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Petitioner: ABDUS SALAM VS Respondent: THE STATE
P L D 1960 Dacca 425
P L D 1960 Dacca 425
Before Rahman, J
ABDUS SALAM‑Appellant
versus
THE STATE‑Respondent
Criminal Appeals Nos. 201 and 202 of 1959, decided on 10th June, 1959.
(a) Criminal Procedure Code (V of 1898), Ss. 234, 235 & 239‑Offence under S. 161, Penal Code (XLV of 1860) distinct and dissimilar from one under S. S (2), Prevention of Corruption Act (II of 1947)‑Three offences under S. 161 combined with three offences under S. 5 (2)‑Combination illegal.
Offences under section 161 of the Penal Code, 1860 and under section 5 (2) of the Prevention of Corruption Act, 1947 are distinct and dissimilar offences. More than three offences cannot be combined in one trial, either under sections 234 or 235 or 239 of the Criminal Procedure Code, 1898. Where, therefore, three offences of bribery under section 161 of the Penal Code, 1860 had been combined with three offences under subsection (2) of section 5 of the Prevention of Corruption Act, 1947, it was held that such a combination was not permitted by the Criminal Procedure Code, 1898 and was illegal.
Arshedali Khan v. The State P L D 1960 Dacca 412 fol. Crown v. Ghulam Muhammad P L D 1950 Lah. 479 rel.
(b) Retrial‑When to be ordered.
Retrial is not and should not be treated as a method for enabling the prosecution to improve upon the evidence which was led at the original trial nor should it be resorted to for giving the prosecution a second opportunity of getting the accused persons convicted. But the question as to whether there should or should not be a retrial should be based upon an assessment of the evidence already on the record. If that evidence does disclose with reasonable certainty that an offence has been committed, then the accused should not be allowed to go scot‑free merely on a technical ground which renders the trial itself bad.
Tafazzal Ali for A. H. M. Abdul Quader for Appellant.
S. M. S. Rahman, for the State.
JUDGMENT
These two appeals have been heard together although they do not arise out of the same trial. The accused in both the cases is the same. The case against him was that as President of the Ghorashal Union Board he had on or about the 17th of Sraban, 1362 B. S., corresponding to 3rd or 4th of August, 1955, illegally demanded and accepted a bribe of Rs. 2 from various persons resident within the said Union, as an illegal gratification for endorsing their respective ration cards to enable them to draw free supplies of yarn given by Government.
2. The prosecution split up these cases by joining three offences of bribe‑taking from three persons in each case. Thus, in the Special Case No. 50 of 1958, out of which arises Criminal Appeal No. 201 of 1959 the accusation was that the appellant had accepted such bribes from one Mamtajuddin, one Subedali and one Hari Das. 1n Special Case No. 8 of 1959, out of which Criminal Appeal No. 202 of 1959 arises, the accusation was that on the same date the same appellant had demanded and accepted bribes from three other ‑persons, namely, Nagendra Chandra Debnath Sudham Chandra Debnath and Suratali for the same purpose.
3. According to the prosecution, although these offences were said to have been committed in August, 1955, no informa tion about these alleged bribe‑takings was given to anyone until the 4th of March, .1956, when the said Mamtajuddin, at the inst ance of one Abdur Rouf Master, submitted a petition before the Superintendent of Police of Tippera when the latter went to visit Muradnagar police‑station. The investigation of the cases also, it appears, took an unduly long time, for, the sanction was not obtained until the 22nd of September, 1958, and the charge‑sheet was not submitted until the' 28th of October, 1958. The trial actually took place on the 10th of March, 1959, and the splitting up of the cases was done; it appears, in the Court of the learned Special Judge of Tippera.
4. Before I enter upon a consideration of the evidence in the cases and the merits thereof, I have to dispose of a point of law which has been urged in support of these appeals although the learned Advocate has made it clear that this point of law is not urged as a preliminary point. But, since it affects the validity of the trial itself, I think I must deal with it first.
5. The point taken is that since the offences under section 161 of the Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947, are distinct and dissimilar offences, more than three offences cannot be combined in one trial, either under section 234 or 235 or 239 of the Code of Criminal Pro cedure. The learned Advocate has, of course, contended that since three offences of bribery have been combined together with subsection (2) of section 5 of the Prevention of Corruption Act, there was really a combination of six offences. But even if the offence under the Prevention of Corruption Act is treated to be one and a single offence, there is a combination of at least four offences which is not permissible by the law.
6. In support of this contention, reliance is placed on the decision of a Division Bench of this Court in the case of Arshedali Khan v. The State (P L D 1960 Dacca 412), in which my learned brothers Ispahani and Sattar, JJ., held that such a combination was not permitted by the Code of Criminal Procedure and was illegal.
7. It appears that a similar view has been taken by the Lahore High Court also in the case of Crown v. Ghulam Muhammad (P L D 1950 Lah. 479). I am, therefore, not only bound to follow the Division Bench decision of this Court but, in the present case, I must also make it clear that I am in entire agreement with the view taken by my learned brothers Ispahani and Sattar, JJ. In this view of the matter it is clear that the convictions and sentences of the appellant in both these cases must be set aside. The question then arises as to what should be done next.
8. The learned Advocate appearing on behalf of the State has, of course, urged that the cases should go back for re‑trial after framing proper charges. On the other hand, it has been argued on behalf of the appellant that the evidence in these cases is of such an extremely unsatisfactory character that no useful purpose will be served by sending `the cases back for re‑trial.
9. It appears that except for two witnesses the other witnesses were common in both the cases. The two additional witnesses, however, who were examined only in Special Case No. 50 of 1958, namely, one Suratali and Sahedali Mia, had unfortunately both to be declared hostile as they did not support the prosecu tion case. So far as the other witnesses are concerned, I have gone through their evidence in both the cases and it appears that there is no consistency in the versions given either with regard to the alleged demand of the bribe or with regard to the person to whom the payment was made or with regard to the place at which the payment was made. Some witnesses have of course, said that the money was demanded and paid to the appellant. Others, on the other hand, have said that they were informed by the Chowkidar to come with Rs. 2 and their ration cards to the house of the President and there they paid the amount of the bribe to the clerk of the President whilst yet others have stated that they got information that they should go the house of the President with Rs. 2 and, when they arrived, the clerk demanded and accepted Rs. 2 as illegal gratification.
10. With regard to the place of payment, some witnesses have said that the President was sitting in the school room and through this school room the ration card‑holders passed in a single file paying Rs. 2 and getting their cards endorsed but others have stated that they made the payment at the post office which is sepa rated from the school building by an open space as well as a khal.
11. It is also worth nothing that, in the present case, the information upon the basis of which the prosecution commenced was not lodged until some eight months after the alleged occurr ence and during this time no one murmured about such an open and brazen demand of illegal gratification on the part of the appellant. Indeed, the local Chowkidar, who was examined in Special Case No. 8 of 1959, went to the extent of saying that he under the orders of the appellant announced at the bazar by beat of drum that every one should come with Rs. 2 to the President if he wanted to draw yarn on his ration card. But no one took any action in that regard until the 4th of March, 1956, when Abdur Rouf Master set up Mamtajuddin to file this petition. This Abdur Rouf Master himself did not have the courage to face the Court, come and give evidence and be cross‑examined on behalf of the defence.
12. The prosecution did not also bother to produce a single ration card, although P. W. 1 Mamtajuddin in Special Case No. 50 of 1958 admitted that he was still in possession of his ration card and it was lying at his residence, in order to show that the story of the bribe‑giver was corroborated to the extent that the bribe‑givers have to get their ration cards endorsed by the appellant before they‑could draw the quota of yarn, nor did the prosecution bother to produce any evidence to show a s to what procedure had to be followed in that instance for the drawing of the yarn on the basis of the ration cards.
13. The learned Advocate appearing on behalf of the appellant has also commented on the fact that the learned Special Judge had failed to notice that most of the witnesses examined in these cases with regard to the offence were all in the position of bribe‑givers themselves, and there was as such no corroboration by any independent evidence of any one of the bribe‑givers. This is quite true. Each of the witnesses who has been examined in these cases and who has supported the prosecution case has come and said that the bribe was also demanded from him and he too paid the bribe at the rate of Rs. 2 as alleged by the prosecution. There is no other witness who has been examined in these cases who could say that although he was not a person interested in getting the yarn but was there merely as an onlooker: If the purpose of examining these witnesses was merely to corroborate those three persons who were mentioned in the charge as bribe-givers, then this comment is in every way justified. On the other hand, if these witnesses were examined to prove the propensity on the part of the appellant to commit such crimes or to show that he also accepted such bribes from other persons, then I think this evidence was inadmissible.
14. It is unnecessary to discuss in any greater detail the evidence in these cases, for, from what I have stated above, it will be obvious that no useful purpose will be served now, nearly four years after the alleged occurrence, by having the appellant re‑tried on the said charges. Re‑trial is not and should not be treated as a method for enabling the prosecution to improve upon the evidence which was led at the original trial nor should it be resorted to for giving the prosecution a second opportunity of getting the accused persons convicted. But the question as to whether there should or should not be a re‑trial should be based upon an assessment of the evidence already on the record. If that evidence does disclose with reasonable certainty that an offence has been committed, then the accused should not be allowed to go scot‑free merely on a technical ground which renders the trial itself bad. Having judged the evidence in the cases from this point of view, I am satisfied that no useful purpose will be served by sending the cases back for a re‑trial.
15. I, therefore, allow these appeals, set aside the convictions and sentences, acquit the appellant of the charges in both the said cases and direct that he be forthwith discharged from his bail bonds.
K. B. A. Appeals allowed.