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Criminal Appeal No.91 of 1986, heard on 14th September, 1986.

---S. 161--Illegal gratification--Raid case--Benefit of doubt--Magistrate and Police Officer not hearing any conversation between complainant and accused before passing of tainted money--Passing of tainted currency notes also not seen by them--Out of Rs-1,000 allegedly paid as illegal gratification, only Rs.100 recovered--Complainant not supporting prosecution case--Prosecution, held, could not prove its case against accused beyond reasonable doubt--Accused acquitted by giving benefit of doubt in circumstances.

Raja Muhammad Sabir for Appellant.

Sh.Ehsan Ahmad for the State.

Date of hearing: 14th September, 1986.

This criminal appeal arises from the judgment of learned Special Judge, Anti-Corruption, Sargodha and Faisalabad Divisions with Headquarters at Sargodha, whereby he on 5-2-1986 while acquitting co-accused Mohsin Ali, convicted Muhammad Nawaz appellant under section 161, P.P.C. and sentenced him to three months' S.I and a fine of Rs.5,000 in default thereof five months S.I.

2. The appellant was Assistant Sub-Inspector, Police and Mohsin Ali co-accused was Constable/ Wireless Operator. The charge against the appellant was that he demanded and accepted Rs.1,000 as illegal gratification from Muhammad Ali complainant for the return of his motor-cycle and its registration paper. He denied the charge and claimed to be tried.

3. To prove its case, prosecution examined three witnesses. Muhammad Ali P.W. 3 was produced to prove demand and acceptance of illegal gratification from him by the appellant. Raja Inayatullah C.O./ A.C.E. P.W.1 and Mian Muhammad Aslam MIC P.W.2 appeared to prove the recovery of the tainted currency notes from the appellant. They stated that out of tainted currency notes of Rs.1,000 allegedly passed by the complainant to the appellant only one currency note of Rs.100 could be recovered from him. It may be noted that Muhammad Ali complainant has not supported the prosecution case against the appellant.

4. When examined under section 342, Cr.P.C. the appellant denied all the incriminating circumstances. He raised plea of false implication. He made statement on oath in disproof of charge and stated that neither he demanded nor received any illegal gratification from the complainant and that just before the raid Muhammad Khan SCO and Muhammad Ali complainant entered the wireless room. About 2/3 minutes later Muhammad Khan and Muhammad Ali P.W. came out of the wireless room and at that time, Muhammad Khan P.W. was holding currency notes in his hand and that Inayatullah C.O./A.C.E. dictated the raid report and other statements to the raiding Magistrate.

5. The learned counsel for the appellant submits that prosecution has failed to prove that the appellant had demanded or accepted Rs.1,000 as illegal gratification from the complainant. 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 Raja Inayatullah A.C.E. and Mian Muhammad Aslam, Magistrate had neither heard any conversation between the complainant and the appellant before the money changed hands nor did they see the passing on of the tainted currency notes to the appellant; that out of Rs.1,000 allegedly paid as illegal gratification by Muhammad Ali to the appellant only Rs.100 could be recovered from the appellant; that Muhammad Ali complainant has not supported the prosecution case that he could not identify the person wham he had paid the tainted currency notes. He categorically stated that nobody had demanded bribe from him and that he dial not know the name of the person who had accepted the money from him. For all these reasons, I am of the view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubts.

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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