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Criminal Appeal No. 1311 of 1980, heard on 8th February, 1986.

‑‑‑S. 161‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Illegal gratification‑‑Raid case‑‑Nature of transaction‑‑Complainant, only witness to nature of transaction not produced‑‑Magistrate and Inspector not hearing conversation between complainant and accused‑‑Money put in pocket of accused by complainant while sitting on rear seat of scooter driven by accused‑‑Possibility of not consciously receiving tainted currency notes by accused, held, could not be ruled out‑‑Prosecution failed to prove its case beyond reasonable doubt in circumstances.

Sh. Nisar Qutab for Appellant.

Sadiq Hayat Lodhi for the State.

Dates of hearing: 24th, 27th November, 1985 and 8th February; 1986.

This Criminal Appeal arises from the judgment of learned Special Judge, Anti‑Corruption, Sargodha, whereby he on 27‑11‑1980 convicted Muhammad Yousaf appellant under section 161, P.P.C. and sentenced him to one year's R.I. and a fine of Rs.2,000 or in default thereof 6 months' R. I.

2. The appellant was Line Superintendent, WAPDA, Bakar. Mandi Sub‑Division, Faisalabad. The charge against him was that he demanded and received Rs.500 as illegal gratification from Ghulam Mohay‑ud‑Din complainant for giving him a new electricity industrial connection. He denied the charge and claimed to be tried.

3. To prove its case, prosecution examined 6 witnesses. Malik Israr Ahmad, P.W.1, Haji Qurban Hussain, Inspector, A.C.E., P.W.2, Muhammad Shafi, Assistant Director, F.I.A., P.W.4 were produced to prove the recovery of the tainted currency notes from the appellant. They stated that Ghulam Mohay‑ud‑Din complainant, taking the currency notes with him, went inside the office of the appellant while they stayed outside. After a short‑while the appellant came out of his office and drove his scooter. The complainant occupied the back seat of the scooter. The raid party followed them in the case and at Jail Road the appellant stopped his scooter. Ghulam Mohay‑ud‑Din put currency notes in the pocket of the appellant. On this Muhammad Shafi P.W. reached near the spot. On seeing him, the appellant got nervous. He took out the tainted currency notes from his pocket and threw the same on the ground which were picked up by the Magistrate. It may be noted that Ghulam Mohay‑ud‑Din complainant has not been examined as a witness as he having gone abroad, was not available. The rest of the evidence is more or less of formal nature.

4. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. He produced two witnesses in defence.

5. Learned counsel for the appellant contended that the prosecution has failed' to prove beyond reasonable doubt that the appellant bad received the tainted currency notes as illegal gratification. Conversely, the learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the submissions made by the learned counsel for the parties. I feel persuaded to agree with the learned counsel for the appellant. I find that as far the nature of transaction, as to whether the money was taken by the appellant as illegal gratification or not, Ghulam Mohay‑ud‑Din was the only witness who could depose about it but he has not been produced. The Magistrate and the Inspector A.C.E. had not heard any talk between the appellant and the complainant at the time of raid and that the money was put in the pocket of the appellant by the complainant who was sitting on the rear Beat of the scooter being driven by the appellant. In the peculiar circumstances of the case, the possibility that the tainted currency notes were not received consciously by the appellant cannot be ruled out. For all these reasons, I am of the view that the prosecution has failed prove its case beyond reasonable doubt.

7. For what has been said above, the appeal is accepted and the appellant is acquitted of the charge.

S. A. ‑‑‑‑ Appeal accepted.

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