This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption, Rawalpindi, whereby he on 27-1-1978 convicted Muhammad Farooq appellant under section 161, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947 and sentenced him to one year R.I. And a fine of Rs.2,000 in default thereof to further R.I. For one year.
2. The appellant was working as senior clerk in the Revenue Department Wapda, Gujrat. The charge against him is that he demanded -Rs.100 and accepted Rs.70 as illegal gratification from Abdul Hamid P.W.3 for remitting penalty. He denied the charge and claimed to be tried.
3. To prove its case, the prosecution examined eight witnesses. Abdul Hamid P.W. Appeared to prove demand and acceptance of bribe money by the appellant from him. Muhammad Khan Foot Constable P.W.6, Muhammad Tufail Inspector A.C.E. P.W.5 and Agha Javid Hussain P.W. Were produced to prove the acceptance and recovery of the tainted currency notes from the appellant.
They supported the prosecution case. The rest of the evidence is of formal nature.
4. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances and raised the plea of false implication on account of enmity. In defence, he examined three witnesses
5. The learned counsel for the appellant submitted that the Magistrate and the Inspector having neither seen the passing on the tainted currency notes nor having heard the talk between the appellant and the complainant which preceded the handing over of the money, therefore, the prosecution has failed to prove its case beyond reasonable doubt. On the other hand, the learned counsel for the State has supported the judgment of the trial Court. He maintained that Muhammad Khan Constable P.W.6 having seen the appellant taking out the tainted currency notes from his pocket and throwing the same on the ground, it cannot be said that no recovery was effected from him.
6. I have considered the arguments advanced by the learned counsel for the parties with care. I find that the prosecution has not cared to examine the Inspector A.C.E. On the point of recovery of tainted currency notes; that as for the recovery of the tainted currency note from the appellant there is evidence of the two witnesses namely, Agha, Javid Hussain P.W.4 and Muhammad Khan F.C., P.W.6, that there are, major contradictions between the statements of these two witnesses inasmuch as the Magistrate stated that: "So he immediately tried to throw away the money after taking it from his pocket, but the constable with me caught hold of his hand and the tainted amount of money was recovered from his hand."
Whereas Muhammad Khan F.C., P.W.6 stated: "I went to the office of WAPDA with the raiding party. The accused had thrown the tainted amount of money on the ground after taking it out from his waist-coat, which were taken into possession."
It is worth notice that the prosecutor did not request the trial Court to declare this witness as hostile.
7. For what has been found above, I am of the opinion that in the peculiar circumstances of the case, particularly when the prosecution did not care to examine the responsible officer like Inspector A.C., it would not be in accordance with the safe administration of justice in criminal cases to uphold conviction on the contradictory statements of the two witnesses mentioned above. Giving him the benefit of doubt, the appellant is acquitted of the charge.