MIAN ABDUL KHALIQ, J.- This criminal appeal has been filed against the judgment of learned Special Judge (Central), Lahore dated 7.9.1989 whereby the appellant was convicted and sentenced under section 161 PPC and Section 5 (2) 47 of P.C.A, to undergo two years R.I.
2. Briefly the prosecution case is that on 23.11.1981 Muhammad Sharif PW1 lodged FIR Ex.PA which was recorded by Hakim Ali DSP PW4 wherein the complainant had alleged that he had applied for electricity connection which had been sanctioned and the case was lying with S.D.O. The appellant demanded Rs.4000/- as illegal gratification for electricity connection and latter on he demanded Rs.2000/- Rs. 1000/- in advance and Rs. 1000/- after start of functioning the tube-well. On 12.11.1981 the appellant had asked the complainant that if he would make payment of Rs.1000/- as illegal gratification he would get sanctioned order from the S.D.O. The complainant had further alleged {hat he promised to pay Rs.1000/- to the appellant. As he was not willing to pay the illegal gratification he reported the matter to the Police whereupon FIR Ex.PA was recorded by PW4. PW4 moved an application-to the A.D.C.(G), Sialkot for deputing some Magistrate to supervise the raid.
PW5 Zamurd Khan, MIC was deputed to do the needful, who recorded the statement of the complainant Ex.P.I/1 and also marked ten currency notes of denomination Rs.100/- each marked PI to P10 and returned to the complainant. Thereafter at about 12 noon the raiding party under the supervision of PW4 reached near the office of WAPDA. The complainant entered into the WAPDA office and the other members stayed in front of the same. After some time the Magistrate and the SI entered into the WAPDA office. The complainant made the agreed signal whereupon the Magistrate introduced himself and had recovered the tainted money and secured PI to P10. The appellant was Federal employee, resultantly, another FIR Expwy/l was recorded by F.I A. After receipt of the sanction order Expwy/3.
3. The appellant was challaned and sent up for trial. Charge under section 161 PPC read with Section 5(2) 47, PCA was framed against the appellant to which he denied and claimed trial.
4. Prosecution examined 5 P.Ws in all to substantiate its case. PW1 the complainant narrated the facts mentioned by him in F.I.R. Ex. PA. PW2 Imtiaz Gull, SDO, produced the i.e of case No. 440/TW dated 8.9.1979 which was secured by PW4 vide memo Expwy/l. PW3 Tasarraf Hussain, S.I. FIA, registered FIR Expwy/l on the basis of case FIR No. 23/1981 at P.SACE, Sialkot. He recorded the statement of P.Ws and Kafait Hussain Inspector had submitted the challan on the receipt of sanctioned order. PW4 Hakim Ali, DSP had stated that he recorded the formal FIR Ex.PA/1 on the statement of PW1 and thereafter had moved the A.D.C.(G) Sialkot who had deputed vide order Ex.PB Zamurd Khan, MIC PW5 to supervise the raid. PW5 Zamurd Khan, MIC had recorded the statement of complainant PW1 Ex.P.I/1 and had marked the currency notes PI to P10 and proceeded along with the complainant PW1, and PW4 Hakim Ali DSP to the spot. After signal from the complainant raided the appellant and secured the tainted currency notes PI to P10 from him.
5. The appellant had denied of having accepted the currency notes PI to P10 as illegal gratification.
6. The appellant when examined under section 342 Cr.P.C, denied the prosecution evidence against him and produced 4 D.Ws including himself. He also opted to make statement as envisaged under section 340(2) Cr.P.C.
7. The learned trial Court had convicted and sentenced the appellant.
8. Heard. Record perused. PW4 Hakim Ali, DSP the member of the raiding party has stated that at the time of apprehension of the appellant he offered assistance and case was registered under section 186 PPC. He proceeded with PW5 to WAPDA office where the tainted money was passed to the appellant by the complainant PW1. PW5 Zamurd Khan, MIC, had stated that PW4 was present with him when the complainant informed the passing of tainted money PI to P10 to the appellant.
He has stated that he had neither heard the conversation between the complainant and the appellant nor he had viewed the passing of tainted money. PW4 DSP states that he was present with PW5 at the relevant time. It is crystal clear from the evidence on record that both of term neither heard the conversation between the appellant and the complainant nor had witnessed the passing of tainted money.
9. Pursuant to the above I am of the considered view that the prosecution had failed to establish its case beyond doubt and giving the benefit of doubt, acquit the appellant of the charge- The appellant is on bail his bail bonds are discharged.