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Criminal Appeal No. 676 of 1984, heard on 30th January, 1985.

‑‑‑S.161‑‑Prevention of Corruption Act (II of 1947), S.5 (2)‑‑Magistrate and Inspector neither seeing passing of tainted money, nor hearing conversation between complainant and accused nor seeing accused putting money in his pocket‑‑Complainant stating in cross‑examination "When I visited the accused in his dispensary then his garments were lying on the top of table. I sat on a chair nearby"‑‑Reasonable possibility that tainted currency notes might have been put in pocket of accused without his knowledge, held, could not be excluded‑‑Accused given benefit of doubt and acquitted.

Mehr Ghulam Ali Mubashir for Appellant.

C. M. Latif for the State.

Dates of hearing: 29th and 30th January, 1985.

This criminal appeal arises from the judgment of learned Special Judge, Anti‑Corruption. Sargodha whereby he on 9‑12‑1984 convicted Ghulam (arid appellant under section 161, P.P.C. and sentenced him to imprisonment for one month's R.I. and a fine of Rs.1,000 in default thereof further S.I. for one month.

2. The appellant was a Dispensar at Rural Dispensary, Lakseen. The charge against him wits that he demanded and accepted Rs.100 as illegal gratification from Ahmad Sher P.W. He dented the charge and claimed to be tried.

3. To prove its case prosecution examined 3 witnesses Ahmad Sher, complainant, P.W. appeared to prove demand as well as acceptance of illegal gratification from him by the appellant. Ghulam Nabi, Magistrate P.W.2 and Zahoor Hussain Inspector, P.W.3 appeared to prove the recovery of tainted currency notes from the appellant. They supported the prosecution case.

4. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised the plea of false implication. While admitting the recovery of tainted currency notes from his pocket he stated that the money might have been put by the complainant without his knowledge. In defence Muazzam Ali D.W.1 was produced to state that the appellant had appeared as a witness against one Ashiq Ali, the friend of the complainant.

5. Learned counsel fur the‑ appellant contends that the prosecution has failed to prove its case beyond reasonable doubt. 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 feel persuaded to agree with the learned counsel for the appellant. I find that the Magistrate and the Inspector had neither seen the passing on of the tainted money to the appellant nor did they hear any conversation between the complainant and the appellant at the time of raid. The Magistrate and the Inspector also did not see the appellant putting money in his pocket. That being the position, so far as the acceptance of tainted currency notes as illegal gratification is concerned the statement of Ahmad Sher complainant alone remains in field. In his cross‑examination, he stated:-

"When I visited the accused in his dispensary then his garments, were lying on the top of table. I sat on a chair nearby."

In the circumstances of the case, I am of the view that the reasonable possibility that the tainted currency notes might have been put in the pocket of the appellant, without his knowledge, cannot be excluded.

7. For what has been stated above, giving him the benefit of doubt, the appellant is acquitted of the charge.

M. A. K. Appeal accepted.

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