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Criminal Appeal No. 588 of 1982, decided on 15th October, 1984.

---S.5(2)--Penal Code (XLV of 1860), S. 161--Illegal gratification- Accused allegedly demanding and accepting money as illegal gratifica tion--Defence plea that complainant had tried to give accused tainted money for deposit in bank but same fell down--Magistrate not hearing exact conversation between accused and complainant--Tainted money not recovered from person of accused--Statement of Magistrate not proving that accused voluntarily and physically received tainted notes as illegal gratification--Possibility of defence version being true, not excluded- Statement of complainant alone remaining in field regarding nature of transaction--Prosecution story that accused accepted tainted notes at a distance of one furlong from his office while walking and talking with complainant creating a doubt in mind of Court--Prosecution, held, had failed to prove its case beyond reasonable doubt--Accused acquitted.

D.M.Awan for Appellant.

Date of hearing: 15th October, 1984.

This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption, Lahore, whereby he on 17-11-1982 convicted Muhammad Hanif Masood appellant under section 161, P.P.C. read with section 5 of the Prevention of Corruption Act and sentenced him to three years' R.I. and fine of Rs.10,000 in default thereof to RA for six months.

2. The appellant was Excise and Taxation Inspector at Lahore. The charge against him was that he demanded and accepted Rs.5,000 as illegal gratification from Abdul Majid P. W.5 for helping him in the matter of assessment of Tax. He pleaded not guilty.

3. To prove its case, the prosecution examined five witnesses. Abdul Majid P.W.5 appeared to prove the demand as well as acceptance of illegal gratification by the appellant from him. A.G. Shaheen Magistrate P.W.3 and Inayat Inspector A.C.E., were produced to prove the acceptance by and recovery of the tainted currency notes from the appellant. Malik Muhammad Ashraf D.S.P. P.W.1 was a member of the raiding party. They supported the prosecution case. The rest .of the evidence is of formal nature.

4. When examined under section 342, Cr.P.C. the appellant while denying the incriminating circumstances stated that just before the raid the complainant tried to give him the tainted currency notes for deposit in the State Bank of Pakistan but the same fell down on the ground. In defence he produced Anwar Ashraf D.W.1 and Muhammad Aslam D.W. 2 Inspector Excise and Taxation Department. They stated that the appellant insisted that the complainant should deposit the entire amount whereas the complainant wanted to pay the amount by instalments.

5. The learned counsel for the appellant contended that Muhammad Ashraf D.S.P., who according o the Magistrate was very much present at the place where the tainted currency notes were recovered, has not supported the prosecution on the point of recovery of tainted currency notes from the appellant; that the prosecution story that the appellant accepted the tainted currency notes at a distance of one furlong from the office is improbable; that the Magistrate and the Inspector did not hear exact conversation between the complainant and the appellant and that the prosecution has failed to prove its case beyond reasonable doubt. Conversely the learned counsel for 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 Magistrate did not hear exact conversation between the appellant and the complainant; that the tainted currency notes were not recovered from the person of the appellant, that the currency notes were picked by the Magistrate from the ground and that A.G. Shaheen Magistrate P.W.3 in his statement has stated.

In cross-examination, the Magistrate stated:-

From the statement of the Magistrate reproduced above it is very much obvious that it cannot be safely said that the appellant voluntarily and physically received the tainted currency notes as illegal gratification. In this view of the matter the possibility of the defence version being true cannot be excluded. So far the nature of the transaction is 1 concerned, the statement of Abdul Majid complainant P. W.5 alone remains in field. In the circumstances that the tainted currency notes were not passed on to the appellant in the office or just outside the office and that after having walked for a distance of one furlong, the Complainant gave the currency notes to the appellant and in the way the complainant had been talking about the bill of his property tax and has also been attempting to give him the money which the appellant had been refusing to receive as stated by the Magistrate, a reasonable doubt has crept in my mind about the truth of the prosecution case. For all these reasons, I am of the view that the prosecution has failed to prove its case beyond reasonable doubt.

7. For what has been stated above, giving him the benefit of doubt the appellant is acquitted of the charge.

H. A. K.

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