1990 PLP 1513 (MLD)

5. The appellant met the charge with a denial. His defence in his own words is as follows:‑ "The house was not assessed by the Engineer. But the fact is that Mushtaque Overseer had visited the wrong house which according to report was situated at Shaikh Sheen Road, which does not belong to me or my father. Our house consists of only two rooms and is valued at Rs.35,000 only and was constructed by. my father during last 10 years. The house is still incomplete. My father was man of means. He was in service throughout his life in Railway Department and after his retirement he was running a shop. Besides I am in service for the last 17 years and my brother Muhammad Younus is also in service and his earning is Rs.1,000 p.m. Besides my grandmother Mst. Rabul had landed property which was also utilised by my father in construction of the house. My father had also received share of the property of his uncle Ghulam Rasool. It took about 10 years to construct the house and it is incomplete for lack of funds."

6. The appellant examined Karim Bux (D.W.1), Imamdino (D.W.2), and Atta Muhammad Solangi, (D.W.3) in his defence.

7. On the assessment of evidence available on record, the learned Special Judge found the appellant guilty for the said offence and convicted him accordingly. It is in these circumstances that the present appeal has been filed.

8. I have heard Mr. Muhammad Aslam Bhutto, learned counsel for appellant and Mr. Zawar Hussain Jafferi, learned A.‑A.G. for State. The letter has not supported the impugned judgment.

9. Section 5‑C of the Prevention of Corruption Act, 1947, whereunder the appellant was convicted reads as follows:‑‑ "5‑C Possession of property disproportionate to known sources of income.‑‑(1) Any public servant who has in his possession any property, movable or immovable either in his own name or in the name of any other person, which there is reason to believe to have been acquired by improper means and which is proved to be disproportionate to the known sources of income of such public servant shall, if he fails to account for such possession to the satisfaction of the Court trying him, be punishable with imprisonment for a term which may extend to seven years and with fine, and on such conviction the property found to be disproportionate to the known sources of income of the accused by the Court shall be forfeited to the Provincial Government. (2) The reference in subsection (1) to property acquired by improper means shall be construed as a reference to property acquired by means which are contrary to law or to any rule or instrument having the force of law or by coercion, undue influence, fraud or misrepresentation within the meaning of the Contract Act, 1872."

10. The points requiring proof of an offence under section 5‑C of the Prevention of Corruption Act, 1947, are:‑‑ (i) That the accused was a public servant.. (ii) That, as such, he was in possession of any property, movable or immovable, either in his own name or in the name of any other person. (iii) There is reason to believe that he had acquired this property by improper means, which is proved to be disproportionate to the known sources of his income. (iv) That he failed to account for such possession to the satisfaction of the trial Court.

11. The burden of proof plays an important part in the discussion of evidence and the arriving at of a conclusion on the basis thereof. In criminal cases' the onus is on the prosecution to prove beyond all reasonable doubt the guilt of the accused, and there is only one standard of proof for all charges, and that is that the prosecution must prove the charge beyond all reasonable doubt. The burden to prove points (i) to (iii) therefore, lies upon the prosecution. The failure of the accused to account for the possession of such property as indicated at point (iv) will be a relevant factor only after the porsecution successfully establishes points (i) to (iii).

12. The appellant was working as chargeman in Highway Department of the Provincial Government. He is thus a public servant within the meaning of section 2 of the Prevention of Corruption Act, 1947, and although he had challenged his status before the trial Court, this position was conceded by learned counsel for the appellant during the course of his arguments.

13. It is the case of the prosecution that the appellant owns a house at Bhutta Road Sukkur. The evidence of Hafiz Muhammad Chuttal, Inspector A.C.E (P.W.3) shows that in the anonymous application it was stated so. The prosecution has examined Mushtaque Ahmed Soomro, Overseer (P.W.1), and Ghulam Nabi Driver (P.W.2) to establish this fact. According to Mushtaque Ahmed Soomro (P.W.1) the valuation of this house was Rs.1,83,744 and it was, still incomplete. The witness has, however, refrained to give the location of the house which belonged to appellant. In cross‑examination the witness denied in specific words that he had stated in his 161, Cr.P.C. statement that the house of appellant was situated at Shaikh‑Sheen road. Hafiz Muhammad Chuttal, Inspector A.C.E (P.W.3), however, belied him by making the following admission in cross‑examination:‑‑ "I see statement of Mushtaque. He had said in this statement that this disputed house was seen by him. It is situated in Shaikh‑Sheen road."

14. Ghulam Nabi (P.W.2) who is driver only speaks of raising construction of a house by the appellant. His cross‑examination shows that the appellant is reputed to be an honest person.

15. The above evidence in no way proves that the appellant owns any house. The evidence of these witnesses is sketchy and vague. Even the location of the house said to be the property of the appellant is in dispute. The charge framed against the appellant discloses the C.S. No. of the house belonging to the appellant. The prosecution c could have easily secured documentary evidence to prove this fact, but no such evidence was brought on record. In such cases the documentary evidence generally plays a decisive part. This circumstance, therefore, goes against the prosecution. It, therefore, follows that there is no satisfactory evidence on record to prove that the appellant owns any house.

16. Since there is no evidence on record to prove that the appellant owns any house in Sukkur city, the question that he had acquired it by improper means disproportionate to his known source of income, does not arise. The word "believe" used in section 5‑C of the Prevention of Corruption Act, 1947, is much stronger than the word suspect" and involves the necessity of showing that the person has a bad reputation. Reputation means what is thought of a person by others, and the general reputation of a person in the collective opinion of those in whose midst he lives and works. The evidence of Ghulam Nabi (P.W.2), Imamdino (D.W.2), and Atta Muhammad Solangi (D.W.3), who all work in Highway Department shows there was no allegation of corruption against the appellant.

17. Even if it is accepted for arguments sake that the appellant owns a house then too in my view he has accounted for such possession. The following observations made in Allah Bachayo v. The State, reported in 1972 P Cr. L J 162; are relevant:‑‑ "The crucial point against the appellant was not proved. He had served for a number of years and it is not unlikely that he was able to save some money for these purchases. I give him the benefit of doubt and allow the appeal."

18. Corruption in the service is a major cause in tarnishing the image administration. Bribery, abuse of official authority and venality have come undermine the people's faith in the fairness and integrity of the public servants. Nevertheless a person who has served his department for such a long time cane be convicted on such scanty evidence collected at his back upon an anonymous complaint.

19. In this view of the matter, I will set aside allow the appeal.

20. By a short order dated 5‑4‑1990, I had allowed this appeal and these are reasons for the said short order. N.H.Q./M‑1117/K Appeal accepted.