' Saghir Hussain Shah, appellant, was convicted by Special Judge, Anti-Corruption, Rawalpindi, Camp at Campbellpur, on 24th January, 1976, under section 5 of the Prevention of Corruption Act, 1947 and sentenced to undergo rigorous imprisonment for three months.
2. The appellant was posted as dispenser, Veterinary Hospital, Campbellpur, in the month of July, 1971. Fazal Dad complainant (P. W. 2) met Saghir Hussain Shah, appellant, for the treatment of his she-donkey but the appellant demanded Rs, 10 as illegal gratification. The complainant informed Muhammad Siddiq, Sub-Circle Officer, Anti-Corruption Establishment, Campbellpur, on 17-7-1971, about the demand of illegal gratification made by the appellant. The Sub-Inspector took the complainant to the District Courts. Mr. M. S. Zaidi was deputed to supervise the raid, but he had an urgent official work at Pindi. Rana Muhammad Rafiq, Magistrate, was then deputed to supervise the raid. It bad become late and thus the raid was postponed to 19-7-1971, on the said date, the Sub- Inspector produced Fazal Dad, complainant, before the Magistrate who recorded his statement Exh. P. B. The Sub-Inspector handed over six currency notes, one of the denomination of Rs, 5 and five of the denomination of Re. 1 each to Fazal Dad complainant. The complainant produced those notes before the Magistrate who returned the same to the complainant after noting :heir serial numbers. The raiding party which consisted of the Magistrate, Fazal Dad, complainant, Muhammad Siddiq S. I. And Aurangzeb Constable, reached at a distance of 100 yards from the Veterinary Hospital from where the complainant was sent to pass on the illegal gratification to the appellant.
The other members of the raiding party stood near the wall of the Veterinary Hospital which was five feet high. The complainant entered the hospital and met the appellant. Both of them came to the Veranda. The complainant passed on the tainted currency notes to the appellant who talked to the complainant for 2/3 minutes and then entered his room. The members of the raiding party reached the spot. In the meantime the appellant had come out of the room. The Magistrate introduced himself to the appellant and searched his person but nothing was recovered from the personal search. The Magistrate went into the room of the appellant and took out Rs, 10 from the drawer of the table. The numbers of those notes tallied with the numbers which the Magistrate had already noted down. Statement of the appellant Exh. P. D. Was recorded. He was arrested. The Magistrate recorded the raid report and handed it over to the Sub-Inspector along with the currency notes and other documents for further action. T1 e currency notes were taken into possession vide Nano. Exh. P. C. The case was investigated. The challan was submitted against the appellant.
3. The accusation was put to the appellant who denied its correctness.
4. The prosecution examined four witnesses in support of the case. Fazal Dad, complainant, was examined as P. W.
2. He made statement as narrated above. Rana Muhammad Rafiq, Magistrate. (P. W. 1) and Muhammad Saddique, Sub-Circle Officer (P. W. 3) corroborated the statement of the complainant.
Raja Muhammad Sarfraz, Circle Officer (P. W. 4) partly investigated the case and the challan was produced.
5. The appellant was examined under section 342, Cr. P. C. He denied to have received Rs, 10 as illegal gratification. He denied the recovery of the tainted currency notes from his possession. He explained that the currency notes had been recovered from the drawer of his table. He also stated that when he had gone to fetch the medicine, the complainant placed the currency notes in the drawer of his table. He attributed the case to party-faction with the other employees of the department. He produced Zahid All Shah, Veterinary Dressor, (D. W. 1) and Ghulam Haider, Stock Assistant, Veterinary Centre, (D. W. 2) in his defence. Both the defence witnesses stated that the tainted currency notes had not been recovered from the possession of the appellant. Zahid All further stated that the notes had been recovered from the drawer of the table. The defence evidence was of no significance because the prosecution case was aslo to the effect that the money had been recovered from the drawer of the table of the appellant and not during his personal search.
6. The learned Special Judge took into consideration the statement of the complainant and the Magistrate and came to the conclusion that the case stood proved against the appellant. It was further observed in the impugned judgment that the appellant failed to show any connection between the complainant and his colleagues who were hostile towards him. According to the learned Special Judge, the complainant was disinterested witness and his statement was corroborated by the Magistrate who saw the passing of the illegal gratification.
7. The Magistrate was present at a distance of about 200 yards from the place where the bribe- money was passed on to the appellant. The Magistrate did not hear the talk which took place between the complainant, and the appellant at the time of the passing of the illegal gratification.
The bribe-money had not been recovered from the possession of the appellant. It was recovered from the drawer of the appellant which was not locked. The currency notes could easily be planted on the appellant. It was not possible for the Magistrate to have clearly seen from the distance of 200 yards the passing of the tainted currency notes. He could simply see that something had been passed on to the appellant. He was present at a considerable distance and was looking towards the spot from over a wall which was five feet high. 1 do not feel satisfied with the prosecution evidence and cannot hold that the prosecution succeeded in bringing home the guilt to the appellant. Since the Magistrate was at a distance of 200 yards from %here it was not possible for him to clearly see that the currency notes had been passed on to the appellant and for the reason that the tainted currency notes had not been recovered from the person of the appellant and the currency notes could be planted on the appellant by placing the same in tie drawer of his table, which was not locked, I accept this appeal, set aside the impugned judgment and acquit the appellants The appellant is on bail. He is discharged of his bail bond.