P L D 1954 Sind 256 (PLP)

MUHAMMAD BAKHSH, J.‑Appellant Sajid Ali Khan has been convicted by the Special Judge, Government of Pakistan, Karachi (Feroze Nana Ghulamali) under clauses (a) and (d) and subsection (3) of section 5 of the Prevention of Corrup tion Act II of 1947 (hereinafter called the said Act), and sentenced to suffer Rigorous Imprisonment for a period of 12 months, and to pay a fine of Rs. 35,000 in default to suffer Rigorous Imprisonment for 12 months more. Appellant Inayat Hussain Shah has been convicted under Clauses (a) and (d) of section 5 of the said Act read with section 109 P. P. C. and sentenced to suffer Rigorous Imprison ment for a period of 12 months and to pay a fine of Rs. 1,000 in default to suffer Rigorous Imprisonment for 12 months more. The two appellants have come in appeal. We may immediately remark here that the conviction of the first appellant under subsection (3) of section 5 of the said Act is wrong because this subsection does not create any offence. The offence of criminal misconduct is created by subsection (1), and Clauses (a), (b), (c) and (d) of that subsec tion define in what cases a person is said to commit the offence of criminal misconduct. Subsection (2) provides punishment for the offence of criminal misconduct, subsection (3) lays down a rule of evidence in such cases and subsection (4) relates to a procedure in police investigation. It is on account of this reason that the appellant was not charged with offence under subsection (3) of section

5. We may also remark that the learned trial judge fell into an error when he charged the appellants with offences punishable under Clauses (a) and (d) of section 5 of the said Act and convicted them therefore. The correct charge would have been under Clauses (a) and (d) of subsection (1) of section

5. We are of the opinion, however, that the trial is not vitiated on account of this error, as no prejudice has been caused to the appellants who clearly understood what the prosecution case against them was. This defect can be cured under section 537 Cr. P. C. We are also of the opinion that it could have been avoided if the learned judge had taken the trouble of framing a proper charge himself. The form of charge in this case is very novel indeed, and it departs altogether from the usual way in which a charge is always framed. The form of a charge is given in Ratanlal's Law of Crimes under every section in this case, we find two separate charges in one case, drawn up and signed by the Public Prosecutor (Mr. Sami), and the learned Judge has simply exhibited them, also separately, as Exhibits 1 and

2. It is necessary to reproduce the two charges here :‑ Ex.

1. Charge against Mr. Sajid Ali Khan. That you Mr. Sajid Ali Khan, Assistant Collector of Customs, being a public servant on or about 31st August 1950 at Karachi, obtained and accepted Rs. 35,000 from Mr. Rashid Ahmad Dar, of the Union Agencies, Karachi through Mr. Inayat Hussain Shah, as illegal gratification other than legal remuneration, as a motive and reward for showing favour to the said Rashid Ahmad Dar in the matter of the unlawful export of Gram in August, 1950, in contravention of the directions of the Government of Pakistan and by abusing your position as such public servant you obtained pecuniary advantage for the said Rashid Ahmad Dar and thereby committed offences punishable under section 5 (a) and (d) of Act II of 1947 and within the cognizance of the Special Judge, Karachi. (Sd.) S. M. A. Sami, 31‑3‑1952 "Crl. Spl. Case No. 1/52 Exhibit No. 1 Produced by date 31‑3‑1952 (Sd.) Feroze Nana Ghulamally Special judge ___________________________________________________________________ Exh.2 Charge against Mr. Inayat Husain Shah. That Mr. Sajid Ali Khan, Assistant Collector of Customs, Karachi; on or about the 31st August, 1950 at Karachi, committed the offence of criminal misconduct punishable under section 5 (a) and (d) of Act II of 1947, and that you Mr. Inayat Hussain Shah of the firm Quickways, Karachi on or about the 31st of August, 1950 at Karachi abetted the said Mr. Sajid Ali Khan in the commission of the said offence of criminal misconduct in consequence of your abetment and you have thereby committed an offence punishable under section 109 P. P. C. and section 5 (a) and (d) of Act II of 1947 and within the cognizance of the Court of the Special Judge, Karachi. (Sd.) S. M. A. Sami 31‑3‑1952 Crs. Spl. Case No. 1/52 Exhibit No. 2 Produced by Date 31‑3‑1952. (Sd.) Feroze Nana Ghulamally Special Judge We consider this manner of charge to be altogether wrong. When the two appellants were jointly tried in the same case, one for the commission of the offence of criminal misconduct and the other for the abetment thereof, there should have been only one consolidated charge and it should have been drafted in the following manner :‑ " I, Feroze Nana Ghulamally, Special Judge, Government of Pakistan, hereby charge you as under :‑ That you Mr. Sajid Ali Khan on or about 31st August, 1950 at Karachi, being a public servant to wit, Assistant Collector of Customs, Karachi, obtained and accepted Rs. 35,000 from Mr. Rashid Ahmad Dar, of Union Agencies Karachi, through Mr. Inayat Hussain Shah, as illegal gratifica tion, other than legal remuneration, as a motive and reward for showing favour to the said Rashid Ahmad Dar in the matter of the unlawful export of gram in August 1950 in contraven tion of the directions of the Government of Pakistan and by abusing your position as such public servant you obtained pecuniary advantage for the said Rashid Ahmad Dar and thereby committed offences punishable under clauses (a) and (d) of subsection (1) of section 5 of the Prevention of Corruption Act 1947 and within the cognizance of this Court, and I hereby direct that you be tried by me on the said charges: That you Mr. Inayat Hussain Shah abetted the said Mr. Sajid Ali Khan in the commission of the said offence of criminal misconduct and you thereby committed an offence punishable under clauses (a) and (d) of subsection (1) of section 5 of the Prevention of Corruption Act 7947 read with section 109 P. P. C., and within the cognizance of this Court, and I hereby direct that you be tried by me on the said charges." The importance of framing a proper charge in the case cannot be over‑emphasised, and we hope that the subordinate Courts will in future take proper care in this behalf. There is no legal sanction behind a charge drafted and signed by the Public Prosecutor and the Court merely admitting, exhibiting and initialling the same. It is always the Court which has to charge the accused and not the Public Prosecutor. The Court is of course entitled to take such assistance from the Public Prosecutor as is considered necessary, but the duty can neither be transferred nor surrendered. In a recent case, a Division Bench of this Court, of which one of us was a member, had to order a retrial because the Public Prosecutor had drafted a bad charge and the trial judge had taken no personal interest in it. There is also one other important circumstance in this case to which we consider it our duty to refer at this stage. When we heard the arguments in this appeal a grievance was made at the Bar regarding the inordinate delay in the disposal of this case. The whole evidence was concluded on 29th October, 1952, the arguments were heard on 7th April, 1953 and the judgment was delivered on 10th October, 1953. It will be seen that the judgment was delivered 12 months after the evidence was closed and 6 months after the arguments were heard. We consider this state of things to be far from satisfactory. It is extremely difficult, if not impossible, to remember the facts of the case after the lapse of such a long time and to retain the impressions formed during the trial. With these preliminary observations, we will now proceed to discuss the merits of this case. In August 1950, when this offence is alleged to have been committed, accused Sajid Ali Khan was Assistant Collector of Customs (Preventive Section), Karachi while accused I. H. Shah was the proprietor of a firm of clearing and forwarding agents known as "Quickways" The Government of Pakistan, in the Ministry of Food, used to lay down the policy from time to time regarding the export of food‑grains from Pakistan to other countries. There was at one time a deadlock in the trade relations between Pakistan and Bharat. Ultimately on 2nd August, 1950 a Trade Delegation from Bharat came to Karachi, and on 10th August, 1950 an agreement was arrived at between the Indian Delegation and the representatives of Pakistan Government. In this case we are concerned only with that part of the agreement which relates to the export of gram from Pakistan to India. In consequence of this agreement, Mr. Ishaque who was one of those who repre sented the Pakistan Government at the talks with the Indian Delegation and who was then the joint Secretary, Ministry of Food, sent out letters to various authorities concerned, including the Central Board of Revenue, the Chairman Port Trust and the Ministry of Commerce, conveying the directions regarding the export of Gram from Pakistan to India. This letter is (Exh. 12) in the case and is dated 11th August, 1950. It was received in the Customs Department on the 16th. The portion of this letter relevant to our case is contained in para. 1 (b) and runs as under :‑ "Gram stocks whether of 1949 crop or of 1950 which on and upto 8th August, 1950 had been entered for shipment to India and were actually lying in the dock are in Karachi on or before that date for such shipment shall be exported as before without any restrictions of export or exchange control." On 5th August, 1950, Messrs Union Agencies and Grain Traders of Karachi presented shipping bills of their firms to export twenty thousand bags each of gram to Bharat. These two firms have a common office in the Orient Chambers, South Napier Road, Karachi. Mr. Wahid‑ud‑Din an Ex- Colonel of the army, is the Proprietor and Financier of both these firms. Ultimately out of 40,000 bags, 15,000 bags of Union Agencies and 5,000 bags of Grain Traders were shipped on 28th August, 1950 and 31st August 1950 respectively to Bharat. This is alleged to be an illegal export of gram, contrary to the directions of Pakistan Government contained in (Exh. 12) portion reproduced above. On 29th August, 1950, Mr. Jaffri, who was then a Movement Inspector at the docks on behalf of the Food Ministry, submitted the following report (Exh. 44) to his officers :‑ A firm "Union Agencies", are leading 14,000 bags of new crop gram on S. S. Jalkantra. Shipping documents are stated to be prepared on 12th August 1950." Mr. Ishaque the Joint Secretary, Ministry of Food, informed the Chairman of the Board of Revenue about this and he also sent a copy of this letter to the Inspector‑General, Special Police. The police carried on their inquiries for a long period of 41 months and on 17th January, 1951 Mr. Niaz Ahmad Khan, Superintendent of Police, Special Police Establishment, lodged the following First Report on behalf of the Crown :‑ "On the 4th of August 1950, the Ministry of Food and Agriculture, Government of Pakistan, Karachi, issued certain orders regarding the export of gram to India. On the 11th August 1950, the Government of Pakistan issued orders to the following effect regarding the export of gram from Karachi to India :‑ 'Grams stock whether of 1949 or 1950 crop which on and upto the 8th of August 1950 had been entered for shipment to India and were actually lying in the dock area in Karachi on or before that date for such shipment, shall be exported as before without any restriction of export or exchange control'. On 5th August 1950, Messrs Union Agencies and Grain Traders of Karachi presented shipping bills of their firms to export 20,000 bags each of gram to Bharat. These bills were presented for giving machine numbers at the counter of the Manifest Section of the Customs House and after necessary Machine numbers, were returned. These shipping bills of Messrs. Union Agencies and Grain Traders were entered in the Export Register on 11th August 1950. The machine number of the shipping bill of Union Agencies is 10,419, while that of the Grain Traders is 10,

420. Each shipping bill is for 20,000 bags of gram, their cost being Rs. 9 lacs 20 thousand Mr. Wahid‑ud‑Din Ex‑Colonel is the Proprietor and Financier of these Firms having common office in the Orient Chambers South Napier Road, Karachi. It has been found that out of the 40,000 bags of the gram mentioned above, 15,000 bags of Union Agencies and 5000 bags of the Grain Traders were shipped on 28th August, 1950 and 31st August, 1950 to Bharat. The export of these bags was allowed by Customs Authorities on the certificate of Mr. King, Inspector Preventive Service Custom House Karachi, given by him on the 24th of August 1950 to the effect that this quantity of gram was lying on plinths No. 24 and 25 since 4th August, 1950. Preliminary enquiries made go to show that this quantity of gram was illegally exported to India with the connivance and active assistance of certain officials . of the Government of Pakistan and Customs Department. Colonel Wahid‑ud‑Din has gained considerable pecuniary advantage by these transactions. An offence under section 420 P. P. C. and section 5 of Act II of 1947 has been committed. The case is registered and Inspector Syed Noorul Hassan has been deputed to investigate the case after obtaining necessary orders from a competent Magistrate." Mr. Nurul Hassan, after obtaining requisite permission from the District Magistrate, Karachi, started the investiga tion of this case. He examined many witnesses. He examined Col. Wahid‑ud‑Din and his servant Rashid Ahmed Dar on 23rd January, 1951. Col. Wahid‑ud‑Din's further statement was recorded on 8th April, 1951. On 12th April, 1951 the statement of appellant I. H. Shah was recorded. Again on 1st May, 1951, the statements of Col. Wahid‑ud‑Din and one Mr. Noman advocate were got recorded at Lahore under section 164 Cr. P. C. by a local Magistrate there. In the course of investigation, the police got evidence that appellant Sajid Ali had received a bribe of Rs. 35,000 on 1st September, 1950 from appellant I. H. Shah in the presence of Noman and Rashid Ahmad Dar. Subsequently the two appellants were sent up on 16th February, 1952 to stand their trial. The two appellants pleaded not guilty. Appellant Sajid Ali Khan says that Mr. Ishaque, Joint Secretary, Food, and his subordinate Maqbool Ahmad, Deputy Director, Food, had fallen out with Col. Wahid‑ud‑Din and this case was filed with the intention of putting Col. Wahid‑ud‑Din in trouble. The Colonel on his part, in order to save himself got this case concocted against the appellant with the assistance of Police Inspector and Mr. Abdul Aziz, Assistant Collector, Customs, who is appellant's great enemy. The appellant denied having received any bribe in the affair. Appellant I. H. Shah also says that Col. Wahid‑ud‑Din and‑the Police Inspector Nurul Hassan had conspired to cook up this false case to ward off the trouble from the head of Col. Wahid‑ud‑Din. He denies having paid any bribe to the other appellant. We will take up the case of the main appellant Mr. Khan who is alleged to have received the bribe. The other appellant Mr. Shah is only an abettor. The learned trial judge has held Mr. Khan guilty on three counts viz. (1) that the appellant abused his official position and obtained an illegal advantage for Rashid Ahmed Dar or the firm of Union Agencies and Grain Traders in contravention of the orders of Pakistan Government ; (2) that he accepted a bribe of Rs. 35,000 from Rashid Ahmad Dar through appellant I. H. Shah ; (3) that he was in possession of property more than he could account for. We would take up and discuss each point separately, but before we do that, we consider it necessary to mention some of the. most outstanding features of this case which have attracted our attention and which have a great bearing on the question of appreciation of evidence in this case. (After quoting extensively from the deposition of ex‑Col. Wahid‑ud‑Din the judgment proceeded). These admissions by Col. Wahid‑ud‑Din clearly establish the intimate connections that existed between him and the two responsible officers of the Pakistan Government in the Ministry of Food. Mr. Ishaque has been examined in the case and it will also be interesting to hear what a very responsible officer like him has himself stated on oath in this behalf " I know Muhammad Wahid‑ud‑Din and Mr. N. C. Mallick in about February 1950, one Mr. Nazir Dar brother of Rashid Dar since murdered paid me Rs. 10,000 as advance on behalf of Mr. N. C. Mallick who had purchased my house in Calcutta for a lakh and fifty thousand rupees. I did not know then, nor do I know now, whether Mr. Dar was agent of Muhammad Wahid‑ud‑Din but because he paid me this amount and a "total amount of a lakh, and Mr. N. C. Mallick told me no, I know Mr. Dar was N. C. Mallick's agent. It is false that I had not sold any bungalow of (to ?) Mr. N. C. Mallick and that I had received Rs. 10,000 from Mr. Dar to show favours to Col. Wahid‑ud‑Din. It is also false that I would repay Col. Wahid‑ud‑Din and Mallick in their business or trade if they were able to dispose of my house in Calcutta. In the presence of Mallick, Dar gave me a cheque for Rs. 30,000 in addition to the first two thousand and a third cheque for Rs. 60,000 was given by Mr. N. C. Mallick but which was dishonoured. A further cheque for Rs. 25,000 was given to me by Col. Wahid‑ud‑Din and signed by him and on behalf of N. C. Mallick with one of the conditions that if the transaction fell through I was to pay Rs. 25,000 back to him. The first three cheques for Rs. 10,000, Rs. 30,000 and Rs. 60,000 were signed by Dar and Rs. 10,000 were given in cash by him ............... It is false that all amounts paid to me were by way of a bribe. In fact when Col. Wahid‑ud‑Din paid me one of the sums I had told him that his kindness would in no way affect my official decisions. This case was initiated by me on a complaint I made in regard to the illegal export of gram and it was discovered that Col. Wahid‑ud‑Din was concerned and was intimately interested in Union Agencies and other concerns. Till then I did not know he had anything to do with Union Agencies. Mallick appeared to me to be very closely connected with Col. Wahid‑ud‑Din. In fact Mallick was introduced to me by Col. Wahid‑ud‑Din. It seemed to me, probably I discovered this after the August agreement, that both of them were operating in either Dominion ........................... About a year ago and month before this case was challaned Col. Wahid‑ud‑Din had filed a suit in the Chief Court of Sind against me claiming the return of Rs. 25,

000. This suit is still pending .................. My complaint against Col. Wahid‑ud‑Din was under investigation when he filed the suit against me. He had sent me a notice in about June or July 1951 before filing the suit a month or two later." We view these private dealings of the joint Secretary Mr. Ishaque and the Deputy Director Mr. Maqbool with people like Col. Wahid‑ud‑Din and Mallick with great dis approval. We fail to see how these dealings cannot be termed as an abuse of official position and a criminal misconduct within the meaning of clause (d) of subsection (1) of section 5 of the Prevention of Corruption Act. The contention of the appellant that this case was originally filed 1:y Mr. Ishaque with the intention of putting Col. Wahid‑ud -Din into trouble is proved from the mouth of Mr. Ishaque himself. For that reason we apprehend that the report of Mr.. Jafri dated 29th August was also inspired by Mr. Ishaque either directly or through Mr. Maqbool. Now we would like to produce those passage from the evidence of Col. Wahid‑ud‑Din which clearly indicate his struggle to get out of this prosecution by making statements which are totally false and inconsistent on the very face of them. He states as follows :‑ (The judgment set out certain passages and proceeded) Having reproduced some important extracts from the depositions of these witnesses, we would now take up the points one by one on which the learned judge has held appellant Khan guilty. The first allegation against him is that he abused his official position and acted in contravention of the orders of Pakistan Government (Exh. 12) with a view to obtain an illegal advantage for Union Agencies and Grain Traders. (Their Lordships discussed evidence and held) We find, therefore, that the prosecution have altogether failed to prove that appellant S. A. Khan was in any way guilty of abusing his official position. All his subordinates had certified that the gram was lying in the dock area since 4th August and the appellant only endorsed what his responsible subordinate officers noted on the file. We would now go over to the second aspect of the case namely, question of actual payment of bride of Rs. 35,000 to the appellant. Rashid Dar and Col. Wahid‑ud‑Din. The only documentary evidence on this point is a bearer cheque drawn for Rs. 35 000 by Col. Wahid‑ud‑Din in the name of Noman on 31st August. It is alleged that Noman cashed this cheque on the next day i.e., 1st September, in the presence of appellant I. H. Shah and then gave the amount to him. Thereafter Noman, appellant I. H. Shah and Rashid Dar, who was instructed by Col. Wahid‑ud‑Din to see that the amount was actually paid to the appellant, are said to have gone over to the Customs House where the appellant resided and there appellant Shah paid this amount to appellant S. A. Khan in the presence of Noman and Dar. We consider this story to be monstrously false from every point of view. When Col. Wahid‑ud‑Din drew a bearer cheque for such a large amount in favour of Noman, it proves that he trusted him fully. If he trusted him fully, then there was absolutely no necessity of asking Rashid Dar to accompany Noman and see that the amount was actually paid. If again Col. Wahid‑ud‑Din was anxious for the guarantee of actual payment to the appellant, he should have drawn the cheque in the name of Rashid Dar and should have asked Noman to accompany him. Rashid Dar was not known to the appellant before and unless the appellant was mad he would never accept such a big bribe in the presence of a complete stranger. Col. Wahid‑ud‑Din in order to save his neck from the prosecution in this case now says that he had advanced a loan of Rs. 35 000 to Rashid Dar because he had no interest in Union Agencies. If that were true, that was a greater reason for him to issue a cheque in favour of Rashid Dar and not Noman. That would have given him a proof of the debt as well. If Noman was such an intimate friend of the appellant, there was no necessity for him to take appellant I. H. Shah also to appellant S. A. Khan. The evidence of Rashid Dar on this point must be immediately rejected as totally false. He is a servant of Col. Wahid‑ud‑Din and deeply interested to save his master. In their earlier statements to the Police, Rashid Dar, Noman and even Col. Wahid‑ud‑Din never made any allegation regarding payment of bribe. Even in the First Report which was filed after full 4J months of inquiry, no mention of any bribe has been made. Reliance is sought to be placed on the statements of Col. Wahid‑ud -Din and Noman recorded under section 164 Cr. P. C. by a Lahore Magistrate. We consider these statements to be altogether worthless. Noman and Col. Wahid‑ud‑Din were together at Bahawalpur. From there they were taken to Lahore by Police Inspector Nurul Hassan, and we fail to understand why their statements were not recorded at Karachi. There was the sword hanging on the head of Noman because the cheque was in his name. He was in fear of arrest at any moment. Apparently therefore he has made the statement under the pressure of Col. Wahid‑ud‑Din. The Police Inspector was standing by to help. Col. Wahid‑ud‑Din, according to us, is the main culprit in this case. It was the duty of the police to put him immediately under arrest if they were honest about this case. The evidence shows that the police have done everything possible to save him. Then there is the other angle from which the case must be looked at. If Noman was acting as an intermediary and had received the cheque, cashed it and paid the bribe, he could not have done it without some consideration. He would have naturally charged his own commission in this kind of nefarious work. It is impossible to believe that all the Rs. 35,000 could in the circumstances have been paid to the appellant even if this story were held to be true. Then Col. Wahid‑ad‑Din, Rashid Dar and Noman, according to their own admissions, are all accomplices in this affair. They would naturally be interested to save their own necks. Even the learned advocate who argued this appeal for the Crown was constrained to admit that theirs was not the best evidence, but his argument was that in the circumstances of the case in the absence of better evidence their evidence may be believed. This is against the funda mental principles of criminal justice. The evidence of these people cannot be believed unless there is a material corro boration not only with regard to the crime but also with regard to the criminal. Noman has not supported the prosecution on the question of payment of bribe to the appellant, but the learned judge has relied on his 164 state ment which is not substantive evidence. Besides the learned judge has thought it fit to issue notice to him to show cause why he should not be prosecuted for perjury. We must say that some of the remarks of the learned judge against this witness are not supported by the evidence on record. For instance at page 152 of the paper book the learned judge says as follows :‑ " He has admitted here that he corrected this statement before he signed it, and the trend of the thought, the mode of expression is typical of the individual personality of this witness and not of the Inspector Nurul Hassan to whom Noman falsely attributes this as a prompted statement previously written for him by Nurul Hassan

Noman is no child he is an advocate and apparently one who lives by his wits and not likely to be easily intimidated, parti cularly in the matter of a written statement." We are afraid we find nothing on the record to show out the "individual personality" of the witness or to prove that "he lives by his wits". This witness Noman has undoubtedly been making different statements at different times. That is due to the fact that the sword of prosecution was hanging on his head all the time and he was at his wits ends as to what he should state. That is the very reason why no conviction can ever be based on evidence of this kind. We have already reproduced important passages from the evidence of Col. Wahid‑ud‑Din and shown what kind of man he is. He has spoken many deliberate lies in order to save himself, the most prominent of which is his disclaiming of interest in Union Agencies. It is also false that he gave Rs. 35,000 as a loan to Rashid Dar. The learned judge has been constrained to admit at one place that he and Rashid Dar are "accomplices" and "bribers" and yet it is strange that he has believed their word. The evidence of Col. Wahid‑ud -Din and Mr. Ishaque show out prominently the " individual personality " of Col. Wahid‑ud‑Din and yet it is remarkable that the learned judge has neither made such a strong comment on the character of this man as he has done in the case of Noman nor has he issued any notice to him to show cause why he should not be prosecuted for perjury, for his deposition is nothing but a mosaic of lies. On the contrary his evidence has been believed arid on that basis the appellant has been convicted. An attempt was made by the defence to show that this amount of Rs. 35,000 was paid towards freight and insurance of the gram in question. The learned judge has disbelieved this defence theory. We do not consider it necessary to go into the details of it because the burden never shifted to the defence to prove how Rs. 35,000, the amount of the cheque drawn by Col. Wahid‑ud‑Din in favour of Noman, was spent. The burden was on the prosecution to show that it was paid as a bribe to the appellant. It is a well‑known maxim of law that weakness of defence cannot prove the truth of the prosecution case. We have no doubt that the story of payment of Rs. 35,000 bribe to the appellant S. A. Khan is altogether false. Noman has not supported the prosecution, Rashid Dar is a false and interested witness, and Col. Wahid ud‑Din was not present at the time. Then we come to the third aspect of the case, viz., that the appellant was in possession of property more than he could account for. The less we say on this aspect of the case the better. The conviction of the appellant on this count is basically wrong and the learned Judge while relying on it has ignored one of the cardinal principle of criminal justice that an accused person cannot be convicted without a hearing. The learned judge after going into the accounts of the appellant and his wife Sanobar Khatun has made the following important observations in this behalf :‑ "A relevant entry in Exh. 56 is a deposit of Rs. 7,800 on 21st December, 1950; at or about the time of the incident for which there is no explanation

satisfactory explanations have been given of the items in the accounts of Sajid Ali Khan and his wife in the various banks and drafts. Other items may be considered to be so trivial as not to raise necessarily a presumption and therefore cast the burden on the accused. There is, however, a deposit entry of a large sum of Rs. 27,800 made in the Habib Bank to the account of Sanobar Khatan at Karachi on 11th January. 1951 for which no explanation whatsoever has been offered and at this time there were no other known sources of income of Sanobar Khatun or her husband for such deposit. It is futile for the defence to suggest that Sajid Ali Khan was not questioned as to his sources of income. The replies to a question on this point by the Court by accused Sajid Ali Khan who also produced the Savings Bank Account of his wife, indicate that he realised the implications of the

questions. On 15th November, 1949 an amount of Rs. 10,000 was paid to Inayat Hussain Shah as per Exh.

91. In Exh. 56, in the Lloyd's Bank account of Sajid Ali Khan, there is a withdrawal of Rs. 17,000 on 14th April 1951 and this must be read with the evidence of Inspector Nurul Hassan indicating that at or about this tine investigation in the case after the suspicious circum stances arising out of Noman's amendment application were afoot and in right earnest. Accused appears to have realized this and was preparing to meet any contingency." 15th November, 1949 was long before 1st September, 1950 when the. bribe is alleged to have been paid, and 14th April, 1951 was long after the bribe is said :to have been paid. We fail to understand how the appellant " was preparing to meet any contingency". He was on the contrary creating evidence against himself, if at all. It will be seen from the above that the learned judge has believed all other accounts except the two deposit items of Rs. 7,800 on 21st December, 1950 and Rs. 27,800 on 11th January, 1951. If this was the bribe money the appellant would not have created evidence against himself by depositing it in the banks unless he were thoroughly made. Besides, no pointed question regarding these two items was ever asked by the learned judge from the appellant in his statement under section 342 Cr. P. C. All that he has asked him is as follows :‑ " Q.‑Do you wish to say anything in regard to the bank accounts produced by the prosecution ? A.‑The accounts are of my wife who comes from Lahore, and owns considerable property there, and which she inherited from her father, she being his only child." This statement was recorded on 29th October, 1952 and the judgment was delivered on 10th October, 1953, i.e., nearly one year later. It may be that the learned Judge at the time of recording the statement of appellant under section 342 Cr. P. C. did not think much or at all of the two deposit entries. It was subsequently after the lapse of a year that he thought of them. Whatever that may be, an accused person has to be given an opportunity under the law to explain the evidence on which his conviction is sought to he or going to be based. This is a mandatory provision of taw and cannot be ignored. It is not sufficient compliance with the letter of law that the accused should understand the implications of questions put by the Court. There are to he no implications and no mental reservations under section 42 Cr. P. C. If the learned judge had specifically asked these questions from the appellant it is not unlikely that the appellant would have explained them satisfactorily. We, further, do not consider it either just or expedient to remand the case for that purpose. We find the prosecution guilty of much concoction and we also find satisfactory explanations in the accounts produced in the case. The appellant was receiving large amounts of money from his father Hamidali Khan, advocate Bijnore, and the appellant's wife was also receiving large amounts from the account of her deceased father. Mr. Hamidali Khan sent Rs. 11,000 to the appellant on 20th June, 1949 and thereafter there came deadlock between the two countries of Pakistan and India. The appellant's father must have been sending out money to his son in various other ways which may be easily imagined. There is nothing strange about it. In any case there is no evidence on this count on which we can hold the appellant guilty of such a serious crime. In view of all these reasons, we find appellant Sajid Ali Khan not guilty. He appears to be a victim of intrigue in the Customs Department which even the learned judge has admitted in his judgment. The hands of intriguers in the Customs Department were further strengthened by men like Col. Wahid‑ud‑Din who could pay a lac or more of rupees for the prospective purchase of a house for the same amount. If the investigation of this case had been put in the hands of a more able and reliable police officer, we have no doubt the results would have been entirely different. They would have been as spectacular as startling. Originally in the First Report filed on 17th January, 1951 it was alleged by Mr. Niaz Ahmed Khan, S. P., that " Preliminary inquiries made go to show that this quantity of gram was illegally exported to India with the connivance and active assistance of certain officials of the Government of Pakistan and Customs Department. Col. Wahid‑ud‑Din has gained considerable pecuniary advantage by these transactions." After Mr. Nurul Hasan Inspector started this investigation, no officer of the Government of Pakistan was touched, Col. Wahid‑ud‑Din completely disappeared from the picture, instead his servant Rashid Dar came in and an old friend, accomplice and co accused of Col. Wahid‑ud‑Din viz., Mr. Ansari, Assistant Collector (Export Section) also disappeared altogether. The results became what we have known. We wish to place on record our definite opinion that it was not quite right to leave the investigation of an important case like this solely in charge of an Inspector of Police. We find ourselves unable to associate with encomiums lavished on Inspector Nurul Hassan and Mr. Jafri of the Food Ministry by the learned trial judge. There remains the case of the second appellant I. H. Shah. Since the charge of bribery against the main appellant has failed the question of the abetment of it does not arise. This appellant was roped in by manipulations of Col. Wahid- ud‑Din in complicity with the Police Inspector. We hold him not guilty. We therefore allow the appeals of the two appellants, set aside the convictions and sentences passed upon them and acquit them. They are on bail and their bail bonds are hereby discharged. The fine if paid, be refunded. A. H. Appeals allowed.