' This criminal appeal arises from the judgment of learned Special Judge (Central) Multan, whereby he on 14-9-1988, convicted Baqa Muhammad appellant under section 161, P.P.C. And sentenced to six months' R.I.
2. The petitioner was working as Lower Division Clerk in the Office of Income-tax Officer, Bahawalpur. The charge against him was that he demanded and accepted Rs,50 as illegal gratification from Khadim Hussain P.W. For showing him favour in passing his TA. Bill. He denied the charge and claimed to be tried.
3. To prove its case, prosecution produced four witnesses. Khadim Hussain complainant P.W.2 appeared to prove demand and acceptance of the tainted currency notes from him as illegal gratification by the appellant. Muhammad Afzal, Head Constable P.W.3 was also produced to prove acceptance of the tainted currency notes as illegal gratification by the appellant from Khadim Hussain P.W.2 and subsequent recovery thereof from the appellant. Muhammad Ashfaq Khan, Magistrate P.W.1 and Mehmoodul Hassan Inspector, F.IA., Bahawalpur were produced to prove the recovery of the tainted currency notes from the appellant.
3. When examined under section 342, Cr.P.C., the appellant while admitting the recovery of the tainted currency notes from him, denied all the incriminating circumstances. In reply to Question No,4 he stated:- "It is correct that currency notes Exhs.PA. To P.5 were recovered from him by the Magistrate but it is incorrect that I had received the said amount as illegal gratification from Khadim Hussain. In fact Rs,50 were paid to him by Rao Jamshed with the direction that I should return them to Khadim Hussain. I tried to return this amount to Khadim Hussain but he slipped away?
'In defence 5 witnesses were produced.
4. Believing the prosecution evidence and disbelieving the version of defence and the defence witnesses, the learned trial Court has convicted and sentenced the appellant as stated above.
5. Learned counsel for the appellant submitted that the prosecution has failed to prove beyond reasonable doubt that the tainted currency notes were received by the appellant as illegal gratification. 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 feel persuaded to agree with the learned counsel for the appellant. I find that the recovery of tainted currency notes from the possession of the appellant being a proved and an admitted fact as well, the real question for consideration and determination is as to whether the same were received by him as illegal gratification or not. Muhammad Ashfaq Khan, Magistrate and Mehmoodul Hassan, Inspector F.IA. Had not seen the money changing hands. They had also not heard any conversation between the appellant and Khadim Hussain complainant preceding the passing on of the money.
Khadim Hussain P.W.2 in his examination-in-chief stated that he had passed on the tainted currency notes to the appellant. In cross-examination, he admitted that the tainted currency notes were given by him to Rao Jamshed. Muhammad Afzal, Head Constable, P.W.3 has categorically stated that Khadim Hussain P.W. Had even the currency notes to Rao Jam:shed, who further passed on the same to aqa Muhammad appellant from whom the same were recovered by the agistrate.
Muhammad Afzal, Head Constable, was neither declared hostile nor any request for declaring him hostile was made by the prosecutor. In view of the divergent statement made by Khadim Hussain complainant and clear statement of Muhammad Afzal, Head Constable, P.W.3 that Khadim Hussain had given the currency notes to Rao Jamshed, who further gave to appellant, the reasonable possibility of defence version being true, cannot be excluded.
' For what has been said above, while giving him benefit of doubt the appellant is acquitted of the charge. He stands discharged of the bail bonds. .