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Criminal Appeal No. 582 of 1969; decided on 27th February, 1982.

- S. 5 (2) read with Penal Code (XLV of 1860), S. 161 - [Trap-case]-Evidence, appreciation of-On point of demand and payment of illegal gratification only complainant examined as solitary witness-Raiding Magistrate and Police Officer staying at some distance at time of delivery of money and as such not in a position either to see passing on of money or to hear conversation between complainant and accused - Confusion that accused although demanded Rs. 90 as gratification yet readily accepted Rs. 45 only, also not reconciled in any manner-Conviction and sentence set aside in circumstances.

Jehangir Aishad for Appellant.

Murtaza Zaidi for the State.

Date of bearing: - 27th February, 1982.

This criminal appeal arises from the judgment of a learned special Judge Anti-Corruption. Multan, dated 26th July, 1979 whereby, he convicted Muhammad Ashraf, appellant, under section 161 of the Pakistan Penal Code read with section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced him to 4 months' R. I. and a fine of Rs. 100 in default' there of to further R. I. for one month on each count.

2. The prosecution case in brief is that Muhammad Ashraf, appellant was posted as Forest Guard at Atkerian Beat in the District of Sahiwal. He and Sikandar Hayat, Block Officer, rounded up the cattle of Muhammad Saleem and demanded Rs. 100 as illegal gratification for releasing the cattle. On the request of Muhammad Saleem, the demand was reduced from Rs. 100 to Rs. 90. It has been alleged that the appellant threatened Muhammad. Saleem that in case the money is not paid a fine of Rs. 500 shall be imposed. On this Muhammad Saleem promised to pay Rs. 90. The appellant and Sikandar Hayat Block Officer removed the chains of the cattle and released them. They, however, retained the chains with them to be delivered to Muhammad Saleem on payment of the bribe money. Since Muhammad Saleem did not like to bribe the officials, he reported the matter to Ch. Bashir Ahmad P. W. 5 Sub-Circle Officer Anti-Corruption Establishment, who organized a raid under the supervision of Mr. Habibur Rehman Bhatti P. W. 4 a Magistrate. State ment Exh. P. A. of Muhammad Saleem was recorded. The Magistrate noted down the numbers of the currency notes amounting to Rs. 90 and returned the same to Muhammad Saleem for presentation to the appellant. The raiding party comprising the complainant, Ch. Bashir Ahmad Sub Circle Officer P. W. 5, Muhammad Anwar Constable P. W. 2 and Habibur Rehman Magistrate, P. W. 4 reached the Rest House of Atkerian. Muhammad Saleem went to the house of the appellant whereas the others remained at the Rest House. When Muhammad Saleem met him, the appellant asked for the money but Muhammad Saleem told him that the same was with his companion who was present at the Rest House. There after, Muhammad Saleem brought the raiding party near the house of the appellant. Muhammad Saleem, and Muhammad Anwar P. W. 2 went to the appellant and others remained at some distance. The appellant again demanded the bribe in the presence of Muhammad Anwar. He brought the chains from his house. Whereupon, Muhammad Saleem handed over Rs. 45 to Muhammad Anwar who passed on the same to the appel lant. On the signal, the Magistrate and the Sub-Circle Officer reached the spot and disclosed their identity. - At this juncture, the appellant allegedly threw the currency notes on the ground which were, however, picked up by Habibur Rehman Magistrate. On comparison, he found the currency notes-to be the same which were returned to Muhammad Saleem for the delivery to the appellant. The statement Exh. P. C. of the com plainant and statement of Muhammad Anwar Exh. P. D. were recorded. The appellant was arrested on the spot. The Magistrate prepared the raid report Exh. P. E. on the basis of which formal F. I. R. Exh. P. E./1 was recorded by Allah Yar P. W. 3.

3. The appellant denied the incriminating circumstances.

4. In order to prove its case, the prosecution produced as many as five witnesses P W. 1. Muhammad Saleem. He supported the prosecution case as mentioned above. In cross-examination, he stated that Ghulam is his first cousin and when the cattle were rounded up the' said Ghulam was with the cattle and that A. D. M., Sahiwal had fined Rs. 30 to Ghulam Muhammad on the basis of false complaint prepared by the Forest officer. He further stated that some Arains were present with the accused when the money was paid to him. He denied the suggestion that he threw the money on the ground which was picked up by the Magistrate.

P. W. 2. Muhammad Anwar Constable: He simply stated that he joined the raiding party, went alongwith Muhammad Saleem P. W. I and Rs. 45 mere paid to the appellant who subsequently, threw the same on the ground. In cross-examination, he stated that there was no one with the accused when they met him and gave him the money.

P. W. 3. Allah Yar: He recorded the formal F. 1. R. Exh. P. E./1 on the basis of raid report Exh. P. E.

P.W. 4. Habibur Rehman Magistrate: He supported the raid pro ceedings and stated that he saw the appellant holding the tainted money which he threw on the ground. In cross-examination he stated that he did not see the passing on of the money as it was slightly dark. He further stated that one or two persons were already with the accused/appellant when Muhammad Saleem went to him.

P. W. 5. Ch. Bashir Ahmad S. C. O.: He supported the raid proceedings and his statement is almost the same as given by Habibur Rehman Magistrate. In cross-examination he stated that when the appellant threw the money on the ground some persons immediately came to the spot, he could not say from where they had come because it was dust time. He further stated that the Magistrate 'gave money to the Constable for delivery to the appellant and that he did not see the passing on of the money to the appellant.

(5)The appellant examined Sikandar Hayat D. W. I, in his defence.

6. The above statement of facts would show that on the point of demand and payment of the bribe there is solitary statement of Muhammad Saleem, P. W. 1. Muhammad Anwar P. W. 2, although, was with Muhammad Saleem at the time of the passing on of the money yet be did not say anything about the money having been paid as a bribe. Habib ur-Rehman Magistrate and Ch. Bashir Ahmad S. C. O. were at some distance at the time of the delivery of the money and as such they were not in a position either to see the passing on of the money or to hear the conversation between Muhammad Saleem P. W. 1 and the appellant, if any.

7. 1 have considered the evidence very carefully. I find that on the point of illegal gratification there is evidence of only one witness, namely, Muhammad Saleem. l have appreciated his evidence in accordance with the rules laid down for the safe administration of criminal justice. He is a decoy witness. He has admitted that Ghulam Muhammad who was with the cattle at the time of rounding up was fined by the A. D. M., Sahiwal on the report prepared by the Forest Officer, as such, I find that the is at least not an independent witness and had some motive to falsely involve the appellant. The prosecution case is that the appellant had demanded Rs. 90 which were presented before the 1.:.: Eg Magistrate who bad noted down the serial numbers of the value of Rs. 90. 1 have failed to understand as to why Muhammad Saleem did not present the whole amount and he instead passed on Rs. 45 which were accepted by the appellant without any hesitation. This circumstance has created' great confusion in the prosecution case and cannot be reconciled in any manner.

8. For what has been stated above I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. The appeal is, therefore, accepted. The conviction is set aside and the appellant is here by acquitted of the charge. He is on bail, his bail -bond shall stand discharged.

S. G. D. Appeal allowed.

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