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Criminal Appeal No. 629 of 1984, heard on 21st January, 1985.

‑‑S.161‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Evidence. appreciation of‑‑Magistrate not deputed for supervision of raid‑‑Police Inspector neither seeing passing of tainted currency notes nor hearing any conversation between accused and complainant‑‑Statement of Inspector Anti‑Corruption that accused had asked complainant to give him demanded bribe not supported by complainant inasmuch as he had not stated that money was demanded as illegal gratification from him‑ Defence witness stating that accused who was a licensing clerk could recover fee if any from complainant‑‑Case of prosecution, held, not proved beyond reasonable doubt‑‑Accused given benefit of doubt and acquitted in circumstances.‑‑[Benefit of doubt].

Rana Muhammad Bashir Khan for Appellant.

Shah Nawaz Khan for the State.

Date of hearing: 21st January, 1985.

This Criminal Appeal arises fom the judgment of learned Special Judge, Anti‑Corruption, Lahore whereby he on 17‑11‑1984 convicted Nazir Hussain Bhatti appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 9 months' R.I and a fine of Rs.2,000 in default thereof further R.I for three months.

2. The appellant was a Licensing Clerk in Lahore Municipal Corporation, Lahore. The charge against him was that he demanded and accepted Rs.100 as illegal gratification from Muhammad Ramzan P.W.1 for issuing licence for running tea‑stall. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined five witnesses. Muhammad Rarnzan P.W.1. and Hamid Hasan P.W.3, Istiaq Muhammad Khan P.W.4 and Hamid Hasan Butt P W.5 were produced to prove the acceptance of illegal gratification by the appellant from Muhammad Ramzan and subsequent recovery thereof from him. They supported the prosecution case. The evidence of Muhammad Aslam P.W.2 is not very much important.

4. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances. While admitting the recovery of tainted currency notes of Rs.100 from his possession he stated:‑

"I had gone to the shop of the complainant for inspection. I demanded Rs.15 as balance licence fee because it was a restaurant and not a simple tea‑stall. The complainant gave me a currency note of Rs.100 upon which I told him that L had no change and he should give me Rs.15. I was in discussion with the complainant when the Anti‑Corruption Inspector introduced himself and then caught hold of me."

In defence he produced three witnesses. Ehsan. Ali D.W.1, Muhammad Saleem D.W.2 stated that at the eventful time they were taking meals in the hotel. It was within their view and hearing that the appellant approached the complainant and told him that he had obtained a licence for selling tea on payment of Rs.10 as licensing fee instead of Rs.25 fixed for a hotel. On this Ramzan gave to the appellant a hundred-rupee note which he placed on the cash box of the shop‑keeper and told him that he had no change and asked him to give Rs.15 only when the raiding party came there and apprehended the appellant. Shabbir Ahmad Chaudhry D.W.3 was Zonal Secretary, Lahore Municipal Committee, and Lahore Zone No.3. He stated that it was the duty of the licensing clerk to inspect spot to know whether there was a tea‑stall or a restaurant and in case less fee was deposited for the restaurant then the licensing clerk could recover the difference.

5. The learned counsel for the appellant submits that the prosecution has failed to prove beyond reasonable doubt that the appellant had received Rs.100 as illegal gratification from the complainant and that there was a reasonable possibility of the defence version being true. 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 the prosecution, in addition to the complainant produced three Police Officers/ officials to prove the acceptance by and recovery of the tainted currency notes from the appellant; that Hamid Hassan Butt and Ishtiaq Muhammad Khan Inspectors did not care to get Magistrate deputed for the supervision of the raid, that Muhammad Aslam P.W.2. and Hamid Hassan Butt Inspector had not seen the passing on of the tainted currency notes nor did they hear any conversation between the appellant and the complainant, that Muhammad Ramzan P. W.1 has not stated that the money was demanded A by the appellant as illegal gratification from him in the hotel, that the statement of Ishtiaq Muhammad Khan Inspector Anti‑Corruption that the accused /appellant had asked the complainant to give him the demanded bribe does not stand supported by the complainant inasmuch as he has not stated that the money was demanded as illegal gratification from him at that time; that Shabbir Ahmad D.W.3 has stated that the appellant who was a licensing clerk could recover fee if any from the complainant.

7. For what has been found above, I am of the view that prosecution has not been able to prove its case beyond reasonable doubt. Giving him the benefit of doubt the appellant is acquitted of the charges.

M. A. K. Appeal accepted.

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