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Criminal Appeal No.609 of 1985, heard on 23rd November, 1985.

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), 5.161‑‑Accused allegedly 'demanding certain amount from complainant as illegal gratification and his co‑accused accepting same‑‑Except statement of complainant who was a decoy witness, nothing found on record to show that accused demanded illegal gratification from complainant‑‑Sustaining of conviction on uncorroborated testimony of such witness, held, was not safe‑‑Accused given benefit of doubt and acquitted in circumstances.

‑‑‑S.5(2)‑‑Penal Code (XLV of 1860), S.161‑‑Illegal gratification‑ Recovery‑‑Magistrate and Inspector Police stating that tainted currency notes were recovered from pocket of accused‑‑Plea taken by accused at time of raid as well as at time of trial not finding support from any direct or indirect evidence‑‑Magistrate and Inspector found to be quite independent witnesses having no ill‑will against accused‑‑Statements of complainant regarding recovery also believed‑‑Recovery of tainted currency notes:, from accused believed in circumstances.

‑‑‑S.5(2)‑‑Penal Code (XLV of 1860), S.161‑‑Appreciation of evidence‑ Concessions given by witness‑‑Complainant in his statement recorded immediately after raid clearly stating that tainted notes were recovered from pocket of accused‑‑Complainant giving some concessions to accused at trial but same being contradictory to his earlier statement‑‑Such concessions held, had to be honoured.

‑‑‑S.5(2)‑‑Penal Code (XLV of 1860), S.161‑‑lllegal gratification‑ Recovery of tainted currency notes from physical possession of accused, believed-‑Defence plea rejected‑‑Recovery of tainted currency notes from accused giving rise to statutory presumption that same were received by him as illegal gratification‑‑Accused failing to rebut s presumption‑‑Conviction maintained.

‑‑‑S.5(2)‑‑Penal Code (XLV of 1860), S.161‑‑Sentence‑‑Sentence of nine months' R.I. and fine of Rs.2,000 awarded by trial Court, held, v neither harsh nor excessive‑‑Sentence maintained.

S. Kamal Mufti for Appellants.

Altaf Muhammad Khan for the State.

Date of hearing: 23rd November, 1985.

This criminal appeal arises from the judgment of the learned Special Judge (Central) Lahore, whereby he on 21‑10‑1985 convicted Hadees Muhammad and Muhammad Hanif appellants under section 161, P.P.C. read with section 5 of the Prevention of Corruption Act sentenced them to nine months' R.I. each and a fine of Rs.2,000 each in default of payment of fine to further R.I. for one month each.

2. Muhammad Hanif was a Line‑Superintendent. Hadees Muhammad was a Lineman. The charges against them are that Muhammad Hanif demanded Rs.1,000 as illegal gratification from Abdul Sattar P.W.6 and Hadees Muhammad accepted the same as illegal gratification for installation of a transformer. They denied the charge and claimed to tried.

3. To prove its case, the prosecution examined six witnesses. Abdul Sattar P.W.6 appeared to prove the demand and acceptance of bribe money by the appellants from him. Khalid Hussain Inspector A.C.E. P.W.3 and Shaukat Ali P.W.4 were produced to prove the recover tainted currency notes from Hadees Muhammad. Fida Hussain Junior Clerk P.W.1 produced application Exh.P.W.1/A of the complainant the replacement of the transformer and letter Exh.P.W.1/3 before Shat Mahmood Inspector F.I.A. P.W.5. The rest of the evidence is more less of formal nature.

4. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances. Muhammad Hanif raised the plea of false implication at the instance of Ghulam Muhammad and Hal Muhammad the Chairman of Hydro‑Electric Labour Union. Hal Muhammad appellant while admitting the recovery of the tainted currency notes explained that:‑‑

"Complainant tried to give the tainted currency notes for payment to Hanif co‑accused but I refused to receive the same. I asked him that he should pay the same directly to Hanif. In the mean the Magistrate arrived. I stood up. The money was lying on Bench which was taken into possession by the Magistrate. I no liaison with Hanif accused nor I had any connection with matter in question for the repair of the transformer. I never demanded or accepted bribe for myself or on behalf of co‑accused Hanif."

Hadees Muhammad did not produce any evidence in defence. Muhan Hanif appellant however appeared as D.W.1 He stated that he innocent and that he had never demanded any bribe from the complain

5. The learned counsel for the appellants contends that as far Muhammad Hanif appellant, there is no independent evidence to prove that he had demanded illegal gratification from Abdul Sattar complainant. So far as Muhammad Hanif appellant is concerned, the learned counsel maintained that the prosecution has failed to prove its case beyond reasonable doubt against him; that the raiding party made three attempts to make the raid successful; that the appellant being a Lineman could not render any favour to the complainant in the matter of installation of transformer and that the conversation between the complainant and the appellant was not heard by the Magistrate and the Inspector. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

I have considered the arguments advanced by the learned counsel for the parties with care. I feel partly persuaded to agree with the learned counsel for the appellants. I find that there are allegations of demand of bribe against Muhammad Hanif appellant. Except the statement of Abdul Sattar complainant, who is a decoy witness, there is nothing on the record to show that he had demanded illegal gratification from the complainant and that it would not be safe to sustain conviction on the uncorroborated testimony of a decoy witness. So far as Hadees Muhammad is concerned, I find that the tainted currency notes were recovered from his physical possession; the Magistrate and the Inspector A.C.E. have categorically stated that the tainted currency notes 'were recovered from the pocket of the Kurta of the appellant. The plea taken by the appellant at the time of raid as well as in his statement recorded under section 342, Cr.P.C. does not find support from any direct or indirect evidence. The Magistrate and the Inspector A.C.E. are quite independent witnesses, having no ill‑will against the appellant. At trial stage the complainant has given some concessions to the appellant but the same being contradictory to his earlier statement, have to be ignored. In his statement recorded immediately after the raid, he had clearly stated that the tainted currency notes were recovered from the pocket of the appellant. The recovery of the tainted currency notes from the appellant gives rise to the statutory presumption that the same were received by him as illegal gratification. The appellant has not been able to rebut this presumption. The submissions made by the learned counsel do not make out a case for acquittal. For all these reasons, I am convinced that the trial Court has rightly convicted him. The sentence awarded to him is neither harsh nor excessive.

The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of Muhammad Hanif and while giving him the benefit of doubt, he is acquitted of the charge. The appeal to the extent of Hadees Muhammad is dismissed. He shall surrender before the learned trial Court immediately. The learned trial Court shall also issue warrants for his arrest and detention to serve out the remaining sentence.

H.A.K. Appeal partly accepted

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