TANVEER AFZAL Versus UMAR HAYAT

This criminal appeal arises from the judgment of learned Senior Special Judge, Anti‑Corruption, Punjab, Lahore whereby he on 29‑4‑1984 convicted Muhammad Ilyas Shah appellant under section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to a fine of Rs.2,000, in default thereof further R.I. for one year.

2. The appellant was working as Dispensar in Civil Hospital, Nankaha Sahib. The charge against him was that he demanded and accepted Rs.200 as illegal gratification from Sher Muhammad P.W.1 as illegal gratification for destitching the wounds of Mst. Asmat Akhtar aged 6/7 years. He denied the charge and claimed to be tried.

3. To. prove its case, prosecution examined 3 witnesses. Sher Muhammad P.W.1 appeared to prove demand as well as acceptance of Rs.200 as illegal gratification from him by the appellant. Muhammad Asad (Tehsildar) P.W.2, Muhammad Khan, Inspector A.C.E., P.W.3 were produced to prove acceptance by and recovery of tainted currency notes from the appellant. They supported the prosecution case.

4. When examined under section 342, Cr.P.C., the appellant denied all incriminating circumstances. He did not produce any evidence in defence.

5. Learned counsel for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubts inasmuch as, the tainted currency notes were not recovered from the physical possession of the appellant. 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 feel persuaded to agree with the learned counsel for the appellant. I find that the Magistrate (Tehsildar) neither saw the money changing hands nor did he hear any conversation between the complainant and the appellant at the time of raid. Out of the tainted currency notes of Rs.200, tainted currency notes of Rs.150 were recovered from Dr. Farooq co‑accused. As far the remaining Rs.50 I find material contradictions in the statements of the Magistrate and the complainant. The Magistrate in raid proceedings stated that the appellant brought Rs.50 from medical ward and produced before him whereas at the time of trial he stated that the appellant had brought Rs.50 from his house. Sher Muhammad P.W., on the other hand, stated that the Magistrate took the appellant to the shop of the doctor and that the money was recovered from the drawer of Dr. Farooq, co‑accused.

7. For what has been stated above, I am of the view that the prosecution has failed to prove its case beyond reasonable doubt. Giving him the benefit of doubt, he is acquitted of the charge.

M. A. K. Appeal accepted.