JUDGMENT: This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption, Multan, whereby, he on 18th February, 1971, convicted Baqar Hussain Shah appellant under section 161, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act, 1947, and sentenced him to six months' R. I. On two counts and fine of Rs. 400 or in default thereof to three months' R. I. On one of the two counts.
2. The prosecution case in brief is that the appellant, who was posted as Girdawar Qanungo demanded Rs. 400 as an illegal gratification from Fateh Muhammad (Complainant) P. W. 1, to help him for making up the shortage of four acres of his land. Since Fateh Muhammad was not willing to babe the appellant, he approached Mahr Allah Bakhsh, Inspector Anti --Corruption, Muzaffargarh, and apprised him of the illicit demand of the appellant. A raiding party supervised by Mr. Amjad Ali Wasti, Naib--Tehsildar (P. W. 7) was organized. Fateh Muhammad appeared before the Naib- Tehsildar (Magistrate 3rd Class and made statement Exh. P. G. He produced currency notes Exh. P. l to P. 14 of the value of Rs. 400. The Magistrate noted' the numbers of the currency notes and returned the same to Fateh Muhammad complainant for presentation to the appellant. Fateh Muhammad accompanied by Ghulam Nabi F: C. (P. W. 4) left for the office of the appellant to pass on the tainted money to him whereas Amjad Ali Wasti, Naib-Tehsildar, and Mahr Allah Bakhsh, Inspector Anti-- Corruption remained at some distance in the street. Fateh Muhammad passed on the tainted money to the appellant within the view of Ghulam Nabi F. C. The appellant after having accepted the money put the same in inner pocket of his coat. At this Ghularn Nabi F. C. Gave an appointed signal, whereupon the Magistrate and the Inspector Anti-Corruption arrived at the spot, disclosed the identity and asked the appellant to hand over the bribe money and that the appellant presented currency notes P. 1 to P. 14 before the Magistrate. On comparison, the currency notes were found to be the same which were returned to Fateh Muhammad for presentation to the appellant as illegal gratification. Mr. Amjad Ali Wasti recorded the statements of Fateh Muhammad, Ghulam N :bi and the appellant Exhs, P. E., P. F. And P. G., respectively.
3. The appellant at trial denied all the incriminating circumstances. His plea is that in fact, on 6th September, 1966 FatehMuhammad complainant had purchased from him a buffalo for Rs. 800. He paid Rs.300 and for the remaining executed deed Exh. D. A. Subsequently, he paid Rs. 400 out of the balance of Rs. 500 and an amount of Rs. 100 is yet to be paid by him. His case is that his relations were strained with Mazhar-ul-Islam, a close relative of Amjad Ali Wasti, Naib. Tehsildar and, as such, he was got falsely involved at the instance ofWasti.
4. To prove its case, the prosecution examined as many as five witnesses.
Fateh Muhammad complainant from whom the appellant had allegedly demanded and subsequently accepted an amount of Rs. 400 as illegal gratification, it is remarkable that he has not supported the prosecution. At trial, he stated that he never contacted Baqir Hussain appellant in connection with his application for making up the shortage of his area submit--ted by him to Amjad Ali Wasti, Naib-Tehsildar. He was declared hostile and was cross-examined by the Prosecuting Inspector wherein he disowned his earlier statement recorded by Amjad Ali Wasti and also belied entire proceedings of the raid conducted on the appellant.
P. W. 2 Hussain Bakhsh has also not supported the prosecution: He stated that "it is incorrect to suggest that the accused had actually, demanded a sum of Rs. 400 as a bribe from Fateh Muhammad, In cross-- examination he admitted that Fateh Muhammad has purchased a buffalo for a sum of Rs. 800 from the appellant, paid Rs. 300 and executed docu--ment Exh. D. A. For the remaining amount.
P. W. 3 Amjad Ali Wasti supported the raid proceedings and recovery of the tainted money from the possession of the appellant. In cross-examina--tion he stated that "we were at a distance of 30 to 40 paces from the place from where the signal was received."
P. W. 4 Ghulam Nabi F. C. Has supported the prosecution case and stated that Fateh Muhammad complainant had passed on the money to the appellant in his view which was subsequently.
Recovered from the appellant. In cross-examination he stated that when the complainant passed on money to the appellant he was at a distance of 5 to 7 karams from that place.
P. W. 5 Mahr Allah Bakhsh, Inspector Anti-Corruption, supported the raid proceedings and the statement of Amjad Ali Wasti on material counts. The appellant examined as many as seven witness his defence.
5. The above statement of facts would show that in the 'instant case Fateh Muhammad complainant and Hussain Bakhsh P. W. 2 have not supported the prosecution at all. Amjad Ali Wasti Ghulam Nabi and Mahr Allah Bakhsh were not standing near the complainant at the time of passing on of the currency notes and, as such, they were not in a position to hear the conversation which preceded the passing on of the money. Hussain Bakhsh has stated that no bribe was demanded by the appellant. Fateh Muhammad who is the solitary witness of the acceptance of Rs.
400 as an illegal gratification has not supported the prosecution. The earlier statement of Fateh Muhammad and Hussain Bakhsh,) being not substantive one, cannot be considered as proof of the facts stated therein.
The mere recovery of the same currency notes from an accused person in the absence of any statement that the same were accepted as an illegal gratification is not sufficient to give rise to a presumption that the same were, in fact, received as an illegal gratification. It is well-settled that presumption contemplated in the latter part of section 4 of the Prevention of Corruption Act, 1947, can arise only if the prosecution proves that the accused accepted or obtained any gratification. In the instant case, the defence was that the money received by the accused from the com-- plainant was part of an amount due from Fateh Muhammad complainant, as a sale price of the buffalo and, as such, it was necessary for the pro--secution to establish beyond reasonable doubt that Rs. 400 were accepted as gratification and not otherwise before a presumption contemplated by section 4 could arise. In the instant case, there is nothing to show that the currency notes were received by the appellant as gratification.
6. For all these reasons, I am of the opinion that the prosecution has failed, to prove its case against the appellant. Since I have disbelieved the prosecution case there is no need to discuss the statement of the appellant, his plea and the defence evidence.
The upshot of the discussion is that the appeal is accepted, conviction and sentence of the appellant under section 161, P. P. C. Read with section 5 (2) of the Prevention of Corruption Act, 1947, is set aside and he is acquitted honourably of the charge. He is on bail. His bail bond shall stand discharged.