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Criminal Appeal No. 709 of 1979, decided on 19th January, 1983.

---S. 6(5) read with Notification No. SOR-III-1-14/71, dated 15-7-1972--Sanction for prosecution, validity of-Sanction for prosecution of accused Patwari granted by a Settlement Officer not so empowered in this behalf-Sanction, held, illegal, in circum stances.-[Sanction for prosecution].

---S. 5(2)-Penal Code (XLV of 1860), S. 161-Evidence, appreci ation of.--Bribery--(Trap case)-Tainted currency notes neither changed hands within view of raiding party nor conversation between complainant and accused overheard by them--Nothing to ascertain as for what purpose tainted currency notes given to accused-Prosecution, held, failed to prove its case against accused beyond doubt-Conviction and sentence set aside, in circum stances.

M. A. Zafar for Appellant.

Sharif Sahir for the State.

Date of hearing: 19^th January, 1983.

Muhammad Anwar (Revenue Patwari) Lohri Kalan, Tehsil Narowal, District Sialkot, was convicted by the learned Special Judge Anti- Corruption, Lahore, on 10-6-1976, under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to imprisonment till the rising of Court and fine of Rupees four hundred or in default thereof to undergo rigorous imprisonment for six months, for demanding and accepting Rupees one hundred as illegal gratification from Ibrahim P.W. which amount was recovered by the members of the raiding party, on 18-12-1975, at Zafarwal. Ibrahim complainant was in need of copy of Khasra Girdawari and he contacted the appellant and the appellant of demanded Rupees one hundred as illegal gratification. The complainant met Manzoor Hussain Shah, Sub-Circle Officer and made statement Exh. P.B., on 8.12-1975. On the basis of this statement, formal F.I.R. was recorded, Manzoor Hussain Shah S.C.O. arranged for the raid and the raiding party comprised Ibrahim Qaisar, Magistrate, Ibrahim complainant and Safdar Ali Constable. The Magistrate recorded the statement of the complainant. The complainant produced two currency notes of the denomination of Rupees fifty each and the Magistrate noted down their numbers and initialled the application for the supply of copy of Khasra Girdawari. The raid was conducted at Zafarwal. The complainant and the appellant entered a welding shop at Zafarwal. The other members of the raiding party stood outside. On coming out of the shop, the complainant gave a signal whereupon the other members of the raiding party reached the spot. The application bearing the initial of the Magistrate was in the hand of the appellant. On seeing the members of the raiding party, the appellant threw the currency notes, which were picked up and taken into possession. The Magistrate recorded the statement of the complainant as well as of the appellant and handed over the documents to the Manzoor Hussain Shah for further action. The appellant was challaned after investigation. .

2. The prosecution examined four witnesses including Ibrahim complainant, Ibrahim Qaisar Magistrate and Manzoor Hussain Shah, Sub-Circle Officer. The appellant denied the prosecution allegation and attributed the case to enmity. He produced Muhammad Anwar, Sabir Ali and Muhammad Nawaz in his defence.

3. The learned counsel for the appellant contended that the sanction in this case had not been accorded by the competent authority and thus the trial was illegal. He drew my attention to notification No. SOR-III-1-14/71 dated 15-7-1972, and contended that for the word "Collector" used in "The West Pakistan (Northern Zone) Patwari Subordinate Service Rules, 1963" the words "Assistant Commissioner"' have been substituted and thus the sanction granted by the Settlement Officer in this case was illegal. The learned counsel for the State was, unable to meet this legal objection.

4. It was further contended by the learned counsel for the appel lant that neither the members of the raiding party saw the transaction nor they heard any conversation, which took place between complainant and the appellant at the time of passing of the tainted currency notes and thus the judgment of conviction could not be upheld. He also pointed out discrepancies in the statements of Ibrahim (P.W. 2), Ibrahim Qaisar (P.W. 3) and Manzoor Hussain Shah, S.C.O. (P.W. 4) about the manner of the recovery of tainted currency notes.

5. Without going into the details, it is sufficient to mention that the members of the raiding party did not see the transaction.) They did not see the complainant passing the tainted currency notes to the appellant. They did not hear any conversation, which took place between the appellant and the complainant when the tainted currency notes were given by the complainant to the appellant. It was not known as for what purpose the tainted currency notes were given by the complainant to the appellant in the welding shop.

6. Agreeing with the contentions of the learned counsel for the appellant, I hold that the prosecution has failed to prove the case against the appellant beyond doubt. The impugned judgment is set aside and the appellant is acquitted of the charge. The fine, if paid, shall be returned to the appellant.

M. Z. H. Appeal allowed.

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