S. A. RAHMAN, J.-Dr. Ghulam Hussain was convicted by a Special Judge under section 161, Pakistan Penal Code read with section 5 (1) of the Prevention of Corruption Act and sentenced to one year's rigorous imprisonment, together with a fine of Rs. 500, or in default of payment, to three months' rigorous imprisonment further. His appeal was dismissed by the High Court of West Pakistan.
Special leave to appeal was granted to him to consider "whether the defence plea has not b.-en established in the case, at least to the extent necessary for believing that it might reasonably be true (case of Safdar Ali PLD 1953 FC 93)". It was observed, while granting special leave, that there was no reference in the judgment of the High Court to the evidence by eight defence witnesses.
The appellant died during the pendency of the appeal. As, however, a sentence of fine was inflicted by the Courts below in addition to the sentence of imprisonment, the appeal does not abate under section 431 of the Criminal Procedure Code. The legal heirs of the deceased-appellant have appeared through counsel and wish to challenge the conviction on the merits.
The prosecution case was that the wife of Bunyad Ali (P.. W. 7), a clerk in the office of the Controller of Military Account, Lahore, was under the treatment of the appellant who was then attached as Assistant Medical Officer to the Civil Dispensary, Lahore. Under the rules, Bunyad Ali, being an employee of the Central Government, had to pay to the appellant who was a Provincial Government servant, for services rendered and he would then be entitled to reimburse himself by presenting a bill to the Central Government. The expense incurred by Bunyad Ali on the purchase of various medicines and drugs was evidenced by cash memos. Obtained from the shopkeepers concerned. The appellant also, at his request had given him receipts for the payments made for his professional services. A bill, totalling Rs. 391-1-0 which included the cost of medicines and the professional fees of the doctor, was submitted by Bunyad Ali to Government. The Bill, together with the supporting cash memos. And receipts, was mislaid in the office and it therefore became necessary for Bunyad Ali to obtain duplicates of the relevant documents. Bunyad Ali, consequently, approached the appellant with a request for counter-signatures on the duplicates on the cash memos. And the receipts of payments said to have been made to the appellant. It was alleged that the appellant declined to oblige him, unless he was paid Rs. 150 as illegal gratification. Banyad Ali, therefore, contacted the Anti---Corruption Department and it was arranged that a Magistrate should head a party which would lay a trap and catch the appellant in the act of receiving the illegal gratification. Bunyad Ali produced 12 duplicate cash memos. And 14 duplicate copies of fee receipts (Exhs. P. C./1 to P. C./26), before Ch. Ghulam Ahmad, Magistrate, 1st Class (P. W. 8). The Magistrate initialled these documents and handed them back to the complainant. Bunyad Ali had with him Rs. 150 in the shape of currency notes, the particulars of which were also noted by the Magistrate in Exh. P. F./l. Bunyad Ali accompanied by Head Constable, Hashim Ali, then went to the office of the Police Surgeon, where the appellant had his residential quarters, while the other members of the raiding party stayed outside. On seeing Bunyad Ali, the appellant is said to have asked him whether he had "done the work". Bunyad Ali replied in the affirmative. The doctor asked him who his companion was and Bunyad Ali gave out that he was a relative of his. The appellant took Bunyad Ali into him room, received Rs. 150 in currency notes and put them in his purse. He then came out and counter--signed the duplicate receipts and cash memos. At this stage, Hashim Ali went out on the pretext of buying a packet of cigarettes and informed the raiding Magistrate of what had occurred. The Magistrate and Ch. Badaruddin, Inspector, Anti---Corruption Department; walked in and on demand, the appellant produced before the Magistrate, his purse containing the currency notes, the particulars of which had already been noted. As result, of the investigation that followed, the appellant was prosecuted and convicted as mentioned above: The appellant admitted the receipt of Rs. 150 from Bunyad Ali, at the trial, but he pleaded that Bunyad Ali owed him this sum for services rendered and the money was not received by way of illegal gratification. By virtue of section 4 of the Prevention of Corruption Act, 1947, the burden lay on the appellant to prove that he did not receive the money as a motive or reward such as is mentioned in section 161, Pakistan Penal Code. The contrary presumption could legitimately be raised against him in the absence of any prima facie evidence showing that it was received as legal remuneration.
Bunyad Ali had apparently no motive for bringing a false charge against the deceased-appellant.
If, as was suggested by the appellant, Bunyad Ali had been given receipts for fees by the doctor without actual payment, on the promise that the payment would be made after that bills submitted to Government had been cashed, Bunyad Ali should have been grateful to the appellant for the accommodation. It would not be reasonable to assume that merely because the doctor had demanded clearance of his papers at the time of the signing of the duplicate receipts and cash memos he would have attempted to trump up a false case against him. Bunyad Ali's position, however, was that he had been paying the doctor all his fees at the appropriate times and obtaining receipts in consequence. As to what transpired at the doctor's premises, Bunyad Ali's account received full support from the testimony of Hashim Ali P. W. The latter had no reason to be inimically disposed towards the doctor.
It was argued by Mr. Rafiq Ahmad on behalf of the appellant that the financial position of Bunyad Ali was somewhat precarious and he could not have met the expenditure involved, out of this meagre pay. We learn from the evidence, however, that the amount he paid to the druggists for the medicines, exceeded- by far the sums payable to the appellant by way of fees. If he was able to raise enough money to pay the druggists' bills, surely there could have been no difficulty for him in making payments to the doctor for his fees. Bunyad Ali stated that his father owned some land also. It may be that if he had been questioned specifically on this point, he might have furnished a satisfactory explanation as to the source of the money. It does not, therefore, follow, as learned counsel attempted to argue that because the normal emoluments of Bunyad Ali as a Government servant. Could not have sufficed to meet the cost of the medicines and the doctor's fees, the doctor's story of credit being given to Bunyad Ali was necessarily correct.
The Magistrate, who conducted the raid in this case, also deposed as P. W. 8 that before arresting the appellant, he had questioned him and understood that his practice was to obtain payment; before passing receipts for his fees to patients. He then taxed the doctor to explain why he had insisted on payment at the time- of countersigning the duplicate receipts and cash memos.
Whereas clearly he should have been paid the relevant amounts when he countersigned the original receipts and cash memos. It was pointed out to the doctor by the Magistrate that there would have been no occasion for Bunyad Ali to visit him again if, the original receipts and cash memos. Had not been lost. The impression created by the Magistrate's evidence is that at that time the doctor was not able to give a satisfactory explanation. This, however, would not conclude the matter.
In order to appreciate the defence plea, the following extract from the appellants statement, made in the trial Court, may be helpful. In answer to the question as to how he could reconcile the fact that the receipts Exhs. P. C./1 to P. C./14 did not show more than Rs.114-8-0 by way of fees payable to him with the fact that he had charged the complainant Rs.150, he answered as follows :- "The complainant had started credit account with me in respect of the: consultation and injection fees and subsequent consultation fees. On the 30th of December 1955, the amount that was due from him in the above account was Rs.19. He had no amount with him and gave to me a chit in that sum. On the 23rd of March 1956, another sum of Rs. 35 became due to me from him. I demanded the payment of these Rs. 35 and of Rs. 19 in respect of which he had given to me a chit. He pleaded his poverty and began to weep that he had not anything with him even to sustain him and enable him to purchase one square meal. He gave me Rs. 4 leaving a balance of Rs. 31 out of Rs.
35. Itore off the chit in respect of Rs. 19 and made an entry in my copy book for a total sum of Rs. 50 that was due to me on the 23rd of March 1956, after the complainant had paid to me Rs. 4.
On the 14th April 1956, a sum of Rs. 391 and odd became due to the complainant as the price of the medicines purchased by him which was included in the current bill including my fee etc. A sum of Rs. 100.. On account, of my fees. Etc .Was included in this current bill of Rs. 391. And ..Odd up to the 14th of April 1956, when the .Post of, the A. M. O. Was abolished. When this post was abolished 1 required the complainant to make me the payment of the amount of Rs. 100 due- to me from him.
In this way I was due Rs. 100 on account of my fees from the .Complainant and Rs. 50 was due, before the 23rd March 1955. Injections -continued to be given even after the 14th April 1956, up to the. 21st April 1956. After the 14th of April the complainant made me payments on the sub- consultation fees and the injection fees up to the 21st April 1956.-"
Reliance was also placed on behalf of the doctor on entries in a diary said to have been maintained by him, showing that Rs. 50 were due to him by way of arrears of fees on the 23rd of March 1956 and in addition Rs. -100 fell due on the 14th of April 1956. This diary apparently had been produced along with a bail application - moved on behalf of the appellant, on the day following his arrest, through Mr. S. . M. Zafar, Advocate (D. W. 1). It is significant that this diary was apparently neither mentioned to nor produced before the Magistrate in charge of the raid. The possibility of an entry having been inserted in this diary by or at the instance of the accused, to support the defence theory, cannot therefore, be ruled out of considera--tion. If the entry is, however, taken literally at its face value, it would show that a sum of Rs. 50 was due to the doctor on account of his fees up to the 23rd of March 1956 and another Rs. 100 became due subsequent to that day, for services rendered up to the 14th April 1956. As was pointed out by the learned Judge of the High Court, who dealt with the case, according to the duplicate receipts produced, the fees payable to the doctor for the period between the 23rd of March 1956 and the 14th of April 1956, would not exceed Rs.
38. The sum of Rs. 100, therefore, given under the date, the 14th April 1956, would become unintelligible.
It was, however, contended that Rs. 50 under the date the 23rd of March 1956, had no reference to any of the duplicate receipts produced in this case but it pertained to some previous bills. In this connection, our attention was invited to the admissions made by Ch. M. A. Rahman, Deputy Assistant Controller, Military, Accounts (P. W. ,5),, when he was recalled as D. W. 6.
In the cross-examination of Bunyad Ali, it had been suggested to him that he had submitted a bill to his Department for reimbursement of a sum of Rs. 19 on the 30th of December 1955 and that he had submitted another bill for Rs. 35 in the month of March 1956. The witness could not recall whether he had done so or not. He denied, however, that he had made part --payment of Rs. 4 out of the total bill of Rs. 35 to the doctor. He stated that he might have submitted a bill to his Department on the 14th of April 1956, but he had no clear recollection of it.
Ch. M. A. Rahman when recalled as a defence witness, testi--fied that there was no voucher in the departmental record bearing the date the 23rd of March 1956, and no bill, dated the 30th of December 1956. He acknowledged, however, that a bill, dated the 16th January 1956, for Rs. 119-4-0 and another bill, dated the 16th April 1956, for Rs. 133-6-0 had been submitted earlier by Bunyad Ali.
The former bill included Rs. 19 and the latter Rs. 35 by way of doctor's fees. It is difficult to fit in these admissions with the Story that Rs. 50 were due by way of fees of the doctor on the 23rd March 1956, considering that one of the previous bills was dated the 16th April 195. It is, however, conceivable that some of the receipts, attached to the bill of Rs. 133-6-0 may have been of dates prior to the 23rd of March 1956. Consequently, there is a possibility that the story that Rs. 50 were due to the doctor on the 23rd March 1956 may be true though it is far from clear why in that case, it should not be held that this sum was exhaustive of the doctor's fees till that date and thus covered part of the duplicated receipts under consideration. The appellant's statement in the trial Court would be quite consistent with such a finding and the Court would not be entitled to speculate and invent possible explanations on behalf of the appellant, which he has himself faded to put forward in his defence without an attempt being made to lay the foundations for such an explanation in the evidence, on record. Assuming, however, for the sake of, argument that this sum of Rs. 50 had no connection with the receipts in the instant case and that this sum related to bills other than the one for Rs. 391- 1-0 some plausible explanation would still have to be offered for the, sum of Rs. 100 becoming due up to the 14th April 1956.
The fee receipts (Exhs. P. C./1 to P. C./14) which start from the 27th of January 1956 and end with the 21st April 1956, would give a total of Rs. 114-5-0 as fees payable to the doctor for the intervening period. If the final date is to be the 14th April and not the 21st April as is the case for the defence, then the total fees evidenced by those duplicate receipts would come to Rs.
104. Even if, therefore, the entry of Rs. 100 is to be deemed to refer to the whole period covered by these receipts up to the 14th April it is not reconcilable with them as the total sums do not exactly tally. It is not the defence case that he had let off the complainant in respect of the extra Rs. 4 when the balance of Rs. 100 was arrived at. It would, therefore, be a legitimate inference that the entries in the diary were probably brought into existence with a view to raise a false defence in this case and they have really no relation to facts.
An attempt has been made in the petition for special leave to appeal, to offer an explanation how this sum of Rs. 100 fell due, on the assumption that Rs. 114-8-0 included Rs. 5 as fee for the Assistant Medical Superintendent. This was not the appellant's own case in the trial Court and the attempt represents an afterthought, not based on any evidence. Even if however Rs. 5 is deducted out of Rs.
104 the balance would be Rs. 99 and not Rs. 100 and the explanation fails.
Learned counsel did not himself read out to us the statements of the other defence witnesses who gave some vague and general evidence either as regards the alleged practice of the appellant in giving credit to his patients for his fees and passing receipts on promise of subsequent payment, or suggesting that Bunyad Ali was known to be one of the persons who owed money to the doctor on account of his services. The evidence of the relevant witnesses is not at all impressive and that seems to have been the reason why this evidence was not relied upon and therefore not expressly referred to in the High Court.
It may be observed that, according to the appellant's statement in the trial Court, he possessed a chit for Rs. 19, in the hand of Bunyad Ali, which he subsequently destroyed, when he made the entry of Rs. 50 in his diary, on the 23rd of March 1956. This is a procedure hard to understand. Even if he had made this entry, retention of a chit in the hand of Bunyad Ali, would have been a strong piece of evidence showing that he owed any money to the doctor and would have belied Bunyad Ali's claim that he was making payments to the doctor as and when he obtained receipts from him. The story of the chit, therefore, is open to grave doubt and cannot be accepted, as true.
On a review of the evidence, therefore, we find that the conclusion reached by the High Court in this case was correct and that the money must have been received by the late Dr. Ghulam Hussain by way of illegal gratification. The conviction was proper and the sentence does not call for any interference.
We, therefore, dismiss the appeal.
CORNELIUS, J.-Iregret to find myself unable to agree with the view which has commended itself to my Lord the Chief Justice and my learned brethren. My analysis of the pleadings and the evidence leads to one conclusion only, namely, that the accused person in the case Dr. Ghulam Hussain, who is now dead, was entitled to be acquitted. I am conscious that after his death, his appeal against his conviction falls under the rule of abatement. In the present circumstances, an appeal is only tenable, in terms of section 431, Criminal Procedure Code, against a sentence of fine. In this case, there is a sentence of fine of Rs. 500 which was maintained by the High Court. Although in terms, section 431, Criminal Procedure Code, does not apply to appeals before this Court, nevertheless it is entirely appropriate that this Court should adopt the principles embodied in that section in dealing with circumstances of the present kind. I am aware also that it is open to the Provincial Government to remit the sentence of fine.
The amount of money represented as the bribe in this case is Rs.
150. It is proved to have passed from the hands of the complainant Bunyad Ali into the possession of the accused Dr. Ghulam Hussain. The passing of this money was preceded by a report made by Bunyad Ali to the authorities to the effect that Dr. Ghulam Hussain had demanded a bribe of Rs. 150 from him for the performance of a simple official duty, namely, for countersigning a number of bills for professional services rendered to Bunyad Ali, which were to be reimbursed to Bunyad Ali from the Government Treasury. Two somewhat unusual circumstances appeared which necessitated the presentation of these bills, firstly, to the doctor and, secondly, to the Treasury. Ordinarily, a Government servant under the Medical Attendance rules is entitled for himself and his family to flee medical attendance of the kind in question here, but only from a doctor serving under his own Government.
Bunyad Ali is an employee of the Central Government in the Military Accounts Department having been provided by the Central Government for attendance on these employees, the arrangement as that they would be attended by a Provincial Government doctor attached to the Civil Hospital, who would be entitled to charge his fees at a low rate. ( I he price for an injection was Rs. 1-8-0 as the papers show). Secondly, by some chance, the original bill together with the original vouchers and receipts had been lost in the office in which Bunyad Ali was serving, and it had become necessary for him therefore to obtain duplicate receipts not only from. Dr. Ghulam Hussain but also from various chemists' shops from which he had bought medicines under the doctor's prescription.
The total amount of the bill was Rs. 391.00. Details have been furnished on the record. The entire bill relates to treatment given by Dr. Ghulam Hussain to the wife of Bunyad Ali, and to medicines bought for the purpose of such treatment. The terminal dates of the treatment, as shown by the receipts are the 27th January 1956, and the 21st April 19`6. Dates for purchased of medicines appear from the cash memos to lie between the 7 February 1956, and the 12th April 1956. Of the, total bill medical fees covered Rs. 1 14-8-0 and the balance 1276-9-0 was the cost of medicines.
It has been proved on the record by the evidence of Mr. Abdur Rahman, Deputy Assistant Controller of Military Accounts, P. W. 5, deposing as D. W. 6 that said Bunyad A1i had earlier presented .Two bills for medical attendance. The first was of date the 16th January 1956, in the sum of Rs. 119-4-0 and Mr. Abdur Rahman was able to say that this bill included Rs. 19 as doctors fee, the rest being the price of medicines - The other bill was dated the 16th April 1956, in the sum of Rs. 133-6-0 out of which the doctor's fee amounted to Rs.
35. These bills have a further significance, namely, that as in the case of the last bill of Rs. 391-1-0 it was possible in the case of the earlier bills to distinguish the charges for doctor's fees from those for medicines, and I think it may be safely presumed that the same system of accounting was followe6, in the earlier bills as was followed for the later bills, i.e., that for all items of medical attendance and for all items of medicines, receipts and cash memos.
Were required to be added to the bills. I think I may also safely make another presumption which is that under the system of accounting, it was not possible for Bunyad Ali to present a bill twice over for the same item either of medical attendance or of purchase of medicines. The bills and the vouchers being all in the possession of the appropriate authorities, it is inconceivable, in my opinion, that there should have been any double charge. Every voucher states with sufficient particularity the kind of treatment given by the doctor, to whom it was given and the date of the treatment. Where the voucher is for the purchase of medicines it states with precision what medicine was bought and at what price. No double charge by Bunyad Ali could possibly escape detection. I conclude therefore that the items included in the three bills which have been discussed above were all totally distinct from each other. The last bill with which this Court is mainly concerned was for treatment of Bunyad Ali's wife. It was not made clear on the record what was the particular subject of each of the earlier bills, but in this connection I think there need be no difficulty in assuming that the other bills were for treatment of different persons, or if of the same person, then for different ailments. Under the Medical Attendance rules, not only Bunyad Ali, but also his wife and children were entitled to medical treatment.
This explanation is, found, along with other matter explanatory of the circumstances appearing against him in the case, in the following passage which I extract from the petition for special leave to appeal presented on behalf of Dr: Ghulam Hussain in this Court :- "That according to the rules a Government servant and his dependants are entitled to free medical treatment but an employee of the Central Government has to pay to the doctor if he is an employee of the Provincial Government. Bunyad Ali complainant at the relevant time was working as a clerk in the office of the Controller of Military Accounts, Lahore. His wife fell ill. According to the arrangements made by the Government the employees of the Central Govern--ment getting pay up to Rs. 150 p. m. Were treated by the petitioner while he was in the Unit Civil Hospital. The charges fixed by the Government for consultation were Rs. 2 and for subsequent consultation and injection Rs. 1-8-0 each. Bunyad Ali complainant had three children and a wife and at the relevant time was drawing less than Rs. 150 as his pay and therefore used to get his treatment from the petitioner. His wife was continuously ill. She and other members of the family were treated by the petitioner. The usual practice of these petty clerks was that they used to consult the petitioner and get the treatment from him without cash payment but used to pay after getting the same from theth Government subsequently. Up to 21st April 1956, the complainant owed Rs. 150 to the petitioner for the services rendered to his family. The details of this amount are given below :---- Up to
1. 30-12-1955. Injections and consultation fees19-8-0.
2. 23-3-1956dodo35-0-70
3. 21-4-1956dodo114-8-0.
(This includes Rs. 5 as fee of A. M. S.)
Total :168-8-0.
Payment made on 12-2-56.4-0-0 Payment made on 14-4-56 Balance due from the complainant 150-0-0.
The petitioner used to make note of various amounts due from his patients in his diary Exh. D. A.
Which includes the name of the complainant and other employees of C. M. A. And other Departments. The amount mentioned at No. 1 above has been shown as doctor's fee in the bill submitted by the complainant to his Department on 16th January 1956 for total amount of Rs. 119- 4-0 including medicines. The amount of Rs. 35 was included in the bill by the complainant submitted on 16th April 1956, for the total amount of Rs. 133-6-0. The last amount of Rs. 114-8-0 is shown in the bill which is on the file.
That the complainant Bunyad Ali submitted a bill of Rs. 391-1-0 for medicine and doctor's fees to his Department for reimbursement. He attached the cash memos. And the receipts along with the bill.
The bill was however lost or misplaced in the office after its submission. He was allowed to submit a duplicate bill along with duplicate cash memos. Etc. As receipts duly countersigned by the persons concerned. After obtaining the duplicate cash memos. From the druggist concerned, the complainant approached the petitioner on 15th August 1956 for countersignatures on the receipts and bills."
The original bill for Rs. 391-1-0 was presented by Bunyad Ali on the 4th May 1956 in his office, vide Exh. P. D./5 and document Exh. P. D./2 which is a .Memorandum from the D. A. C. M. A. To the Officer Incharge, G. 2/A section, shows that Mr. Bunyad Ali's bill had not been received in the office, although the bills of two other persons Amanullah and Mahboob Elahi sent along with it had been received. There was further correspondence and it was the month of August before the papers in duplicate were again ready for presentation of a duplicate bill. It only remained for Bunyad Ali to obtain the doctor's countersignatures on the receipts for his wife's treatment.
At this point, it will be of advantage to reproduce Mr. Bunyad Ali's statement of the nature of his dealings with the doctor. He said :- "I had not to pay any debt of the accused I used to pay the accused his consultation fee and fees for injection as I consulted him and got the injections and there was nothing due from me to him on that account .
It is incorrect that I got treatment from the accused but did not make him the payment telling him that I would make him the payment as I recouped the amount from office. I regularly paid him as I got the treatment."
The case for the doctor on this point appears from the following line in the quotation from his petition reproduced above, vi z :- "The usual practice of these petty clerks was that they used to consult the petitioner and get the treatment from him without cash payment but used to pay after getting the same from the Government subsequently."
Very strong corroboration of this allegation by the doctor appears from the record. Mr. Abdur Rehman, D. A. C. M. A: made the following statement :- "It has never come to my notice that the clerks were dealing in credit with the doctor and were not actually paying his fees for consultation etc. But once a clerk put up to me a chit showing certain names with amounts against their names and told me that those clerks whose names were enlisted had to pay those amounts to the doctor for his medical services rendered to them. This chit came to me perhaps on the 1st of June 1956 i.e., last year. I saw that chit and made a cursory glance because it was not my official function to entertain such chits. It was the private business of the persons concerned. I therefore, took no notice of that chit. Perhaps the name of Bunyad Ali was in that list. The other names were Nasar or Naseer and Jaffar of the Military Accounts Department."
(as D. W. 6).
Again, when the trap closed on the doctor immediately after he had received the payment from Bunyad Ali, the doctor at once said that the money was owed to him by Bunyad Ali, and was not being demanded as a bribe. The case for Bunyad Ali on this point was stated by him in the following words which constitute the solitary piece of direct evidence on the record to show that there was a demand for a bribe :- "When I presented the cash memos. And the receipts mentioned above, the accused told . Me that my bill was of heavy amount of Rs. 391-1-0 and that he would countersign only if a sum of Rs. 150 has been paid to him as a bribe. I told him rather requested him that I was a poor clerk and from where could I make him the payment. I further told him that I had already paid him his fees for consultation and treatment etc., and that I would not be able to pay him that sum. The accused however persisted in his demand and refused to countersign the cash memos. And the receipts. I then told the accused that I would pay him the demanded sum of Rs. 150 on the evening of the 20th of August 1956, if it was possible."
When questioned in cross-examination as to the conduct of the accused when the trap closed on him, this is what Bunyad Ali said :- "When the accused produced the sum of Rs. 150 before the Magistrate contained in the purse, he told the Magistrate that the sum of Rs. 150 represented the amount of debt which I owed to him.
The Magistrate asked him if there was any proof with him. In proof the accused produced one or two chits from the purse in the name of other persons. But there was no chit with regard to me to show that owed him any money in connection with my treatment etc."
Reference to the "chits" is contained in a document Exh. P. G., a memorandum prepared on the spot regarding the articles recovered from the person of the accused. Item 16 is described as under :- "A piece of paper. On which the words Rafiq Ahmad C. M. A-P, and Sliabir Hussain C.M. A. P. Are written. The figure `10' is ambiguous." 10-4-04-- It was suggested for the defence that this writing showed that a clerk Rafiq Ahmad owed Rs. 4-Q-0 and another Shabir Hussain owed Rs. 10-4-0. The doctor's case was that he at one time had a chit about Bunyad Ali also. At the cost of some repetition, it will be of advantage to reproduce the following passage from his statement made at the trial :- "The complainant had started credit account with me in respect of the consultation and injection fees and subsequent consultation fees. On the 30th of December 1955, the amount that was due from him in the above account was Rs.
19. He had no amount with him and gave to me a chit in that sum. On the 23rd of March 1956, another sum of Rs. 35 became due to me from him. I demanded the payment of these Rs. 35 and of Rs. 19 in respect of which he had given to me a chit.
He pleaded his poverty and began to weep he had not anything with him even to sustain him and enable him to purchase one square meal. He gave me Rs. 4 leaving a balance of Rs. 31- out of Rs.
35. 1 tore off the chit in respect of Rs. 19 and made an entry in my copy-book for a total sum of Rs.
50 that was due to me on the 23 of March 1956, after the complainant had paid to me Rs.
4. On the 14th April 1956, a sum of Rs. 391 and odd became due to the complainant as the price of the medicines purchased by him which was included in the current bill including my fee etc. A sum ofrd Rs. 100 on account of my fees etc., was included in this current bill of Rs. 391 and odd up to the 14th of April 1956, when the post of the A. M. O. Was abolished. When this post was abolished I required the complainant to make the payment of the amount of Rs. 100 due to me from him. In this way I was due Rs. 100 on account of my fees from the complainant and Rs. 50 was due before the 23rd March 1956. Injections continued to be given even after the 14th April 1956 up to the 21st April 1956.
After the 14th of April, the complainant made me payments on the sub-consultations fees and the injection fees up to the 21st April 1956."
In support of this statement, the document Exh. D. A. Was produced at the trial. This is a copy-book or diary in which certain figures and words are entered, and an entry appears which is Exh. DA/ 1 and reads. As follows :-- 14-4-1956 23-3-56 Bunyad Ali Rs. 100 plus Rs. 50."
This entry may be ead in explanation of the above passage reproduced from the accused's statement. The book Exh. D. A. Was produced before Ch. Zafrullah Khan, Magistrate on the same day as the bail application Exh. D. W. 1/A and that date was the 21st August i.e., the day following the .Trap at which the doctor was arrested. He remained under arrest till he was granted bail by Ch. Zafrullah Khan, who appeared in evidence as D. W.
5. The raid Magistrate Ch. Ghulam Ahmad, P. W.
8, has proved that after the raid he arrested the doctor and handed him over to Inspector Badruddin, P. W.
9. The book Exh. D. A. Was given to Syed Muhammad Zafar, Advocate, who was acting on behalf of the accused by the accused's son. On these facts, it may be safely concluded that entry Exh. D.' A./1 relating to Bunyad Ali was in the book at the time when the doctor was arrested, and that if it was not produced at that time, it can only be either because it was not readily available or because the existence of the note had for: the moment escaped the doctor's memory. It appears -that he remembered it soon afterwards for otherwise it could not have been traced and handed over to the lawyer for presentation in Court the next day. The Special Judge thought that the entry Exh. D. A./1 "could have been inserted afterwards". On the facts, that would appear to have been an impossibility, for the accused was in custody and at the very most might at an interview have asked his son to find this particular book and take it to the lawyer. Therefore, it is not possible to say that the doctor was not supported by anything in writing in his own possession regarding the debt which he said was due to him from Bunyad Ali.
In support of his allegation that he frequently obtained his fees from the Central Government clerk in arrears after they had recouped the money from the Government, although he gave them receipts in advance to entable them to get such payment, the accused produced a number of witnesses. Barkat Ali Khan, D. W. 3, an auditor of the Accountant-General's Office in Lahore said that on occasions he got the doctor's certificate without payment "towards the close of the month and requested him to get payment either when the bill was recouped or when I received my pay" and he added this his name had been entered in the note-book of the accused and there were two or three entries in that book regarding him.
The book he mentioned is Exh. D. A. Abdur Rashid, D. W. 4 a clerk in the Military Accounts said that he sometimes used to get treatment on credit from the doctor. Shamshad Hussain, D. W. 8, another clerk of the same office deposed that in a period of 8 or 9 months, he had obtained treatment from the accused for himself, his wife and his children,. And in that period the total medical bills amounted to about Rs. 1,000, that for himself, he never deferred payment of the accused's bills, but always paid him in cash, and while admitting that his salary was only Rs. 196 h: added that he possessed land from which he got an income of about Rs. 1,000 per year, in .Explanation of his ability to .Bear the expenses of medical treatment out. Of his own pocket, (although they were eventually recouped from the Treasury). This witness deposed that he had been asked by the accused on several occasions to assist him in recovering monies which were due to him from other clerks in the same office. He gave the names of those clerks, via., Muhammad Ali, Noor Hussain, Abdul Wahid and Bunyad Ali etc. And said that he had spoken to these persons about paying up the doctor's dues. The trial Court disposed of this witnesses statement in a single sentence, via. :- "Shamshad Hussain himself never deferred the payment of the bills of the accused."
The learned Special Judge has said that Barkat Ali (D. W. 3) had made a similar statement, but in fact Barkat Ali, as appears from the extract above, admitted that his name had gone down in the doctor's note-book two or three times. This part of the evidence supported by the two documents Exhs. D. A. And P. G. Clearly appears not to have received at the hands of the Courts below, the consideration which it deserved. The evidence of the D. A. C. M. A. Abdur Rahman by itself was sufficient to make out the accused's case on the point, which was indeed a very plausible case. It is evident from the figures available in the case of Shamshad Hussain and the present complainant Bunyad Ali that the sums which they were required to spend on medical treatment were far beyond, their means as represented by their salary. As has been seen Shamshad Hussain claimed to have other means independent of his salary, but the opposite is the case with Bunyad Ali. He was cross-examined very closely on this point, and made the following statement :- "On the 15th of August 1956 when I went to the accused and he demanded from me the payment of illegal gratification, I pleaded to him my poverty. This was my correct position and I did not make any false statement about my financial condition.
I have three children and a wife dependent on me at Lahore. I have no other source of income than my service. My parents however possess land. They have been allotted land as refugees. The sum of Rs. 391 was spent by me on the treatment of my wife within a period of three and a half months on the purchase of medicines, the doctor's consultation fees and other services. Other expenses for my maintenance and of family members was in addition. Such expenditure per month is Rs.
150. I get about Rs. 200 as my pay. In the month of August 1956 I was getting the same pay, i.e. Rs.
196. I have not been given any promotion so far after the raid. During the first four months of the year 1956 1 incurred Rs. 600 on account of monthly expenditure on the maintenance of my family and Rs. 391 on the treatment of my wife."
It is clear enough from this account that Bunyad Ali had no means to pay for the medicines and treatment which his wife required. It was said in the course of arguments that at least the medicines had to be paid for in cash and therefore Bunyad Ali must have had means in addition to his salary with which to pay for them. It was also said that the defence might have questioned him on the point as to whether he possessed the means for paying for the medicines. It seems to me that that duty was one falling upon the prosecution, if they wished to establish their case, or upon Bunyad Ali if he wished to satisfy the Court that his allegation of the payment of a bribe was not false, and that it was not a case of his trying to avoid a payment justly due from him by getting the doctor into serious trouble. For Bunyad Ali had clearly said in a single sentence that he had "no other source of income than my service".
He had pleaded his poverty before the doctor and he said that that was a correct representation and that he "did not make any false statement about (his) financial condition".
In treating the doctor's plea that the sum of Rs. 150 was due to him as the aggregate of three separate items, the Courts below had adopted different attitudes. The trial Court dealt with it in this way. The learned Special Judge said in his judgment that the accused was "pointedly asked to reconcile the fact that the total amount of the receipts Exhs.P. C./ I to P. C./14 came to Rs. 114-8-0 whereas the accused charged the complainant Rs. 150". The reply of the accused is then mentioned, via., that up to the 30th December 1955, the amount due from Bunyad Ali under the credit account was Rs. 19, and by the 23rd March 1956, another sum of Rs. 35 had become due making a total of Rs. 54 of which Bunyad Ali paid Rs. 4 leaving a balance of Rs. 50 and this was the sum which was due to him on the 23rd March 1956. In the subsequent bill of Rs. 321-1-0 the total of the items of medical attendance up to the 14th April 1956 when Dr. Ghulam Hussain ceased to be the Assistant Medical Officer in the Civil Unit Hospital, was Rs.
100. The learned Special Judge then remarked that from the evidence of Mr. Abdur Rahman, D. A. C. M. A. Recalled for the defence, it had been elicited that two earlier bills were of 16th January 1956 for Rs. 119-4-0 and the 16th April 1956, for Rs. 133-6-0 which included the above mentioned amounts of Rs. 19 and Rs. 35 but Mr. Abdur Rahman had stated that there were no bills of Banyad Ali, dated the 30th December 1955 or. 23rd March 19,56. On this. Ground alone, the trial Court held "that the explanation of the accused on the point is unsatisfactory" and that he had "failed to clear up the discrepancy in his statement which could support his point of view". The conclusion does not appear to be borne out by the facts. The doctor was not stating and probably could not state the dates of Bunyad Ali's bills. What he stated was that up to the 30th December 1955, Rs. 19 were due to him, and Mr. Abdur Rahman has shown that in the bill presented by Bunyad Ali on the 16th January 1956, an amount of Rs. 19 was in fact due to the doctor. Secondly, the doctor had said that Rs. 35 became further due to him up to the 31st March 1956, and it is shown that in the bill dated the 16th April 1956 there is included a sum of Rs. 35 for medical attendance by the Doctor. Clearly, the bills had to be submitted in arrears, as in fact was the case with the bill of Rs. 391-1-0, in which the last date of any treatment by the doctor is the 21st April 1956, but the bill itself was presented on the 4th May 1956. Therefore, upon the matters set out in the judgment of the trial Court, it was clearly not possible to say that the accused's explanation was unsatisfactory or that he had failed to clear up any discrepancy. In the High Court the matter was dealt with as one of accounts. The relevant discussion is contained in a single paragraph which may conveniently be quoted here :- "The short question for determination in this case is whether Bunyad Ali paid the sum of Rs. 150 as illegal gratification or as fees for services rendered by the appellant to Bunyad Ali's wife. According to the appellant Bunyad Ali owed a sum of Rs. 50 for services rendered from 30th December 1955 to 23rd March 1956. There is a note to this effect on page 26 of the diary. On page 27th the following note appears :- 14-4-1956 23-3-56 Bunyad Ali Rs. 100 plus Rs. 50 I asked the learned counsel for the appellant to calculate the total amount which Bunyad Ali owed to the appellant for services rendered from 23rd March 1956 to 14th April 1956. According to the duplicate receipts it comes to Rs.
34. If the appellants' version were to be accepted, Bunyad Ali would owe a sum of Rs. 88 to the appellant, i.e. Rs.50 for services rendered during the period from the 30th December 1955 to the 23rd of March 1956, and Rs. 38 for services rendered from the 23rd of March to the 14th of April 1958. This negatives the appellant's version."
The conclusion reached by the learned Judge was that on the version of the appellant, and going by the dates only Rs. 88 should have been due to the appellant up to the 14th April 1956. In fact the claim was for Rs. 114-8-0 in the bill of 4th May 1956, of which Rs. 14-3-0 relating to the period after the 14th April when the doctor ceased to be attached to the Unit Civil Hospital, was admitted to have been paid cash, leaving a balance of Rs. 100 as doctor's fees in this bill. The whole of this accounting is based exclusively upon the following sentence in a passage from the accused's statement at the trial which has already been quoted :- "I tore off the chit in respect of Rs. 19 and made any entry in my copy book for a total sum of Rs. 50 that was due to me on the 23rd of March 1956, after the complainant had paid, to me Rs. 4."
Now, it is true that if the accounting be done by dates, and full value be given to the doctor's statement in the terms it was made, then no item of date earlier than the 23rd March contained in the bill for Rs. 391-1-0 is claimable by the doctor. But as I have observed in an earlier part of this judgment, the evidence in the case establishes that there were three distinct bills overlapping each other in respect of dates. Each of these bills was supported by vouchers, which were available at all times for the accounting and supervising Officer to check, and consequently there was no danger of any item included in any one of these bills being also included in any other of the bills. Bearing this in mind, it should be clear that it is not the figure of Rs. 38, being the total of charges after the 23rd March 1956 up to the 14th April 1956, which possesses the greater significance. The real significance is that of the items commencing on the 27th January 1956 and ending on the 21st March 1956 in the last bill, and these amount to Rs. 76-8-0 a sum which is in excess of Rs.
50. The case for the doctor is that of all the sums due to him included in all the three bills, up to the 14th April 1956, Bunyad Ali had paid him only Rs. 4 out of the second bill, and Rs. 14-8-0 out of the third bill and for the rest he had been allowed credit. Bunyad Ali had received payment of the two earlier bills of the 16th January and the 16th April 1956, but had not yet paid the doctor his dues. According to the doctor's version, when he came again in August 1956 to obtain signatures on duplicate receipts, by which time the amount due by him to the doctor had reached Rs. 150, the doctor insisted on this amount being paid before he signed the duplicate receipts. His attitude is understandable, if it be borne in mind that the request for duplicate receipts might well have struck the doctor as suspicious. In other words, he may well have suspected that Bunyad Ali had already received the money on the original bill, and might be merely putting him off by asking for the signatures to be repeated on the duplicate' receipts. There had already been considerable delay in regard to his claim of Rs. 50 under the two earlier bills. The demand for payment in cash is understandable from this point of view as well as in view of the fact that the doctor had ceased to occupy the position of Assistant Medical Officer attached to the Civil Unit Hospital in which position he had been giving medical attendance to the clerks of the Military Accounts Department. When therefore, the doctor said at the trial that on the 23,rd March "a total sum of Rs. 50" was due to him, that cannot, in my opinion, be regarded as including the claim in respect of the last bill as well.
Taking the evidence as a whole, I am quite clear in my mind that the mention of Rs. 19 and Rs. 35 was in relation to the two earlier bills which must be held to be independent bills. His charges in the last bill of the 4th May 1956 were quite independent of the similar charges in the two earlier bills, and his admission that on the 23rd March "a total sum of Rs. 50 was due to me" cannot be thought to embrace any items included in the bill of the 4th May 1956. On the 23rd March, Rs. 76-8-0 was due to him for the treatment included in the third bill, and he never admitted having received any part of this money.
As a result of this analysis, the position which develops is as follows. The prosecution case is that the clerk Bunyad Ali, a man whose means were visibly not equal to his expenses, in 3J months paid out a sum of Rs. 1 14-8-0 to the accused and obtained receipts for that amount, which he attached to a bill for medical attendance charges. This bill was lost and being under the necessity of preparing a duplicate bill, when he went to the doctor to obtain his signatures on the duplicate receipts for a total sum of Rs. 114-8-0 the doctor demanded a bribe of Rs. 150 for appending his signatures. This money was paid in the circumstances appearing from the prosecution evidence, and admitted by the defence, but from the moment that the Magistrate appeared on the scene, the doctor protested that the money was actually due to him for medical attendance. He proved by the mouths of witnesses on both sides of the case that he was accustomed to allowing credit to these low paid clerks, until they recouped their expenses from the Treasury upon presentation of bills. Mr. Abdur Rahman, D. A. C. M. A. And Shamshad Hussain have given evidence which clearly shows that Bunyad Ali was one of the doctor's debtors. An entry in the doctor's diary DA/1 is also produced in support which serves strongly to corroborate the doctors' version that Bunyad Ali was actually in debit to him, and that the amount was Rs.
150. The exact account for this amount has been presented by the doctor, and with the exception of a payment of Rs. 4 admitted by the doctor, the whole amount of Rs. 150 is a matter of record.
The ultimate question which appears is of the simplest kind. It is whether is Bunyad Ali to be believed when he says that he owed no money to the doctor, who demanded Rs. 150 as a pure and simple bribe or is the doctor to be believed when he says that he had granted credit for that amount and that he had received in the form of the signed currency notes nothing, more than what was actually due to him? My view is that upon the whole of the evidence, evaluating the prosecution case upon its merits and the defence case on its merits, and placing them in juxtaposition with each other, there is no escape from the conclusion that at the very least, there is a reasonable possibility that what the accused said in the case was true and that in receiving the money, he received no bribe, but only that which was justly due to him. Upon that conclusion, the accused would be entitled to acquittal on the rule laid down in the case of Safdar Ali (1952 FC R 238). I am therefore of the opinion that this appeal should be allowed, and the accused should be acquitted.
In accordance with the view of the majority the appeal is dismissed.