P L D 1961 (W (PLP)

4. The learned Special Judge has convicted the appellant, not because he has found the prosecution evidence sufficiently strong and reliable, bat because in his opinion the defence evidence did not ring plausible. Criticising the testimony of the defence Witnesses the learned Special Judge observed:‑-- "According to the first three (D. Ws.) the Head Clerk of the office of the Superintending Engineer has great powers while the last three D. Ws. ; stated that he could do nothing but none have rebutted the fact that the accused was the forwarding Agency. The accused himself has admitted that he told the complainant that he could not foward his application. Of course giving him the reason that the dealing clerk was on census duty and, therefore, he could not forward the application. Sultan Muhammad (D. W. 6) suggests the inference that on the day of occurrence, the accused was taking ablution as usual and the complainant placed the tainted currency Notes in his pocket. It is not likely that the entry in the room of the accused could escape his notice." In the concluding para. of his judgment the learned Special Judge adopted the following reasoning to find the appellant guilty:‑-- "It is not likely that the complainant knew exactly the time when the raid would be carried out. According to the state ment of the members of the raiding party no time ways fixed for the raid nor any was suggested by the complainant. Also the interval for meals and prayers is from 1 p. m. to 1‑45 p. m. The raid report shows that the raid was carried out at 12‑45 p.m., It was not the time for the break. The defence evidence is of no avail the accused. Prosecution's evidence remains unrebutted. Accused is found guilty, convicted under section 5 (2) of the Prevention of Corruption Act, 1947 and sentenced to one year R. L"

5. It will be noticed that the learned Special Judge did not consider it necessary to scrutinize or even examine the prosecution evidence and without the slightest hesitation proceeded on the assumption that the story put forward by the prosecution was true and that it was fully supported by the witnesses. Such and approach to a case is basically wrong and is never approved by criminal Courts. In criminal cases the prosecution has to succeed on its own strength and not on the weakness of the defence. It is now well‑settled beyond any controversy that the weakness of the defence evidence cannot form a basis for conviction, and C that the prosecution must stand on its own feet. But this is not the case here. There is not a single word in the entire judgment to show that the learned Special Judge was convinced that the prosecution evidence was reliable and sufficient to substantiate the charge against the appellant.

6. The observation of the learned Special Judge "it is not likely that the complainant knew exactly the time when the raid would be carried out", does not represent the correct position. After the report was lodged, the raiding party including the Magistrate, the police Inspector and Khalid Saeed complainant met in the police station, prep*ed an elaborate plan and thereafter they started together for their destination. According to the plan the complainant entered the appellant's office, while the rest stood outside at some distance, and when the complainant came out of the office he made a signal to his companions. Thus the learned Special Judge has obviously fallen into an error to think that the complainant (Khalid Saeed) did not know when the raid would be carried out. He not only knew the time of raid but played a major role, in its execution.

7. The failure of the learned Special Judge to examine the prosecution evidence and to give a finding on it, provides a good p ground for setting aside the conviction. But the appeal must also be allowed for the reason that the appellant has succeeded in creating doubt in one's mind about the truth of the prosecution version. As, a matter of fact the prosecution case hinges on the solitary statement of Khalid Saeed, because he is the only witness to allege that he put the currency notes in the hand of the appellant. The appellant protests and emphatically repudiates the allegation. The question for decision, therefore, boils down to this as to which of the two versions should be accepted, and for this one has necessarily to choose between the complainant and the appellant.

8. If the complainant were a disinterested person and otherwise a truthful and reliable witness and there were no circumstances to cast doubt on his veracity, perhaps in the absence of any satisfactory rebuttal, one would have declared his evidence as sufficient to warrant conviction, but that is not so in the present case. When the entire evidence and the circumstances of the case brought on the record are considered conjointly, one feels a lurking doubt whether the occurrence has really taken place in the manner related by Khalid Saeed.

9. On his own showing Khalid Saeed is not favourably dis posed towards the appellant. It is conceded that the appellant had no authority, whatsoever, to accept or reject the complainant's application. His duty was simply to forward the same to the Deputy Chief Engineer, But Khalid Saeed honestly, though quite foolishly, believed that the appellant could do him favour, and when he (the appellant) did not oblige him, Khalid Saeed felt aggrieved. This fact is admitted by him in his cross‑examination He says:‑- "I was disappointed greately when I found that my applica tion had not reached the office of the Deputy Chief Engineer. I suspected the accused for retaining my application in his office." Mr. Abdul Latif Khan has referred to the statement of this witness and also to other evidence on the record which tends to indicate that one Fakhri Alam, a clerk in the appellant's office was also annoyed with him (the appellant) because he (Fakhri Alam) had been transferred to D. I. Khan on his complaint. It is suggested that Fakhri Alam also instigated Khalid Saeed to implicate the appellant. The suggestion may or may not be well‑founded, but there is no denying the fact that Khalid Saeed himself had a strong grievance to complain against the appellant on his own.

10. But there is yet another fact for which no explanation, much less a satisfactory one, has been offered by Khalid Saeed or for that matter by the prosecution. The appellant is alleged to have demanded illegal gratification from Khalid Saeed on the 7th January, but the latter, though an official in another office in the same locality, made no effort to complain to, or apprise, any officer of the appellant or his own for three days. He did not report the matter even to the police or the Anti‑Corruption Department. He disclosed the alleged demand of bribe by the appellant to Mansur Khan Inspector of Anti‑Corruption Depart ment for the first time on the 4th day (10‑1‑1961). He does not tell us as to what prevented him from taking his complaint to the authorities at once or within a reasonable time.

11. Khalid Saeed also does not give a consistent story. In the first report, which he made to Mansur Khan, he alleged that he offered only Rs. 5 for tea, but the appellant rejected the offer and insisted on payment of Rs.

20. In his statement at the trial the complainant said: "As I did not know the dealing clerk I requested the accused to get it forwarded. The accused replied that he will do so provided I pay him Rs.

20. I expressed my inability to pay him that amount saying that I am an ill‑paid Government servant and could not afford to pay him that sum. Then I left the office of the accused." It will be noticed that he did not say even a word about his offer of Rs. 5 for tea, or the refusal of the appellant to accept the same.

12. The appellant's plea that Khalid Saeed might have put the currency notes in the pocket of his coat which he had hung in the office when he went to his bath‑room for making ablution did not find favour with the learned Special Judge and he dismissed the same summarily just in two sentences. He observed:‑-- "Sultan Muhammad (D. W. 6) suggests the inference that on the day of occurrence the accused was taking ablution as usual and the complainant placed the tainted currency notes in his pocket. It is not likely that the entry in the room of the accused could escape his notice." The learned Special Judge seems to have been influenced in his conclusion by the fast that the witness works in a room adjoining the office of the appellant and that there is a door between the two. It was conveniently overlooked that a man sitting in one room need not necessarily notice something going on in the other room even if the two rooms are connected by a door. This is plain common sense and one need not say much about it.

13. It is not denied that there is a break (recess) in office hours from 1 p.m. to 1‑45 p. m. for prayers and lunch. It is also admitted that there is a bath‑room attached to the office of the appellant. According to Khalid Saeed he delivered the currency notes to the appellant at about 1 p. m. The appellant, however asserts that the notes were put in his coat when he was in the bath‑room for making ablution. Mr. Bukhari. Assistant Advocate General, contends that the appellant has failed to furnish proof that the notes were planted in his absence. It is true that the appellant has not been able to lead direct evidence to establish his plea, but it hardly requires any strenuous effort of imagination to see that in the very nature of things he could not produce ocular evidence, just as the complainant Khalid Saeed has not been able to produce any eye witness in support of his version. Khalid Saeed could neither pay the bribe to, nor could he plant the money on, the appellant in the presence of a third person. The appellant's explanation may not be sufficient to rebut Khalid Saeed's story, but when it is recalled that Khalid Saeed selected 1 p.m. time for carrying out his assignment, as admitted by him in his cross‑examination, i.e., the recess time when people rise for prayers or lunch, one feels that there is reasonable possibility of the appellant's plea being correct. In that case it is not safe to place absolute reliance on the solitary statement of the complainant and make it the basis of conviction. An accused‑person's duty is to create reasonable doubt about his guilt in one's mind, and if he F succeeds in doing that, he need not actually establish his innocence.

14. When the entire evidence and the circumstances of the case are examined, one cannot say with that degree of certainty which is always insisted upon in" criminal cases, that the guilt of the appellant has been established beyond reasonable doubt. His appeal is, therefore, allowed, his conviction and sentence are set aside, and he is acquitted of the charge. He should be set free S.B Appeal allowed