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Criminal Petition No. 31-P of 1980, decided on 13th June, 1981.

(On appeal, from the judgment of Peshawar High Court dated 18-3-1980 in Criminal Case No. 248 of 1979).

---S. 161 read with Prevention of Corruption Act (II of 1947), S. 5(2) Bribery - [Trap-case] - Accused caught red-handed by trap party but accused stating money found in his possession having been advanced to him by informer by way, of loan-No enmity existing between informer and accused and informer having recently constructed quarters genuinely in need of electric connection and such duty lying within scope of accused's duties-Guilt of accused on charge under S. 161, P. P. C. based on very cogent evidence produced by prosecu tion and defence plea rightly rejected-Charge under S. 161, having been proved beyond doubt, part of judgment of trial Court acquitting accused petitioner on charge under S. 5(2) of Prevention of Corruption Act, 1947, held, irrelevant and in any case, does not whittle down weight of prosecution case.

Mahfooz Khan, Advocate Supreme Court and Ali Qasim Imam,. Advocate -on-Record for Petitioner.

Nemo for the State.

Date of hearing: 13th,June, 1981.

-This is a petition for special leave to appeal from the judgment of a learned Single Judge of Peshawar High Court dismissing petition s appeal against the conviction recorded against him by the Special Judge (Central) Anti-Corruption, Peshawar under section 161,P. P. C. for which he was contended to pay fine of Rs. 1,000, or in default to undergo R. I. for two months.

At the relevant time the petitioner was posted -as Line Superintendent, Electricity, WAPDA, Alamgudar Sub-Division, Peshawar and according to the prosecution he demanded and finally accepted Rs. 1,500, as illegal gratification from one Waris Khan for showing favour to him in the installation of electric connection to his newly constructed quarters at Bara Gate, Peshawar. On the complaint of Waris Khan a trap was organized by P. W. Imtiaz Khan, Assistant Director, F. I. A. under the supervision of Syed Ajmal Shah. M. I. C. and tainted currency notes in the such of Rs. 1,500, paid by Waris Khan as illegal gratification were recovered from possession of the petitioner.

The petitioner admitted the recovery of Rs. 1,500, from him, but he pleaded that the aforesaid amount was given to him by Waris Khan as a friendly loan. He did not produce any witness in defence, and the plea raised by him was rejected by the .learned Special Judge for the reason that "the statement of Waris Khan complainant who is not proved to have any grudge or unduly biased against the accused is quite consistent and supports the case of the prosecution . . . . . . . and the mere fact that some of the witnesses have stated that they did not hear the conversation that took place between the accused Murad Ali and complainant Waris Khan does not effect the prosecution case to any material extent which otherwise stands proved against the accused. In trap cases it is somewhat quite impossible that the conversation that takes place between the accused and decoy witness is heard by the other members of the raiding party who rarely remain within hearing distance"

Learned Single Judge in the High Court, on reappraisal of the evidence, held that he was satisfied that the petitioner had accepted the amount in question as illegal gratification for having electricity connection to Waris Khan's newly constructed quarters, and observed in this behalf that "the fact that Waris had constructed quarters is not denied. Therefore, it can be safely inferred that as a complainant was to electrify the quarters, he was obliged to approach the accused respondent and thus his allegation that he had paid him a sum of Rs. 1,500 as illegal gratification for the purpose is convincing".

Mr. Mahfooz Khan, learned counsel appearing in support of the petition submits that the defence plea of the petitioner is more plausible than the prosecution version, and the petitioner is, therefore, entitled to benefit of doubt. He further submitted that since the petitioner was charged additionally under section 5(2) of the Prevention of Corruption Act, 1947, and this charge, according to the learned Special Judge himself was not proved against the petitioner by any cogent evidence, the acquittal thereunder adversely affects the prosecution case on the charge under section 161, P. P. C.

After having gone through the record of the case, we are clearly of the view that the guilt of the petitioner on the charge under section 161, P. P. C. has been based on very cogent evidence produced by the prosecution, and the defence plea raised by the petitioner had been rightly rejected, and since the charge under section 161, P. P. C. stands proved beyond doubt the part of the judgment of the Special Judge acquitting the petitioner on the charge under section 5(2) of the Prevention of Corruption Act, 1947, irrelevant anal in any case, would not whittle down, in any manner, the weight of the' prosecution case which is otherwise sufficient basis upto which the charge under section 161, P. P. C. can be safely rested.

There is therefore, no merit in the arguments advanced by the learned counsel in support of this petition, and it is accordingly dismissed in limline.

Petition dismissed

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