' This criminal appeal calls into question the validity of the judgment dated 6-11-1985, whereby the learned Special Judge (Central), Lahore convicted the appellant under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to 3 months' R.I. With a fine of Rs,1,000 or in default whereof to suffer one month's R.I. Further.
2. Briefly, the story of the prosecution is that Abdul Hameed appellant while working as a peon in the office of the Chief Engineer, Electricity, WAPDA, Multan demanded bribe of Rs,800 from Wahid Bakhsh complainant (P.W.4) for getting an electricity meter installed for fodder machine of his brother Allah Ditta P.W. (not produced) vide Application No, 63, dated 1-2-1979. The appellant came to the house of the complainant and received Rs,800 and promised to have the connection installed, but later on delayed the matter on one pretext or the other. A day earlier to the raid he again demanded Rs,200 more as illegal gratification, out of which Rs,100 was to be paid immediately and the remaining Rs,100 after the installation of electric meter. As complainant did not want, to pay the said bribe, he contended for a raid to be conducted in that respect. The Magistrate along with the raiding party apprehended the appellant red-handed as alleged, and recovered the tainted money vide Exh.P.W.1/4, and got a case registered against him under section 161, P.P.C. Read with section 5(2) of the Prevention. Of Corruption Act, 1947. His statement recorded thereafter at the spot in Exh.P.W.1/5 wherein he denied to have accepted the amount as bribe. He was tried by the Special Judge (Central), Lahore, who after taking into consideration the evidence on the record of the case convicted the appellant under section 161, P.P.C. Read with section 5(2), P.C.A. 1947 and sentenced him to 3 months' R.I. And 2 fine of Rs,1,000 or in default thereof to undergo one month's R.I. Further.
3. The learned counsel for the appellant and the State were heard at length and the record of the case perused with their assistance. The acquittal of the appellant was contended on the ground that Fazalur Rehman (P.W.1) had categorically stated in his cross-examination that he had neither overheard the conversation between the complainant and the accused regarding the demand of tainted money nor had he witnessed the passing thereof to the appellant by the complainant P.W.4 Wahid Bakhsh, whereas the complainant had failed to produce Inspector Syed Habib Haider, thus leaving the prosecution with the interested and inimical testimony of the complainant P.W.4 Wahid Bakhsh only to prove the charge against the appellant which is not sufficient to sustain his conviction.
4. The Court has gone through the entire evidence on the record and has taken notice of the fact that P.W.2 AmamiIlah Abid had produced the connected case of Allah Ditta consisting of seven leaves Exh.P.W.2/1 to Exh.P.W.2/7 and P.W.3 Jaffar Ali, cultivator, who were not in any case, the eye- witnesses of the occurrence or otherwise supportive of the charge against the appellant, and that in fact, P.W.3 Jaffar Ali was forced to concede during cross-examination that he had executed an affidavit Exh.D.A. Thus, demolishing his testimony of whatever nature. Further, notice has been taken of the fact that Syed Habib Haider, Inspector was not produced by the prosecution to support its case against the appellant and that it has been recorded by the learned trial Court to the effect that despite being served through process-server, the said prosecution witness had failed to comply therewith and as the case was 5 years old, therefore, the prosecution evidence was closed on 22-7-1985 without giving any further chance for the production of said Syed Habib Haider, Inspector as a prosecution witness, and that the other member of the raiding party, Fazalur R"hman, M.I.C. (P.W.1) had categorically stated in his cross-examination as follows:-- "I could not see the passing of the money and overhear the talk between the complainant and the accused. The complainant gave the signal from a distance of about 50 yards. At that time, the accused was inside the office."
Therefore, the Court is constrained to observe that the only member of the raiding party produced namely Fazalur Rehman, M.I.C. (P.W.1), in addition to the complainant (P.W.4) fails to prove the case of the prosecution against the appellant as charged herein. In this respect, it is further observed that the testimony of P.W.4 Wahid Bakhsh complainant also suffers from material discrepancy to the effect that he had stated in his testimony that the illegal gratification, in the first instance, had been demanded by one Saeed, Clerk, but was forced to concede that he had not stated so in his statement under section 161, Cr.P.C. When confronted with Exh.D.B. And, further taking into consideration that one Nawaz stated to be present along with the complainant Wahid Bakhsh (P.W.4), had not been produced to corroborate his testimony, fully establishes the failure of the prosecution to prove its case against the appellant beyond reasonable doubt. Therefore, it is observed that mere recovery of tainted money cannot sustain the conviction of the appellant. In this respect support is drawn from Amir Ahmad v. The State 1984 PCr.LJ,2388 and Abdul Hamid v.
The State 1984 PCr.LI 2774, wherein it has been held that recovery of money could not be assumed or presumed to be bribed money. Mere recovery is not sufficient. Although the statement of the appellant might be a remote possibility, but as the prosecution failed to prove all the essential ingredients of section 161, P.P.C. And section 5(2) of the Prevention of Corruption Act, 1947, the appellant must be given the benefit of doubt.
5. Pursuant to the above discussion the present criminal appeal is hereby allowed and the impugned judgment is set aside. Resultantly, the appellant stands acquitted of the charge. He is on bail, his bail bond stands discharged accordingly.