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Criminal Appeal No.287 of 1985, heard on 28th May, 19985.

---S.161--Prevention of Corruption Act (II of 1947), S.5(2)--Illegal gratification--Tainted currency notes not recovered from physical possession of accused but said to have been recovered from table of accused--Raiding Magistrate and Inspector Anti-Corruption did not see accused placing bribe money on table of accused--Statement of only prosecution witness against accused was that the decoy witness on whom no reliance could be placed--Prosecution, held; failed to prove beyond reasonable doubt that tainted currency notes were accepted by accused as illegal gratification--Accused given benefit of doubt and acquitted.

Qazi Muhammad Saleem and Akhtar Mir Warsi for Appellant.

Syed Zu:fiqar Haider for the State.

Date of hearing: 28th May, 1985.

This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption, Sargodha & Faisalabad Division, at Sargodha whereby he on 23-4-1985 convicted Ashiq Hussain appellant under section 161, PPC and section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to three years' R.I. and a fine of Rs.30,000 in default thereof to further S.I. for three years.

2. The appellant was a Patwari. The charge against him was that he demanded and accepted Rs.5,000 as illegal gratification from Muhammad Rafiq PW.1. He denied the charge and claimed to be tried.

3. To prove its case, the prosecution examined three witnesses. Muhammad Rafiq PW.1 appeared to prove demand and acceptance of illegal gratification from him by the appellant. Ch. Muhammad Ashraf Magistrate PW.2 and Raja Muhammad Inayat Inspector A.C.E. PW.3 were produced to prove acceptance of the tainted currency notes by and recovery thereof from the appellant. They supported the prosecution case.

4. When examined under section 342, Cr.P. C. the appellant denied all the incriminating circumstances. In reply to the question. "Why this case against you," he stated:--

"I am innocent. Rafique complainant demanded of me that I should under compulsion show him in revenue papers, as in occupation of the land in dispute. I, refused to commit an irregularity. I depicted this fact of the land being state ownership in my report. Because of this grudge the complainant through conspiracy made this false case against me and got me arrested after having summoned me from the office room of Lands Officer."

In defence he produced Muhammad Rafiq Assistant Lands Officer who stated that he did not learn about the payment of bribe money and that the appellant was arrested without justification.

5. Learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt inasmuch as the Magistrate and the Inspector neither saw the money changing hands nor did they hear any conversation between the complainant and the appellant at the time of raid and that the complainant is not a reliable witness. Conversely the learned counsel for the State has supported the judgment of the learned trial Court. The learned counsel maintains that the tainted currency notes having been recovered from the handkerchief of the appellant which was lying on the table of the appellant, gives rise to the statutory presumption that the same were accepted by him as illegal gratification and that the prosecution witnesses having no animus against the appellant, are quite dependable.

6. I have considered the arguments advanced by the learned counsel for the parties with care. I find that the appellant has not admitted the recovery of tainted currency notes from his possession; that the tainted currency notes were also not recovered from the physical possession of the appellant; that the Magistrate and the Inspector ACE did not see the appellant placing bribe money on the table lying in front of him; that so far as the acceptance of Rs.5,000 from the complainant is concerned, the statement of Muhammad Rafiq alone remains in field. He being a decoy witness, it would not be in accordance with the safe administration of justice in criminal cases to place implicit reliance on his uncorroborated testimony. Since the bribe money was not recovered from the physical possession of the appellant, therefore, no statutory presumption would arise that the money was actually received by him as illegal gratification. For all these reasons I am of the view that the prosecution has failed to prove beyond reasonable doubt that the tainted currency notes were accepted by the appellant 'as illegal gratification.

7. For what has been stated above, giving him the benefit of doubt, the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.

M.Y.H./A-157/L Appeal accepted.

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