NAZIR AHMAD Versus THE STATE Kh. Harts Ahmad , Arshad Khan

This Criminal Appeal arises from the judgment of learned Special Judge (Central) Lahore whereby he on 27‑9‑1987, convicted Nazir Ahmad appellant under section 161, P.P.C. and sentenced him to two years' R.I. and a. fine of Rs.2,000 or in default thereof six months ,R.I. .

2. The appellant was Upper Division Clerk in the Office of Superintendent '‑of Police, Pakistan Railway, Workshop Division, Mughalpura, Lahore. The charge against him was that he demanded and accepted Rs.1,500 as illegal gratification from Rahim‑ud‑Din P.W. for getting bills of his pension prepared. He denied the charge and claimed to be tried.

3. To prove its case, prosecution produced 6 witnesses. Rahim ud‑Din, complainant, appeared to prove demand and acceptance of Rs.1,500 from him by the appellant as illegal gratification. He supported the allegations against the appellant. Babar Khan Nasir, Magistrate, P.W.2, Mahboob Hussain, Inspector, A.C.E., P.W.4 and Muhammad Fazil, Constable, P.W. 5 were produced to prove the acceptance of the tainted currency notes by the appellant from the complainant and the subsequent recovery thereof from the appellant. The rest of the evidence is of formal nature.

4. When examined under section 342, Cr.P.C., the appellant denied to have received the tainted currency notes as illegal gratification. While admitting the recovery of the tainted currency notes from him, he raised the plea of entrustment of Rs.1,500 to him for safe custody. In reply to Q. No. 4, the appellant stated that he had received currency EXs.Pl to P15 from Rahim‑ud‑Din P.W. for keeping in safe custody. He appeared as D.W.6 in disproof of the charge against him.

5. Learned counsel for the appellant contended that the prosecution has failed to prove that the tainted currency notes were received by the appellant from the complainant as illegal gratification in that the Magistrate, the constable and the Inspector, A.C.E. had not heard any conversation between the complainant and the appellant before passing of the tainted currency notes; that the appellant was not concerned with the preparation of bills relating to second instalment of pension and this position has been accepted by the trial Court.

Learned counsel for the State has supported the judgment of the trial Court.

6. I have considered the submissions made by the learned counsel for the parties with care. I find that the recovery of the tainted currency notes from the appellant being a proved as well as admitted fact, the sole question for determination is as to whether the same were received by him as illegal gratification. As for the nature of transaction, the statement of Rahim‑ud‑Din complainant alone remains in field. He being a decoy witness, it would not be safe to rely on his statement without corroboration which I do not see in the case in hand. Furthermore, since the Magistrate and the Inspector had not heard conversation between the appellant and complainant before the money changed hands, therefore, the reasonable possibility that the money might have been given to the appellant for temporary safe custody cannot be excluded, particularly when the accused raised this plea immediately after the occurrence and stuck to it in statement under section 342, Cr.P.C. and evidence made under section 340(2), Cr.P.C. For these reasons I am of the view that the prosecution has failed to prove its case beyond reasonable doubt.

For what has been said above, while giving benefit of doubt to the appellant, he is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other case.

S. A./N‑87/L Appeal accepted.