P L D 1954 Lahore 127 (PLP)

MUHAMMAD JAN, J.-Muhammad Hussain Qureshi, Assis tant Inspector of General Stores, Army Stores Inspection Depot, Rawalpindi, was tried by Mr. Muhammad Rafiq as a Special Judge, Punjab at Rawalpindi on the charge that he on 24th April '1952 accepted a sum of Rs. 350 as illegal gratifica tion from Zahir Ali Shah P. W. 6 as a motive 'or reward for showing favour to him in the exercise of his official duties, that is to say, in the inspection of timber supplied by Zahir Ali Shah as an Army Contractor. He denied the charge, After trial he was convicted under section 161 P. P. C. and sentenced to one day's imprisonment and Rs. 5,000 fine. In default of payment of the fine he was ordered to suffer rigorous imprison ment for nine months. He has appealed to this Court and his case has been argued by Qazi Nazir Ahmad assisted by Mr. Mahbub Sultan. The facts are that Zahir Ali Shah's father Sher Jan Shah P. W. 7 entered into a contract in December 1951 with the Director-General, Supplies and Development Karachi, to supply 15,000 c. ft. of deodar sleepers to the Commandant. Military Engineering Service Factory, Wah, District Attock. In January 1952 he supplied part of the timber and asked that it should be inspected for acceptance. The appellant sent Muhammad Sadiq, Supervisor, and Sultan Muhammad, Viewer, to Bannu for in spection on 16th January 1952. On 17th January he received a telegram Exh. P. S. from the Supervisor saying that it was necessary for him to go to Bannu himself. The appellant wired back to ask what was the difficulty ride Exh. PQ/2 and in reply received a letter on 19th January (Exh. P. R.) from the Supervisor saying that the 6000 c. ft. of timber offered for inspection by the contractor was partly of an inferior kind, described as Bannu blocks, and partly not according to specifications. The appellant sent a telegram Exh. PQ/3 that he was arriving on the next day and reached Bannu on 20th January. There, according to the evidence of Sher Jan Shah P. W. 7, he passed 234 sleepers which had been inspected and approved by the Supervisor. In the evening Sher Jan Shah and his son Zahir Ali Shah went to see the appellant who asked Sher Jan Shah if he was an old contractor and, on being told that he was, said that his commission would be five per cent. Sher Jan Shah said that was too much and expressed willingness to pay two or three hundred rupees. The appellant left telling Zahir Ali Shah to see him at Rawalpindi. He told the Supervisor to await his instructions regarding further inspection of the timber. From Rawalpindi be sent a telegram to the Supervisor in accordance with which he resumed the inspection of the timber. The Supervisor wanted some of the sleepers to be sawn and, on the contractor's raising objection, said that those were the instructions from the appellant. The contractors complied with the instructions and 721 out of 1000 sleepers were passed. Zahir Ali Shah then went to Rawalpindi to get the inspection note for the purpose of receiving payment but, in the words of Sher Jan Shah, he was put off. Sher Jan Shah then went to Lahore and Karachi to complain against the accused. In March 1952 he himself went to get the inspection note from the appellant who refused to give it. Sher Jan Shah then saw Col. Rashid, a superior officer of the appellant, and made the statement Exh. P. J. on 7th March 1952. It shows that Sher Jan Shah had supplied 1000 sleepers which were inspected by two officials who refused to pass them and said that the sleepers would be inspected by the officer incharge. The officer incharge arrived and inspected the sleepers. Upto then only 234 sleepers had been passed. The officer incharge, i.e., the appellant approved the sleepers which had been passed by the Supervisor and Viewer and cold them to pass other sleepers also which conformed to the quality of the sleepers which bad been passed. One of these two men was named Sultan Muhammad who was a brother of the appellant. He told Sher Jan Shah to settle the question of commission with the appellant. He went and asked the appellant what was his commission and he said five per cent. Sher Jan Shah said he was unable to pay that and the appellant should pass the timber that was good and reject the rest. He added that if the appellant wanted one or two hundred rupees he would pay but he was unable to pay five per cent: which would amount to nearly Rs. 4,

500. After that the appellant told the examiners of the timber to reduce the measurements by sawing the sleepers from both sides. In this way 721 sleepers were passed and the others rejected. Sher Jan Shah said that he had to employ about ten workmen daily for 12 days to saw the sleepers and owing to the consequent reduction in the measurements he had suffered a loss of about Rs. 1,

900. He prayed that someone else should be deputed to inspect the remaining timber in place of the appellant. Sher Jan Shah has admitted in Court that the appellant refused to give him the inspection note on the ground that the matter had been referred to the officers in Karachi. He further admitted that when he went to see those officers they gave him the assurance that the matter was being looked into and justice would be done to him. It is significant that, according to his own admission, he did not tell any one of the officers at Lahore or Karachi that the appellant was demanding any commission or bribe from him. He said that when he was in the office of the Director-General at Karachi, on 31st January 1952, a telegram was received from the appellant saying that the timber supplied was Bannu blocks and not sleepers. He merely told the Director that this was wrong. He .had gone to Lahore and Karachi to complain against the appellant and if the telegram received in his presence by the Director-General complaining about the quality of the timber supplied by Sher Jan Shah was the result of his refusal to bribe the appellant he should have had no compunction in saying that to the Director-General or whoever had met him in his office. His failure to' do so cannot be attributed to any regard for the appellant. On the other hand, the omission to state an important fact at an appropriate time throws doubt on the existence of that fact. The telegram was received at Karachi on 31st January 1952 and the demand for commission, according to Sher Jan Shah, had been made on 20th January. The telegram from the appellant which was received in Karachi on 31st January 1952, Exh. P. M., is to the effect that the contractors tendered 5,000 c. ft. deodar Bannu blocks instead of deodar sleepers but the indenter was agreeable to take the Bannu blocks on reduced rates. The reply to that telegram Exh. P. N. said that the appellant should accept supplies which were strictly according to specifications and if the indenter was agreeable to taking Bannu blocks fresh competitive quotations were required. It appears from the statement of the appellant that before leaving for Bannu on 19th January he had telephoned to the Chief Inspector of Stores at Lahore about the complaint received by him from the Supervisor in his letter Exh. P. R. regarding the quality of the timber and on his return from Bannu to Rawalpindi he was given the message received by his Head Clerk during his absence and recorded by him in Exh. PT/1. It was to the effect that the appellant should contact the indenter at Rawalpindi with a view to ascertaining if Bannu blocks were acceptable to him. He did so and was given the answer Exh. P. T. on 23rd January that Bannu blocks and sleepers were acceptable if they were of deodar wood and up to the specifications of the accepted tender. Accordingly, the appellant wired to the Supervisor on the same day to resume the work, of inspection and acceptance according to specifications and instructions. The telegram is marked PQ/4. In his letter to the Supervisor dated 23rd January 1952, Exh. PQ/5 the appellant after referring to his telegram of the same date said that on completion of the inspection the Supervisor should inform him immediately so that he may go to Bannu for confirmation of the inspection. Exh. D. J. dated 21st January contains the written instructions given by the appellant to the Supervisor at Bannu enumerating the points to be borne in mind by the Supervisor in the work of inspection. On 30th January 1953 the appellant wrote to Sher Jan Shah letter Exh. PDD that the Chief Examiner Muhammad Rafiq, P. W. 8 would arrive on 31st January 1952 to confirm the inspection of timber conducted by Supervisor Muhammad Sadiq. Muhammad Rafiq P. W. 8 reached Bannu on 31st January 1952 for checking the stores passed by Muhammad Sadiq Supervisor. He saw about 700 sleepers lying in the railway yard. He could not check the stores on that day as he could not find labour for the work. The significant thing in the statement of Muhammad Rafiq, P. W. 8 is that the contractor's son was with him in Bannu on 31st January. Zahir Ali Shah has said in the Urdu record of his statement that he came to Rawalpindi on 30th January and saw the appellant on 31st January when he again demanded five per cent commis sion According to paragraph 11 of the written statement filed by the appellant, Zahir Ali Shah came to him on 5th February 1952 and he told him that the matter had been referred to the Director-General (vide telegram dated 31st January 1952) and that the next step would be taken according to his orders. On 9th February the appellant received a telegram Exh. P. Y. from Sher Jan Shah asking for the inspection note. Copies of this telegram were sent by Sher Jan Shah to the Director-General Supply and Development Karachi, the Chief Inspector of Stores Lahore, the Engineer-in-Chief Rawalpindi and the C. M. E. S. Factory Wah. On receipt of this telegram the appellant wired to the Director-General asking for an early decision regarding the reduction of price if Bannu blocks were to be accepted because the clearance of timber was being held up and the matter was urgent. He followed up this telegram with a letter Exh. P. Q/9 in which he requested that priority should be given to the decision of this matter because the contractor was pressing hard for the clearance of the stores. On 12th February 1952 the appellant wrote to the contractor that as explained to his representative on 5th February 1.952 the matter had been referred to the Director General whose decision was awaited on receipt of which final inspection and confirmation would be carried out. On the same day the appellant received a telegraphic reply from the Director General Exh. P. Q/8 that the price reduction of Bannu blocks was under consideration. On 4th March 1952 the A. L. O. Karachi informed the appellant, according to paragraph 17 of his written statement, that the contractor had represented to him that he bad sawn the timber and converted it into sleepers. The appellant was required to send the Chief Examiner for verification of this statement. The appellant wrote Exh. PEE to the con tractor on the same day informing him that Muhammad Rafiq Chief Examiner was detailed to proceed to Bannu at once and that he would be there on 5th March to review the inspection of timber conducted by Muhammad Sadiq Supervisor. Muhammad Rafiq reached Bannu on 5th March and after inspecting the timber made a report on the basis of which the appellant wired and wrote to the Army Liason Officer, C. I. T. D c/to the Director General Supply and Development, Karachi that the timber in question had been re-checked to ascertain how many blocks had been sawn into sleepers and it was found that 182 blocks had been sawn into sleepers and 539 were in their original state. A request was made in Exh. PQ/6 dated 8th March 1952 that the matter should be dealt with on priority basis as the contractor was pressing hard for the issue of inspection note. On 2nd April 1952, in accordance with the telegraphic instructions received by him, the appellant wrote to the contractor Exh. P. C. C. that the Director-General Supply and Development had ordered that only timber which was according to specifications should be accepted and not Bannu blocks. He further said that Muhammad Rafiq would reach Bannu on 5th April 1952 to sort out the timber. Muhammad Rafiq examined the timber and according to the examiner's slip on the back of Exh. P. X. passed 721 sleepers i.e. 4779.72 c. ft. of timber out of the 6000 c. ft. which was tendered. He rejected 1220.28 c. ft. He did this on 9th April 1952 and the appellant issued the inspection note Exh. P. O. on 10th April 1952 which was taken away by the contractor on 14th April 1952. The delay in the issuing of the inspection note, according to the contractor, was due to the fact that he had refused to bribe the appellant; and, according to the appellant, it was due to the fact that he bad done his duty in pointing out the defects to the officers concerned. Both versions are possible and where the version of the accused is as likely as that of the prosecution the version favourable to the accused should ordinarily be preferred owing to the legal presumption of innocence attaching to him until the presumption is rebutted and his guilt is proved. The only witnesses who impute dishonesty to the appellant are the contractors. The official witnesses only say that the con tractors had made this imputation before the raid and that on the occasion of the raid notes given to Zahir Ali Shah were recovered from the appellant. These facts are not denied by the appellant. His case is that these notes were given to him as having been sent by Muhammad Saeed who owed him this money. The uncorroborated testimony of Sher Jan Shah would, in my opinion, not be a safe basis for the conviction of the appellant because Sher Jan Shah has suffered loss on account of the action taken by the appellant and is displeased with him. The only other witness regarding the demand of illegal gratification is his son Zahir Ali Shah. According to him he managed the business of his father and is, naturally, as much biased against the appellant as his father. His evidence must also be, treated with caution and it must be remembered that biased evidence cannot be corroborated by evidence of the same kind. Zahir Ali Shah (P. W. 6) stated that the appellant threatened to put them to inconvenience when his father refused to pay five per cent commission and that when he saw the appellant in his office at Rawalpindi on 21st January 1952, the appellant told him to make his father understand that it was the appellant's right to take com mission. According to the evidence of Muhammad Yusuf Head Clerk P. W. 4 he received the telephonic message from the Chief Inspector of Stores on 21st January 1952 when the appellant was away in Bannu and he typed out the message Exh. P. T./1 which shows that it was received on 21st January 1952. The evidence of Zahir Ali Shah that the appellant demanded commission from him on 21st January at Rawalpindi is thus contradicted by Muhammad Yusuf, a witness for the prosecution. The movement orders relating to the appellant produced by Muhammad Zaman D. W. 1, a clerk in the Army Stores Inspection Depot, also that the appellant left Rawalpindi for Bannu on 19th January 1952, and returned to Rawalpindi on 22nd January 1952. Proceeding further Zahir Ali Shah said that he came to Rawalpindi again and saw the appellant in his office on 30th January when the appellant again asked for five per cent. commission. After that Zahir Ali Shah and his father saw the appellant three or four times and asked him to issue the inspection note but every time he asked for bribe which led his father to go and complain to Col. Rashid who directed him to inform the Special Police. The statement made by Sher Jan Shah to Col. Rashid Exh. P. J. dated 7th March 1952, has been already reproduced. The statement to the Special Police Exh. P. A. was made by Zahir Ali Shah on 24th April 1952, more than a month and a half after Col. Rashid had told them to do so. Zahir Ali Shah said that his father Sher Jan Shah was a man of 70 years and Zahir Ali Shah managed the business for him. The appellant inspected the stores supplied by them. No payments are made unless the stores have been inspected and passed. The appellant asked for bribe and agreed to take Rs

350. If Zahir Ali Shah was given necessary assistance he was prepared to have such corrupt officials arrested. The significant thing in this state ment is that the appellant had agreed to take Rs.

350. According to the evidence of Sher Jan Shah and Zahir Ali Shah the appellant had demanded 5 per cent on the amount due to the contractors which came to about Rs. 4,500 and the sum of about three hundred rupees, which the appellant is re ported to have agreed to take, Sher Jan Shah was perfectly prepared to pay at the very outset. According to Exh. P. K. the rate of the timber was Rs. 6-4 per c. ft. and the price of 15000 c. ft. which the contractors had to supply came to Rs. 93,

750. Five per cent commission on this would come to a little more than Rs. 4,

500. It is difficult to understand why the appellant should have agreed to take Rs

350. This is sought to be explained by Zahir Ali Shah in his evidence that he had agreed to pay him Rs. 500 as the first instalment if he gave him the first inspection note. This conversation is said to have taken place on 8th or 9th April 1952 when the appellant told Zahir Ali Shah to come and take away the inspection note on 14th April. Strangely enough, according to Zahir Ali Shah, he went and obtained the inspection note from the appellant without making any payment at all. Then he went away with the inspection note to Bannu from where he returned on 23rd April 1952 and made the report Exh. P. A. to the Special Police on the next day. He then went to see the appellant in his office at about 8 a .m., on 24th April, and told him that be had not been able to get the money from his father but had asked a friend to lend him Rs. 350 which he would pay to the appellant at 3 or 3-30 p.m. that day and the balance later on. Thus the four important dates of Zahir Ali Shah's visit to the appellant in his office at Rawalpindi are 21st January, 30th January. 8th or 9th April and 24th April. On the 24th April ac cording to Zahir Ali Shah, he saw the appellant twice, once in the morning when he told him that he would pay Rs. 350 at 3 or 3-30 p.m. and then in the afternoon when be came with the raiding party. In his cross-examination Zahir Ali Shah admitted that whenever he passed through the main gate of the office building he signed the visitors' book at the gate and that he bad signed that book on the morning of the 24th April when he went to see the appellant. There is a note made by the trial Court that at this stage the Prosecuting Inspector of Police stood up and said that the witness had signed the visitors' register in the evening and not in the morning. The witness then said that he could not say whether he had signed the register in the morning or not. The register was produced by the defence and whilst it showed the dates and times of several visits by Zahir Ali Shah to the office it did not show any visit by him on any one of the important dates men tioned above except the 24th April 1952 at 3-30 p.m. The fact that no less than 11 visits of Zahir Ali Shah to the office from 22nd January 1952 to 24th April 1952, the period relevant to the case, are entered in the book proves what is admitted by Zahir Ali Shah that whenever he went to the office his name was entered in the visitors' book. He is a Matriculate and the entries relating to his visits are signed by him. The appellant denies that he ever demanded illegal gratification and the visitors register belies the evidence that the demand was made on 21st January, 30th January and 8th or 9th April or that Zahir Ali Shah had gone to the appellant's office on the morning of 24th April to promise payment. When Zahir Ali Shah went to the office more than once in a day every visit was recorded. For example, on 12th March 1952 he is shown to have gone to the office at 9-15 a.m. and again at 2-15 p.m. but on 24th April 1952 he is shown to have gone only at 3.30 p.m. and not in the morning at 8 a.m. The. learned counsel for the Crown when asked to explain this defect in the evidence of Zahir Ali Shah expressed his inability to do so and refrained from repeating the explanation given by the trial Court that in spite of the statement of Zahir Ali Shah that whenever he went to the office he signed his name in the visitors' book there may have been some occasions when he did not do so. In the absence of any statement to this effect by Zahir Ali Shah it would, in my opinion, be stretching the point in favour of the prosecution to say that on all the most important dates Zahir Ali Shah had gone to the office without signing his name. The evidence of Mardana Chaukidar D. W. 7 has been referred to by the trial Court. His evidence is that he was on duty at the gate on 24th April when the raid took place. Zahir Ali Shah came there and wanted to see the appellant. According to the usual procedure he sent a chit from Zahir Ali Shah to the appellant but the appellant's peon said that he was not in his office. Zahir Ali Shah then said that be would see the Head Clerk Muhammad Yusuf and the gatekeeper allowed Zahir Ali Shah to go in. Mardana said that contractors who are known are sometimes allowed to go into the office without the previous permission of any one. This last passage has been relied upon by the trial Court for holding that there was nothing strange if all the visits of Zahir Ali Shah to the depot were not recorded in the visitors' book (Exh. D. C). It is contended on behalf of the appellant that this does not mean that contractors are allowed to go into the office without any entry relating to their visit being made in the visitors' book. Permission from the officer concerned that the visitor may be sent into his office is one thing and signing the visitors' book on passing through the gate is another thing. This is clear from the evidence of D. W. 7 that though Zahir Ali Shah had not obtained the permission of the appellant or the Head Clerk he saw the Head Clerk and the entry relating to his visit was made and signed by Zahir Ali Shah. Another thing which could have been said by the prosecution in this connection is that Zahir Ali Shah had said that whenever he passed through the main gate of the office building he signed the register and that on the dates mentioned above he may not have passed through the main gate. This argument has not been advanced either by the trial Court or by the counsel for the prosecution and Zahir Ali Shah himself has nowhere said that on these dates he went to the office through any back door or side gate. There was no reason for him to avoid entries relating to his visits on those dates and the absence of such entries casts a serious doubt on the evidence of Zahir Ali Shah that he visited the appellant on those days. If the visits of Zahir Ali Shah come into doubt then the demand of bribe made on those visits also becomes doubtful. The rest of the evidence of Zahir Ali Shah is not in dispute. He says that at about 3 p.m. on the 24th April he went back to Special Police and was produced before Mr. Ikramullah Qureshi, Magistrate, who recorded his statement Exh. P. A. Mr. Ikramullah P. W. 1 has deposed that he went to the Army Stores Inspection Depot Rawalpindi under orders of the District Magistrate. Before going there he recorded the statement of Zahir Ali Shah Exh. P. A. at 2-30 p.m. Major Mumtaz and Mr. Zaidi Inspector of Special Police Establishment were with Zahir Ali Shah. The Inspector Police gave Mr. Ikramullah Rs. 350 in currency notes the numbers of which he noted down in Exh. P. B. After searching the person of Zahir Ali Shah he gave the notes to him. They were three notes of one hundred rupees each and five of ten rupees each. Ht then went to the Army Stores Inspection Depot accompanied by Zahir Ali Shah, Major Mumtaz. and Inspector Zaidi. They stopped the jeep in which they had gone at a distance of 40 yards from the main gate and kept sitting in the jeep whilst Zahir Ali Shah went into the Depot with the currency notes. After about 20 minutes he came out of the gate and the raiding party proceeded towards him. Zahir Ali Shah said that he had delivered the currency notes to the appellant as bribe. The raiding party then went into the appellant's office and found him there. Mr. Ikramullah told him that he was a Magistrate and asked him "where he had kept the currency notes handed over to him by a person." He replied that he had not received any currency notes and Mr. Ikramullah said that he would search him. The appellant stood up and Mr. Ikramullah recovered the currency notes from the trouser pocket of the appellant. He was not wearing any coat. The appellant was then asked if he bad anything to say and he made the statement Exh. P-D which reads as follows :- "I have been busy during this afternoon in the viewing room of my depot inspecting stores. On return my orderly informed me Mr. Yusuf Head Clerk brought these Rs. 350 from Mr. Muhammad Saeed P.O.S., C.I.T.D.'s office. This amount was loan to Mr. Saeed by me about four to six months ago. I sent for Mr. Yusuf Head Clerk and told him when did be receive the money. He said last night from Mr. Saeed's home." After recording this statement Mr. Ikramullah sent for Muhammad Yusuf Head Clerk and Abdul Karim, the orderly mentioned above. The statement made by Muhammad Yusuf marked Exh. P-E is as follows : - "I know Mr. Saeed of P.O.S. (C.I.T.D). He has never handed over any money to me to be passed on to Mr. M. H. Qureshi. I am working in this establishment as Head Clerk. I have not given any amount whatsoever to Mr. M. H. Qureshi to-day." The statement of Abdul Karim peon, Exh. P-F, is as follows:

I have not brought any amount to the office of Mr. M. H. Qureshi, neither I have placed any amount on his table; Muhammad Yusuf Head Clerk has not given me to-day any money for being handed over to Mr. M. H. Qureshi." Ordinarily, such immediate refutation of an accused person's explanation would make the explanation look worthless ; but, in this case the position of the appellant is that his explana tion is perfectly true and the fact that it was contradicted by the Head Clerk and the peon only shows that they had entered into a conspiracy with Zahir Ali Shah to get the appellant into trouble. This position is supported by Mardana D, W. 7 who said that when Zahir Ali Shah came to the depot at 3-30 p.m. the appellant was not in his office and Zahir Ali Shah went in to see the Head Clerk. According to the appellant, Zahir Ali Shah gave the currency notes to the Head Clerk and the Head Clerk put them on his table. He asked the peon who had kept those notes on the table and he said that the Head Clerk Muhammad Yusuf had brought them from Mr. Saeed. Shortly afterwards the Head Clerk came into his office with some paper and said that Mr. Saeed had given him the money to be returned to the appellant with thanks. The appellant then counted the money and put it into his pocket. The most important witness was Mr. Saeed and his statement was not recorded by the Magistrate. The explanation given in this respect by Mr. Zaidi, Inspector Police, is that he tried to contact Mr. Saeed on the phone but could not find him. Mr. Saeed is the Assistant Controller of Inspection and Technical Development at Rawal pindi and it is hard to believe that the police were unable to contact him. If he could not be found on the day of the raid he could have been found a day or so later and examined by the Magistrate. According to Mr. Zaidi, P. W. 9, when he and Mr. Ikramullah entered the appellant's room Mr. Ikramullah told the appellant that Zahir Ali Shah bad given him some money as bribe and asked him where that money was. The appellant gave no answer and remained standing. The Magistrate then showed his identity card to the appellant and, at the Inspector's request, searched the appellant and found the currency notes in his pocket. On being asked how he bad come to possess these notes the appellant said that Mr. Saeed owed him Rs. 350 which he bad sent through Muhammad Yusuf Head Clerk who had delivered it to him in the presence of the peon. He then sent a Sub-Inspector to bring the Head Clerk who had already left the office. It will be noticed that there is a material discrepancy in the statements of the Inspector and the Magistrate as to what was said to and by the appellant when they entered his room. According to the Magistrate's recollection the appellant was asked "where he had kept the currency notes handed over to him by a person." He said "he bad not received any currency notes." This question and reply, if correct, would show that the appellant had made a false statement because he had received some currency notes though, according to him, they were received from Muhammad Saeed through Muhammad Yusuf. A false statement of this kind, like absconding of an accused, may be inspired by fear and would not prove guilt though it may be evidence of suspicious conduct. The evidence of Mr. Zaidi shows that this is not what happened. According to him, the appellant was told by the Magistrate that Zahir Ali Shah had given him some money as bribe and asked him where that money was. If the appellant denied receiving such money his statement was in keeping with his defence. But the Inspector said that be made no statement at all. So there is no evidence of conduct, good or bad, against him. Muhammad Saeed P. W. 2 when examined on 8th October 1952, about five and a half months after the raid, said that he never had any private dealings with the appellant and that he had never borrowed any money from him at any time. Because he had never borrowed Rs. 350 from him there was no question of his returning that money to him. In cross-examination he had to admit that he was a share holder and a Director of the Industrial Engineering Corporation Society formed in 1947 at Rawalpindi and that in September 1951 the appellant had, at his request, lent Rs. 2,000 to the Society which was returned to him after about six months without any interest. This money was paid by the appellant to the witness, Muhammad Saeed, at his house and he paid the money to the Society. He further admitted that when the appellant was posted at Lahore the witness had at times asked him to make purchases for him but that be had paid him and owed nothing on that account. He denied that he had received a cheque from the appellant for Rs. 300 in September 1.951 and that he had cashed it from Lloyds Bank through his daftri Behram Hussain. He added that as he had never taken this money from the appellant, he could never have sent it back to him. But Behram Hussain daftri D. W. 4 has deposed that Muhammad Saeed gave him the cheque drawn by the appellant on Lloyds Bank Ltd. Rawalpindi dated 6th September 1951. He received Rs. 300 on account of this cheque from the Bank and delivered the money to Muhammad Saeed P. W. He used to cash cheques for Muhammad Saeed and other officers. This lends a great deal of support to the statement of the appellant that Rs. 300- was due to him on account of the cheque and Rs. 50 on account of the purchases mentioned above. It also throws doubt on the veracity of Muhammad Saeed who, said that he never had any private dealings with the appellant. He admitted that there was a departmental enquiry against him on the charge that he had been taking Marriage Allowance from the Government without being married but added that be was let off. I am unable to place implicit reliance on the evidence of Muhammad Saeed or on the evidence of the Head Clerk or the Peon. I feel that the explanation given by the appellant, immediately after the raid, may perhaps be true. The peon Abdul Karim and the Head Clerk Muhammad Yusuf have not supported that explanation but Head Clerks and Peons are often friendly with the contractors and they may have conspired with the contractors in this case to bring about the downfall of the appellant. It is in the evidence of Inspector Zaidi that Muhammad Yusuf H. C. had left the office when he was called and that he had to be sent for. According to a memorandum prepared by Mr. Ikramullah Magis trate (Exh. P. G) he had entered the appellant's office at about 3-55 p m. According to Muhammad Zaman Clerk D. W. 1 the working hours in April 1952 were from 8-30 a. m. to 4 p.m. It is difficult to understand why the Head Clerk should have left before closing time on the day of the raid when his officer incharge might have required some files or some information from him at any time. Mr. Ikramullah Magistrate has stated that when they entered the gate of the depot they were stopped from proceeding further. Then someone told the man who had stopped them to let them pass and he allowed them to do so. Mr. Ikramullah had recorded the statement of Muhammad Yusuf shortly after the raid and had ample opportunity of seeing him. The defence put it to him that it was Muhammad Yusuf, Head Clerk, who had said that they should be allowed to pass. The witness was not in a position to contradict this assertion. He said he could not tell whether it was Muhammad Yusuf or not. Mardana, D. W. 7, Chaukidar of the Inspection Depot stated that he was on duty at the gate when the Magistrate and the police came and he stopped them from proceeding further. The Head Clerk Muhammad Yusuf then gave him a signal to let them pass and he did so. Zahir Ali Shah, according to this witness, had gone to the room of Muhammad Yusuf Head Clerk about half an hour before this when the appellant was inspecting the stores. Muhammad Zaman D. W. 1 has deposed that Zahir Ali Shah came to the office on 24th April at about 3 p.m. and saw the Head Clerk and that at about 3-45 p.m., when the raiding party arrived, Muhammad Yusuf was informed by Abdul Karim Peon and then Muhammad Yusuf; told the Chaukidar to let them pass. Muhammad Yusuf on the other hand said that he had left the office on 24th April before the arrival of the raiding party. He denied that he had told the gatekeeper to allow the Magistrate to proceed and he further denied that he had conspired with Zahir Ali Shah to trap the appellant by giving him Rs. 350 on the representation that it was received from Muhammad Saeed. He admitted that Zahir Ali Shah and his father Sher Jan Shah used to come to his office in connection with their work. He denied that the appellant had asked for the witness's transfer from Rawalpindi on the ground of inefficiency but admitted that he bad written two letters to the appellant in the beginning of 1951 asking for forgiveness if he had given any offence and that the appellant took no notice of those letters and sent him no reply. He has further admitted that Abdul Karim used to be the peon of the officer incharge of the Stores but when the appellant took over he transferred Abdul Karim to the office instead of keeping him as his own peon. Later on he took him back. Before the appellant took charge, Muhammad Yusuf used to post the firemen on duty but the appellant took that work away from him and entrusted it to the gatekeeper. He denied that this was because the witness used to make firemen do his domestic work. Abdul Karim peon denied that after transfer he was taken back by the appellant as his own peon on the recommendation of Muhammad Saeed. According to him the appellant took him back of his own accord. It is difficult to understand why the appellant should have transferred him if he was not displeased with him and why he should have taken him back if nothing had been said or done to overcome that displeasure The peon admitted that when he was transferred he started working under Muhammad Yusuf Head Clerk and he further admitted that he used to supply milk to the canteen of the Stores Depot but there were complaints that he adulterated milk and the appellant stopped his supply. Both the Head Clerk and the Peon are thus not free from bias against the appellant according to whom they had conspired with the contractor. I do not hold that such a conspiracy has been proved but I feel that it is not beyond the pale of reasonable possibility. The appellant is in the same position as a person from whose possession stolen property is recovered shortly after the theft. If such a person gives an explanation regarding his possession which the Court considers to be reasonably possible, though it may not be convinced of its truth, he must be given the benefit of doubt. In Safdar Ali v. The Crown (P L D 1953 F C 93) it was recently held by the Chief Justice of Pakistan that in a criminal case it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt not as a matter of grace but as of right because the prosecution has not proved its case beyond reasonable doubt. In my opinion, the case against the appellant has not been proved beyond reasonable doubt and giving him the benefit of that doubt I set aside his conviction and the sentence of fine passed against him. The appeal is accepted. A. H. Appeal accepted.