' This is an appeal under section 410, Cr.P.C. Against the judgment, dated 21-6-1999 passed by the learned Special Judge, Central, Faisalabad whereby the appellant has been convicted under section 161, P.P.C. And sentenced to imprisonment for six months and fine of Rs,2,000 (Rupees two thousand) and in case of default of the payment of fine he shall serve further S.I. For 15 days on both counts and the sentences to run concurrently. The benefit of section 382-B, Cr.P.C. Was also given.
2. Briefly stated that prosecution case is that the complainant Muhammad Ashraf made an application (Exh.P.A.) alleging therein that he had filed an application for new telephone connection and his turn has reached to routine but the accused appellant Muhammad Rafique Qureshi, Assistant Engineer, extorted Rs,2,000 from him on pretext of giving him new telephone that his application number was 736 whereas in routine the demand note till Application No,774 had already been advertised. The complainant demanded back the money whereupon accused had threatened him with dire consequences and also disconnection of the telephone. The application was supported by Exh.P.B. A preliminary inquiry was conducted by Nazir Ahmad, S.-I., F.I.A., and after getting the sanction of the Director, F.I.A., Lahore complaint (Exh.P.C.) was drafted and formal F.I.R.
(Exh.P.C./1) was registered by Assistant Director. After completing the investigation, the case was challaned to the Court where he was formally charge-sheeted but he denied the charge and claimed trial. At the trial the prosecution . Examined Muhammad Ashraf (P. W.1) who confirmed his allegations as made in the complaint. Nazir Ahmad S.-I. Has appeared as P.W.2, who conducted the investigation. Hassan Akhtar was not examined being won-over. Muhammad Rashid, Assistant Director was given up being unnecessary while Muhammad Rafique P.W. Could not be produced having died. In his examination under section 342, Cr.P.C. The accused denied the allegations and stated that the case against him was due to misunderstanding. The demand note was issued before the complaint and the amount has been deposited by the complainant and that he did not commit any default in the performance of his duty nor he demanded any illegal gratification nor he received it and that in this connection the Departmental Inquiry was conducted in which he was exonerated. He also produced Azhar Iqbal (D.W.1), who deposed that according to the record he remained S.D.O. Telephone Kamalia in the year 1991 and that application for new connection of Muhammad Ashraf complainant was entered at serial number 736 on 23-7-1989 in the Master Register and demand note was issued at serial number 1030 on 25-4-1991 and the Advice Note was issued on 12-5-1991 which was also entered at Serial Number 70512 and Telephone No,3131 was allotted to the complainant as per opening and closing register at Serial Number 1344 and that there was no delay nor negligence of the office for giving new telephone connection and that the office gives priority to consumer who deposits the money of demand note first and presents copy of the receipt. He also deposed that although complaint was made on 30-4-1991 but the consumer presented copy of the receipt to the office on 1-5-1991, therefore, the delay if any was caused at the instance of the complainant and that they had given no priority to any person viz-a-viz the complainant. An affidavit of Muhammad Ashraf for non-pursuation of the case (Exh.D.A.) was also produced.
3. The learned trial Court after hearing the arguments passed the impugned judgment and conviction.
4. Learned counsel for the applicant has urged that this is a case of no evidence and conviction could not be passed on the solitary statement of the complainant without any independent corroboration and that it was a case of acquittal even on the every basis of the statement of the complainant.
5. Learned counsel for the State has supported the impugned judgment.
6. I have given due consideration to the valuable arguments on both sides. It is on the record that the complainant admitted that the demand note was issued to him on 25-4-1991 and he paid its amount of Rs,34,050 on 30-4-1991 and the connection was sanctioned in April, 1991. The affidavit of the complainant that he was not to pursue the criminal case against the accused and the fact that there was no independent witness of the giving of the bribe money by the complainant and receiving of the same by the appellant was a circumstance in the presence of which it cannot be held that the charge was proved. In law the bribe given is also an accomplice in paying A the bribe.
His solitary statement as an accused person cannot be made the basis of conviction of the appellant. Time, date, place and the person who witnessed alleged giving of the bribe are all missing in the evidence. Prosecution has thus, failed in this case to prove the charge.
7. In the case of Noor Muhammad v. The State PLD 1963 SC 38 wherein the appellant while working as a police constable had asked the complainant to accompany him to the police station as there was a complaint against him of harbouring thieves and took him to his quarter at the police station and promised to destroy the petition of complaint on his payment of illegal gratification and as he did not pay heed to the protest of the complaint, the latter ultimately agreed to pay certain amount to him which were with him and the balance later, and subsequently on the advice of his neighbours, the complainant lodged a complaint against the constable and eventually the accused was prosecuted for an offence under section 16, P.P.C. And at the trial the accused was convicted and sentenced and the same were maintained by the High Court and special leave was granted by the Honourable Supreme Court to consider:- ' "Whether a conviction for taking a bribe can be sustained by the evidence of the bribe-giver alone?"
' The Honourable Supreme Court observed:-- ' "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 abetter or an accomplice. In other words he cannot be regarded as a particepes criminis in respect of the crime. As however, 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."
' In the light of the above precedent when the evidence on record has been scrutinized with the able assistance of the learned counsel it has become evident that:--
(i) the complainant has himself stated in his affidavit (Exh.D.A.) that he was not to persue the complaint. It has come in the statement under section 342, Cr.P.C. That there was misunderstanding clue to which the complaint was made;
(ii) P. W.1 admitted the defence version when he answered all suggestions as correct;
(iii) the case of the defence is probable i.e, the proceedings against the appellant were all due to misunderstanding as the official record proved that there was no delay on the part of the appellant in doing his duty;
(iv) there is no independent evidence to support the plea of the complainant.
9. For the above reasons, the impugned judgment cannot be maintained as such the appeal is accepted and the judgment of conviction and sentence is set aside and the acquittal of the appellant is ordered forthwith.