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Criminal Appeal No. 867 of 1979, decided on 19th September, 1984.

---S.161--Decoy witness--Illegal gratification--Receiving of tainted money and its passing on to co-accused having been admitted--Magistrate and police officer in raiding party not hearing talk between complainant and accused at time of passing of such money--Evidence of decoy witness regarding nature of transaction remaining uncorroborated--Upholding of conviction, held, would be unsafe in circumstances of case.

Ghulam Hussain Qureshi for Appellant.

Masud Babri for the State.

Date of hearing: 19th September, 1984.

This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption, Lahore-1 whereby he on 28-7-1979 convicted Ali Hussain appellant under section 161, P.P.C. and sentenced him till rising of the Court and a fine of Rs.1,000 in default thereof to further R.I. for six months.

2. The charge against the appellant was that he alongwith Muhammad Shaft (since dead) demanded and accepted Rs.150 as illegal gratification from Faryad Ali P.W.2. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution examined four witnesses. Faryad Ali P.W.2 appeared to prove the demand and acceptance of illegal gratification by Ali Hussain appellant and his further passing on to Muhammad Shafi co-accused. Muhammad Naeem Siddiqui Magistrate P.W. 1 and Raja Muhammad Ayub S.I. A.C.E. were produced to prove recovery of the tainted currency note from the appellant. The rest of the evidence is of formal nature. The witnesses supported the prosecution case.

4. When examined under section 342, Cr.P.C. the appellant and his CO-accused denied the incriminating circumstances. The appellant while admitting the receipt of the tainted currency notes and passing on to the co-accused, explained that the complainant owed Rs. 150 to Muhammad Shaft and the same was given to him by him towards that loan. Muhammad Shaft co-accused raised almost the same pies In defence they produced four witnesses.

The learned counsel far the appellant submits that the prosecution has failed to prove that the tainted currency notes were accepted by the appellant as illegal gratification. On the other hand the learned counsel for the State has 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 receipt or the tainted money and its further passing on by the appellant to Muhammad Shaft co-accused having been admitted, the material and important question for consideration and determination is whether the same were paid as illegal gratification or not. Since the Magistrate and the accompanying police officer had not heard the talk between the appellant and the complainant', which preceded the passing on of the tainted currency notes to the appellant, therefore, the evidence of the complainant alone remains in field upon which no implicit reliance can be placed without corroboration. Since there is no corroboration of the decoy witness with regard to the nature of the transaction, therefore, I am of the view that it would be unsafe to uphold the conviction, Giving him the benefit of doubt, he is acquitted of the charge.

S. A.

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