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Criminal Appeal No. 4 of 1986, decided on 10th February,1986.

‑‑‑S. 161‑‑Illegal gratification‑‑Decoy witness‑‑Recovery of tainted money from accused admitted and proved‑‑Magistrate and Investigating Officer not hearing conversation between complainant and accused‑‑Only decoy witness stating about acceptance of illegal gratification‑‑Rule prudence, held, would require independent corroboration of decoy witness‑‑Prosecution had, therefore, failed to prove beyond reasonable doubt that tainted money was received by accused as illegal, gratification‑‑Conviction and sentence was set aside in circumstance.

Rana Abdul Hamid Khan for Appellant.

Nemo for the State.

Dates of hearing: 8th and 10th February, 1986.

This Criminal Appeal arises from the judgment of learned Special Judge, Anti‑Corruption, Sargodha, whereby he, on 8‑12‑1985 convict Sultan Ali appellant under section 161, P.P.C. and sentenced him one year R.I. and a fine of Rs.3,000, in default thereof further R for three months.

2. The appellant was a Fee Collector, Town Committee, Bhalwal The charge against him was that he demanded and accepted Rs.300 illegal gratification from Muhammad Riaz P.W.3. He denied the chap and claimed to be tried.

3. To prove its case prosecution examined 4 witnesses. Muhammad Riaz P.W.3 appeared to prove the demand as well as acceptance Rs.300 as illegal gratification by the appellant from him. Sultan P.W.4 stated that the money was given by the complainant to the appellant for passing on to one Muhammad Nawaz. He was declared hostile and cross‑examined by the Public Prosecutor. Muhammad Sadiq Inspector A.C.E., P.W.1 and Ch. Imtiaz Ahmad, Magistrate P.W.2 were produced to prove the recovery of tainted currency notes from appellant. They supported the recovery.

4. When examined under section 342, Cr.P.C., the appellant while admitting the receipt of tainted currency notes from complainant explain that the same were not received as bribe money but were given to him by the Complainant for passing on to one Muhammad Aawaz. In defence 4 witnesses were produced. Muhammad Nawaz D.W.3 has supported I defence version.

5. Learned counsel for the appellant submits that the prosecution has failed to prove beyond reasonable doubt that the tainted currency notes were received by the appellant as illegal gratification. No one has appeared for the State.

6. I have considered the submissions made by the learned counsel for the appellant with care. I feel persuaded to agree with the learned counsel for the appellant. I find that the recovery of the tainted currency notes from the appellant is not only an admitted but also a proved fact and as such, the real question for consideration and determination is as to whether the tainted currency notes were received by the appellant as illegal gratification or not. Since the Magistrate and the Inspector had not heard any conversation between the appellant and the complainant at the time of raid and that Sultan Ali P.W.4 I not supported the prosecution and has rather stated that the money was passed on to the appellant for further passing on the same to one Muhammad Nawaz D.W., therefore, so far as the nature of transaction is concerned, 'statement of Muhammad Riaz complainant alone remains in the field. He being a decoy witness, the rule of prudence requires independent corroboration of his statement, which I do not see in the case in hand. In these circumstances, I am of the view that the prosecution has not been able to prove beyond reasonable doubt that the tainted currency notes were received by the appellant as illegal gratification.

7. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence of the appellant, the same are hereby set aside and while giving him to benefit of doubt he is acquitted of the charge.

S.A. Appeal accepted.

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