P L D 1963 Supreme Court 38 (PLP)

FAZLE‑AHBAR, J.‑This is an appeal by special leave by one Noor Muhammad, a mounted Police constable and calls in ques tion the correctness of his conviction under section 161 of the Pakistan Penal Code which was confirmed on appeal by the High Court of West Pakistan at Karachi. The case for the prosecution was that the appellant while working as a Police constable at Ratodero, one day asked the complainant Lalbux to accompany him to the Police Station as there was a complaint against him of harbouring thieves. He then took him to his quarter at the Police Station and promised to destroy the petition of complaint on his payment of Rs. 100 as illegal gratification. As he did not pay any heed to the protest of Lalbux, the latter ultimately agreed to pay Rs. 40 to him. Lalbux then payed Rs. 25 which were with him and promised to pay the balance of Rs. 15 later. Subsequently, on the advice of his neighbours, Fateh Muhammad and Wahidbux, he lodged a complaint against the constable at the Police Station, Ratodero, and eventually the accused was prosecuted for an offence under section 161, P. P. C. The accused denied his guilt and stated that as he prevented the wife of one Rahimbux from going to the complainant, the latter implicated him in a false case. The Special Judge, Larkana, who tried the case convicted the accused under section 161, P. P. C. and sentenced him to rigorous imprisonment for six months and a fine of Rs. 50 and his convic tion and sentence were maintained by a single Judge of the High Court. Besides the complainant the prosecution examined Fateh Muhammad and Wahidbux to whom he had reported the incident. The finding that the case was proved against the accused was thus based entirely on the evidence of the complainant Lalbux and therefore, special leave was granted to consider "Whether a conviction for taking a bribe can be sustained by the evidence of the bribe‑giver alone?" According to the complainant the amount of Rs. 25 was extorted from him. As he was not a willing party to the giving of the bribe he had not the necessary criminal intent to be treated as an a better or an accomplice. In other words he cannot be regarded as a particeps criminis in respect of the crime. As how‑1 ever, the case mainly rests on his evidence, it should be scanned) with much caution and the Court must be satisfied that he is a witness of truth, specially when no other person was present at the time when he paid the alleged illegal gratification. The value of his testimony would, therefore, depend on diverse factors such as the nature of his evidence to what extent and in what manner he is interested; the probability and improbability of his story and how he has fared in the cross‑examination; etc. In other words Courts must consider whether the facts and circumstances render it probable that his story is true and it is reasonably safe to act upon it. Judged by this test it cannot be said that the charge against this appellant has been proved beyond any reasonable doubt. The complainant is literate and works as a Government contractor. When he was told that there was a complaint against him of harbouring thieves, he did not even care to ask the name of the complainant, nor did he insist that the application against him should be destroyed before the payment was made. Though he informed his neighbours about the incident, he did not care to approach any respectable citizen of the locality. He reported the matter to the Police about 20 days after the incident. His explanation that the delay was due to his being busy with his, own affairs does not seem to be satisfactory. According to him the appellant asked him twice or thrice for the balance but even then he did not care to go to the Police. His evidence is, there fore, clearly of a shaky character. These points have, however, not received necessary treatment in the judgments of the Courts below. In view of the above circumstances we consider it definitely unsafe to maintain this conviction only on the evidence of the complainant. We, therefore, accept this appeal, set aside the con viction and sentence of the appellant and order his acquittal. K. B. A./A. H. Appeal accepted.