1990 P Cr (PLP)

8. On the assessment of evidence, both oral as well as documentary, the learned Special Judge found the appellants guilty and convicted them accordingly, hence the present appeal.

9. I have heard learned counsel for the appellants and Mr. Laeeque Ahmad Jafri learned counsel for State, who has not supported the conviction recorded against the appellants.

10. There is solitary evidence of complainant Sultan Ahmad Khan (P.W.2) on the demand of Rs.700 as illegal gratification. According to him this demand was made on 13‑1‑1987, when he had gone to appellant Muhammad Ramzan who told him. "On my enquiry, accused Ramzan told me that I have to spend Rs.800. for the renewal of licence. Accused Ibrahim was also present at that time. I told Ramzan that I was a poor man and I could not afford to pay Rs.800. Ramzan refused to reduce the amount. He stated that Rs.,100 would be taken by him and Ibrahim while Rs.700 would be given to the D.H.O. The accused agreed to reduce Rs.100 and told me to give him Rs.700. Ramzan told me to bring Rs.700 and give to Ibrahim or to him and I would get the licence."

11. In cross‑examination complainant Sultan Ahmad Khan (P.W.2) made an improvement by stating that Habib Khan was with him when he had approached appellant Muhammad Ram7an on 13‑1‑1987. On close examination of the evidence of Sultan Ahmad Khan (P.W.2), I have noticed that he has not only exaggerated the story but has also freely mixed lies with truth. The learned A Special Judge while examining the evidence of complainant Sultan Ahmad Khan (P.W.2) completely ignored. (i) delay of two days in lodging F.I.R.; (ii) reasons for the delay and lack of explanation by the complainant; (iii) the special procedure adopted by Muhammad Karam Khan, Inspector A.C.E. by picking up mashirs at the choice of complainant; (iv) the fact that the application for renewal of licence had been made only three days prior to the alleged demand of illegal gratification, when it was admittedly lying with Miss Catherine, junior clerk (P.W.1) and was yet to be processed; (v) that the motive for falsely implicating a person some times remains shrouded in mystery and, therefore, lack of motive by itself does not improve the quality of evidence, if it otherwise creates doubts; and (vi) a conviction is certainly not to be based on the weakness of the defence and the prosecution has to stand on its own legs.

12. Admittedly there is no evidence on record to show that appellant Muhammad Ram7.an had received the tainted money. He was not even present when the tainted money had passed on to appellant Muhammad Ibrahim. There is no clear evidence about the place where he was arrested. There is solitary word of complainant Sultan Ahmad Khan (P.W.2) showing a link between the two B appellants. There can hardly be any dispute that if a witness is of a character analogous to an accomplice, his evidence must be corroborated in material particulars. Such corroboration is lacking in this case. The case against appellant Muhammad Ramzan is not` free from doubt and he cannot be convicted with al clear conscience. The benefit of doubt must, therefore, go to appellant Muhammad Ramzan. 13. 1 now take the case of appellant Muhammad Ibrahim. Admittedly he was working as peon (Naib‑Oasid) and had nothing to do with the renewal of licence. While examining the evidence of Sultan Ahmad Khan (P.W.2) against appellant Muhammad Ramzan, it was noticed that he has freely mixed lies with truth and has undoubtedly tried to magnify the case and to improve upon it. His evidence against appellant Muhammad Ramzan is to be received with great care.

14. Appellant Muhammad Ibrahim admits the acceptance of Rs.700 from complainant Sultan Ahmad Khan (P.W.2). He, however, states that it was give to him by complainant Sultan Ahmad Khan (P.W.2) for handing it over to District Health Officer. According to Sultan Ahmad Khan (P.W.2) this transaction took place in presence of all the persons who heard the conversation also between them. Sultan Ahmad Khan (P.W.2) states. "Ibrahim met me in the Verandah of the office. Ibrahim enquired whether I had brought the money. I replied in affirmative. Ibrahim told me to take out the money. I took out Rs.700 from by‑pocket and gave to Ibrahim. Ibrahim counted the money and then went to the room of Miss Catherine. The witnesses, Magistrate and the Inspector heard the conversation and they saw me giving money to accused Ibrahim."

15. Out of the material witnesses examined by the prosecution all of them, namely, Sultan Ahmad Khan (P.W.2), Muhammad Ishaque Afreedi (P.W.3), and Muhammad Karam Khan, Inspector (P.W.5) are incidentally Pathan by caste and they belong to the Province of N.‑W.F.P. Muhammad Karam Khan, Inspector A.C.E. (P.W.5) was, therefore, not an independent witness. The only independent witness was Mr. Rashid Bashir Maiari, A.C.M. (P.W.‑4) and he admits in clear terms. "I did not hear the conversation of the complainant with anybody. I also did not see the complainant giving money to any person:' 16‑ Section 4 of the Prevention of Corruption Act, 1947, provides for raising presumption of guilt where a public servant accepts gratification other then legal remuneration. This is, however, a rebut able presumption and could arise only if it is proved that the accused had accepted the tainted money as illegal gratification. In such a situation the hearing of conversation between the complainant (bribe giver) and the accused to find out the object of such h transaction by the Magistrate is necessary. It may be noted that mere passing of money cannot raise the statutory presumption against accused. Appellant I,. Muhammad Ibrahim had all along pleaded that the money was given to him for its delivery to District Health Officer, and he had not accepted it as bribe. He has adhered to this statement even after Mr. Rashid Bashir Mazari, A.C.M. (P.W.4) had exonerated him. The essence of the matter is the real nature of payment to be gathered from the circumstances attending to each case. In this context the following admissions of Sultan Ahmad Khan (P.W.2) are material. "The medical licence is renewed by the D.H.O Prior to the incident also I had given the illegal gratification to Ibrahim for the D.H.O knew that sum of Rs,700 would be given to D.H.O."

17. The testimony of complainant Sultan Ahmad Khan (P.W.2), when examined in juxtaposition to the statement made by appellant Muhammad Ibrahim leads to an inference that the latter version could be held to be true or it G in an appreciable measure rendered the story of complainant Sultan Allmad Khan (P.W.2) such which it might not be safe to accept it in order to base conviction against appellant Muhammad Ibrahim.

18. There is nothing on record to show that any attempt was made to associate the District Health Officer, Karachi in this case. I consider corruption as a root cause of all the problems, which are being faced in our country. Its tentacles have engulfed both the high and low officials. It is, however, universally recognised principle that the battle against corruption and graft can only be won if it begins at the top.

19. The circumstances enumerated by me above indicate that appellant H Muhammad Ibrahim may have committed the offence or may not have. In this I view of the matter he too is entitled to benefit of doubt.

20. For the above reasons, I set aside the conviction recorded against both the appellants and acquit them. The appellants who arc on bail arc discharged from their bail bonds. Both the appeals are accordingly accepted. S.A./M‑998/K Appeals accepted.