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Criminal Appeal No737 of 1973, heard on 26th January, 1985.

---S. 5(2)‑‑Penal Code (XLV of 1860), S. 161‑‑Counsel of accused dying, therefore, notices issued to accused‑‑Despite report of process server that accused had left country another notice issued to accused to conduct his appeal‑‑After that non‑bailable warrants for arrest of accused issued but all in vain‑‑Held, there was no alternative but to proceed with hearing of case and decide same on merits.

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S. 161‑‑Illegal gratification‑ Tainted currency notes recovered from physical possession of accused‑ Prosecution witnesses found to be quite independent standing test of cross‑examination and no inherent infirmity found in their testimony‑ Accused at trial not sticking to his plea, given by him just after occurrence‑‑Conviction maintained in circumstances.

-‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S. 161‑‑Illegal gratification‑ Sentence‑‑Sentence of imprisonment till rising of Court and a fine of Rs.300 in default thereof six months' R.I. not found to be excessive and maintained.

Nemo for Appellant.

Nemo for the State.

Date of hearing: 26th January, 1985.

This criminal appeal arises from the judgment of learned Special Judge, Anti‑Corruption, Lahore, whereby he, on 24‑10‑1973 convicted Muhammad Iqbal appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to imprisonment till rising of the Court and a fine of Rs.300 in default thereof six months' R.I.

2. The appellant was a Forest Guard. The charge against him was that he received Rs.30 from Ismail P.W.1 as illegal gratification for the release of cattle which had been impounded by Muhammad Ramzan another Forest Guard. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined five witnesses. Ismail P.W.1, Siraj Ali Khan P.W.4 and Iftikhar Ahmad P.W.5 were produced to prove demand, acceptance and recovery of the bribe money. The tainted currency notes were recovered from the physical possession of the appellant.

4. When examined under section 342, Cr. P. C. the appellant could not deny the recovery of the tainted currency notes from him. He stated that the money was handed over to him by Muhammad Ramzan, Forest Guard.

5. The case was fixed for hearing on several dates. Since the learned counsel for the appellant had died, therefore, the notice was sent to the appellant. The report of the process‑server was that the appellant had left Pakistan. Despite this report, another notice was issued to the appellant to conduct his appeal. Thereafter non‑bailable warrants for his arrest were issued but all in vain. In these circumstances there is no alternative but to proceed with the hearing of the case and decide it with the assistance of the learned counsel fort the State.

6. I have examined the record carefully. I find that the tainted currency notes were recovered from the physical possession of the appellant; the prosecution witnesses are quite independent. They have successfully stood the test of cross‑examination. I do not see any inherent infirmity in their statements. Just after the occurrence, the B explanation given by the appellant, was, that the money was paid to him by the complainant towards the fine. At trial stage he did not stick to this plea. For all these reasons, I am convinced that the trial Court has rightly convicted the appellant. The sentence awarded to him is not excessive.

7. For what has been stated above, the appeal is dismissed. Since the fine has not been paid, the trial Court shall issue warrants for the arrest of the appellant for serving out sentence in default of the payment of fine.

H. A. K. Appeal dismissed.

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