MUHAMMAD ASGHAR Versus THE STATE

This criminal appeal arises from the judgment of learned Special Judge, Central, Lahore whereby he on 24‑11‑1984 convicted Muhammad Asghar appellant under section 161, P.P.C. and sentenced him to one year's R.I. and a fine of Rs.2,000 in default thereof further R.I. for two months.

2. The appellant was a clerk in the Burki Sub‑Division, WAPDA, Lahore. The charge against him was that he demanded and accepted Rs.100 as illegal gratification from Abdul Aziz complainant for the installation of electricity connection at his house. He denied the charge and claimed to be tried.

3. To prove its case prosecution examined four witnesses. Muhammad Ali Bhatti Sub‑Inspector P.W.1, Rao Sadiq Ali Sub‑Inspector F.I.A. P.W.2, Jameel Taher Inspector P.W.3 and Gulzar Ahmad 6hatti Magistrate First Class P.W.4 were the members of the raiding party. They were produced to prove the passing on of the tainted currency notes to and recovery thereof from the appellant. They supported the prosecution case. Abdul Aziz complainant could not be produced by the prosecution.

4. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances. He rained plea of false implication. In answer to the question as to why the case against him he stated that the complainant had a grudge for the late installation of connection at his house, so he involved him falsely. In defence two witnesses were produced.

5. The learned counsel for the appellant contends that prosecution has failed to prove that the tainted currency notes were received by the appellant as illegal gratification. 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. I find that the recovery of the tainted currency notes is not only a proved but also are admitted fact. In his statement Exh. P.W4/4 which was recorded by the Magistrate immediately after the raid, the appellant. had admitted passing on of the tainted currency notes to him by the complainant and recovery thereof by the Magistrate. The material and most important question, therefore, is as to whether the tainted currency notes were received by the appellant as illegal gratification or not. I find that P.W.1 to P.W.4 had not heard conversation between the appellant and the complainant at the time of raid and as such so far as the nature of the transaction is concerned there is no evidence on record except the statements of the appellant which do not tantamount to confession of guilt or admission of receiving the tainted currency notes as illegal gratification. In his statement Exh. P. W. 4/4 the appellant stated :-

In his statement recorded under section 342, Cr. P. C. the appellant stated: ‑

"The complainant came to me and inquired about M. Ahsan, Line Superintendent. I told him that I did not know why he is not present in the office. The complainant asked me to receive Rs.100 from him which I should give to the aforesaid Line Superintendent. I declined to do so and told him that he should himself make the payment thereof. Upon this he threw the currency notes on my table and went away."

As far the nature of transaction, the best witness was the complainant who was not examined by prosecution without his statement, it is very difficult to say, that the money was given as illegal gratification. For Is all these reasons I am of the view that prosecution has failed to prove beyond reasonable doubt that the tainted currency notes were received by the appellant as illegal gratification.

7. For what has been stated above, giving him the benefit of doubt he is acquitted of the charge. The appellant shall be released forthwith if not required in any other case.

M. A. K. Appeal accepted.