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Criminal Appeals Nos. 822 and 823 of 1978, heard on.8th July 1984.

---S.161‑‑Prevention of Corruption Act (II of 1947) S.5(2)‑‑Illegal grantification‑‑Statement of raiding Magistrate on question whether money was given to accused as bribe or not appearing to be vague‑‑Uncorrobo rated testimony of a decoy witness only in field‑‑Reasonable possibility, that statement of co‑accused that he admitted receipt and recovery of bribe money, was made in his defence, not ruled out‑‑Accused given benefit of doubt and acquitted.‑‑[ Benefit of doubt].

Ch. Mushtaq Masood for Appellant.

Mehr Shaukat Ali for the State.

Date of hearing: 8th July, 1984.

These two Criminal Appeals Nos.822 of 1978 filed by Zahoor Hussain and 823 of 1978 by Safdar Habib appellants arise from the judgments of the learned Special Judge Anti‑Corruption, Lahore whereby he on 23‑9‑1978 convicted the appellants under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced them to R.I. for 1 years' and a fine of Rs.500 each in default thereof to further R.I. for six months each. I propose to dispose of the two appeals through this single judgment.

2. The appellants were working as Survey Inspectors in the Lahore Development Authority. The charge against them is that they demanded and then accepted Rs.100 as bribe from Raza Hussain P.W.3, the complainant to show favour to him by showing less number of water taps at his house. The appellants denied the charge and claimed to be tried.

3. To prove its case, the prosecution examined three witnesses P.W.3 Raza Hussain complainant appeared to prove the demand and acceptance of Rs.100 from him by the appellant as bribe. Lal Muhammad Choudhury Magistrate P.W.1 and Muhammad Ayub Circle Inspector P.W.2 were produced to prove the acceptance by and recovery of tainted currency notes from the appellant. They supported the prosecution case.

4. The appellants when examined under section 342, Cr.P.C. denied the incriminating circumstances. Safdar Habib appellant while admitting the recovery of the tainted currency notes from him explained that the same were given to him by the complainant with regard to security fee for the water connection of his house which has already been deposited by him through challan from Exh.P.W.1/F. In defence he produced one witness.

5. The learned counsel for the appellants submitted that the prosecution has failed to prove its case beyond reasonable doubt that the tainted currency notes were accepted by Safdar Habib as bribe. Conversely the learned counsel for the State supported the judgment of the trial Court, on the ground that there was ample evidence on record to connect the appellant with commission of offences punishable under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act.

6. I have considered the arguments advanced by the learned counsel for the parties with care. As far Zahoor Hussain, he neither demanded nor accepted the bribe money. So far as Safdar Habib appellant is concerned, I find that since he has admitted the receipt and recovery of the tainted currency notes from him, therefore, the material question for determination is as to whether the same were given to him as bribe or not The statement of the Magistrate in this behalf appears to bed vague inasmuch as he stated that:‑

"the complainant then told the accused that he had given their fee and as such they should do his work."

It is worth notice that this part of his statement that "they should do his work" is not mentioned in the raid report prepared just after the occurrence. In this view of the matter, the statement of Raza Hussain' Shah alone remains in the field. In the circumstances of the case I am, not prepared to place implicit reliance on the uncorroborated testimony of a decoy witness. The reasonable possibility that the statement made by the appellant Safdar Habib might be true cannot be excluded in the circumstance of the case.

For what has been stated above, giving them the benefit of doubt, the appellants are acquitted of the charges.

M. Y. H. Appeal allowed.

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