2001 SCMR 41 (PLP)

ABDUL HAMEED DOGAR, J.

Appellant, Rashid Ahmad son of Karam Din, a Clerk in Evacuee Property Trust Board, Jhang was convicted by Special Judge, Central Faisalabad under section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo R.I. for two years with fine of Rs.2,000 and in default whereof to suffer further R.I. for 3 months. The charge under section 161, P.P.C. was found groundless and was thus dropped. In appeal Lahore High Court, Rawalpindi Bench maintained the conviction but reduced the sentence to the period already undergone by the appellant.

2. This Court granted leave to appeal in the matter to consider as to whether defence evidence was not considered in the context of the burden of proof which according to the High Court had shifted on the petitioner, Another question for determination was whether the onus was to prove beyond reasonable doubt or it was to be considered on the balance of probabilities.

3. The prosecution case against appellant was that complainant Kifyat Hussain Shah wanted a "Mandir" (Temple) situated, in Basti Ghaziabad Shah, District Jhmg the Evacuee Property to be allotted for the said purpose, and he contacted appellant-Rashid Ahmad for the verification as to whether it stood already allotted to some one or not. The appellant demanded Rs.150 as illegal gratification for providing such information. The complainant reported the matter to the Anti-Corruption Establishment, Jhang. Accordingly an F.I.R. No.123 was registered at Police Station ACE, Jhang on 25-7-1985, as a consequence whereof a raid was conducted on the same day at 10-45 a.m. under the supervision of Rana Abdul Ghaffar Khan, Magistrate in presence of complainant and P.W. Muhammad Rafiq, H.C. The appellant was arrested and from his personal search the tainted amount of Rs.150 in the shape of two currency notes of the denomination of Rs.100 and Rs.50 respectively were recovered from his pocket. Subsequently the investigation was transferred to F.I.A., Faislabad and after the completion of investigation the appellant was sent up to face trial.

4. The appellant did not plead guilty to the charge but took pleas at the trial that the said money was paid to him by the complainant as contribution towards Kabadi match funds for arranging a Kabadi on the next day. It would be relevant here to refer his stand taken by him in his statement under section 342, Cr.P.C.: "A Kabadi match was scheduled to be held next day and the complainant has promised to contribute towards the Kabdi Fund on my request. I have never asked for bribe to the complainant nor I was to part with any secrets of Evacuee Trust Property, I disclosed this fact to the raiding Magistrate without any loss of time. I was not in a position to do any favour to complainant. Further added that my father and complainant against the brother-in -law of the complainant to the Chairman, District Council, Jhang for selling the canal water of District Council for which he had a grudge against me. The whole story of the prosecution is false."

5. He, however; did not examine himself on oath as required under section 340(2), Cr.PC but examined his colleagues namely, Muhammad Inayat and Allah Ditta in defence.

6. We have heard Mr. Masood Mirza, learned Advocate Supreme Court for the appellant as well as Mr. Muhammad Zaman Bhatti, learned Advocate Supreme Court for the respondent/State and have gone through record and proceedings minutely. The learned counsel for the, appellant mainly contended that conviction and sentence is not sustainable in law as neither conversation between complainant and appellant that so-called tainted money. viz. Rs.150 were being given to the appellant by complainant as illegal gratification, was heard by Rana Abdul Ghaffar Khan, Magistrate (P.W.1), the raiding Magistrate and Muhammad Rafiq (P.W.), Head Constable nor handing over of the same was seen by them. He next argued that the admission of appellant before the raiding Magistrate that he had received the said amount from the complainant for arranging diet of the players to play Kabadi match at village Bagh and the money was for Kabadi match funds and not bribe money was not taken into consideration at all by the Courts below. According to him the presence of D.Ws. Muhammad Inayat and Allah Ditta at the time of so-called raid is established from the statement of Rana Abdul Ghaffar Khan and Muhammad Rafiq, H.C. (P.Ws.) They stated that complainant while giving Rs.150 to the appellant disclosed that the said amount was towards Kabadi match funds. On burden of proof he argued that initial onus to prove the case falls on the shoulder of prosecution and appellant's burden is not so heavy as that of prosecution. If accused succeeds in creating reasonable doubt he is entitled to acquittal. He placed reliance on Dr. Ghulam Hussain and others v. The State (1971 SCMR 35), Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Ashraf v. The State (1995 SCMR 479), Ghazidino v. The State (1988 SCMR 637).

7. On the other side the State Counsel vehemently controverted the above contentions of appellant's counsel and contended that prosecution has proved the case against appellant beyond any shadow of doubt. According to him tainted money was immediately recovered from the possession of appellant after its handing over to him by the complainant. It would be immaterial if conversation at the time of handing over money is not heard or no one had seen the changing of the hands, mere recovery of money immediately after possession is sufficient to prove the case. On defence version he argued that the appellant did not raise any specific plea but raised divergent defence pleas as such the same cannot be accepted to be true. The defence witnesses have supported him being his colleagues only. In support he relied on Fazal Qadir v. The State (1989 PCr.LJ 108), Muhammad Amin v. The State (PLD 1984 SC 343), Rashid Ahmad v. The State (1974 SCMR 249), Mian Abdul Rashid v. The State (1989 PCr.LJ 2017).

8. The crucial point involved in this case is whether tainted amount of Rs.150, recovered from, the pocket of appellant by the raiding party, was bribe money or it was an amount towards Kabadi match fund as is being agitated by the appellant from the very inception of the case.

9. The prosecution in order to substantiate its case, has examined Rana Abdul Ghaffar Khan, Magistrate 1st Class, Faisalabad, Muhammad Rafiq, (P.W.) Head Constable and complainant Kifayat Hussain Shah. It would be pertinent to note that Rana Abdul Ghaffar Khan, Magistrate and Muhammad Rafiq, Head Constable have categorically deposed that they neither heard the conversation between appellant and complainant nor saw the passing of money. The Magistrate had stated that complainant gave signal after ten minutes whereas P.W. Muhammad Rafiq has stated that he gave signal after about half an hour from entering in the office of appellant. Both of them have admitted that there were other Clerks present in the office of appellant at the time of raid. The Magistrate has stated that there were one or two Clerks whereas Muhammad Rafiq P.W. has stated that there were 3 or four Clerks sitting in the room of appellant. Even otherwise the presence of other Clerks is natural and cannot be doubted. In such circumstances whatever transpired in-between complainant and the appellant at the time of handing over money could easily be heard and seen by them, as such their version that the said money was given by complainant to the appellant towards Kabadi fund match is trustworthy and believable and cannot be ignored. Even complainant has admitted presence of one Clerk at the time he went in the office of appellant. Evaluating case of prosecution and defence version on merits and placing them in juxtaposition with each other, we are of considered opinion that the version of appellant seems to be strong. In criminal cases initial burden to prove the case beyond any reasonable doubt always lies upon the shoulders of the prosecution. If accused succeeds in creating a reasonable doubt he is entitled to acquittal and for that purpose entire evidence laid by both sides is to be looked into. The case-law referred by the appellant's counsel supports his case and is at par with the referred cases. The case of Dr. Ghulam Hussain v. The State (197-1,SCMR 35) is identical to the case of appellant. Though the appeal is dismissed by majority view yet his Lordship Justice A.R. Cornelius acquitted the accused by giving weight to the defence pleas. The dictum laid down by this Court in the case of Ghazidino v. The State (1988 SCMR 637) also supports the case of appellant. On the statement of accused under section 342, Cr.P.C. it has been held that it is to be taken into consideration in its entirety.

10. The contention of learned State Counsel that appellant would have been the best witness to depose about his innocence in case he had examined himself on oath under section 340(2), Cr.P.C. and by not doing so he cannot plead his innocence. Mr. Masood Mirza counsel for appellant drew our attention to the case of Mst. Ameer Khatun v. Faiz Ahmad and others (PLD 1991 SC 789) and argued that his Court while interpreting section 340(2), Cr.P.C. has observed that the only duty of the Court is to inform the accused that he has a right under the law to make a statement on oath and it is his option with no risk attaching it to either make the statement or not to make the statement. The above provision of law has no compulsive effect on the accused and no adverse inference can be drawn if accused does not opt to make a statement. The case-law cited on the other side has no bearing with the case of the appellant and is on different facts and circumstances. In the case of Rashid Ahmad v. The State (1974 SCMR 249), petition for leave to appeal was dismissed mainly on the ground that the petitioner had admitted the bribe amount to be handed over-to his colleague. Abdul Hameed for finalization of compensation case.

11. In the referred case of Muhammad Amin v. The State (PLD 1984 SC 343), this Court had enhanced the sentence of the accused mainly on the ground that he was employed as public servant in the institution dispensing justice. Similarly Peshawar High Court in the case of Fazal Qadir v. The State (1989 PCr.LJ 108), enhanced the sentence of accused who was a Patwari and public servant and used to come in contact with many a person almost daily who were at his mercy. This action of public servant was found to be at par with Court functionary.

12. From what has been discussed above, we come to the conclusion that the appellant has succeeded in proving his case. Accordingly the appeal is allowed. The conviction and sentence awarded to the appellant is set aside and he is acquitted from the charges. Q.M.H./M.A.K./R-15/S Appeal allowed.