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Criminal Appeal No. 499 of 1985, heard on 15th February, 1986.
‑‑‑--S. 161‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Illegal gratification‑‑Accused, cashier in Improvement Trust‑‑Tainted currency notes given to complainant alongwith money meant for payment as rent arrears‑‑Possibility of mixing tainted notes with amount meant to be paid as rent, held, could not be excluded and this circumstance alone made raid proceedings doubtful‑‑Magistrate had not taken proper precautions before sending complainant for passing on tainted money giving benefit of doubt, accused was acquitted in circumstances.
Mehr Ghulam Ali Mubashir for Appellant.
Shabbir Lali for the State.
Date of hearing: 15th February, 1986.
This Criminal Appal arises from the judgment of special Judge, Anti‑Corruption, Sargodha and Faisalabad Divisions with Headquarter at Sargodha, whereby he on 19‑9‑1985 convicted Yousaf Javaid, appellant under section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to R.I. for six months and fine of Rs.5,000 in default thereof further R.I. for five months.
2. The appellant was a Cashier in the office of Sargodha Improvement Trust, Sargodha. The charge against him was that he demanded and accepted Rs.700 as illegal gratification from Shaukat Ghafoor complainant. He denied the charge and claimed to be tried.
3. To prove its case, prosecution examined five witnesses. Shaukat Ghafoor P.W.5 appeared to prove demand as well as acceptance of Rs.700 as illegal gratification from him by the appellant. Abdur Razzaq CO/ACE P.W.1 and Malik Safdar Ali M.I.O. P.W.2 were produced to prove the recovery of tainted currency notes from the person of the appellant. They stated that out of the seven currency notes of Rs.100 five currency notes were recovered from the pocket of the accused whereas the remaining two currency notes were recovered from Cashier of Muslim Commercial Bank where the accused had deposited the daily receipt of Rs.15,060 in the account of the Improvement Trust and was waiting for issue of prescribed receipts. The rest of the evidence is of formal nature.
4. When, examined under section 342, Cr.P.C., the appellant denied all incriminating circumstances. He gave evidence in disproof of charge against him and also produced Zafar Hussain Bajwa and Riazul Haq D.Ws.1 and 2 who supported the version of the appellant.
5. The learned counsel for the appellant contended that prosecution has failed to prove its case beyond reasonable doubt inasmuch as the possibility that just before the raid the complainant might have mixed the tainted currency notes with other currency notes which he gave to the Cashier /appellant as rent arrears of his shop cannot be excluded. 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 with care. I feel persuaded to agree with the learned counsel for the appellant. I find that during the raid proceedings Shaukat Ghafoor had tendered Rs.5,600 before the raiding Magistrate which were meant for payment as rent arrears and at the same time he tendered before the Magistrate Rs.700 which meant to be paid as bribe money. The Magistrate noted the number of the tainted currency notes of Rs.700 only. He then returned total amount of Rs.6,300 to the complainant and sent him to pass on the tainted currency notes to the appellant. I am of the view that the Magistrate should not have done so because in that case the possibility of mixing the tainted currency notes in Rs.5,600 and passing on the same to the appellant deceitfully as arrears of rent cannot be excluded. To my mind this circumstance alone makes the raid proceedings doubtful. I feel that Magistrate had not taken proper precautions before sending the complainant for passing on the tainted currency notes to the appellant.
7. For what has been said above, while giving him the benefit of doubt, the appellant is acquitted of the charge.
S.A. Appeal accepted
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