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Criminal Appeal No. 554 of 1975, decided on 10th July, 1984.

--‑S.161‑‑Prevention of Corruption Act (11 of 1947), S.5(2)‑‑illegal gratification‑‑Accused receiving bribe money at advice of his co‑accused who was his Superintendent in office and demanding same for himself‑ Co‑accused already acquitted by trial Court‑‑Case of accused not distinguishable from that of co‑accused‑‑‑Accused given benefit of doubt and acquitted.

Malik Rehmat Khan Awan for Appellant.

Altaf Muhammad Khan for the State.

Date of hearing: 10th July, 1984.

This criminal appeal arises from the judgment of learned Special Judge, Anti‑Corruption whereby he on 21‑6‑1975 convicted Sh. Ata Muhammad appellant under section 161, P.P.C. read with section of the Prevention of Corruption Act, 1947 and sentenced him to one year R.I. and a fine of Rs.500 in default thereof to further R.I. for six months.

2. The appellant was working as Assistant in Auqaf Department, Civil Secretariat, Lahore. He was tried alongwith Malik Ata Ullah, Superintendent Auqaf Department. The charge against them wits that they demanded and then accepted Rs.200 as illegal gratification from Abdul Aziz complainant, P.W.2 for processing his application for taking over shrine of Sain Qadar Din situated in Tehsil Chunian. They denied the charge and claimed to be tried.

3. To prove its case prosecution examined three witnesses, Abdul Aziz complainant appeared to prove demand and acceptance of bribe by the appellant. Sh. Shamas‑ud‑Din, Magistrate, P.W.1 and Ch. Ghulam Rasool, Inspector A.C.E., P.W.3 were produced to prove the recovery of tainted currency notes from the appellant.

4. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. While admitting the recovery of tainted currency notes from him, he explained that the same were received by him on the direction of Malik Ata Ullah co‑accused towards the money which he had to receive from Malik Ata Ullah in connection with electricity etc. In defence he produced lqbal Mehmood Bhatti, D.W.4, who stated that he heard the appellant demanding money which was due to him from Malik Ata Ullah and that Malik Ata Ullah had promised to pay the same.

5. The learned counsel for the appellant contends that the prosecution has failed to prove its case beyond reasonable doubts and that there are material contradictions in the statements of the Magistrate and the complainant.

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 Abdul Aziz complainant, P.W.2 stated that the appellant had told him that Malik Ata Ullah would not do the job unless money is paid to him. While sitting in a corner of that room an amount of Rs.200 was settled to be paid. Sh. Shamas‑ud -Din, Magistrate, P.W.1 stated:

"The exact demand of money was made by Malik Ata Ullah and Sh. Ata Muhammad only added that the complainant should perform the deals at once."

The Magistrate further stated that Malik Ata Ullah accepted G. C. notes from the complainant and passed or; to another person who had come with him and whose name was later known to be Sh. Ata Muhammad who put money in the left pocket of his pant. The complainant stated:

"I then brought out G.C. notes Exhs. P.1 to P.2 of the value of Rs.200 and tried to' hand over to Malik Ata Ullah accused, who told me further to hand over the G.C. notes to Sh. Ata Muhammad accused. I then handed over the G.C. notes to Sh. Ata Muhammad and further entreated the accused that my work be done. Malik Ata Ullah told me drat my job will be done Sh. Ata Muhammad accused put the G. C. notes in the pocket of his pant."

Ch. Ghulam Rasool, Inspector, A.C.E., made similar statement. From state of affairs, it is very much obvious that Sh. Ata Muhammad had advised the complainant to pay bribe to Malik Ata Ullah. Superintendent Auqaf Department and that he never demanded bribe for himself and that the bribe money was in fact brought by the complainant for paying the same to Malik Ata Ullah and that it was on the direction of Malik Ata Ullah that the complainant gave tainted currency nose to the appellant who was working as subordinate to Malik Ata Ullah.

7. For what has been found above, I am of the view that the case of the appellant is not distinguishable from that of Malik Ata Ullah, who has already been acquitted by the trial Court. In the peculiar circumstances of the case, I am of the opinion that the appellant is B also entitled to benefit of doubt. He is, therefore, acquitted of the charge,

M.Y.H. Bail granted.

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