1984 P Cr (PLP)

Abbas Sukhera for State. Date of hearing: 13th May, 1984. Mahmood Ali appellant, a Secretary of Union Council, Dharamke Lalke was convicted by learned Special Judge, Anti-Corruption by order, dated 31st January, 1973 under section 161, P. P. C. read with section 5 (2), Prevention of Corruption Act, 1947 and sentenced to six months' R. I. He has come up in appeal.

2. The precise charge against Mahmood Ali appellant was that he demanded Rs. 150 but agreed to receive Rs. 90 as illegal gratification for supplying copy of the divorce certificate Exh. P. C. to Allah Ditta P. W.

1. It is alleged that out of this Rs. 90, the appellant received Rs. 40 as illegal gratification on 26th December, 1968 and received Rs. 50 on 3rd January, 1969 when he was arrested in a raid organised by Anwar Ali P. W. 3 and supervised by Mr. Imtiaz Ahmad Sadiq P. W. 2.

3. During the trial, the prosecution examined Allah Ditta P. W. 1 who stated that he had lodged the F. I. R. Exh. P. A. on 3rd January, 1969 as he did not want to pay Rs. 50 as bribe to the appellant. It was stated by him that on 3rd January, 1969, he contracted the accused in the office of Union Council to pay him bribe of Rs. 50 but the accused asked him to go to the Tehsil Office where he will receive the amount. The accused came to the Tehsil Office but again did not receive the money and asked the com plainant to reach the gate of the Mills and that he will receive the amount there. It is alleged that Allah Ditta paid him the tainted money of Rs. 50 near the Mills gate whereafter the raiding party surprised the accused after having received signal. ' Mr. Imtiaz Ahmad Sadiq, Magistrate P. W. 2 stated that he supervised the raid, signed the tainted money which was later recovered from the accused. Anwar Ali P. W. 3 organised the raid, investigated the case and after receipt of sanction for prosecution Exh. P. L. challaned the accused.

4. The accused denied the charge and produced Ghulam Hussain D. W. 1 and Sardar Ali D. W. 2 in defence. Ghulam Hussain D. W. 1 only stated that Allah -Ditta P. W. paid Rs. 50 to Mahmood Ali but did not disclose the nature of that. Sardar Ali D. W. 2 produced the register which contained entry Exh. D. W. 21A-1 showing that the copy of divorce certificate bad been received by Allah Ditta P. W. on 7th December, 1968.

5. I have heard the learned counsel for the appellant and the State. It is contended by the learned counsel that the copy of certificate of divorce Exh. P. C. had already been received by Allah Ditta complainant on 7th December, 1968 and as such, there was no reason or occasion for Mahmood Ali appellant to receive illegal gratification. Relying on P L D 1979 Kar. 255 and 1972 P Cr. L J 836, learned counsel argued that the Super vising Magistrate and the raiding party did not see the passing of tainted money by Allah Ditta complainant to Mahmood Ali accused nor did they bear the talk between the two at the time of passing of the money. It was, therefore, contended that it cannot be said that the accused allegedly received the said amount as illegal gratification.

6. I have considered the above arguments and find that the prosecu tion has failed to prove its case against the appellant. The copy of certificate of divorce had already been delivered to Allah Ditta on 7th December, 1968 i.e. many days before the raid and as such the question of receipt of illegal gratification did not arise. The fact that the raiding party did not see the passing of tainted money and did not hear the talk between the complainant and the accused, also makes the case against the appellant A doubtful.

7. In view of the above discussion; this appeal is accepted and the appellant Mahmood Ali is acquitted. The appellant is on bail. He is discharged of his bail bonds. M. Z. M. Appeal accepted.