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Criminal Appeal No. 632 of 1983, heard on 26th January, 198S.

‑‑‑S.5(2)‑‑Penal Code (XLV of 1860), S.161‑‑Witnesses simply stating that complainant had given Rs.200 to accused in their presence‑‑Magis trate and Police Inspector not hearing any conversation between accused and complainant at time of raid‑‑Complainant a decoy witness whose testimony remained uncorroborated‑‑Explanation given by accused that money was handed over to him for purchasing sugar appearing to be true‑‑Accused acquitted in circumstances.

Muhammad Yaqoob Sheikh for Appellant.

Faizur Rehman for the State.

Date of hearing: 26th January, 198S.

This Criminal Appeal arises from the judgment of the learned special Judge Anti‑Corruption, Lahore Camp Sialkot whereby he on 28‑11‑1983 convicted Muhammad Naimat Ullah appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to one year R.I and a fine of Rs.1,000 in default thereof further R.I for three months.

2. The appellant was a Patwari. The charge against him was that he demanded and accepted Rs.200. as illegal gratification from Muhammad Ashraf P.W. 3 He denied the charge and claimed to be tried.

3. To prove its case, prosecution examined seven witnesses. Karamat Ali P.W. 2, Muhammad Ashraf complainant P.W. 3 and Abdul Ghani P.W. 7 appeared to prove the demand as well as acceptance of illegal gratification by the appellant from the complainant. Israr Ahmad Magistrate P.W. 1, Muhammad Ahsan Javed Prosecuting Inspector P.W. 5 were produced to prove the recovery of tainted currency notes from the appellant. The rest of the evidence is more or less of formal nature.

4. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances. While admitting the recovery of tainted currency notes, he explained that the same were given to him by complainant for purchasing sugar. In defence he examined four witnesses. Muhammad Rafiq, Head Clerk D.W. 1 stated that on 22‑2‑1981 the order for grant of proprietary rights was passed by Assistant Commissioner, Narowal which was endorsed by Tehsildar on 7‑3‑1981. The witness identified the signatures of the Assistant Commissioner on the order. Nanak Ali D.W. 2 stated that Rehmat Ali was uncle of the complainant. On the death of Rehmat Ali, sugar was consumed at the time of Chehlum. The witness further stated that there was no complaint against the appellant of indulging in the corruption and that Abdul Ghani was unhappy with the appellant as the appellant had forbidden him for coming to his office. The witness further stated that Abdul Ghani had told him that the Patwari was not a good man so he should be transferred. Muhammad Siddique D.W. 3 stated that no one made any complaint about the corruption of the Patwari. The witness also deposed about the strained relations of Abdul Ghani and the appellant. The witnesss further stated that the complainant needed sugar to be consumed at the Chehlum of his uncle. Talib Hussain D.W. 4 stated that the appellant visited his Hotel at about 12‑00 noon on Thursday. Karamat Ali and another, were quarrelling with each other over the sugar matter. The witness further stated that it came to his knowledge that Patwari was trapped by the Resident Magistrate.

5. The learned counsel for the appellant submits that prosecution has failed to prove that the tainted currency notes were received by State appellant as illegal gratification. On the other hand the learned counsel 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 receipt of the tainted currency notes and subsequent recovery thereof from the appellant is not only a proved but also an admitted fact. The material question for determination, therefore, is as to whether the tainted currency notes were received by the appellant as illegal gratification or not. I find that as far the nature of transaction Karamat Ali and Abdul Ghani P.W. 7 have stated nothing. They simply stated that the complainant had given Rs.200 to the appellant in their presence. I further find that the Magistrate as well as Muhammad Ahsan Prosecuting Inspector did not hear any conversation between the appellant and the complainant at the time of raid. That being the factual position so far as the nature of transaction is concerned, statement of Muhammad Ashraf complainant alone remains A in field. He being a decoy witness, it would be highly unsafe to place implicit reliance on his uncorroborated testimony. In the circumstances of the case, reasonable possibility of the explanation given by the appellant that the money was handed over to him for purchasing sugar, being true cannot be excluded.

7. For what has been stated above, the appellant is acquitted of the charge.

M. A. K. Appeal accepted.

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