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Criminal Appeals Nos. 841 and 842 of 1977, decided on 17th September, 1984.
‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S. 161‑‑Trap case‑‑Illegal gratification‑‑Tainted money not recovered from accused whom it was delivered by complainant but recovered from co‑accused‑‑Raiding Magistrate and A.S.I. stated to have seen same passed between two‑ Magistrate asking accused for production of tainted currency and to co‑accused‑‑Such fact belying seeing of transaction‑‑Material contradictions and discrepancies found in evidence‑‑Held, not safe to uphold conviction.
Sh. Nisar Qutab for Appellants.
Sharif Uppal for the State.
Date of hearing: 17th September, 1984.
These two Criminal Appeals Nos. 841 of 1977 by Muhammad Afzal Khan and 842 of 1977 by Zawar Hassan arise from the judgment of learned Senior Special Judge, Anti‑Corruption, Punjab, Lahore whereby he on 4‑10‑1977 convicted them under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced them on one year's R.I. each. I propose to dispose of these appeals through single judgment.
2. Muhammad Afzal Khan appellant was working as Invigilator whereas Zawar Hassan was a clerk. The charge against them was that they demanded and then accepted Rs. 50 from Tariq Jamil, an examinee. They denied the charge and claimed to be tried.
3. To prove its case prosecution examined 7 witnesses. Tariq Jamil P.W. 3 appeared to prove demand and acceptance of illegal gratification by the appellant from him. Muhammad Nasim, Magistrate and Syed Irshad Hussain Shah, S.I. Anti‑Corruption were produced to prove the acceptance by and recovery of the tainted currency notes from the appellants. The rest of the evidence is of formal nature.
4. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. In defence they produced three witnesses.
5. The learned counsel for the appellants contends that the prosecution has failed to prove its case beyond reasonable doubts. 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 Tariq Jamil P.W. 3 stated in his examination‑in‑chief that on the direction of an unknown person he had given the tainted currency notes to Muhammad Afzal Khan appellant. He, however, could not say whether the amount was physically recovered from Muhammad Afzal Khan or not. The witness was declared hostile and subjected to cross‑examination. Muhammad Nasim, Magistrate, P.W.6, stated that he had heard the talk between the complainant and Muhammad Afzal Khan appellant and that the complainant had given the tainted currency notes to Muhammad Afzal Khan who further passed on the same to Zawar Hassan appellant. The statement of the Sub‑Inspector is almost similar. It is thus very much clear that money was not recovered from the person of Muhammad Afzal appellant and that it was recovered from Zawar Hassan. There are some material contradictions in the, statement of the prosecution witnesses. Tariq Jamil has not supported the prosecution version in toto. He said nothing about Zawar Hassan appellant. The Magistrate stated that the money was giving to Muhammad Afzal Khan appellant who in his view further passed on the same to Zawar Hassan, P.W. 7 Syed Irshad Hussain S.I. Anti‑Corruption stated that after having entered into the Hall, the Magistrate asked Muhammad Afzal to produce bribe money which he had received whereon Tariq Jamil complainant revealed to the Magistrate that Muhammad Afzal Khan had passed on the money to Zawar Hassan co‑accused, from whom the money was recovered by the Magistrate. Had the Magistrate seen the acceptance of the bribe money from the complainant and its passing on to Zawar Hassan then most probably he would not have asked Muhammad Afzal Khan about the money and would have straightforward asked Zawar Hassan to produce the same. In view of the discrepancies pointed out above, I am of the view that it would not be safe to uphold the conviction.
7. For what has been stated above, giving them the benefit of doubt, the appellants are acquitted of the charge.
I.D. Appeals accepted.
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