1991 PCr (PLP)

Date of hearing: 18th May, 1991. Sabir Ali appellant, was tried under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, on the charge of demanding and accepting Rs.100 as illegal gratification from Syed Imdad Hussain complainant, which was recovered from him on 9-11-1980. He denied the charge and claimed to be tried. On the conclusion of the trial, he was convicted under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act 1947, and sentenced to two years' R.I. On appeal, the conviction and sentence was set aside on the ground that the learned Special Judge, Anti-Corruption, was not qualified to hold the office, so the case was sent back for fresh trial. By the time, the fresh trial could commence, the record of the case was destroyed, so it was re constructed.

2. The prosecution examined six witnesses in all. Imdad Hussain complainant (P.W.5) appeared to prove the demand and acceptance of Rs.100 as illegal gratification from him by the appellant. Muhammad Yousaf Magistrate (P.W.2) and Saeed Hassan P.W.6 were produced to depose about the acceptance of Rs.100 as illegal gratification and recovery of the same from the appellant at the time of raid. The rest of the evidence is of formal nature.

3. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised the plea of false implication. He produced one witness in defence. He also gave evidence on oath in disproof of the charge against him.

4. The trial Court, vide its judgment dated 8-1-1990, has convicted him under section 161 read with section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to six months' R.I. and a fine of Rs.1,000 or in default thereof one month's R.I.

5. The learned counsel for the appellant submits that the tainted currency note/case property was not produced before the Court and, as such, it cannot be said with certainty that the currency note, which was given by the Magistrate to the complainant for passing on to the accused was the same and no other currency note was recovered from the appellant. The learned counsel for the State is not in a position to controvert him.

6. I have considered the submissions made by the learned counsel for the appellant with care. I feel persuaded to agree with the learned counsel for the appellant. I find that, in the circumstances of the case, the prosecution has failed to prove that the tainted currency note, which was given by the Magistrate to the complainant, for passing on to the accused, was recovered from the possession of the appellant. Neither the Magistrate nor the Circle Officer saw the money changing hands. They did not hear the conversation between the appellant and the complainant preceding the passing on of money to the appellant.

7. Pursuant to the above discussion, this appeal is accepted. Giving him the benefit of doubt, the appellant is acquitted of the charge. He is on bail. He stands discharged of bail bond. SA./S-954/L Appeal accepted.