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Criminal Appeal No. 1199 of 1976, heard on 9th July, 1984.

---S. 5(2)--Penal Code (XLV of 1860), S. 161--Illegal gratification (Trap-case)--Currency notes passed on to accused by complainant within hearing and view of Magistrate--Magistrate standing test of cross examination and his evidence supported by police officer and complainant--No material contradiction /discrepancy found in statements of prosecution witnesses--Recovery of chit specifying required job, from accused immediately after receipt giving rise to conclusion that accused had received tainted notes alongwith chit as illegal gratification--Defence evidence not found to be strong enough to rebut prosecution case- Conviction maintained in circumstances.

---S. 5(2)--Penal Code (XLV of 1860), S. 161--Illegal gratification (Trap-case)--Sentence--Accused not only losing his service but also suffering agony of protracted trial--Nature of sentence altered from two years' rigorous imprisonment to a fine of Rs.20,000 in circum stances.---[Sentence].

Ghulam Hussain Qureshi for Appellant.

Mehr Shaukat Ali for the State.

Date of hearing: 9th July, 1984.

This criminal appeal arises from the judgment of the learned Senior Special Judge Anti-Corruption, Lahore whereby he on 24-11-1976 convicted Muhammad Anwar appellant under section 161, P.P.C. read with section 5 of the Prevention of Corruption Act, 1947 and sentenced him to two years' R.I.

2. The appellant was posted as A.S.I. Traffic Sheikhupura. The charge against him is that he on 6-7-1975 demanded and then accepted Rs.220 as monthly illegal gratification from P.W. Muhammad Bashir a transporter of Nankana for not checking his buses plying from Nankana to Lahore via Sheikhupura. The appellant denied the charge and claimed to be tried.

3. To prove its case, the prosecution examined six witnesses. Muhammad Bashir P.W.1 appeared to prove demand and acceptance of bribe by the appellant from him. Muhammad Aslam, M.I. C. P.W.2, Syed Manzoor Hussain S.C.O. P.W.6 were produced to prove the recovery of the tainted currency notes from the appellant. Maula Bux a witness of the demand of bribe did not support the prosecution case. He was declared hostile and subjected to cross7examination. The rest of the evidence is of formal nature.

4. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. While admitting the recovery of tainted currency notes from him he explained that the said amount was his own which he had advanced to Muhammad Bashir P.W. for the purchase of Ghee but he planted the same on him. In defence he produced Muhammad Arahad D.W.1, Sh. Muhammad Ibrahim D.W. 2, Rai Muhammad Akbar D.W. 3 and Mirza Niaz Ahmad D.W. 4 who supported the version of the appellant.

5. The learned counsel for the appellant contends that the prosecution has failed to prove that the tainted currency notes were accepted by the appellant as bribe money. Conversely the learned counsel for the State supported the judgment of the learned trial Court.

6. After hearing the learned counsel for the parties I find that the tainted currency notes were passed on to the appellant by the complainant as bribe money within the hearing and view of the Magistrate. P.W.2 Malik Muhammad Aslam Magistrate stated:-

"Within my view, the complainant handed over chit EXh.P.W.l/C and tainted G.C. Notes to the accused saying that 'the chit bore the number of buses and that he should take care of the buses."

The Magistrate has stood the test of cross-examination. He stands supported by the Sub-Circle Officer and the complainant. The learned counsel has failed to point out any material contradiction /discrepancy in the statements of the prosecution witnesses. The recovery of chit Exh.P.W.1IC from the appellant immediately after the receipt also gives rise to irresistible conclusion that the appellant had received the tainted currency notes from the appellant alongwith this chit as illegal gratification. The defence evidence is not strong enough to rebut the prosecution case and its evidence particularly that of the Magistrate. For all these reasons I am convinced that the trial Court rightly recorded the conviction of the appellant.

2. This brings me to the question of sentence. Learned counsel has requested for leniency in the matter of sentence. In the circumstances of the case that the appellant has not only lost his service but also suffered agony of protracted trial, I feel inclined to alter the nature of sentence from two years' R.I. to a fine of Rs.20,000 in default thereof two years' R.I. The appellant shall deposit the fine of Rs.20,000' (twenty thousand) with the trial Court within one month failing which the trial Court shall issue warrant for his arrest and detention.

H . A . K .

Appeal partly accepted.

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