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Criminal Appeal No. 444 of 1983, decided on 13th November, 1984.

Penal Code (XLV of 1860)--

---S. 161--Prevention of Corruption Act (I1 of 1947), S 5(2)--Bribery- Magistrate and Inspector not hearing conversation between accused and complainant preceding passing on tainted money to accused---Uncorroborated testimony of complainant being a decoy witness not relied upon--Recovery admitted by accused and explaining same as return of loan--Reasonable possibility of defence version being true, held, could not be excluded--Accused acquitted in circumstances.

Ch. M.A. Saleem for Appellant.

Faiz Muhammad Sadiq for the State.

Date of hearing: 13th November, 1984.

This criminal appeal arises from the judgment of the learned Senior Special Judge, Anti-Corruption, Punjab, Lahore whereby he on 25-7-1983 convicted Amjad Rashid Khan appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to six months' R.I. and a fine of Rs.10,000 in default thereof to further R.I. for one year.

2. The appellant was posted as Overseer in the District Council, Kasur. The charge against him was that he demanded and accepted Rs.10,000 from Muhammad Iqbal Javid complainant P.W. 6 as illegal gratification. He pleaded not guilty.

3. To prove its case, the prosecution examined six witnesses. Muhammad Iqbal Javid complainant P.W. 6 appeared to prove demand as well as acceptance of bribe money from him by the appellant. Shahid Bashir. Virk M.I.C. P.W. 4, Saeed Hussain Inspector A.C.E. P.W. 5 were produced to prove recovery of the tainted currency notes from the appellant. 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 recovery of the tainted currency notes from him, he explained that the same was paid to him as return of loan by Muhammad Hussain Contractor D.W. 1. In defence two witnesses were produced.

5. The learned counsel submits that the prosecution has failed to prove that the tainted currency notes were received by the appellant from the complainant as illegal gratification. 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 receipt of the tainted currency notes by the appellant from the complainant is not only a proved but also an admitted fact and as such the material question for consideration and determination is as to whether the money was accepted by the appellant as illegal gratification or not. I find that the Magistrate and the Inspector did not hear conversation between the complainant and the appellant preceding the passing on the tainted currency notes to the appellant. So far as nature of the transaction is concerned, the statement of Muhammad Iqbal Javid P.W. 6 alone remains in the field. He being a decoy witness, I am not prepared to place implicit reliance on his uncorroborated testimony because in the circumstances of the case, the reasonable possibility of the defence version being true cannot be excluded.

For what has been stated above, the appeal is accepted and the appellant is acquitted of the charge.

M.A.K. Appeal accepted.

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