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Criminal Appeal No. 941 of 1977, heard on 5th July, 1984.

‑‑‑S.161‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Bribery‑ -(Trap‑case)‑‑Benefit of doubt‑‑Accused neither demanding nor accepting bribe money at time of raid and tainted money actually accepted and recovered from co‑accused‑‑Co‑accused although in his statement recorded just after raid involving accused yet making no such statement at trial‑‑Statement of co‑accused recorded just after raid, held, could not be used as a positive evidence for recording conviction oT ‑accused‑ Accused given benefit of doubt and acquitted in circumstances.

‑--S, 161‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Bribery‑ _Trape‑case)‑‑Jurisdiction, lack of‑‑Accused employed as sweeper in L.M,C. on daily wages Accused, held, not a public servant and Special judge, Anti‑Corruption had no jurisdiction to try him‑‑Conviction and sentence set aside, in circumstances.‑‑[Jurisdiction].

Ghulam Hussain Quraishi for Appellants.

Date of hearing: 5th July, 1984

These two criminal Appeals No 941177 filed by Abdul Waheed and Muhammad Akram and No. 1035177 filed by Kala Masih appellants arise from the judgment of learned Special Judge, Anti‑Corruption, Lahore whereby he on 10‑11‑1977 convicted the appellants and sentenced them to two years' R.I. and a fine of Rs.1,000 each, in default thereof to further R.I. for nine months each. I propose to dispose of two appeals through single judgment.

2. Abdul Waheed appellant was working as Sanitary Inspector, Muhammad Akram appellant as Naib‑Darogha and Kala Masih appellant as Sweeper in Lahore Municipal Corporation, Lahore. The charge against them was that on 7‑11‑1974 Kala Masih appellant in collusion with the co‑accused received Rs.20 as monthly illegal gratification from Lal Masih Sweeper, P.W.6 for not marking him absent from duty. The appellant denied the charge and claimed to be tried.

3. To prove its case prosecution examined 20 witnesses, out of whom, Lai Masih P.W.6 appeared to prove demand and acceptance of bribe by Kala Masih appellant. Wahid Bakhsh Circle Officer, P.W.19 and Manzoor Hussain, Magistrate, P.W.20 were produced to prove acceptance of bribe by Kala Masih appellant and recovery of tainted currency notes from him. Since the charge pertains to the incident of bribe, dated 7‑11‑1974, therefore, the rest of the evidence is immaterial.

4. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. In defence they produced four witnesses.

5. The learned counsel for the appellants contended that the prose cution has failed to prove a case of demand and acceptance of bribe by Abdul Waheed and Muhammad Akram on the day of raid and that Kala Masih appellant being not a public servant could not have been tried by the learned Special Judge.

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 as far Abdul Waheed and Muhammad Akram appellants, they neither demanded nor accepted bribe on 7‑11‑1974. The statement of Kala Masih recorded just after the raid A cannot be used as a positive evidence against these appellants, inasmuch as, at the time of trial he did not state so. As far Kala Masih, I find that per allegations he having accepted the bribe on 7‑11‑1974 was the principal accused. It is in the evidence that the sweepers were employed on daily wages. For all these reasons, I am convinced that the prosecution has failed to prove its case against the appellants Abdul Waheed and Muhammad Akram beyond reasonable doubts. Giving them benefit of doubt, they are acquitted of the charge. As far Kala Masih, Sweeper I find that the trial Court had no jurisdiction to try him because he was B not a public servant. It is in the evidence that he was employed on daily wages. In this view of the matter, his conviction and sentence is also set aside.

S. Q. Appeal allowed.

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