P L D 1958 (W (PLP)

MUHAMMAD BACHAL, J.

‑ The appellant has been con victed by the learned Special Judge Anti‑corruption Hyderabad, under section 5 (2) of Act 11 of 1947 in respect of having obtained Rs. 10 from one Mehrab at Kandiaro railway station by corrupt or illegal means or by otherwise abusing his official position, and sentenced to 12 months R. I. The prosecution case briefly was that the complainant Mehrab used to send Karbi from Kandiaro to Karachi by railway wagons. The appellant who was the station master Kandiaro used to charge Rs. 15 per wagon‑Rs. 5 at the time of filling the requisition form and Rs. 10 at the time of banding over the railway receipt to the consignor. On the 4th December 1951 Haji, Mehrab complainant's partner, paid Rs. 5 to the appellant for the wagon at the time of the requisition. The wagon was loaded with Karbi and despatched to Karachi on the same day in the evening but the appellant did not deliver the R. R. to Mehrab because he had not Ieceiyed the balance of Rs.,

10. On the 5th December 1951 Nazir Ahmad Anti-corruption Inspector Nawabshah was staying with Muhammad Bux in the village in connection with the investigation of a report of corruption lodged by Muhammad Bux against the appellant. Mehrab's first information report was recorded by the Inspector on that day at 10‑30 a. m. to the above effect. The Inspector laid the usual trap, marking two notes of Rs. 5 each in the presence of Shah Muhammad an Muhammad Bux Mashirs. Shah Muhammad waited outside the booking office. Mehrab went to the booking office and the appellant after taking two marked notes from Mehrab handed over the R. R. to him. The Inspector and the Mashirs then rushed to the booking office and on search of the person of the appellant secured a sum of Rs. 458/13/6 along with the two marked five‑rupee notes and five railway receipts. Mehrab produced the R. R. which he had received from the appellant in exchange for the two five‑rupee notes After obtaining the requisite sanction of the prosecution of the appellant he was sent up for trial under section 161, P. P. C. and 5 (2) of Act II of 1947. The defence version was that the appellant had given the R. R. to Mehrab on the 4th December 1951 when his wagon was loaded. The appellant admitted the possession of the two marked notes of Rs. 5 each but explained that these were given to him by Mehrab for a change before the arrival of the Inspector. Under section 4 of the Prevention of Corruption Act, 1947 as soon as the prosecution had proved that the public officer accepted the sum offered, which was admittedly in this case not part of the legal remuneration, the presumption in section 4 would apply and in the absence of any evidence on the side of the accused it must be held that the same was accepted as bribe. Proof of the contrary need not be by evidence oral or documentary ; the proof may be offered by the statement of the accused or by the circumstances of the case. The presumption against the accused under this section is not to be drawn until the explanation of the accused is considered and found unsatisfactory. At this stage of the consideration of the case, the normal principle will apply namely, that the accused is entitled to benefit of doubt and where reasonable explanation is offered, which is acceptable and raises a doubt, that the prosecution has not discharged the burden though the accused may not hive proved the explanation. It was enough for his purpose if he succeeded in raising a doubt as to whether or not the prosecution was true Rax v. Schana ((1915) 84 L J K B 39) also Dr. Woolmington v. Director of Public Prosecutions (1935 A C 462). But if the Court feels justified in drawing a presumption against the accused after due considera tion of the explanation, then the burden is on the accused to displace the presumption of criminal misconduct, always remember as has been held in Rex v. Carr‑briant ((1943) 1 K 13 607), that the burden of proof on the accused in such cases is less than on the prosecution and that it is enough for the accused to make out the truth of his defence in all reasonable probability though not clearly beyond doubt. It is the principles that have to be kept in view in appreciating the evidence in this case. Almost all the High Courts have treated the bribe‑giver as an accomplice. The accused did not go out of his way in accommodating Mehrab which would have constituted a special fact within the meaning of the second further illustra tion to illustration (b) to section 114, Evidence Act to displace the presumption of untrustworthiness. Mehrab in his first report stated that before the 4th December 1951 when his partner Half paid Rs. 5 to the appellant he had paid about 10‑12 days before the incident Rs. 5 to the appellant for open wagon and getting the form filled. But in his evidence he stated that Rs. 5 were paid by his partner Haji on the 4th December and the balance of Rs. 10 were paid by him on the day of the incident. Haji did not support the evidence of Mehrab regarding the payment of Rs. 5 on the 4th December 1951. Muhammad Bux who had admittedly lodged a report against the appellant for corruption in connec tion with which the Inspector Nazir Alimad was staying with Muhammad Bux was not examined. Shah Muhammad Mashir stood outside the booking office. Neither did he hear the conversation between Mehrab and the appellant nor did he see the payment of Rs. 10 by Mehrab to the appellant. The learned judge observed :‑ "No doubt this witness has not seen the complainant paying money to the accused and getting the R. R. from him in return but his evidence obviously proves two points. Firstly that the trap money was found from the possession of the accused and the R. R. from the possession of the complainant. Secondly that the said R. R. was neither in the possession of the complainant when he left the Otak of Muhammad Bux nor did he have any opportunity to receive it from any other person in between the said Otak and the office of the accused." Neither there is any evidence nor does the Mashirnama recite that the person of Mehrab was searched before the two marked 5 rupee‑notes were given to him. It cannot therefore be said with certainty that Mehrab could not have the R. R.' in his possession except by delivery to him by the appellant on that day at that time. The learned Judge further remarked in the Judgment :‑ "The accused has not contradicted the complainant that he had not received the R. R. on 4th December 1951. No such question is even put to him in cross‑examination." An application was made on behalf of the accused for recalling Mehrab anti Shah Muhammad but the learned judge rejected this application. The accused therefore in his statement disclosed that the receipt was given by him to Mehrab on the 4th December 1951. The learned judge further observed No question has been put to the complainant whether he had taken any change from the accused on the day of incident." The record shows that the complainant in his cross-examination admitted that he had got many times notes charged from the Station Master, Kandtaro and also other people do it. Siraj ud‑Din, Clerk, supported the version of the appellant that the R. R. was given by the appellant on the 4th December to Mehrab and that Mehrab had approached the appellant for a change of Rs. 10 on that day. But the learned judge disbelieved him on the ground that he was a subordinate of the appellant. He believed the evidence of Mehrab as regards the handing over by the appellant of the R. R. on that day for holding him guilty of the offence charged taking into consideration on the evidence of similar acts of the appellant not charged against the accused that five other R. R. were found from the pocket of the accused at the time of the search. This evidence is inadmissible. In Noor Muhammad v. The King (P L D 1948 P C 302 : A I R 1949 P C 161), their Lordships of the Privy Coun cil held that it is not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is person likely from his criminal conduct or character to have committed the offence for which he is being tried. The result is that the conviction is set aside and the appellant is acquitted. K. B. A. Appeal allowed.