P L D 1967 Lahore 199 (PLP)

4. The appellant admitted that on the night between the 27th/28th of September 1962 at about 11‑30 p.m. he was on duty at the checking post, Mukuwana, on Jaranwala‑Lyallpur Road, that Truck No. 1834/L.R. came from Jaranwala side and was going to. Lyallpur, that he stopped the truck at the barrier and found that there were three bags of rice in the truck and the same were being transported from Jaranwala to Lyallpur which was forbidden under the law. The appellant denied that he accepted a sum of Rs. 100 in the form of ten G. C. notes of the denomination of Rs. 10 each from Sub‑Inspector Manzoor‑ul‑Haq as illegal gratification to permit him to cross the barrier and thereby take the rice to Lyallpur by mechanized transport. He maintained that he had no authority to permit the transport of rice cross the barrier towards Lyallpur. The appellant admitted the recovery of the tainted notes from the pocket of his trousers by the Magistrate but contended that he did not accept the amount as illegal gratification. He explained that Manzoor‑ul‑Haq and Mr. Hameed Elahi, Magistrate, brought the truck from Jaranwala side, they stopped the vehicle at the barrier as the road was closed and he (appellant) was on duty at that time. He got into the truck in order to check the con tents of the bags. Manzoor‑ul‑Haq, who was in plain clothes, also got into the truck and when the appellant was bending over the bags to check its contents Manzoor‑ul‑Haq slipped the currency notes in the pocket of his trousers without his knowledge and as soon as the appellant got down from the truck he was secured by the Sub‑Inspector, Police and the Magistrate recovered the currency notes from him. The appellant denied that after accepting Rs. 100 as illegal gratification he gave a signal to the constable at the barrier and also called him out to lift the barrier and allow the truck to pass. The appellant characterized the case against him as false and asserted that he was innocent. He examined Hafiz‑ur‑Rehman (D. W. 1) the cleaner of the truck in his defence. The witness deposed that he accompanied a Magistrate and a Thanedar in a truck in which there were three bags of rice from Lyallpur. He was sitting in the rear of the truck While the Magistrate and the Sub‑Inspector Police occupied the front seat with the driver. When they had gone to a distance of ten or eleven miles from Lyallpur, the truck was stopped. The Sub‑Inspector and the Magistrate got down and made certain writings. At about 10'00 and 10‑30 p.m. they .started for Lyallpur in the same truck. When they reached the barrier at Mukuwana they noticed the appellant present, on duty. He boarded the truck in order to check the contents of the bags. The Thanedar also got into the truck. He come near the appellant who was bending over the bags and the witnesses noticed as if the Sub‑Inspector touched the pocket of the trousers worn by the appellant. The appellant and the Thanedar then got down from the truck. When the appellant went towards the front of the truck the Thanedar caught hold of him from behind. The Magistrate also got down from the truck and took out the money from the pocket of the trousers of the appellant. The witness continued that when the Magistrate took out the money from the pocket of the trousers worn by the appellant be stated that he was being victimized and that he had not taken any money from the Thanedar as a bribe. Hafiz‑ur‑Rahman D. W. was not a permanent cleaner with Feroz Din driver of truck No. 1834/L.R.' but was an emp loyee of Doaba Transport Company and could be attached to any truck of that company. Feroz Din Driver (P.W. 2) admitted that the cleaner was sitting in the truck on the back side. Neither the driver of the truck nor the Magistrate who occupied the front seat said anything regarding the conversation the Sub‑Inspector had with the appellant. All that I know from the evidence of the truck driver is that when the truck reached the checking post from Jaranwala side towards Lyallpur he found that the barrier was closed. The appellant was on duty at the checking post. He enquired from Feroz Din driver as to what was loaded in the truck. Feroz Din replied that they were carrying rice whereupon the appellant told Feroz Din to park the truck on one side of the road. The appellant then started interrogating Feroz Din who informed him that he should better have a talk with the Beopari who was sitting in the back of the truck. The story goes that the appellant got into the truck having a suaa in his hand. After a short time the appellant and the Thanedar got down from the truck and came towards the front of the truck. The Magistrate ordered Feroz Din to switch on the lights and as soon as the driver switched on the lights the Sub‑Inspector Police caught hold of the appellant by the arms. The Magistrate, who was sitting on the front seat, with the driver, got down from the truck. He searched the person of the appellant. He took out ten G. C. notes of the denomination of Rs. 10 each from the pocket of the trousers of the appellant.

5. The presence of Hafiz‑ur‑Rahman D. W. in the truck is, therefore, admitted by one of the prosecution witnesses, namely Feroz Din, the driver of the truck. Neither the Magistrate nor the truck driver deposed about the conversation which the Thanedar had with the appellant. They do not say that the appellant demanded any money from the Thanedar as illegal gratification much less that Rs. 200 were demanded and eventually the appellant agreed to accept Rs. 100 as illegal gratification for allowing the rice to be taken by mechanised transport across the barrier towards Lyallpur. Thus the only evidence on the point is that of the Thanedar and since he was an accomplice being a decoy witness, his statement cannot be relied on without corroboration from an independent source. (See P. Venkata Rao v. King (A I R 1951 Orissa 281). The relevant portion from the judgment runs: "Wherein a prosecution under section 161 against a station master for accepting a bribe for supplying wagons to the complainant the whole prosecution story is based upon the tainted evidence of decoy witnesses who are either accomplices or spies of the police in a trap set up for the accused it is unsafe to convict the accused unless there is some inde pendent evidence, either direct or circumstantial to prove his guilt."

6. I am also tempted to quote from a case Emperor v. Anwar Ali (A I R 1948 Lab. 27) in which Mr. Justice Cornelius of the Federal Court (as his Lordship then was) 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 igenuity and suppleness of wit above the ordinary. No stupied 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." The statement of the Sub‑Inspector Police has, therefore, to be accepted with very great care. The learned Special Judge rightly held that it was not safe to rely on the testimony of the Thanedar and I agree with him on this point. The Sub‑Inspector Police tells us that he was transferred to Lyallpur District about a week before the present occurrence. He was on general duty in the District Police Lines at the relevant time. He had never before worked under the then Superintendent of Police of Lyallpur, who called him to his house and told him that the police on duty at the checking post, Mukuwana, accepted illegal gratifica tion and allowed movement of rice, and therefore, a raid should be arranged. It is, therefore, evident that Sub‑Inspector Manzoor‑ul‑Haq in that situation had no other option but to see that the raid should materialise. Under the circumstances, it is not safe to accept his testimony about the demand or payment of illegal gratification to the appellant for allowing movement of rice by mechanized transport across the barrier towards Lyallpur by the appellant particularly when there is nothing to' that effect in the statement of either the driver of the truck or the Magistrate who supervised the raid. The only evidence to be considered in defence is the statement of Hafiz‑ur -Rahman who was admittedly present in the back side of the truck. He stated that the Sub‑Inspector touched the pocket of the trousers of the appellant when he was bending over the bags in the truck to find out the contents, the implication being that in all probability, the Sub‑Inspector at that time slipped the G.C. notes into the pocket of the trousers worn by the appellant without his knowledge. No reason is forthcoming why the testimony‑of Hafizur Rahman should not be believed in the circumstances of this case. He was not examined by the prose cution. He gave evidence in defence. There is nothing in his cross‑examination to show that he was interested in the appellant or that he was not telling the truth.

7. The learned trial Judge while dealing with the evidence of the Thanedar observed: "Having in view the fact that the S. I. stands discredited on certain points, it would not be safe to rely on the above statement of the S. I. if it is not corroborated by some other independent witness. The Magistrate, the truck driver and the cleaner have not corroborated the S. I. on the above point as they are silent and none of them has stated that the accused had any talk with the S. I. or the accused demanded any money within their hearing. I therefore hold that it cannot be concluded on the uncorroborated statement of the S. I. that the accused had in fact demanded certain amount by way of illegal gratification which the S. I. paid to the accused and the possibility that the S. I. might have put the amount in the pocket of the accused without any specific demand could not therefore be ruled out. It is quite possible that when the accused got into the truck and found that the contents of the bags were a prohibited commodity, the S: I. put the amount in the pocket of the accused without any particular talk on the point.

8. Notwithstanding the observation to that effect in his Judgment, still the learned Special Judge proceeded to convict the appellant. The conviction of the appellant proceeds on the reasoning that had the appellant not accepted the bribe he could not have possibly signalled to the constable on duty near the barrier to allow the truck to cross the barrier towards Lyallpur knowing that transport of rice by mechanized transport was prohibited under the law and secondly, that he was in that event bound to have taken objection to the carrying of rice in a truck towards Lyallpur. No doubt, that it is in the statement of the Thanedar that Din Muhammad appellant after he had accepted the bribe got down the truck and proceeded towards the barrier and called out to Inayat Constable that he should allow the truck to pass. Mr. Hameed Elahi, Magistrate, also stated that when the appellant and the Thanedar came towards the front side of the truck, the appellant asked the police constable to allow the truck to pass. There is, however, nothing to that effect in the statement of Feroz Din driver of the truck.

9. Now, we do not know what actually transpired between the Thanedar and the appellant while they were present in, the rear of the truck. Neither the driver of the truck nor the Magistrate over‑heard the conversation between the two. The prosecution did not call Inayat constable who was on duty at the barrier on the night of the occurrence to depose that the appellant called out to him and also signalled that the truck be allowed to cross the barrier. Assuming for the sake of argument that the story that the appellant called out to Inayat and also signaled to him to allow the truck to pass was correct still it in no way, advanced the case of the prosecution because the gravamen of the offence was not the allowing of the truck to cross the barrier but the acceptance of illegal gratification by the appellant for so doing.

10. Once it is held that the acceptance of bribe by the appellant is not satisfactorily proved the mere fact that he called out to Inayat and signalled to him to allow the truck to cross the barrier does not, by itself, constitute the offence with which the appellant was charged. We do not know how the Thanedar prevailed upon the appellant to allow him to take the rice in the truck towards Lyallpur. The possibility of the Thanedar having persuaded the appellant to allow the truck to proceed without the acceptance of illegal gratification cannot be ruled out. There was the opportunity for the Thanedar to have directly or indirectly given an indication or a hint to the appellant that the rice was being carried by the officer sitting on the front side of the truck. There is no evidence that the truck actually crossed the barrier towards Lyallpur.

11. For all these reasons, I would allow the appeal, set aside the conviction of Din Muhammad appellant and proceed to acquit him. He is on bail and his bail bond shall stand cancelled. The fine, if paid, shall be refunded to him. K. M. A. Appeal accepted.