' This appeal is directed against the judgment of Additional District Magistrate/Special Judge, Jhelum, dated 22nd June 1970, whereby Muhammad Alam appellant was convicted under section 165-A, P. P. C. And sentenced to undergo rigorous imprisonment for one year.
2. A traffic checking party consisting of Bahadur Shah, Head Constable (P. W. Rehmat Khan, Constable (P. W. 3), Rana Yount Ahmad Kbsn, D. S. P. (P. W. 4), and Ch. Muhammad Nawaz Hasrat, Magistrate, P. W. 5 was present near Rathian, on the G. T, Road, on the night between 28/29.5-69, at 2-00 a m. Muhammad Alam appellant came to that place driving truck No, PRA/2340. He was stooped by Bahadur Shah, Head Constable Rehmat Khan Constable !P. W. 3) and Masood Khan LINK, were also present with him. The appellant was asked to show the papers, who took out note P.
1 of the denomination of Rs, 5 from the pocket and offered it to Bahadur Shah, Head Constable as illegal gratification. The Head Constable produced the appellant and the currency note before Lt. Rashid Ahmad (not produced) and Rana Yousaf Ahmad Khan, D. S. P. (P. W. 4), Bahadur Shah, Head Constable made statement Exh. P. A. The currency note P. 1 was taken into possession vide memo.
Exh. P. B. The S. H. O. Was directed to register the case under section 165.A, P. P. C. The appellant was challaned after investigation.
3. The prosecution examined five witnesses in support of the case. Bahadur Shah, Head Constable (P. W. 2), Rehmat Khan F. C. (P, W. 3), Rana Yousaf Ahmad Khan (P. W. 4) and Ch. Muhammad Nawaz Hasrat, Magistrate (P. W. 5) supported the prosecution case.
4. The appellant denied to have handed over note P. 1 as illegal gratification to Bahadur Shah, Head Constable. He explained that his documents were complete in every respect and when he brought out the documents from the pocket a currency note of Rs, came along those documents and said note fell on the ground and it was picked up by the military personnel, who stated that I had offered it as illegal gratification to the Head Constable. He, further explained that he did not pass on any illegal gratification to the Head Constable. He produced Muhammad Zaman (D. W. 1), in his defence, who supported his version. The Traffic checking party was present to check the documents and the vehicles. In case the appellant had been guilty of any offence under the Motor Vehicles Ordinance, he would have been challaned for that offence. Since the appellant was not challaned for any of the offeeces under the Motor Vehicles Ordinance, one is bound to presume that be was not guilty of any offence and there was no occasion for passing on the illegal gratification. The statements of Bahadur Shah, Head Constable and Rehmat Khan, Constable, are at variance. Bahadur Shah, Head Constable, stated in Court that he asked the appellant to produce the relevant documents of the truck whereupon the appellant offered currency note P. 1 and requested him that he should be allowed to leave the place along with the truck. During cross- examination, the Head Constable stated that the appellant had not produced the documents before him till he offered the currency note. He showed ignorance if the documents of the truck were checked laser on by some officer. He was certain that he bad not checked those documents.
Rehmat Khan, Constable (P. W. 3) contradicted him by stating that Bahadut Shah, Head Constable was checking the documents of truck and the appellant after getting down from the truck, produced some papers. This clearly proves that the documents of the truck were duly checked by the Head Constable. If the documents had not been complete, the appellant would have been challaned. The Magistrate, D. S. P. And the Lieutenant were present at some distance. They did not know as to what talk took place between the Head Constable and the appellant. Head C mstable complained against the appellant by stating that he had passed on illegal gratification. The explanation of the appellant that when he brought out the documents from his pocket, currency note of Rs, 5 also came along with the documents, is quite plausible and when the currency note was seen by the Head Constable, he might have thought that it had been offered to him as illegal gratification. The explanation of the appellant seems reasonable especially in the circumstances that his documents were complete and he had not committed any offence under the Motor Vehicles Ordinance. The appellant was not given any opportunity at the spot to explain his position.
In view of the evidence on record, I cannot hold that the prosecution succeeded in proving beyond doubt that the appellant had passed on Rs, S as illegal gratification to Bahadur Shah, Head Constable for showing any favour. The appellant is entitled to the benefit of doubt.
5. For the aforesaid reasons, I accept this appeal and set aside the judgment of the learned Additional District Magistrate/Special Judge. The appellant is acquitted of the charge. He is on bail.
He is discharged of the bail bond.