P L D 1963 (W (PLP)

It may be mentioned that Waggan is, admittedly, about forty miles from Dokari. The incident is said to have taken place at about 7 p.m. on the 19th July 1960. If the statement of Mr. Abdul Rab is accepted, the appellant could not have been at the scene of offence at the time alleged by the prosecution and accepted the money. The learned Special Judge did not beleive the statement of Mr. Abdul Rab. It would be necessary to examine the validity and the reasonableness of the grounds on which the learned Special Judge discarded the statement of Mr. Abdul Rab. It would be useful in this connection to reproduce the comment of the learned Special Judge in his own words. It runs as under "Amongst the defence witnesses, the most important one is Mr. Abdul Rab (D. W. 1), who was then Superintendent of Police, Larkana. He deposes that Abdullah Khan called on him at his camp at Dokri, which is 40 miles from Waggan, on 19th July 1960, at 7 p.m. and requested leave, that he replied to him that it had already been sanctioned and that he could go. The leave application is not produced. The prosecution has produced a letter dated 21st July 1960 (Exh. 26), over his signatures, in which he has asked the S. I. P. Nasirabad to direct Abdullah Khan to meet him. They have also got produced Abdullah Khan's suspension order (Exh. 25), dated 1‑8‑1960, over Mr. Abdul Rab's signatures, in which his (Abdullah Khan's) involvement in a bribery case has been given as the reason for his suspension. Mr. Abdul Rab has given evasive replies to all the questions put to him by the prosecution with regard to the two Exhs. 25 and

26. He says that he does not remember that the letter was written by him at the verbal request of the Anti‑Corruption Inspector and that accused Abdullah Khan was suspended because he was entrapped for taking a bribe. It is strange that he remembers all right that the accused met him at Dokri on 19th July, at 7. p.m. Mr. Abdul Rab was Superintendent of Police, Larkana until 2nd August 1960. It is absurd that he did not know that he, suspended Abdullah Khan for a bribe alleged to have been accepted by him on 19th July. If it were true that accused Abdullah Khan was with Mr. Abdul Rab at Dokri at 7 p.m. on 19th Juty, he would not have ordered his suspen sion. On the contrary, he would have certainly taken to task Mr. Allah Rakhiyo, who was his own D. S. P. for participa ting in the fabrication and reported against Inspector Muhammad Ayub and Head Munshi Muhammad Amin and moved the Deputy Inspector‑General of Police not to sanction the prosecution of Abdullah Khan. Mr. Rab's conduct in the matter is regrettable. His evidence is unbelievable. He has deposed falsely for reasons best known to himself. Inference, adverse to accused Abdullah Khan, can be drawn from his conduct in absconding from Waggan from the 19th July onwards, Mr. Abdul Rab would not have written the letter Exh. 26 to S. I. P. Nasirabad, if he had granted leave to accused Abdullah Khan." It would appear on a fair analysis of the observations of the learned Special Judge that he has belittled the statement of the S. P. on the following grounds (i) that Mr. Abdul Rab has given evasive replies to all the questions put to him by the prosecution with regard to Exhs. 25 and 26 ; (ii) that it is strange that he remembers that the appellant met him at Dokri on 19th July at 7 p.m. ; (iii) that it is absurd that the S. P. did not know that he had suspended Abdullah Khan for accepting the alleged bribe ; (iv) that if it were true that Abdullah Khan was with the S. P. on 19th July at 7. p.m., he would not have ordered his suspension ; (v) that he would have moved the Deputy Inspector‑General of Police to refuse the sanction for the prosecution of Abdullah Khan ; and (vi) that the S. P. would not have written the letter Exh. 26 to S. I. P. Nasirabad if he had granted leave to Abdullah Khan. I propose to consider these grounds separately.

9. I have gone through the statement of Mr. Abdul Rab. I do not think that it can be said that the replies in respect of Exhs. 25 and 26 are evasive. What is meant by an evasive reply is that the witness does not want to disclose the truth. The witness stated in respect of Exh. 25, the order of suspension, as under :‑ "I must have suspended the accused on a report from the Anti‑Corruption Police. I produce my order as Exh.

25. The order was passed on 1‑8‑1960 and thereby accused Abdullah Khan was suspended with effect from 26‑7‑1960, the date of his arrest." This cannot be said to be an evasive reply. Exh. 26 is a letter by the S. P. directing the S.H.O. Nasirabad, to ask Abdullah Khan to see him (S.P.) on 21st July 1960. The answer given by the S. P. to the question put in respect of this letter runs as under "I produce a letter to the S. H. O. Nasirabad as Exh.

26. It bears my signatures. By this letter I asked the S. H. O. to direct Abdullah Khan to see me. The letter is dated 21‑7‑1960." No other question was put in respect of Exh. 26 to the witness. I do not think, considering the replies given by the witness in respect of Exhs. 25 and 26, that he was avoiding to give his answer in order to conceal the truth.

10. The surprise of the learned Special Judge that Mr. Abdul Rab remembered the date and hour when the appellant met him is not well‑founded. The learned Special Judge forgot to note that Abdul Rab stated that he remembered the date and hour when he met Abdullah because there was a volley‑ball match on that date. He had stated that he was coming back after playing some game.

11. The remark of the learned Special Judge that it was absurd that the S. P. did not know that he had suspended Abdullah Khan for the alleged bribe is not well founded. A reference to the statement of the witness would disclose that he had suspended the appellant on report from the Anti‑Corruption Inspector of Police.

12. The learned Special Judge doubted the statement of the S. P. on the ground that if it were a fact that he (S. P.) had met Abdullah Khan on 19th July at 7 p.m. he would not have suspended him. A reference to the statement of the S. P. would indicate that he was bound to suspend Abdullah Khan under any circumstance. At any rate, no question in cross‑examination was put to the S. P. to explain as to why he suspended the appel lant when it was within his knowledge that Abdullah Khan could not have accepted the bribe at the alleged hour as he was with him.

13. A doubt has been cast on the statement of the S. P. by the learned Special Judge on the ground that he should have reported to the Deputy Inspector‑General of Police not to grant sanction for the prosecution of the appellant. In the first place, the S. P. should have been asked by the learned Judge to explain as to why he did not write to the Deputy Inspector‑General of Police that he should not grant sanction for the prosecution of the appellant. In the second place, the S. P. could not arrogate to himself the power of the Court by requesting the D. I. G. not to sanction the prosecution. One Abdullah Khan was alleged to have accepted the bribe it was for the Court to hold whether he was guilty or not. It would not have been proper for the S. P. to write to the D. I: G., on the ground that Abdullah had met him on 19th July 1960 at 7 p.m. when the alleged incident is said to have taken place, and therefore he should not grant the sanction. It is for the Court to accept or reject the alibi of the accused.

14. Lastly the fact that if Mr. Abdul Rab had given leave to the appellant he would not have written the letter Exh. 26 directing the S. H. O. to ask Abdulllah Khan to see him on 21st July 1960. In the first place, the very fact, that it was addressed to the S. H. O. to ask Abdullah Khan to see the S. P. on 21st July 1960, would indicate that Abdullah Khan was not supposed to be present in the police station. If, he was present in the police station, the letter would have been addressed to Abdullah Khan directly, as he was an A. S. I. P. in that police station. In the second place, even if Abdullah Khan was on leave, the only way to get him was to write to the S. H. O. Nasirabad who would have known his home address.

15. For the reasons that I have given above, I do not think, in the absence of any suggestion in the cross‑examination of the S. P. as to why he would support an A. S. I. P. who had been charged of an offence of bribe, to accept the view that was taken by the learned Special Judge. No reason whatsoever has been suggested much less made out as to why the S. P. would falsely support the plea of alibi of the appellant. To discard the state ment of the S. P. on the mere ground that he did not give very pointed answers to some of the questions put to him would not be reasonable.

16. Considering the evidence led by the prosecution and the defence witnesses I have come to the conclusion that the appellant must be given the benefit of the doubt. I would, for the reasons that I have already given, set aside the conviction and sentences passed on the appellant. The appellant is on bail, the bail bond is cancelled.

17. The Miscellaneous Application No. 112/61 relates to expungement of certain remarks made by the learned Judge against Mr. Abdul Rab. As the judgment containing the said remarks has been set aside the application has become infructuous. It is accordingly disposed of. K B A. Appeal accepted.