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Criminal Appeal No. 734 of 1978, heard on 4th July, 1984

---S.161--Prevention of Corruption Act (II of 1947), S.5 (2)--Bribery- (Trap-case)--Benefit of doubt--Raiding Magistrate not hearing talk between accused and complainant which preceded passing on of alleged bribe money--Tainted currency notes recovered from co-accused where Magistrate at some distance and not in a position to see that tainted currency notes actually passed on to accused--Raiding Magistrate although stating that within his view complainant passed on currency notes to accused yet possibility that some other notes were given to accused not excluded because person of complainant not searched after passing on of tainted currency notes to accused--Uncorroborated statement of complainant that he passed on tainted currency .notes to accused, held, could not be safely relied upon, in circumstances--Accused given benefit of doubt and acquitted.--[Benefit of doubt).

Latif Hussain Jaffari for Appellant.

Latif Chaudhry for the State.

Date of hearing: 4th July, 1984.

This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption, whereby he on 16-8-1978 convicted Abdul Khaliq appellant under section 161, P.P.C read with section 5 of the Prevention of Corruption Act and sentenced him to 1i years' R.I.

2. The appellant was working as Patwari. The charge against him was that he demanded and then accepted Its. 100 as bribe from Muhammad Akbar P.W. for making favourable report and passed on the same to co-accused Abdus-Salam. He denied the charge and claimed to be tried.

3. To prove its case the prosecution examined seven witnesses out of whom Muhammad Akbar P.W.5 appeared to prove the demand and acceptance of bribe by the appellant from him. Syed Shahid Hussain Magistrate P.W. 3 and Ch. Ghulam Rasool Inspector Anti-Corruption P.W.7 were produced to prove the recovery of tainted currency notes from the appellant. 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 denied all the incriminating circumstances. He raised plea of false implication due to enmity with Muhammad Akbar complainant. In defence he produced Feroze Din D.W.1 Badar Din D.W.2. They supported the version of the accused.

5. Learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubt and that the prosecution witnesses are not reliable. Conversely 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 Syed Shahid Hussain Magistrate p.W. 3 stated that within his view complainant Muhammad Akbar had passed on money to the appellant who after checking the same by twisting it went inside the room and that on search the tainted currency notes were not recovered from the appellant. Four persons were sitting in that room. When the Magistrate told them that the appellant had received money from the complainant and that be produced, Abdus Salam Patwari co-accused produced the tainted currency notes before him which were taken into possession. The statement of the Inspector is almost the same. In the circumstances of the case I am inclined to extend benefit of doubt to the appellant inasmuch as the tainted currency notes were not recovered from his person; that the Magistrate being at some distance was not in a position to see, that the tainted currency notes were actually passed on to the appellant; that the possibility that some other notes were given to the appellant cannot be excluded because the person of the complainant was not searched after the passing on of the tainted currency notes to the appellant. The uncorroborated statement of Muhammad Akbar complainant to the effect that he had passed on the tainted currency notes to the appellant cannot be safely relied upon. Furthermore the Magistrate having not heard the talk between the complainant and the appellant which preceded the passing on of the money, if any it cannot be said that same was paid as a bribe. For all these reasons I am convinced that the prosecution has failed to prove its case beyond reasonable doubt against the appellant. Giving him the benefit of doubt, he is acquitted of the charges.

S. G. D Appeal allowed.

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