1985 P Cr (PLP)

S.161‑‑Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Illegal gratification‑‑Only evidence against accused being that he after receiving amount passed it on to main accused‑‑Whether such accused received money as illegal gratification or that he abetted main accused in commission of such offence not certain‑‑Accused acquitted in circum stances. Abdul Waheed Butt for Appellant. M. Ramzan Khokhar for the State. Date of hearing: 29th October, 1984. These two Criminal Appeals No.156/83 by Bashir Ali Shah and 157/83 by Muhammad Yaqub arise from the judgment of learned Special Judge, Anti‑Corruption, Lahore whereby he on 6‑4‑1983 convicted Bashir Ali Shah appellant under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 2 years' R.I. and a fine of Rs.5,000 in default thereof to further R.I. for 6 months. Muhammad Yaqcob appellant was convicted under section 165‑A/ 109, P. P. C. and sentenced to 2 years' R.I. I propose to dispose of both the appeals through single judgment. 2. Bashir Ali Shah appellant was posted as S.I., C.I.A., Rawalpindi. Muhammad Yaqoob is a private person. The charge against them was that they received Rs.1,000 as illegal gratification from Mehmood Alam. They denied the charge and claimed to be tried. 3. To prove its case prosecution examined 6 witnesses. Mehmood Alam P.W.2, Muhammad Refiq Gill, Magistrate, P.W.3 and Wahid Bakhsh, Inspector, A.C.E., P.W.4 were produced to prove acceptance of Rs.1,000 by the appellants as illegal gratification from the complainant. The rest of the evidence is of formal nature. 4. When examined under section 342, Cr.P.C. the appellant denied the incriminating circumstances. In defence two witnesses were examined. 5. As far Bashir Ali Shah, the learned counsel on the instructions of the appellant, who is very much present in the Court, has decided not to challenge the conviction. He requested for leniency in the sentence. So far as Muhammad Yaqoob is concerned, the learned counsel submits that the prosecution case and its evidence accepted at its face value, no case punishable under section 165‑A, P.P.C. is made out. Conversely, the learned counsel for the State supported the judgment of the trial Court. 6. I have considered the arguments advanced by the learned counsel for the parties with care. As for Bashir Ali Shah, the learned counsel has not challenged the conviction and rightly so because from the A statement of the Magistrate, it is very much proved that the appellant received Rs.1,000 from the complainant as illegal gratification and that it was also settled at that time that he would be given Rs.3,000 later on. Coming to the question of sentence, I feel inclined to agree with the learned counsel for the appellant, inasmuch as, the appellant has not only lost his service but also suffered agony of trial. He is by now of 66 years in age. In these circumstances, I am of the view that the sentence of imprisonment already undergone would meet the case. The sentence of fine of Rs.5,000 and the sentence in default thereof is maintained. He shall deposit the fine with the trial Court within a month, failing which the trial Court shall issue warrants for his arrest and detention. So far as Muhammad Yaqoob appellant is concerned, I find that the only evidence against him is that Bashir Ali Shah co‑accused after having received Rs.1,000 passed on to him and as such, it cannot be safely said that he received the money as illegal gratification or that he abetted Bashir Ali Shah in the commission of crime. Further, the conviction of the appellant under section 165‑A/109, P.P.C. appears to be illegal because section 165‑A by itself relates to abetment o offence punishable under section 161, P.P.C. or section 165, P.P.C. For all these reasons, he is acquitted of the charge. M.Y.H. Appeal partly accepted.