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Criminal Appeal No. 25/BWP of 1979, decided on 27th August, 1984.

----‑‑S. 161‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Trap case‑‑Passing on of tainted money‑‑Accused a (water tax clerk) allegedly demanding and accepting Rs.50‑‑At time of raid a sum of Rs.319 including tainted notes recovered from the person of accused‑‑before Magistrate a receipt of Rs.125 was also produced‑‑Said receipt issued by accused to complainant after receiving Rs.125 as water charges‑‑Complainant also admitting said fact‑‑Magistrate stating that before raid complainant had given him understanding that only tainted money would be passed on to accused‑‑Possibility that tainted currency notes were mixed with other currency notes at time of payment of water charges, held, could not be excluded‑‑Conduct of complainant found to be highly suspicious‑ Recovery witness from public being real brother of complainant, his evidence, could not be safely used as corroborative pied of evidence‑ Prosecution failing to prove passing on of tainted money as illegal gratification‑‑Accused given benefit of doubt and acquitted in circum stances.

Khan Riaz‑ud‑Din Ahmad for Appellant.

Daud Qureshi for the State.

Date of hearing: 27th August, 1984.

This criminal appeal arises from the judgment of learned Special Judge, Anti‑Corruption, Bahawalpur Camp at Bahawalnagar whereby he on 28‑2‑1979 convicted Muhammad Shafi appellant under section 161, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to one year's R.I. on each count and a fine of Rs.50 in default thereof to further R.I. for 3 months with the direction that both the sentences would run concurrently.

2. Muhammad Shafi appellant was working as Water Tax Clerk Municipal Committee, Chishtian in the year 1977. The charge against him was that he demanded and accepted Rs.50 as bribe from Ali Muhammad P.W. 1 for the installation of water tap connection. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined 5 witnesses. Ali Muhammad P.W. 1 Muhammad Hussain P.W. 2 appeared to prove the demand and acceptance of tainted currency notes by the appellant. Muhammad Abdullah, Sub‑Circle Officer P.W. 4, Asif Mehmood Magistrate P.W. 5 were produced to prove the recovery of tainted currency notes from the appellant. The witnesses have supported the prosecution case. The rest of the evidence is of formal nature.

4. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. While admitting the recovery of tainted currency notes from him, he explained that just before the raid, the complainant had given him Rs.125 as water tax for which he had issued receipt Exh. P.B. and that the tainted money was passed on to him alongwith other currency notes. In defence he produced Muhammad Siddiq, Bashir Ahmad and Abdul Majid P.Ws. He also tendered in some documents.

5. The learned counsel for the appellant submitted that the prosecution has failed to prove that the tainted currency notes valuing Rs.50 were given to the appellant as illegal gratification.

Conversely, the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the arguments advanced by the learned counsel for the parties with care, and feel persuaded to agree with the learned counsel for the appellant. I find that at the time of raid, the Magistrate had recovered Rs.319 from the person of the appellant including tainted currency notes Exhs. P.1 to P.5 Exh. P.B. receipt for Rs.125, was also produced before the Magistrate at that time. Ali Muhammad complainant stated that just before the raid, he had paid Rs.125 to the appellant as arrears for which the appellant had issued receipt Exh. P.B. The Magistrate has categorically stated that before the raid, the complainant had given him understanding that only tainted money would be passed on to the appellant. In these circumstances, the possibility that the tainted currency notes were mixed with other currency notes at the time of payment of Rs.125 as water charges cannot be excluded. Ali Muhammad complainant at the time of raid should not have passed on money other than the tainted currency notes to the appellant.

Strangely enough, he also gave Rs.125 the water charges to the appellant when he was sent by the Magistrate to pass on tainted money. The conduct of the complainant is highly suspicious. P.W. 2 Muhammad Hussain being real brother of the complainant, his evidence cannot be safely used as corroborative piece of evidence. For all these reasons, I am convinced that the prosecution has failed to prove the passing on of the tainted currency notes to the appellants as illegal gratification.

7. For what has been stated above, giving him benefit of doubt, the appellant is acquitted of the charges.

S.A Acquittal ordered.

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