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Criminal Appeals 'Nos. 139 and 143 of 1984, decided on 30th October, 1986.

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S. 161‑‑Bribery‑‑Tainted currency notes not secured from accused‑‑Mere presence of accused alongwith co‑accused without any overt act, held, not sufficient to convict accused‑‑Conviction and sentence set aside, in circumstances.

‑‑‑S. 5(2)‑‑Penal Code (XLV of 1860), S. 161 ‑Bribery‑‑Benefit of doubt‑‑Independent Mashir not procured by Police‑‑According to prosecution version tainted money paid to accused whereas complainant stating to have made payment to co‑accused‑‑Raiding Magistrate and Mashir of recovery on their side supporting prosecution version bus Mashir admittedly an interested witness, for having accompanied complainant to Police‑‑Accused given benefit of doubt and acquitted in view of contradictory statements of prosecution witnesses.

Muhammad Ayub v. The State 1985 P Cr. L J 2687 ref.

Azizullah K. Shaikh for Appellant.

Makhdoom Abdul Wali for the State.

Date of hearing: 30th October, 1986.

This judgment would dispose of above two appeals filed by the appellants against the conviction recorded by the learned Special Judge by which he convicted the appellants under section 161/34, P.P.C. read with section 5(2) of Prevention of Corruption. Act,1947 and sentenced them to undergo R.I for two months and to pay a fine of Rs.1,000 each in default to undergo R.I. for one month more.

2. The facts of the case in brief are that complainant Akbar Khan lodged a report with Anti‑Corruption police on 14‑12‑1982 that three constables namely Mehboob, Feroze Khan and Muhammad Razzaq have been demanding Rs.600 from him for carrying out the construction work and in case of non‑payment they had threatened to demolish the house. The Inspector requested the Magistrate to supervise the trap. The Inspector alongwith the Magistrate, complainant, Mashir and subordinate staff came to the house of the complainant. They sat inside a hut near the house of the complainant. At about 10‑15 a.m. the appellants came in police uniform and enquired from the complainant about the money. Complainant enquired about constable Mehboob and Razzaq from them on which the appellants demanded their share of illegal gratification. The complainant took out Rs.300 out of the tainted money and handed over to accused Umar Draz. While accused Umar Draz was still holding the money in his hand, the Inspector alongwith the Magistrate and the constable came out from the but and disclosed his identity as well as that of the Magistrate. Appellant Umar Draz on seeing the raiding party threw the money on the ground. Inspector Faqeer Muhammad picked up Rs.300 from the ground and gave the same to the Magistrate who compared the numbers of the notes with the numbers mentioned in the Mashirnama of handing over the tainted money to the complainant and found out that three notes were out of the notes which were given to the complainant as tainted money. Charge was framed but the accused did not plead guilty to the charge. At the trial the prosecution examined four witnesses, P.W. 1 Magistrate, Abdul Ahad Makaro, P.W. 2 complainant Akbar Khan, P.W. 3 Mashir Muhammad Ishaque and P. W. 4 Inspector Faqeer Muhammad I.O.

P.W. 1 Abdul Ahad Magistrate stated that the complainant gave Rs.300 to the appellants out of the tainted money. He further stated that the appellant Umer Draz on seeing them threw the tainted money on the ground. P.W. Akbar Khan and the Mashir have also supported the prosecution case.

3. It is contended by the learned counsel for the appellant Feroze Khan that there is no evidence against the appellant Feroze Khan. Tainted money was not recovered from him. He was only present there. The Magistrate has not stated the same facts in his deposition as stated in his report Exh. 11. Thus, he had made improvements in his statement. Learned counsel for the appellant has also pointed out other contradictions in statements of the witnesses. The complainant in his deposition has stated that he gave Rs.300 to appellant Umer Draz and then pointed out appellant Feroze Khan whom he had given the amount of Rs.300. He has admitted that Umer Draz had not come to him prior to the day of incident. He had not made any demand from him. He has also admitted that he had not given the money to Umer Draz. According to the prosecution version the tainted money was paid to the appellant Umer Draz whereas the complainant has stated that he had paid the amount to Feroze Khan.

Mashir Ishaq has stated that the amount was received by appellant Umer Draz. He has admitted that he cannot read the Mashirnama. He is resident of Frontier Colony which is at a distance of two miles from the place of incident. The complainant is known to the Mashir as he lived with him in the same Mohallah for about 15‑20 years. He had accompanied the complainant to the Anti‑Corruption Police. He has admitted that the complainant had not disclosed name of any police constable to him. No independent Mashir was procured by the police. Mashir in the instant case is admittedly an interested witness as he had accompanied the complainant to the Anti‑Corruption Police.

Learned counsel for the appellant has referred to the case of Muhammad Ayub v. The State reported in 1985 P Cr. L J 2687 wherein it has been held that a single infirmity in the statement of a witness capable of creating doubt in a reasonable mind is sufficient to give benefit of doubt to accused. As regards appellant Feroze Khan no case has been made out against him. Nothing was secured from him Mere presence alongwith the accused without any overt act is not sufficient to convict him for the offence. He is, therefore, acquitted.

As regards the case of appellant Umer Draz in view of the contradictions pointed out earlier his case is not free from doubt. Therefore, giving him the benefit of doubt he is also acquitted of the charge. The appeals are, therefore, accepted. Sentences and convictions recorded against the appellants are set aside. They are on bail. Their bail bonds are discharged.

S. G. D. Appeals allowed.

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