggested that by mistake the amount was short by Rs. 100 and the appellant would get the money from Akbar. Akbar undertook to pay the amount and actually paid this amount to the appellant on 6th along with the money due from him. The story of the defence appears an improbable one but finds supports not only from the defence evidence but from the two relevant prosecution witnesses examined in the case. The prosecution examined three witnesses, namely. Akbar Khan P. W. 1, Illahi Bux P. W. 2 and Mr. Dost Muhammad P. W.

3. The amount had been paid by Akbar Khan and witnessed by Illahi Bux and the question is whether it is established from the evidence that Rs. 100 had been paid by way of bribe. Akbar Khan made the following statement in the course of his cross-examination :- "At the time I had taken money to the accused on 4th, on which day he refused to take it present with the accused was Abdullah Panhwar who was sitting there. He paid assessment to the accused in my presence. He is my friend. Abdullah Panhwar was short of money by one hundred. He did tell me that I should give Rs. 100 of his amount to the accused." The above statement fully supports the defence version except that Akbar undertook to pay the amount on 4th and not 5th. The date of the receipt in favour of Abdullah Panhwar is 5th and not 4th. The learned judge on this ground disbelieved this admission of the witness. I may note that according to the F. I. R., it was the appellant who had come to the house of Akbar on 4th and not that the witness Akbar had gone to the house of the appellant on 4th. Rs. 100 was demanded as bribe on 4th but no report is lodged on 5th. It is actually lodged on 6th. If Akbar appeared at the house of the appellant it could be on 5th and not 4th. Absence of a report on 5th also becomes explainable if the contention of the learned defence counsel is accepted that no bribe had been demanded on 4th. On 5th Akbar agreed to pay an additional amount of Rs. 100 and this was availed of by Akbar to hang a story of bribery. The witness further admitted that he actually paid the amount of Rs. 100 on behalf of Abdullah to the appellant. He, however, added that this was in addition to Rs. 100 paid as bribe. It means that according to his statement Akbar paid Rs. 100 in addition to Rs.2,134-10. The evidence of the other witness, namely, Illahi Bux is to the effect that only Rs. 2,234-10 were paid. If Akbar paid Rs. 100 towards the amount due from Abdullah then there is no possibility of any additional payment by way of bribe. It is definitely proved from documentary evidence that the appellant had made a complaint against Akbar on or before 15th January 1954. In the complaint Exh. 24 the appellant alleged :- "I have advised him several times to make an application to that effect to higher authorities but he insists upon me that I should do it myself, else he would make a false complaint against me. It is therefore requested that the site may kindly be inspected immediately." Final orders on the complaint by the appellant against Akbar had been passed on 5th February 1954, preceded by an enquiry by Ahmed Ali which revealed that the allegations made by the appellant were correct. The learned judge has not attached any weight to the allegations made by Akbar Khan on the ground that they appeared to him to be obliging statements. This may be so in fact but there is nothing to establish that. Akbar Khan is in the eye of law an accomplice and his statement that Rs. 100 was paid by way of bribe cannot be accepted unless there is corroboration. The only witness who could corroborate Akbar is Illahi Bux. Illahi Bux P. W. 2 stated that Akbar paid the appel lant first Rs. 2,134-10. The appellant then demanded the balance, of Rs.

100. Thereupon Akbar paid that amount as well. In cross-examination the witness stated :- "I don't remember if accused told Akbar to give him the balance of Abdullah Panhwar's money". In view of this evasive reply it cannot be held that Illahi Bux supports Akbar that the appellant was paid Rs. 100 by way of bribe. The nature of reply on the other hand would go to support the defence plea unless it be held that the evasive reply was another obliging statement deliberately made to help the appellant. There is no other evidence on the point from the prosecution side. The defence has examined Abdullah D. W.

1. He fully corrobo rates the defence version. The learned judge spoke in the following strain about him "The cross-examination of Abdullah shows that he is a false witness, who had clearly perjured himself with a view to oblige the accused, who is not only his friend but also a neighbouring Zamindar. His testimony is a tale of falsehood and must be dismissed with all contempt. His words do not deserve any more comment even by his demeanour he appeared a crook." The learned judge has disbelieved the defence version on two main grounds. His first reason is that the incident according to the statement of the appellant took place on 6th February while the receipt is dated- 5th February and consequently the defence version is believed by the receipt itself. I have gone through the statement of the appellant. It is capable' of the interpretation put on it by the learned judge but this is not the only possible interpretation. It can also be said that the statement of the accused is silent with regard to the date of the incident. The learned judge added that obviously Akbar had not visited the appellant on 5th which is the date of the receipt. It is true that Akbar does not state to that effect. His case in evidence is that he went to the house of the appellant on 4th along with assessment payable. But on this point he is contradicted by the F. I. R. which recites that the appellant himself had gone to the house of Akbar to make a demand. In cross-examination Akbar admitted that the citation was correct. If it be so then Akbar could have visited the appellant on 5th. It cannot be over looked that no report was made on 5th. It lends colour to the contention of the defence that something happened on 5th which pursuaded Akbar to make allegation of demand of bribery on 4th. As noted earlier it may be that Akbar thought of making the charge when he knew that he had to pay Rs. 100 in addition to the assessment amount on 6th. The second reason for rejecting defence version was that the story itself was improbable inasmuch as no one would issue a receipt without full payment, and if shortage was discovered after issue of receipt then any reasonable giver of the receipt would withhold its actual delivery. There is great force in this criticism, but unfortunately the story finds supports from admission of Akbar himself. In the case Emperor v. Anwar Ali son of Din Muhammad (A I R 1948 Lah. 27), Mr. Justice Cornelius of the Federal Court made the following observation :- "Money may be passed from one person to another on a variety of pretexts, and it cannot be remembered too carefully that persons who lend themselves for use as decoys and agents provocature 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. Naturally, the decoy witness will be extremely keen that his trap should not fail, and having in the forefront of his mind that the central thing is that the marked money should be passed to the intended victim, and assuming a certain , elasticity of moral character in the decoy witness, there is a real danger that he may pass on the money , under some pretext which may perhaps not be guilty in the relevant sense or which may even be wholly innocent, but in giving his evidence may represent that he gave the money for the purpose relevant in the case." I am in respectful agreement with the observation. Akbar is an accomplice or at least a partizan witness and his evidence needs to be corroborated in material particulars. His evidence on the relevant point does not find support from the Mashir Illahi Bux. In the circumstances it is not possible to accept the statement of Akbar at its face value. That being so the prosecution case must fail for lack of necessary evidence on the record. I accept the appeal and set aside the conviction of the appellant. He is on bail. He need not surrender. The bail bonds furnished by him are cancelled. Z. A. S./ A. H. Appeal accepted.