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Criminal Appeals Nos. 276 and 295 of 1976, heard on 30th October, 1984.

‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S. 161‑‑Illegal gratification‑ Co‑accused not demanding any bribe from complainant‑‑According to testimony of Magistrate, co‑accused receiving tainted currency notes from complainant on directions of accused‑‑Record not showing that co‑accused received amount knowing that same was given to accused as illegal gratification‑‑Prosecution failing to prove its case against co‑accused beyond reasonable doubt‑‑Co‑accused acquitted in circumstances.

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S. 161‑‑Illegal gratification‑ Magistrate not only hearing conversation between accused and complainant but also seeing complainant offering tainted notes to accused, who directed complainant to hand over same to his co‑accused‑‑Inspector Anti‑Corruption also supporting Magistrate‑‑Complainant making obliging statement at trial‑‑Magistrate who was quite an independent witness, standing test of cross‑examination successfully‑‑No inherent infirmity in his statement found‑‑Conviction of accused maintained.

‑‑S.5(2)‑‑Penal Code (XLV of 1860), S.161‑‑Illegal gratification‑‑Tainted currency notes recovered from co‑accused‑‑Magistrate clearly stating that within his view accused directed complainant to hand over money to his co‑accused, on which money was offered to him by complainant‑ Subsequent conduct of Magistrate of searching the person of accused, held, not sufficient to discard his testimony, which finds corroboration from testimony of Inspector Anti‑Corruption‑‑Co‑accused who accepted money on direction of accused, acquitted and conviction of accused maintained.

Sh. Nisar Qutab for Appellant.

M. Iqbal for the State.

Dates of hearing: 29th and 30th October, 1984.

These two Criminal Appeals Nos. 276 of 1976 by Muhammad Anwar and 295 of 1976 by Younas Masih appellants arise from the judgment of learned Special Judge Anti‑Corruption, Punjab, Lahore whereby he on 8‑3‑1976 convicted them under section 161, P. P. C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced them to imprisonment till rising of Court and a fine of Rs.500 each in default thereof to further R.I. for 6 months.

2. Muhammad Anwar was a Sanitary Inspector, Municipal Committee, Lyallpur whereas Younas Masih was Sanitary Supervisor, Municipal Committee, Lyallpur. The charge against them was that they demanded and then accepted Rs.10 as illegal gratification from Zia‑ud‑Din Akhtar P.W.1. They pleaded not guilty to the charge and claimed to be tried.

3. To prove its case, prosecution examined 3 witnesses. Zia‑ud‑Din Akhtar P.W. appeared to prove demand as well as acceptance of Rs.10 as illegal gratification from him by the appellant. Muhammad Khalil Bhatti Magistrate P.W.2 and Riaz Hashmat S.I. P.W.3 were produced to prove the recovery of tainted currency notes from him. They supported the prosecution case.

4. When examined under section 342, Cr.P.C. the appellants denied the incriminating circumstances. They did not accept even recovery of tainted currency notes from them. In defence they produced 3 witnesses. Rashid Haji D.W.1 stated that' the appellants were of good moral character. Muhammad Sharif D.W.2 and Muhammad Zahid D.W.3 stated that Younas Masih appellant had received Rs.10 from the complainant for rendering service.

5. Sh. Nisar Qutab learned counsel for Muhammad Anwar and Dr. Khalid Ranjha the learned counsel for Younas Masih submitted that the prosecution has failed to prove that the appellants had received the tainted currency notes as illegal gratification. Sh. Nisar Qutab, Advocate for Muhammad Anwar appellant submitted that the tainted currency notes were not recovered from the appellant and were recovered from the physical possession of Younas Masih; that the Raiding Magistrate although claimed to have overheard the conversation and seen the transaction yet he searched the person of Muhammad Anwar appellant and that the complainant was declared hostile. 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. As far Younas Masih, I find that he did not demand any bribe from the complainant and that according to the statement of the Magistrate it was on the directions of Muhammad Anwar that the appellant received tainted currency notes from the complainant. There is nothing on the record to show that he received the amount knowing that the same was being given to Muhammad Anwar appellant as illegal gratification. For these reasons, I am of the view that the prosecution has failed to prove its case against him beyond reasonable doubts. So far as Muhammad Anwar is concerned I find that the Magistrate had not only heard the conversation between the appellant and the complainant but also had seen the complainant offering tainted currency notes to the appellant who directed him to hand over to Younas Masih. The Inspector also supports the Magistrate. It appears that at trial stage, the complainant made obliging statement. The Magistrate is a quite independent witness. He has successfully stood the test of cross‑examination, I do not see any inherent infirmity in his statement. In view of his clear statement that within his view when the money was offered by the complainant to him, the appellant directed the complainant to hand over the same to Younas Masih. The subsequent conduct of the Magistrate of having searched the person of the appellants may not be sufficient to discard his testimony which finds support from the statement of the Inspector Anti‑Corruption. For all these reasons I am convinced that the trial Court has rightly convicted him.

7. For what has been stated above, the appeal of Younas Masih is accepted. He is acquitted of the charge and the appeal of Muhammad Anwar is dismissed.

H. A.

Appeal dismissed.

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