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Criminal Appeal No. 187 of 1985, heard on 14th April, 1985.

‑‑‑Ss. 165‑A & 211‑‑Accused admittedly a decoy witness‑‑Amount returned to accused by Magistrate with direction to pass on same to Sub‑Divisional Officer‑‑Act of accused of attempting to pass on said amount to S.D.O. under direction of Magistrate, held, did not amount to offer of bribe punishable under S. 165‑A, P.P.C. and trial Court was not competent to take cognizance of offence under S. 211, P.P.C.‑ Accused acquitted.

‑‑‑S. 195(b)‑‑Penal Code (XLV of 1860), S. 211‑‑Jurisdiction of Court‑ Trial Court taking cognizance of case under S. 211, P.P.C. on challan submitted by police and convicting accused‑‑Held, trial Court was not competent to take cognizance of offence under S. 211, P.P.C. on challan submitted by police but could take cognizance of same under S. 195(b), Cr.P.C. only on complaint in writing filed by Court‑‑Accused being wrongly convicted, acquitted.‑‑[Jurisdiction].

Ch. Muhammad Yusuf for Appellant.

Aziz Qureshi for the State.

Date of hearing: 14th April, 1985.

This criminal appeal arises from the judgment of the learned Special Judge, Anti‑Corruption, Lahore, whereby he on 3‑3‑1985 convicted Muhammad Umar Mirza appellant under section 165‑A and section 211, P.P.C. and sentenced him to imprisonment till rising of the Court and a fine of Rs. 10,000 in default thereof to further R.I. for 1 months on each count.

2. The appellant is a private person. The allegations against him were that he in order to involve Muhammad Akbar S.D.O. falsely on the charge of corruption offered him Rs. 2,000 as illegal gratification. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution examined seven witnesses.

4. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. In defence he produced Ghulam Sarwar D.W. 1. On the conclusion of the trial, the appellant was convicted and sentenced as stated above.

5. The learned counsel for the appellant contends that since the appellant was sent by the Magistrate to pass on Rs. 2,000 to Muhammad Akbar therefore it cannot be said that the appellant had offered any bribe to the S.D.O. which may be punishable under section 165‑A, P. P. C. The learned counsel further submitted that since there was no complaint under section 211, P.P.C. filed by the Court therefore, the learned trial Court could not have taken cognizance of this offence, under section 195 read with section 476, Cr.P.C. The learned counsel for the State has not been able to controvert the submissions made by the learned counsel for the appellant.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant. Admittedly the appellant was a decoy witness. He was returned Rs. 2,000 by the Magistrate with the direction that he should pass on the same to Muhammad Akbar S.D.O. The act of the appellant of attempting to pass on Rs. 2,000 to the S.D.O. under the direction of the Magistrate does not amount to offer of bribe punishable under sections 165‑A, P.P.C. Undisputedly the trial Court was not competent to take cognizance of offence punishable under section 211, P.P.C. on the challan submitted by the police. It could take cognizance of offence under section 211, P.P.C. under section 195(b), Cr.P.C. only on complaint in writing filed by the Court. For all these reasons I am convinced that the trial Court has wrongly convicted the appellant under sections 165‑A and 211, P.P.C.

For what has been stated above, the appeal is accepted. The appellant is acquitted of the charge. The tainted money of Rs. 2,000 shall be refunded to the appellant.

H. A.

Appeal accepted.

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