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Criminal Appeal No. 352 of 1978, decided on 18th September, 1984.

---S. 5(2)--Decoy witness--Magistrate not hearing talk between accused and witness, preceding passing of tainted currency notes--Explanation for recovery of tainted money from him offered by accused--Reasonable possibility of explanation given by accused that tainted currency notes were given to him as change being true could not be excluded--Implicit reliance on uncorroborated evidence of decoy witness, held, could not be placed.

Ch. M.A. Salim for Appellant.

Bashir Mirza for the State.

Date of hearing: 18th September, 1984.

1. This criminal appeal arises from the judgment -of the learned Special Judge, Anti-Corruption, Rawalpindi, whereby he on 26-4-1978 convicted Rashid Ahmad appellant under section 5(2) of the Prevention of Corruption Act, 1974 and sentenced him to one year's R.I.

2. The appellant was working as clerk in the office of the District Food Controller, Gujrat. The charge against him was that he demanded and accepted Rs.40 from Muhammad Ashiq P.W. 2 for showing favour to him in the matter of allotment of a depot. He denied the charge and claimed to be tried.

3. To prove its case the prosecution examined four witnesses, Mdhammad Ashiq P.W. 2 appeared to prove the demand and acceptance of Rs.40 as illegal gratification by the appellant from him. Munawar Hussain Cheema, Magistrate (P.W. 3), and Ch. Muhammad Yousaf, Inspector P.W. 4 were produced to prove acceptance as well as recovery of the tainted currency notes from the appellant. The rest of the evidence is of formal nature, The witnesses have supported the prosecution version.

4. When examined under section 342, Cr. P.C., the appellant denied all the incriminating circumstances. While accepting the recovery of the tainted currency notes from him he explained that the same were given to him as change for 50 rupee currency notes which he had given to Muhammad Ashiq P.W. In defence he examined 4 witnesses.

5. The learned counsel for the appellant submits that the prosecution has failed to prove that the money was accepted by the appellant as illegal gratification. Conversely the learned counsel for the State has supported the judgment of the learned trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care and feel persuaded to agree with the learned counsel for the appellant inasmuch as the Magistrate did not hear the talk between the appellant and. the complainant which preceded the passing on of the tainted currency notes to the appellant. In this view of the matter, so far as the nature of the transaction is concerned, the evidence of the complainant alone remains in the field and I do not desire to place implicit reliance on the uncorroborated testimony of a decoy witness. The reasonable possibility that the explanation given by the appellant might be true cannot be excluded. Giving him the benefit of doubt, the appellant is acquitted of the charges.

M. A. K.

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