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Criminal Appeal No. 60 of 1984/BWP, decided on 18th March, 1985.

‑‑S. 161‑‑Prevention of Corruption Act (II of 1947), S.5 (2)‑‑Illegal gratification‑‑Tainted currency not recovered from physical possession of accused‑‑Accused denied acceptance of bribe from complainant just after raid‑‑Money allegedly paid at bus stand‑‑Recovery not effected from there‑‑Magistrate not seeing accused tagging currency notes with volt meter‑‑Passing of money to accused seen by Magistrate from distance of 10 yards‑‑It could not be said with certainty that complainant had passed on tainted currency notes to accused‑‑Prosecution, held,, had failed to prove its case beyond reasonable doubt in circumstances.

Sardar Muhammad Aslam Khan for Appellant.

Nazir Ahmad Bhatti for the State.

Date of hearing: 18th March, 1985:

This Criminal Appeal arises from the judgment of learned Special Judge, Anti‑Corruption, Bahawalpur whereby he on 21‑6‑1981 convicted Rafiq Ahmad appellant under section 161, P.P.C. 'read with section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced him to one years' R.I. and a fine of Rs.1,000 in default thereof four months R.I. on each .count with the direction that the sentence shall run concurrently.

2. The appellant was Foremen Incharge of tubewell. The charge against him was that he demanded and accepted Rs.600 for the repair of the Tubewell as illegal gratification from Ghulam Asghar P.W.2. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined five witnesses. Ghulam Asghar P.W.2 appeared to prove demand as well as acceptance of illegal gratification from him by the appellant. Sardar Ghulam Nabi Khan, Magistrate Ist Class P.W.1, Ghulam Qadir Jatai, Inspector P.W.4 and Talib Hussain A.S.I. P.W.5 were produced to prove acceptance by the recovery of the tainted currency notes from the appellant. They supported the prosecution case. Zakar Ali P.W.3 has not supported the prosecution case.

4. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances. In defence, he raised plea of false implication. In defence he produced no witness.

5. The learned counsel for the appellant submits that prosecution has failed to prove its case beyond reasonable doubt; that the Magistrate and the Sub‑Circle Officer had not heard any talk between the appellant and the complainant which preceded the passing on of the tainted currency notes; that the prosecution witnesses are not reliable and that the tainted currency notes were not recovered from the physical possession of the appellant. On the other hand 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. I find that the tainted currency notes were not recovered from the physical possession of the appellant; that in his statement Exh.P.W.1/D which was recorded just after the raid, the appellant had denied the acceptance of the bribe money from the complainant; that although the money was allegedly paid to the appellant at bus‑stand yet the same was not recovered there and the appellant was allowed to proceed towards the tubewell followed by the Raiding Party; that the Magistrate did not see the appellant tagging currency notes with volt meter and that since the Magistrate had seen the complainant giving Rs.400 to the appellant from a distance of 10 yards, therefore, it cannot be said with certainty that the money given to the appellant by the complainant were the tainted currency notes and as such, it cannot be said that the complainant had passed on the tainted currency notes to the appellant more particularly when the same were not recovered from his possession. For all these reasons, I am of the view that the prosecution has failed to prove its case against the appellant beyond reasonable doubts.

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

S. A Appeal accepted.

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