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Criminal Appeal No. 197 of 1977, heard on 31st October, 1984.

---S. 5(2)--Penal Code (XLV of 1860), S. 161--Illegal gratification-- Raiding-Magistrate and Police Inspector neither seeing passing on of tainted money to accused nor hearing any conversation--Tainted currency notes recovered from accused who had been acquitted--Prosecution not producing person on whose pointation money was recovered from co-accused--Accused given benefit of doubt and acquitted in circumstances.

Ch. Sadiq Hussain for Appellant.

C . M . Latif for the State.

Date of hearing: 31st October, 1984.

This criminal appeal arises from the judgment of learned Special Judge, Anti-Corruption, Rawalpindi, whereby lie on 1T-2-1977 convicted Bashir Ahmad appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 3 months' R.I. arid a fine of Rs.100 in default thereof to further R.I. for one month.

2. The appellant was a Patwari. He was tried alongwith Muhammad Younas who has been acquitted by the trial Court. The charge against them was that they demanded and then accepted Rs. 20 as illegal gratification from Bahawal, P.W.1. They pleaded not guilty to the charge and claimed to be tried.

3. To prove its case prosecution examined 8 witnesses. Bahawal P.W. 1 appeared to prove demand as well as acceptance of illegal gratification by the appellant from him. Muhammad Tufail Inspector, Anti-Corruption, P.W. 5 and Hameed Ullah, Magistrate, P.W. 6 were produced to prove the recovery of tainted currency notes from the appellant. They supported the prosecution case. The rest of the evidence is not of much importance.

4. When examined under section 342 Cr. P.C., the appellant denied the incriminating circumstances. In defence he produced no witness.

5. The learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubts; that the money was not recovered from the appellant and that the Magistrate had neither seen the transaction nor heard any conversation-between the complainant and the appellant. Conversely, the learned counsel for the State supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I find that the Magistrate and the Inspector neither saw the tainted currency notes passing on to the appellant nor did they hear any conversation; that the tainted currency notes were not recovered from the appellant; that the tainted currency notes were recovered from Muhammad Younas co-accused who has already been acquitted and that the person on whose pointation the money was recovered from the person of the co-accused, has not been produced by the prosecution. For all these reasons I am convinced that the prosecution has failed to prove its case beyond reasonable doubts.

7. For what has been stated above, giving him the benefit of doubt, the, appellant is acquitted of the charge.

H. A. K. Appeal accepted.

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