1975 P Cr (PLP)

He also produced five witnesses in support of the above‑noted version. Muhammad Yusuf D W. I is an employee of the State Bank where Muhammad Anwar P. W. 4 is also employed. He was present when Muhammad Siddiq D. W. 4, a relative of Muhammad Anwar D. W. 4. had told the appellant that he should give a message to Muhammad Anwar P. W. that his father was ill and that he should send some money and further that if he was not able to bring the money himself, he may give it to Muhammad Ashiq appellant for dative to his father. Muhammad Iqbal D. W. 2 and Nazir Ahmad D. W. 3 were sail to have been sitting in the Golbagh when the tainted money was passed over by Muhammad Anwar P. W. 4 to the appellant and supported the above noted version. Muhammad Siddiq D. W. 4 is a relative of Muhammad Anwar P. W. 4 who had delivered the aforementioned message to the appellant. Umar Draz D. W. 5 stated that Abdul Majid Lambardar and Muhammad Anwar P. W. 4 had come to him and requested him to ask Muhammad Ashiq appellant not to appear against Abdul Majid Lambardar in a case that was pending against the latter.

5. I have heard the learned counsel for the parties and have also gone through the entire record. It will be noticed that the passing of the money is not denied by the appellant. He leas only given an explanation for the same saying that Muhammad Anwar P. W. 4 had given it to him for onward delivery to tits father. Section 4 of the Prevention of Corruption Act, 1947 provides that the moment the prosecution proves the passing of money, a presumption shall use that like. It given as illegal gratification. But his presumption is rebut table On the passing of money this 'presumption naturally arose in this case also but what has to be seen is whether the appellant has been able to rebut it.

6. The learned counsel for the appellant argued that the defence version vas supported not only by the aforementioned five D. Ws., but also by the admissions made by Muhammad Anwar P. W. 4 himself. In this convection he referred me to various parts of the statement made by Muhammad Anwer P. W. 4. (luring his cross‑examination and I notice that each part of the defence version was put to Muhammad Anwar P. W. turn by turn, and he readily admitted each of these suggestions. He also admitted the presence of Muhammad Iqbal and Nazir Ahmad D. Ws. at the spot. He also admitted a suggestion as to, the previous enmity between him and the appellant. It is not very unusual in this country to win over the prosecution witnesses and in the present case it is more than obvious that the appellant had been 3 when aver the complainant himself. For this very reason Muhammad Siddiq, who is a relative of Muhammad Anwar component also appread However, I notice that the in order to show the existence of previous enmity between the complainant and the appellant, are such as disclose a very weak kind of enmity which could not possibly to involve Muhammad Ashiq appellant in a false case. In the concessions made by Muhammad Anwar P. W. 4 in favour of I attach no importance to them. It has been held by Mr. Justice Muhammad Munir (the then Chief Justice of Pakistan) in adalat v crown P L D 1956 F C 171 that in case where a witness makes conflicting statement in his examination his cross-examination it is not incurable upon the Court to reject the entire statement and it is open to it to sift the grain is from the chaff and accept the one portion while rejecting the other. The actual observations of their Lordship are: .. Generalizations relating to the appreciation of evidence are sot at all rules of taw, and if they were ever to be treated as such, the it) my humb1c opinion, would be chaos and would deprive Judges of the lower Courts who have to decide on conflicting evidence of that freedom of reasoning and action which is the first requisite of a judicial investigation . . . . . . . ." It was further observed that:‑ ". . In such a case, I think, it is open to a Court of fact either to reject the whole of the evidence of the witness as untrustworthy (,r to rely upon the portion which in its view fits best with the probates and the facts and circumstances present in the case. for in most cases proof of improper influence or inducement cannot be available arid it is prudence only rather than the record of the case to which one is to turn for aid as the last resort . . . . . . . . . . . . . . . . . .. . . . . .. The matter,' to my mind rests largely on the judicial discretion of the Court and no hard and fast rule can be laid down in respect to it.‑ While most respectfully agreeing with these observations I would add that where a witness own over in a criminal case, the modus operandi generally that, the statement fully supporting the prosecution with the F. I. R. lodged by him or the statement under section 161 Cr. P. C. made by him so that be may not be declared hostile, yet during examination he eagerly makes concessions and; occasion and admission of the accused and gives favourable reply to every asked from him by the defence counsel. To consider this as having created a doubt with regard to his testimony and made basis of rejecting the entire the Alimony, would simply by acting for fulfilment of the plain of the defence to smash the prosecution case through such witness. Indeed it is said that, is blind, but I do not think it is that blind and as rightly observed by their Lordships it should tae left to the Court to consider, while keeping in view the facts, probabilities and circumstances of the case, as to whether to reject the entire testimony of such witness or to accept a part of it and reject the concessions deliberately made to hoodwink the Court and subvert the pr cess of law. I am of the view that Muhammad Anwar kind of witness in whose case invocation of the above mentioned principle is called for. Keeping in view the'4 of as well as tie probabilities and otter circumstances I accept the version given by him in his examination‑in‑chief and disregard the renditions and concessions made by him in favour of the appellant, which are obviously I deliberate and motivated. Had the deference version given,, liven by tire appellant at the trial been true, there is no reason Rio thrive come out with it at the earliest opportunity when Sardar Ilahi Bakhsh Drishak Magistrate (P. W.3 ') asked him to give an explanation and recorded his statement, Exh. P. W. 3/F. But, as already mentioned, there he only stated that the case had been falsely made against him due to enmity with one Abdul Majid Lambardar and that he would make a detailed statement in the trial Court, His failure to have given the story which was subsequently put forward by him at the trial casts a serious doubt on its correctness. I am, therefore, not inclined to accept the same as true. For this reason the testimony of the D. Ws. must also be disregarded.

7. I think that the case against the appellant has been established beyond reasonable doubt and I see no reason to interfere with the judgment of learned Special Judge. I also agree with the learned Special Judge that, in the circumstances of this case, the sentence should be deterrent. T, therefore, maintain not only the conviction but also the sentence. He is on bail. His bail bond is cancelled and he should be taken into custody.

8. With this observation the appeal is dismissed. Appeal dismissed.