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Criminal Appeal No. 111 of 1967, decided on 15th January 1968.

S. 161 read with Prevention of Corruption Act (II of 1947), S. 5(2)‑Trap‑Tainted money neither passed nor kept in drawer by accused within view of prosecution witnesses‑Accused leaving seat for a short time while complainant sitting in his office during his temporary absence‑Raiding party searching accused immediately on his return and securing tainted money from drawer of his table‑Testimony of complainant alone without corroboration, held, could not be relied in circumstances‑‑ Conviction set aside.

Mohd. Hayal Junejo for Appellant.

Mohd. Haleem, Asstt. A.‑G. for the State.

Date of hearing : 15th January 1968.

The appellant Muhammad Yousaf has been convicted under section 161, P. P. C. and 5(2) of the Prevention of Corruption Act and sentenced to imprisonment till rising of Court and fine of Rs. 500.00 or in default rigorous imprisonment for one year. He has filed this appeal.

2. The facts of the prosecution case briefly are that Nasir Hussain, a clerk of one Hashmi Advocate had made an applica tion Exh. 14 for extracts of property No. B‑2088‑9 & 18 and 19 to the appellant who was City Surveyor. On 18th March 1965, Nasir Hussain told the appellant to give him copies on which the appellant told him that he would do so if he paid Rs. 15 to him as bribe. Nasir Hussain agreed to pay him Rs. 15 and told him that he would come to him after sometime and that he should in the meantime prepare the copies. Nasir Hussaia then straightaway went to the Anti‑Corruption Police and complained to them. He was then taken before a Magistrate who recorded his statement. The police officer also gave him two notes, one of Rs. 10 and other of Rs. 5 after taking his search for which Mashirnama Exh. 4 was made. Then as per the plan Nasir Hussain went to Muhammad Yousaf appellant in his office and asked him if he had prepared the copies. The appel lant told him that he had done so and demanded Rs. 15 as bribe. Nasir Hussain gave him Rs. 15 after which the appellant had given him copies of the extracts Exhs. 8 to 12. Nasir Hussain then gave the appointed signal on which the police officer and mashirs Bashir and Abdul Shakoor came there. In the meantime, the appellant was called by the District Magistrate. After he came back he was searched. Rupees 75.00 which belonged to him, were secured from his person. Tainted money (Rs. 15) was then recovered from the drawer of his table for which Mashirnama Exh. 5 in the presence of the same mashir was made. Mr. Abdul Majid, Second Class Magistrate P. W. 1 prepared this mashir nama. Then after completing the usual investigation and obtain ing the sanction for prosecution of the appellants the appellant was challaned.

3. The appellant, when questioned, denied the allegations made against him and stated that the amount of Rs. 15 was recovered from the drawer of his table but that he did not know who had kept that money in it. He has examined no witness in defence.

4. It is admitted by Nasir Hussain and other witnesses that the appellant was called by the District Magistrate after he was given Rs. 15 as bribe and before he was searched. It is also admitted by all the prosecution witnesses that Rs. 15 were not recovered from the person of the appellant. They were recovered from the drawer of his table. The case of the appellant is that he had not kept this money in the drawer of his table. The complainant who had sat by his side for the purpose of receiving the copies of the property extracts may have kept the money the drawer of his table in his absence while he had gone to the District Magistrate. Two mashirs, Muhammad Bashir P. W. and Abdul Shakoor P. W. 3, have also supported the appellant. They have stated that they did not see the amount of Rs. 15 being passed on to the appellant. They have also stated that they did not see the appellant keeping Rs. 15 in the drawer of his table. Under these circumstances, it cannot be said with certainty that Rs. 15 were passed on to the appellant or that they were kept by him in the drawer of his table, after he had received them. The only evidence on this question consists o the evidence of Nasir Hussain P. W. 4. He alone on this aspect of the case without any corroboration from any other witnesses, cannot be relied upon to the extent that his evidence should be considered sufficient for holding the appellant guilty for the offences with which he has been charged. On this view of the matter. I consider the evidence against the appellant to be doubt ful and giving him the benefit of the doubt. I accept his appeal and acquit him. Fine, if recovered from him, shall be refunded to him.

Appeal accepted.

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