1969L3043 (PLP)

Sardar M. Ibrahim for Appellant. Ch. Muhammad Asghar for the State. Ghulam Hussain appellant was convicted under section 61, P. P. C. read with section 5(2) of the Prevention of Corruption Act (Act II of 1947) and sentenced to six months' rigorous imprisonment with a fine of Rs. 100.00 or in default to further undergo rigorous imprisonment for three months by the learned Special Judge, Anti-Corruption Establishment, West Pakistan, Lahore. The appellant, against his conviction and sentence, has preferred this appeal.

2. The accusation against the appellant was that on 27th February 1964 while he was on duty as a Traffic Constable at Charing Cross, Lahore, caught Malik Shah Din (P. W. 1) for violating traffic rules and by abusing his position as a public servant demanded and actually accepted a wrist-watch on 28th February 1964 as gratification other than legal remuneration. The appellant pleaded not guilty.

3. On 27th February 1964, at about 4-30 p. m., Malik Shah Din (P. W. 1) was going on his motor-cycle towards Model Town and when he reached Charing Cross he stopped his motor-cycle because of the red signal. When the green signal came on, he started his motor-cycle, but its gear got jammed and its silencer started omitting smoke. The appellant, who was on duty at that crossing, asked Malik Shah Din P. W. to hand over his driving licence, which he did. The appellant then informed Malik Shah Din P. W. that he was going to challan him and because of the gravity of the offence he would be fined Rs. 500.C

0. Malik Shah Din P. W. replied that his motor-cycle was to blame and that he was not at fault. The appellant then enquired from Malik Shah Din P. W. if he had any money with him. He replied that he had small change, upon which the appellant told him that it would not serve the purpose. He asked Malik Shah Din P. W. to see him at his house. The appellant thereupon ;wrote his address on a chit Exh. P. B. The address was given as 5-B, Lawrence Road, Lahore. The appellant also gave receipt Exh. P. C. for having taken the driving licence Exh. P. A., Malik Shah Din P. W. stretched his left arm in order to get hold of Chit Exh. P. B. and by doing so exposed his wrist-watch Exh. P. 1, which he was wearing on his left wrist at that time. The appellant on seeing the wrist-watch asked him from where he had got it and he replied that he had brought it from Saudi Arabia. The appellant then asked him to hand over the wrist-watch to him and he replied that as he had to come back from Model Town, he required the watch for consulting time. The appellant then told him that he would be on duty at Canal Bridge till 11-30 on the following day and that he should hand over the watch there. Malik Shah Din P. W. went on his way to Model Town. On the next morning he went to the office of the Anti-Corruption Establishment and contacted Sub-Inspector Mir Ijaz Hussain (P. W. 2) and told him that the appellant was demanding illegal gratification from him. The Sub-Inspector took him to the District Courts and submitted application Exh. P. G. in the Court of the Additional District Magistrate for detailing a Magistrate to supervise a raid. The Additional District Magistrate made order Exh. P. G. 1 directing Mr. Muhammad Yousaf Magistrate (P. W. 4) to supervise the raid. The Sub-Inspector produced Malik Shah Din P. W. before the said Magistrate, who recorded his statement Exh. P. B., Malik Shah Din P. W. produced Writ-watch Exh. P. 1. and chits Exhs. P. B. and P. C., The Magistrate and the Sub-Inspector then took Malik Shah Din P. W. to a watch maker's shop in Old Anarkali, who opened its lid and the Magistrate affixed his signature on its inside. The watch was then returned to Malik Shah Din P. W., with a direction that he should hand it over to the appellant on demand. The Magistrate, the Sub-Inspector and the two Constables went in a taxi to the Canal Bridge, while Malik Shah Din P. W. followed them on his motor-cycle. After crossing the Canal Bridge the taxi stopped in front of a tea-stall. They saw the appellant in uniform standing at the junction of the Mall and Dharampura Road. When Malik Shah Din P. W. arrived there he started having a talk with the appellant. The Magistrate and his party could not hear the talk but they could only see him talking to the appellant. Malik Shah Din P. W. produced his watch before the appellant, who after having a look, took off his own wrist watch and put Wrist-watch Exh. P. 1 on his wrist. Thereafter the appellant took off the said wrist-watch and put it on the seat of the motor-cycle and again started putting on his own wrist-watch. The appellant also took out driving licence Exh. P. A. and placed it on the seat of the motor cycle. At this stage the Magistrate and his party came along and recovered wrist-watch Exh. P. 1. from the seat of the motor cycle. The Magistrate recovered driving licence Exh. P. A. from Malik Shah Din P. W., and challan book Exh. P. D. from the appellant. whereafter the Magistrate recorded statements Exh. P. F. of Malik Shah Din P. W. and that of the appellant Exh. P. L. and then drew up raid report Exh. P. J. and gave it to the Sub Inspector, along with the relevant papers and the articles. That raid report Exb. P. K. on its basis. In statement Exh. P. L. the appellant had denied his guilt and stated that Malik Shah Din P. W. and another person were riding a motor-cycle and when he (the appellant) saw his driving licence he found that it was a learner's licence and as such Shah Din P. W. could not carry any body on the pillion of his motor-cycle. The appellant then informed him about it and he got enraged and told him that he knew the high ups in the police and that he would get him suspended from service. Malik Shah Din then in a temper threw his licence and went away.

4. The appellant at the trial also denied his guilt and made the following statement: "What actually happened was that while I was on traffic duty at Charing Cross, the complainant came there while he was double-riding a motor-cycle. I stopped the motor-cycle and asked the complainant for the licence. He threatened me and told me that he was an influential person and he would get me suspended. After telling me so, he started his motor cycle and drove off:"

5. The prosecution case against the appellant mainly rests on the testimony of Malik Shah Din P. W. because neither the Magistrate nor the Inspector of the Anti Corruption Department had heard the actual talk which went on between Malik Shah Din P. W. and the appellant. They only recovered Wrist-watch Exh. P. 1 not from the possession of the appellant but from the seat of the motor-cycle belonging to Malik Shah Din P. W. There is no evidence on the record to corroborate the testimony of Malik Shah Din P. W. that the appellant had actually demanded the wrist-watch and accepted it as gratification other than legal '4 remuneration. The wrist-watch in question was also not recovered from the possession of the appellant. If the appellant) really wanted to keep Wrist-watch Exh. P. I with him he would have put it in his pocket after removing it from his wrist instead of putting it on the seat of the motor-cycle under these circumstances it will not be safe to base conviction on the solitary statement of Malik Shah Din P. W. I, accordingly accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He is on bail and should be discharged from his bail bonds. Appeal accepted.