P L D 1971 Karachi 78 (PLP)

I am to state that Allah Rakhio and Buxo Maher are my persons, kindly do not press them to pay the land revenue. I will bring them within 10/ 15 days and pay my and their land revenue. Do not worry. I hope that you will accept my request. Rest is O. K. (Sd.) Illegible. Sayed Village." It is significant that when questioned about this fact in his cross‑examination the complainant conveniently forgot that he had written such a letter. When, however, the letter was pointed out to him, he admitted the same and stated at the end of his deposition as follows :‑ "Because accused demanded `Dhal' for all these four persons, I had gone for taking more money." This admission by itself is sufficient to demolish the case of the complainant as mentioned in the earlier part of his deposi tion. Moreover, Article `A', namely, the Receipt Book which has been produced in Court shows that the following four receipts were issued by the appellant in that order :‑ (1) Receipt No. 79 for Rs. 22.15 paid on behalf of Buxo. (2) Receipt No. 80 for Rs. 65.37 paid on behalf of Allah Rakhio. (3) Receipt No. 81 for Rs. 69.68 paid on behalf of Sabal Shah (father of the complainant). (4) Receipt No. 82 for Rs. 9.19 paid on behalf of Attaullah, brother of the complainant. The total amount comes to Rs. 166.39. The fact that the amount o f Rs. 50 was demanded by the complainant from D. S. P. Nazir Ahmed, is, therefore, more consistent with the fact that he had to pay an amount of Rs. 167 rather than with the allegation that he had to pay only Rs.

110. It appears that the complainant paid an additional amount of Rs. 17 for making a total payment of Rs. 16? which was due d from all the four Khatedars and he was refunded the balance in change. It is accordingly, obvious that the complainant was to pay land revenue on behalf of all the four persons as mentioned in his letter Exh. 15.

9. The learned trial Judge has drawn an adverse inference against the appellant from the circumstance that he did not examine Allah Rakhiyo and Buxo in his defence. Admittedly Buxo and Allah Rakhiyo were his own men and they would not have hesitated to support the complainant. If they had been examined their testimony would not have carried the case of the defence any further. On the other hand, merely because they were present there it cannot be assumed that they had paid their shares of land revenue themselves ; especially in view of Exh. 15 which has been reproduced above and the admission of the complainant himself in respect thereof.

10. Mr. S. M. Noorul Hassan, the learned counsel for the State has contended that under section 4 (i) of the Prevention of Corruption Act, 1947, there would be a presumption that the amount had been accepted as a bribe unless the appellant proved to the contrary. Reliance is placed on the language of section 4(() itself which reads as follows :‑ "Where in any trial of an offence punishable under section 161 or section 165 of the Pakistan Penal Code it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a considera tion which he knows to be inadequate." It is no doubt correct that this section is a departure from the general law under which motive and intention was to be strictly proved by the prosecution in cases under sections 161 and 165, P. P. C. This departure is not, however, serious. As pointed out in Rex v. Carr Bariant ((1943) 1 K D 607) : ‑ ‑ "Where, either by statute or at common law, some matter is presumed against an accused person `unless the contrary is proved', the jury should be directed that the burden of proof on the accused is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt, and that this burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called on to establish,"

11. This principle has been approved by their Lordships of the Supreme Court in the case of Mir Ahmad v. The State (PLD 1962 SC 489), in the following words :‑ "Where there is a question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances the decision must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case, and the accused is entitled to the benefit of doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt."

12. As observed by their Lordships of the Federal Court of India in Lt. Hector Huntley v. Emperor ((1944) F C R 262=A I R 1944 F C 66), a charge under section 161, P. P. C. is one which is easily and may often delightly made. It would, therefore, be an outrage on common sense and reason to infer that under section 4 the presumption has itself been displaced and that the offence of bribery must he held to be established the moment money passed into the possession of the accused without further proof that it was accepted as an illegal gratification. When the law raises a presumption against the accused and calls upon him to prove the contrary, it is well settled that the contrary can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution.

13. Muhammad Bachel, J. while dealing with a similar case, namely, Ikramuddin v. The State (P L D 1958 Kar. 21), summed up the position thus :‑ "The presumption against the accused under this section is not to be drawn until the explanation of the accused is considered and found unsatisfactory. At this stage of the consideration of the case, the normal principle will apply, namely, that the accused is entitled to benefit of doubt and where reasonable explanation is offered, which is acceptable and raises a doubt, that the prosecution has not discharged the burden though the accused may not have proved the explanation. It was enough for his purpose if he succeeded in raising a doubt as to whether or not the prosecution was true Rex v. Schana (1915) 84 L J K B 39 also Dr. Woolmington v. Director of Public Prosecutions (1935) A C

462. But if the Court feels justified in drawing a presumption against the accused after due consideration of the explanation, then the burden is on the accused to displace the presumption of criminal misconduct, always remembering as has been held in Rex v. Cart‑briant (1943) 1 K B 607, that the burden of proof on the accused in such cases is less than on the prosecution and that it is enough for the accused to make out the truth of his defence in all reasonable probability though not clearly beyond doubt."

14. In this connection it is hardly necessary to point out that the proof of the contrary need not necessarily be by evidence, oral or documentary ; but it may be furnished by the statement of the accused himself or by the circumstances of the case.

15. In the light of these principles and the circumstances in favour of the revision of the appellant as discussed in para. 7 above, I have not the slightest hesitation in holding that there is more than a reasonable possibility that the appellant's explanation may be correct. I would, accordingly, allow this appeal and set aside his conviction and sentence. The appellant is on bail and need not surrender. His bail bonds stand cancelled. A. E. Appeal allowed.