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Criminal Appeal No. 853 of 1978, decided on 19th September, 1984.

---S. 5--Illegal gratification--Offer and acceptance of bribe--Witnesses of acceptance of bribe not having been produced before trial Court on ground of being hot traceable--Statements of such witnesses, recorded by Magistrate not transferred to file of trial judge under S. 33, Evidence Act, 1872--Rest of evidence even if accepted at its face value, not sufficient to prove charge against accused--Prosecution, held, failed to prove its case beyond reasonable doubt and accused was acquitted.

Mian Ehsan-ul-Haq for Appellant.

Muhammad Ali Naqvi for the State.

Date of hearing: 19th September, 1984.

This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption, Lahore whereby he on 21-9-1978 convicted Muhammad Aslam under section 5 of the Prevention of Corruption Act, 1947 and sentenced him to one years R.I. and a fine of Rs.500 in default thereof to further R.I. for three months.

2. The charge against the appellant was that he gave beating to Muhammad Afzal driver of a truck in the presence of conductor and also accepted Rs.200 from him as illegal gratification. He denied the charge and claimed to be tried.

3. The case was originally tried by Magistrate 1st Class and was then transferred to the Court of learned Special Judge, Anti-Corruption, Lahore who recorded the statements of Radar Zafar Inspector P.W.1, Faiz Aslam P.W.2. Muhataq Ahmad S.1. P.W. 3, Muhammad Bashir P.W.4 and Dr. Farooq Ahmad P.W.5.

4. When examined under section 342, Cr.P.C. he denied all the incriminating circumstances.

5. The learned counsel for the appellant submits that Muhammad Afzal driver and conductor have not been produced; that there is no evidence of demand and acceptance of illegal gratification or of any misconduct against the appellant. On the other hand, the learned counsel for the State while supporting judgment of the trial Court has frankly stated that the witnesses of the acceptance of the bribe namely, Muhammad Afzal complainant and conductor have not been produced because of their non-availability.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I find that there were two witnesses of the acceptance of the bribe namely, Muhammad Afzal Driver complainant and conductor but they were not produced before the learned Special Judge, Anti-Corruption and were given up or, the ground that they were not traceable. It is unfortunate that the learned prosecutor did not care to get the statements of these two witnesses recorded by the Magistrate transferred to the file of the learned Special Judge in accordance with the provisions of section 33 of the Evidence Act. I further find that the rest of evidence even accepted at its face value is not sufficient to prove the charge against the appellant.

7. For what has been stated above, I am of the view that the prosecution has not been able to prove its cases-beyond reasonable doubt. Giving him the benefit of doubt, he is acquitted of the charge.

S . A .

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