' Ehtisham Abbas Kazmi, a clerk in Registration Office, Gujranwala, was sent up for trial by Police Station A.C.E., Gujranwala, for an offence under section 161, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947. Special Judge (Central), Lahore, vide judgment, dated 16-4-1989 convicted and sentenced him under section 161, P.P.C. Read with section 5(2) of P.C.A., 1947, to three months' R.I. The convict has appealed. This judgment shall dispose of the same.
2. Prosecution story in brief, as given in F.I.R. Exh.PA., was to the effect that complainant Zafarullah moved an application before the Authorities that Inspector (Registration) was demanding Rs,300 as illegal gratification for issuance of National Identity Card, which he did not wish to pay. On the basis of said application, a raiding party was constituted, which was supervised by Mr. Ali Aqdas, Magistrate 1st Class, Gujranwala. Said Magistrate on 18-10-1979 recorded the statement of Zafarullah vide Exh.P.W.1/1, wherein he again asserted that Inspector (Registration) was demanding illegal gratification of Rs,300. Thereafter, the Magistrate noted down the numbers of currency notes which were in the denomination of Rs,100 each, and sent the first informant into the office. The raiding party saw Zafarullah, complainant, talking to somebody who was clad in red coloured bushirt. The raiding party could not hear the conversation. After a while, the complainant gave signal to the raiding party indicating that he had passed on money. The said person was apprehended from the spot. From his pocket Rs,200 were recovered. On comparison they were the same notes that were given to the complainant. Thereafter statement Exh.P.F. Of the first informant was once again recorded and then statement of Ehtisham -Abbas Kazmi was recorded vide Exh.P.G., wherein he refuted the allegations and stated that he had taken the money on the directions of the Inspector. After usual investigation challan was submitted in Court.
' The prosecution recorded some evidence in the year 1984/85 when co-accused of the appellant absconded, therefore, the case was tried all over again. Prosecution in support of its case produced four witnessed in all. P.W.1 Muhammad Aslam stated that he was Circle Inspector, A.C.E., Gujranwala, when complainant Zafarullah came to him and lodged a complaint. He moved application Exh.P.B., whereupon a Magistrate was deputed to supervise the raid. Said Magistrate supervised the raid and accused was arrested at the spot and from his possession currency notes P.1 and P.2 were secured from the left pocket of his trousers. A form-A and two photographs of Sahib Khan were also recovered from the back pocket trousers of the appellant. The Magistrate also recorded the statement of the appellant. In cross-examination, he admitted that he could not hear the conversation which took place. He further stated that he had not seen the money changing hands. P.W.2 Mr. Ali Aqdas, Magistrate, corroborated the version of the Inspector and gave detailed account of the raid the way he had supervised. P.W.3 Ejaz Ahmad Bajwa, Inspector, F.I.A. Had investigated the case and submitted the challan in Court. P.W.4 Zafarullah stated that he wanted to get National Identity Card of one of his relations. He contacted Abdur Razzaq, Inspector (Registration), who demanded Rs,300 as illegal gratification but the bargain was struck at Rs,200 which were to be paid on the following day. Since he did not wish to pay the same, therefore, he got the present case registered. He further stated that he went into the office of Abdur Razzaq, Inspector and offered him money, which he did not accept and directed him to pay the same to a person standing outside his office wearing red coloured bushirt. He accordingly handed over the money to the said person. In cross-examination, he admitted that Ehtisham was not present in the room where Abdur Razzaq was sitting nor was he present when the bargain was struck. He further admitted that Ehtisham had not even overheard the conversation nor in his presence he was directed by the Inspector to receive the money.
' At the conclusion of prosecution evidence, the appellant denied the prosecution allegations and pleaded innocence. He also declined to produce any defence evidence.
3. It was contended by learned counsel for the appellant that prosecution has not been able to prove its case beyond doubt at all. Argued that even if the entire prosecution evidence was accepted, yet involvement of the appellant remained extremely doubtful. Argued that basically the appellant should have been a prosecution witness against the Inspector who had since absconded. The contentions were opposed by learned counsel for the State.
4. I have heard the learned counsel and gone through the evidence with his assistance. As far as the Magistrate and the Inspector, who supervised the raid, arc concerned, their evidence may not be of much help. They did not see the money changing hands nor heard the conversation which took place between the appellant and the complainant. They also did not hear the conversation between the Inspector (who has since absconded), and the complainant. Their evidence is only to the effect that tainted currency notes were recovered at the instance of the appellant which in itself would not advance the prosecution case in any manner. The only witness who has involved the appellant, is Zafarullah, P.W.4. According to him, he was directed by Abdur Razzaq, Inspector (Registration) to hand over the money to a person wearing red coloured bushirt. At that stage, the complainant did not know the appellant neither by face nor by name nor by his designation. There is no evidence to show that the appellant had been directed by Abdur Razzaq, Inspector, to receive the money as illegal gratification. There is no evidence to suggest that there was any communication between Abdur Razzaq, Inspector, and the appellant. In the absence of this important factor, even if it be accepted that tainted currency In the absence of this important factor, even if it be accepted that tainted currency notes were recovered from the possession of the appellant, it could not mean that the same were received as illegal gratification for showing some favour to the complainant. It is most unnatural that the appellant received the money without saying a word. This is apparent from the fact that the Magistrate and the Inspector did not hear the conversation and the complainant has not said a word what transpired between them. In these circumstances, I feel the conviction and sentence of the appellant is not free from doubt, therefore, his appeal is accepted and the sentence is set aside. He is on bail. His bail bond shall stand discharged.