2001 P Cr (PLP)

The prosecution in its support examined complainant Shankar Lal, P.Ws. Mashir Bana Ram, Moti Mal. Chaman Lai, Rasool Bux; Arbab Ali, Investigating Officer Noor Muhammad and Magistrate Haibullah. Thereafter, the prosecution side was closed. The statements of appellant and co‑accused Manzoor Hussain were recorded wherein they denied the prosecution allegations. The present appellant took a plea that A.S.I. Ghulam Hyder Abbasi had paid Rs. 3,000 to complainant for buying tape‑recorder from Karachi as he usually used to make purchases of such articles for his business. On the day of incident, he went to the shop of complainant Shankar Lai for collecting tape‑recorder but he cleverly returned the amount, to him instead of tape‑recorder. After receiving the amount he boarded in a tonga and thereafter, he was arrested by the police. The amount received by him was a trust money and not bribe. He further urged that complainant due to annoyance with local police, has involved him in false case as the relatives of complainant were required to them in substantive crime. The appellant and co‑accused neither examined themselves on oath nor examined any defence witness. The trial Court ultimately came to the conclusion that the prosecution has been able to bring home the guilt of the accused and sentenced the present appellant for the terms stated above. However, he acquitted co‑accused Manzoor Hussain, It is contended by learned counsel for the appellant that the witnesses and trap party have never overheard the conversations between the complainant and accused. The version of appellant gets support from the evidence of P.W. Moti Mal. Mashie Bana Ram was the accused in Crime No. 229 of 1986 of Police Station Pano Akil in a gambling case. He was absconder. It is submitted that bribe money was allegedly demanded to presence of P.Ws. Chaman Lal and Ali Gohar Dayo. Ali Gohar Dayo has not been examined by prosecution whereas Chaman Lal has not supported the prosecution case in regard to the demand of bribe money. P. W. Moti Mal has stated in his examination‑in‑chief as under:‑‑ "About 4 months back I was present at the General Store of Shankar Lal when accused Muhammad Juman came over there and demanded a tap‑recorder from him on behalf of A.S.I.P. Abbasi. P.W. Bana Ram was present at the shop at that moment. Shankar Lal, however, paid a sum of Rs. 3,000 to accused Muhammad Juman in lieu of the tap‑recorder which had not been arranged. As soon as Muhammad Juman boarded a tonga on his way to police station, he was caught hold of by Anti‑Corruption Police." It is pertinent from the aforesaid portion that the amount received by the appellant was in respect of the purchase of tape‑recorder. It is submitted that there were two witnesses on the point of demand of bribe money, whose names were appearing in the F.I.R. They were Ali Gohar Dayo and Chaman Lai. The Chaman Lal has not supported the prosecution whereas Ali Gohar Dayo has not been examined. So far the evidence of Moti Mai is concerned that goes in favour of appellant as discussed above. Reliance has been placed upon the cases of Kazi Nizamuddin v. The State PLD 1979 Kar. 2941, Abdul Razzaq Rathore v. The State PLD 1992 Kar. 39 and Abd I Aziz sand another v. The 1984 PCr.LJ

530. Mr. Mumtaz Ali Siddiqui learned counsel appearing for the State supported the impugned judgment and stated that prosecution has proved its case and onus lies upon the appellant to prove that money received by him was not illegal gratification. He has placed reliance on the case of Mst. Rant v, The State PLD 1996 Kar.

316. He argued that Articles 119 and 120 of Qanun‑e‑Shahadat visualized that the burden lies upon the accused He should disprove the charges levelled against him. The record reveals that Bana Ram and others were booked for an offence to Gambling Act two days prior to this incident. He was required to police in connection with the investigation of above case but he was absconder in the matter. This F.I.R. was recorded on 12‑7‑1986, wherein the names of two prosecution witnesses namely Ali Gohar Dayo and Chaman Lal were mentioned in presence of whom the alleged bribe money was demanded. Ali Gohar Dayo has not been examined whereas Chaman Lal has not supported the prosecution case. Moti Mal, who is the witness for the prosecution, has on the contrary supported the version of appellant by saying that appellant had come to the shop of complainant and demanded Rs. 3,000 which were received by complainant for the purchase of tape‑recorder but the same could not be purchased for certain reasons, and the complainant paid money to appellant. This version of the said P.W. makes the case of prosecution doubtful. Moreover, the presumption would arise under, section 4 of the Act, it the prosecution witnesses would have heard the conversations between the complainant and the accused/appellant for handing over the money to him. 'File conversation has neither been heard by Moti Mal nor any of the witness of the prosecution. The Magistrate and Investigation Officer had admittedly not heard the conversation between the complainant and appellant. Bana Ram Mashir was admittedly accused gambling case. He has admitted that Moti Mal was available at the shop when the money was demanded but he said that the purpose was not receiving it as a bribe but it was money received by complainant for purchase of tape‑recorder. The appellant was the witness in gambling case against Mashir Bana Ram. He has admitted that he was absconder in the case. In case of Abdul Razzak Rathore v. The State reported as PLD 1992 Kar. 39, the Single Judge of this Court has observed as under:‑‑ "

12. Admittedly the tainted money had not passed in presence of Mr. Zafar Ali, A.C.M. (P.W.3). and Sabit Ali Khan, D.S.P. (P.W.4) who also aid not hear the conversation between complainant Iftikhar Ahmed (P.W.I) and the appellant. Mr. Zafar Ali. A.C.M. (P.W.3) .has admitted so in the following words:‑‑ One Mashir Muhammad Hussain and Head Constable Basheer Ahmad had gone alongwith complainant to the room of the accused. I have not heard conversation between accused and the complainant. I had not seen complainant handing over Rs. 200 to accused ....' According to the Magistrate the office of the appellant was situated on the first floor of the building where he was found sitting at the time of raid.

13. Sabir Ali Khan. D. S. P. (P. W .41 who has made the raid has also admitted in clear terms that he had not seen the actual transaction nor he had heard any conversation between the parties. His evidence further shows that‑ 'Complainant was sent alongwith Head Constable Basheer to second floor. while I alongwith Magistrate and Mashirs remained standing at the first floor of K.M.C. Building..." The same view gets support from the cases of Kazi Nizamuddin v. The State reported as PLD 1979 Kar. 294 and Sultan Ali v. The State PLD 1971 Kar.

78. From the above discussion, it is obvious that the two versions of the case are equally possible.. In such situation the version favourable to the defence is to be accepted. In this context the reference is made to the case of Khushhal and another v. The State reported as 1971 SCMR 357, their Lordships have held as under‑‑ "Learned counsel appearing for the State has, however, argued that in view of the admissions of even the defence witnesses and Suleman himself that two shots were fired, one of the shots must be attributed to Khushal, particularly, since the medical evidence does not absolutely rule out the possibility of the injuries being caused by two shots. We are however unable to agree, for where there are two possibilities open upon the evidence, the possibility which is more favourable to the accused must be accepted, if it otherwise tits in with the facts and circumstances of the case. As we have endeavoured to show the possibility of the injuries found on the deceased being caused by a single shot, is supported not only by the medical evidence but also by the recovery of only one empty cartridge and the number of injuries being consistent with the number of pellets normally contained in such a cartridge. It cannot, therefore, be said with certainty that the injuries were by two shots and not by one. The benefit of this doubt must go to the accused and not to the prosecution." In criminal cases a single circumstance leading towards the real doubt is sufficient to acquit the accused. It is not required that there should) be so many circumstances to lead to inference that the prosecution case is doubtful and the benefit of that doubt should be extended to the appellant. The reference is made to the case of Tariq Pervez v. The State reported as 1995 SCMR 1345, their Lordships has held as under:‑‑ "The concept of benefit‑of doubt to an accused person is deep‑rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concessions, but as a matter of right." The prosecution has failed to bring home the guilt of appellant/accused beyond reasonable doubt. Consequently, the appeal is allowed, sentence of the appellant is set aside and he is acquitted. The appellant is on bail, his bail bonds, stand discharged. N.H.Q./M‑140/K Appeal accepted.