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Criminal Appeal No. 255 of 1982, decided on 4th November, 1984.

‑‑‑S.5(2)‑‑Penal Code (XLV of 1860), S.161‑‑Illegal gratification‑ Prosecution failing to prove that tainted currency notes were received by accused as illegal gratification‑‑‑ Accused given benefit of doubt and acquitted.

Khalid Javed Saleem for Appellant.

Rana Abdul Hamid Talib for the State.

Date of hearing: 4th November, 1984.

This criminal appeal arises from the judgment of learned Special Judge, Anti‑Corruption, Sargodha whereby he on 11‑5‑1982 convicted Shabbir Ahmad appellant under section 161, P.P.C. reed with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 9 months' R.I. and a fine of Rs.1,000 in default thereof to further R.I. for 3 months.

2. The appellant was a Patwari. The charge against him was that he demanded and then accepted Rs.500 as illegal gratification from Muhammad Khan P.W.2. he pleaded not guilty to the charge and claimed to be tried.

3. To prove its case prosecution examined 3 witnesses. Muhammad Khan P.W.2 appeared to prove demand as well as acceptance of illegal gratification from him by the appellant. Malik Mushtaq Ahmad, Magistrate, P.W.1 and Abdul Razzaq Khan, Circle Officer/A.C.E, P.W.3 were produced 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. In reply to the question, as to why the case against him he stated:

"Muhammad Khan had requested me to go and see Sh. Muhammad Younas of Lahore. There was a dispute between them about the land. Previously also they had asked me to intervene. Muhammad Nawaz Kharal, Advocate called me at his Chamber. He had sent his brother Muhammad to bribe me. Many peoples were sitting in the Chamber of Muhammad Nawaz, I came out with Muhammad Nawaz to hear as to what he had to say. Muhammad Nawaz said to me that I should intervene and get the matter finished and I should ask Muhammad Younas to sell the land. He told me to ask Younas to reduce his demand as regards the price. He asked Muhammad Khan alias Habib Ullah to give me Rs.500 for going to Lahore. Again said he asked Muhammad Khan to give me the money outside the Chamber of Muhammad Nawaz and just then came the Magistrate and recovered the money."

In defence he produced two witnesses. Khuda Yar D.W.1 stated that there was patrification in the village. Muhammad Younas D.W. 2 stated that he owned 38 Killas of land in village Pindi Chari. A portion of the land was cultivated by Sanata and others. The relative of Muhammad Khan complainant. He filed ejectment proceedings against them. Ejectment orders were passed, possession was given to him by the Revenue Staff. He further stated that Muhammad Nawaz Advocate and the complainant brought the appellant to him and said that he should sell his land to Muhammad Khan and his relatives but the bargain could not be struck. He further stated that he had authorised the appellant to settle the sale matter and bring the advance to him.

5. Learned counsel for the appellant contends that the prosecution has failed to prove that the tainted currency notes were given to the appellant as illegal gratification and that there is reasonable possibility of the defence version being true. Conversely, the learned counsel for the State 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 is not only a proved but also an admitted fact, therefore, the real question for determination is whether the money was received by the appellant as illegal gratification or not. Just after the occurrence when the statement of the appellant was recorded by the Raiding Magistrate he denied to have received the tainted currency notes as illegal gratification. He stated:‑

In the circumstances of the case I am of the view that the prosecution has failed to prove that the tainted currency notes were received by the appellant as illegal gratification.

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

M. Y. H. Appeal accepted.

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