This appeal arises out of judgment passed by M. M. J. Chowdhury, Additional Sessions Judge and Ex-Officio Special Judge, Faridpur, convicting the accused-appellant Abdul Kuddus Akond under section 161, Pakistan Penal Code and section 5 (2) of Act 11 of 1947 and sentencing him to suffer simple imprison--ment for three months and to a fine of Rs. 500, in default to rigorous imprisonment for three months under section 161, Pakistan Penal Code, no separate sentence having been passed under section 5(2) of Act II of 1947.
The prosecution case is that P. W. 1 Abdul Kader Khan was a dealer and miller of food grains at Lavikhola under P. S. Zanjira and carried on his business under Sub-Divisional Food Office of Madaripur and the appellant was the Head Clerk of Madariput Sub-Divisional Food Office in 1965.
On 28-9-65 P. W. 1 went to the Sub-Divisional Food Office to ascertain the allotment of rice and wheat etc. In his name when the appellant asked him to produce all his account books and registers for his inspection. On 6-10-65 P. W. 1 produced his account books before the appellant and on 13-10-65 he, again went to him to take back his account books after making necessary deposit of money for allotment of food grains in his favour when the appellant threaten--ed him with cancellation of his dealership and milling licences on the plea that there were mistakes in his account books. P. W. 1 requested the appellant to return his account books, Whereupon the latter expressed his willingness to do so provided he was paid Rs. 50 as bribe. P. W. 1 offered to pay to the extent of Rs. 30 and the appellant was half-ready to accept the same. There--after; P. W. 1 went away and discussed the matter with P. W. 4 Abdul Aziz Howlader and a Mukhtear and on the advice of the said Mukhtear P. Ws. 1 and 4 went to the District Council Dak Bungalow where they met P. W. 8 Md. Asmatulla Mia, District Anti-Corruption Officer, Faridpur who was then staying in the Dak Bungalow. P. W. 8 recorded the statement of P. W. 1 on the morning of 14-10-65 and when P. W. 1 produced three 10-rupee notes, Y. W. 8 prepared an inventory of the same in presence of P. W. 2 Dr. Reazul Karim and P. W. 5 Eskander Ali Sikder who,-attested the same. The notes were returned to P.
W.
1. With the direction to make over the same to the appellant on demand and a trap party was arranged. P. Ws. 1 and 4 along with a constable P. W. 6 Md. Jabed Ali went to the office of the Sub- Divisional Controller of Food, Madaripur followed by P. W. 2, P. W. 5, P. W. 8 and P. W. 9 Md. Akbar Ali an Assistant Inspector of D. A. B. Of Madaripur. P. Ws. 1 and 4 stood on the southern verandah of the Sub-Divisional Food Office where the appellant came and demanded the money, whereupon P. W.
1 paid the three currency notes of Rs. 10 each, but the appellant declined to accept the same, P. W.'1 then borrowed Rs. 20 in two, currency notes of Rs. 10 each from P. W. 4 and paid Rs. 50 in all to the appellant who kept the money in the pocket of his fullpant and went back to the roofti of the Sub- Divisional Controller of Food and shortly thereafter P. W. 8 and P. W. 9 accompanied by P. W. 2 and P. W. 5 entered the said room and P. W. 8 after disclosing his identity called upon the appellant to produce money and the appellant produced from his pocket Rs. 50 including three currency notes whose numbers were entered in the inventory Exh.
3. Thereafter P. W. 8 got seizure list prepared in respect of the articles seized, from the appellant including the bribe money and subsequently lodged F. I. R. With the O/C. Of Madaripur P. S. And directed P. W. 9 to investigate the case.
Accordingly P. W. 9 took over charge of the case and obtained permission from Magistrate for investigation of this case and after obtaining sanction for prosecution submitted charge-sheet against the appellant who was put on trial under section 161, Pakistan Penal Code and under section 5(2) of Act II of 1947. The appellant pleaded not guilty and his case was that he had taken Rs. 50 as loan from P. W. 7 A. B. Khairul Anam, Inspector of Food and did not take any bribe from P.
W. 1 as alleged. On behalf of the prosecution 9 witnesses and on behalf of the defence 6 witnesses were examined. The, learned Special Judge found the appellant guilty and convicted and sentenced him. Hence this appeal.
The prosecution case was stated by P. W. 1 whose evidence is, that he had submitted his account books, to the appellant in pursuance of demand made by the latter who wanted to inspect his accounts and on 13-10-65 when he approached the appellant for taking back his account books the appellant threatened him with cancellation of his dealership and milling licences on the plea that there were mistakes in his account books and when P.. W. 1 pressed for the return of his papers the appellant expressed his willingness to do so provided he was paid a sum of Rs. 50 as bribe. His further evidence is that on, the morning of the following day, that is on 14-10-65 he along with P. W.
4 met the District Anti-Corruption Officer and reported the matter to him and P. W. 8 recorded his statement and thereafter an inventory of 3 notes of Rs. 10 each produced by him, was prepared in presence of witnesses and at about 12-30 .p. m. On that day he and P. W. 4 met the appellant and on his demand he paid Rs. 30 which the appellant declined to accept and thereafter he borrowed Rs. 20 from P. W. 4 and handed over As. 50 in five currency notes of Rs. 10 each including the three currency notes which were entered in the inventory. The evidence of P, W. 1 on the question of demand of bribe by the appellant on 13-10-65 is not corroborated by any other witness. But,P. W. 4 and P. W. 6 corroborated him on the point of acceptance of Rs. 50 by the appellant from him on 14- 10-65 on the verandah of the office of the Sub-Divisional Controller of Food, Madaripur. P. W. 2 and P. W. 5 are attesting witnesses of inventory of notes prepared by P. W.
8. They also followed P. W. 1 and P. W. 4 to the office of the Sub-Divisional Controller of Food and witnessed the recovery of Rs.
50 from the appellant by P. W. 8; but they did not actually see the passing of the said money to the appellant. The defence case is that the amount of Rs. 50 which was produced by the appellant on demand of P. W. 8 was not taken from P. W. 1 but was taken from P. W. 7 as loan and in order to support this case six witnesses were examined as D. Ws. Of the aforesaid witnesses D. W. I Akub Ali, D. W. 2 Abdul Wahed Molla and D. W: 3 Abdul Wadud deposed as eye-witnesses of payment of money in currency notes by P. W. 7 to the appellant on 14-10-65 on the verandah of the office of the Sub-Divisional Controller of Food. D. W. 4 Abdul Motaleb Khan is the owner of a Pharmacy at Madaripur, and his evidence is that on the afternoon of 13-10-65 the appellant went to his pharmacy to purchase medicine and soon after, P. W. 7 came there. The appellant then inquired whether he had brought the money as per his request. And P. W. 7, told him that he would pay the money on the follow--ing day. D. W. 5 Abdul Sattar is the Nazir-cum-Cashier of the Madaripur Food Office. He proved among others an office note dated 7-8-65 Exh. `H' which was put up by the appellant against P. W. 7 and also stated that P. W. 7 had complained to him about one or two months prior to the occurrence that the appellant was working against him, but the witness did not com--municate this allegation to the appellant. D. W. 6 Abdul Gofran was Sub-Divisional Controller of Food, Madaripur and his evidence is that on 14-10-65 when he was working in his office along with the appellant, P. W. 7 called away the appellant from his room and shortly after the appellant re-entered the room, P. W. 8 followed him and on disclosing his identity charged the appellant with acceptance of bribe.
There is no dispute that Rs. 50 in five currency notes of Rs. 10 each including the three currency notes in respect of which an inventory was prepared by P. W. 8 were produced by the appellant from his pocket on demand of P. W. 8 on 14-10-65 in the office room of D. W. 6 the then Sub- Divisional Controller of Food, Madaripur. According to the prosecution case this amount was taken by the appellant as bribe from P. W. 1 shortly .Before but according to defence case this amount was taken by the appellant from P. W. 7 as loan and it was not taken as bribe from P. W.
1. As already stated, there is no evidence to corroborate P. W. 1 on the question of demand of bribe as no other witness heard the appellant demanding the bribe. As regards the acceptance of alleged bribe money from P. W. 1 the prosecution produced two witnesses, namely, P. W. 4 who like P. W: 1 was a dealer of food grains and P. W. 6 who is a constable under P. W.
8. As against the evidences of the aforesaid two witnesses D. W. 1, D. W. 2, D. W. 3 deposed to have seen P. W. 7 giving the currency notes to the appellant shortly before P. W. 8 seized the said notes from the appellant. It may be stated that immediately after P. W. 8 charged the appellant on 14-10-65 with having accepted bribe of Rs. 50 from P. W. 1, the appellant made a statement to the effect that he had obtain--ed the money as loan from Khairul Anam, that is, P. W. 7 who was called and on being asked denied to have given loan to the appellant. At the time of trial P. W. 7 stated that on being asked' by the District Anti-Corruption Officer if `i' he had given Rs. 50 to the appellant he "replied in the negative". The learned trial Court did not rely upon the evidences of D. Ws. 1, 2 and 3 stating that they being subordinates of the appellant it was not unusual for them to support the defence plea and further held that there was no paper to show that D. W. I was a punkha-fuller in the Madaripur Food Office. It is difficult to agree with the finding of the trial Court on this point. The fact that' D. W: I was punkha-fuller and D. W. 2 was an orderly in the office of the Sub-Divisional Controller of Food on the relevant day is borne out not only by evidences of D. W. 5 and D. W. 6 who are competent witnesses to depose on the point, but also by the evidences of P. W. .5 who stated in cross- examination that he saw D.W. I pulling punkha on that day from the southern verandah of the room of Sub-Divisional Controller of Food. Moreover, D. Ws. 1, 2 and 3 are neither chance witnesses nor were their statements made belatedly. It appears from the evidence of P. W. 8 in cross- examination that he had examined D. W. 1 after ' the occurrence on 14-10-65 and recorded a statement under section 161 of the Criminal Procedure Code which was not found at the time of trial, but it was replaced by a copy of the statement said to have been made by him. It is evident that the original statement of D. W.- 1 recorded under section 161 of the Criminal Procedure Code was removed from the diary and replaced by a statement alleged to have been made. P. W. 8 also stated with reference to his diary that D. W. 3 corroborated the statement of D. W.
1. Both D. W. 1 and D. W. 3 stated that they made statements before P. W. 8 soon after the arrest of the appellant and P. W. 8 threatened them. Of course, P. W. 8 denied to have threatened D. W. 1 and D. W. 3 but having regard to the fact of removal of the original statement of D. W. 1 under section 161 of the Criminal Procedure Code from the case diary and the fact that the serial numbers of pages in the diary were not in order, it seems that the Anti-Corruption Department was more interested in securing evidence in this case in support of the conviction of the appellant rather than in producing before the Court all available evidences to enable it to come to a correct finding regarding the guilt or otherwise of the appellant. Such tendency on the part of the Anti-Corruption Department is highly deprecated. The officers of the Anti-Corruption Department must remember that the duty of coming to a finding regard--ing guilt or otherwise of a person does not rest with them but it rests with the Court and their duty is to produce before the Court all relevant evidences, irrespective of the ques--tion whether they are consistent with the prosecution case or with 'the defence case.
There is nothing to contradict D. Ws. 1, 2 and 3 that the appellant received Rs. 50 from P. W. 7 and their evidences receive some corroboration from the evidence of D. W. 4 who deposed regarding the meeting of the appellant and P. W. 7 at his pharmacy on the evening of 13-10-65 and of the promise of P. W. 7 to pay money on the following day. Further corroboration-of D. Ws. 1-3 is forthcoming from the evidence of D. W. 6 who stated that shortly before P. W: 8 entered his room and charged the appellant with having 'accepted bribe, P. W. 7 had called away the appellant from his room. ' I see no reason to disbelieve either D. W. 4 or D. W. 6 who appear to be more reliable witnesses than P. W. 4 and P. W.
6. Hence the defence case that the amount of Rs. 50 produced by the appellant on demand of P. W. 8 was not bribe money but was taken as loan from P. W. 7 appears to be reasonably true on account of which the appellant is entitled to acquittal.
Mr. Jahurul Huque Khan, appearing on behalf of the State contended that the fact of recovery of the three currency notes in respect of which the inventory was prepared by P. W. 8 and which were made over to, P. W. 1 to be given to appel--lant, from the custody of the appellant proves the prosecu--tion case regarding the acceptance of bribe. Mr. Ataui Rahman Khan, appearing on behalf of the appellant on the other hand contended that there was no occasion for the appellant to demand any bribe from P. W.- 1 and the probability of the three currency notes being passed by P. W. 1 to P. W. 7 could not be ruled out in view of the collusion between P. W. 1 and P. W. 7 who were seen together on the morning of 14-10-65 with P. W. 8 in the Dak Bungalow by D. W.
2. There is considerable force in the contention raised by Mr. Ataur Rahman Khan for it appears, firstly, from the evidences of P. W. 1 and P. W. 8 that the, account books -alleged to have been produced by P.
W. 1 before the appellant and for the return of which the alleged bribe was demanded were not found with the appellant immediately after he was arrested in spite of search of his office- and residence. The failure of the prosecution to produce the account books from the custody of the appellant raises strong suspicion regarding the story of demand and acceptance of bribe by the appellant from P. W.
1. Secondly, it appears from the evidence of D. W. 5 that P. W. 7 was harbouring a complaint against- the appellant and so the probability of P. W. 7 implicating the appellant in collusion with P. W. 1 cannot altogether be ruled out.
The mere fact of recovery of tainted money from the possession of the accused does not prove a charge of briber under section 161, P. P. C. Before it can be said that the money was offered as a motive or reward for any of the A purposes mentioned in section 161, P. P. C. a connection must be established between the performance of the official .Act and the demand or payment of money.
Reference may in this connection be made to the decision in the case of Crown Prosecutor v. R. K.
Pillal and another (1 49 Cr. L J 165). No such connection has been established in this case.
It appears from the following passage in the judgment of the learned Special Judge that he himself found it difficult to accept the prosecution case as beyond doubt "it is not quite improbable for the accused Head Clerk to call for the account khatas of dealer Abdul Kader Khan P. W: 1 for inspection. The possibility of demanding bribe from a dealer by the accused Head Clerk for returning the detained account books of the P. W. 1 cannot be totally ruled out."
It is, therefore, evident that the prosecution failed to prove the charges against the appellant beyond reasonable doubt and the conviction and sentence cannot be sustained.
The appeal is accordingly allowed and the conviction and sentence passed against the appellant are set aside and he is acquitted of the charge.