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Criminal Appeal No. 31 of 1981, heard on 3rd November, 1984.

‑‑‑S.161‑‑Illegal gratification‑‑Bribe giver not examined‑‑Magistrate and Inspector neither seeing passing of tainted currency nor hearing any conversation‑‑No other evidence except statement of a decoy witness available on record to support case against accused‑‑Prosecution failing to prove its case beyond reasonable doubt‑‑Accused given benefit of doubt and acquitted.‑‑[Benefit of doubt].

---S.161‑‑Criminal Procedure, Code (V of 1898), S.342‑‑Illegal gratifica tion‑‑Appreciation of evidence‑‑Statement of co‑accused that he received money at instance of accused‑‑Such statement not put to accused when examined under 5.342, Cr.P.C. nor did co‑accused implicate himself in occurrence‑‑Statement of co‑accused not a legal evidence but only a circumstance which could be used to corroborate other reliable evidence on record.‑‑[Evidence].

Muhammad .Nazir Janjua for Appellant.

Pervaiz‑I‑Mir for the State.

Date of hearing: 3rd November, 1984.

This criminal appeal arises from the judgment of the learned Special Judge, Anti‑Corruption whereby he on 11‑12‑1980 convicted Muhammad Amin appellant under section 1.61, P.P.C and sentenced him 18 months' R.1 and a fine of Rs. 5,000 in default thereof R.I for one year.

2. The appellant was posted as Revenue Officer, WAPDA, Gujranwala Circle. The charge against him was that he demanded and accepted Rs.200 as illegal gratification from Muhammad Ashfaq complainant. He pleaded not guilty.

3. To prove its case, prosecution examined five witnesses. Muhammad Ashfaq complainant has not been produced by the prosecution. Raja Hassan Akhtar, Magistrate P.W.2 and Muhammad Akram, Inspector have been produced to prove the recovery of tainted currency notes from the appellant. Muhammad Abdullah P.W.3 appeared to prove the' acceptance of illegal gratification by the appellant from the complainant.

Rest of the evidence is of formal nature.

4. When examined under section 342, Cr.P.C. the appellant denied incriminating circumstances. In defence he produced one witness.

5. The learned counsel for the appellant contends that the prosecu tion has failed to prove demand and acceptance of tainted currency notes as illegal gratification by .the appellant.

6. Conversely the learned counsel for the State has supported the judgment of the trial Court.

7. I have considered the arguments advanced by the learned counsel for the parties with care. I find that Muhammad Ashfaq who actually gave tainted currency notes to the appellant has not been produced; that the Magistrate and the Inspector neither saw the passing of the tainted currency notes nor did they hear any conversation; that from the trend of the judgment it appears that the learned Judge was very much impressed by the statement of Muhammad Ilyas co‑accused wherein he stated that he had received money at the instance of Muhammad Amin appellant but that statement is not admissible in evidence for more than one reasons. Firstly the statement was not put to the accused when examined under section 342, Cr.P.C; secondly Muhammad Ilyas did not implicate himself in the occurrence and lastly the statement of co‑accused is never legal evidence and it is only a circumstance which may be used to corroborate other reliable evidence on record. Since so far as the nature of the transaction is concerned except the statement of Muhammad Abdullah a decoy witness, there is no evidence on record, I am of the view that prosecution has not been able to prove its case beyond reasonable doubt.

8. For what has been stated above, giving him the benefit of doubt the appellant is acquitted of the charge. He be set at liberty forthwith if not required in any other case.

M. Y. H. Appeal accepted.

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