' The appellant has been convicted by the Special Judge, Anti-Corruption (Pro:), Karachi by his order, dated 11-12-1985 under section 5-C of Prevention of Corruption Act, 1947 and sentenced to R.I.
For one year and also to pay fine of Rs,10,000/- or in default o suffer further R.I. For one year. The basis of the prosecution was that the appellant had purchased one Toyota_ Corolla Car for Rs,55,000/-, which was beyond his means. The prosecution had proved he statement of assets signed by the appellant where he had stated hat he had purchased the car alongwith his brother.
The prosecution had been able to establish through Excise & Taxation Officer that he car stood registered in the name of the appellant and that the car was standing in front of the house of the appellant. They had also produced the person, who had sold the car to the appellant for Rs,55,000/-. The appellant was a Store-Keeper in Civil Hospital, Karachi, but the pay, which the appellant had drawn, had not been lisclosed in any way in the prosecution statement.
2. The appellant, in his statement under section 342 of Cr.P.C. Had taken up the position that the Car had been purchased by him through the funds supplied to him by his father, who had retired from military service- in 1962 and had received Rs,60,000/- to Rs,70,000/- as gratuity. The accused had also examined his father n defence, who had made the same statement as made by the accused. Accused had also examined his brother, who was the A.S.I. And vho used to get Rs,800/- as his salary and he had 3 children.
' The Car had been purchased in 1981 for Rs,55,000/- and it as necessary that some evidence should have come from the prosecution about the income of the appellant in order to prove that he appellant was really living beyond his means by having purchased he said car for Rs,55,000/- but the same having not been done, it s not possible to reach at a conclusion that purchasing of a car for ts.55,000/- by the appellant was really beyond his means.
3. Mr. Sanaullah wanted me to presume that a store-keeper would not be having an income of Rs,1,000/- per month. It may be so, and robably Mr. Sanaullah is right but that evidence has to come from he prosecution. I cannot substitute my inference in place of the required evidence from the prosecution. I am of the view that the production case is deficient in this respect and the necessary evidence has been lacking. It appears to be inadvertent on the part of the prosecution, they have probably presumed that the pay of Store-keeper is not enough to allow him to purchase a car of Rs,55,000/- in 1981. The presumption of the prosecution was probably justified on account of the statement made by the appellant in 1984 in writing that he had purchased the car from the common funds of his own and of his brothers. Even the statement of the appellant and the statement of his father do suggest that the appellant was not in a position to purchase that car.
However, the prosecution has to provide information. I am, therefore, of the view that this case should be remanded for recording of the evidence in respect of pay, which the appellant was getting in 1981 and earlier or even upto 1984.
4. Mr. Azad Bin Haider had further submitted that the statement of the appellant under section 342, Cr.P.C. Does not bear the certificate as required under section 364, Cr.P. C. This is highly a technical objection, but it is justified from the provisions of the Statute, therefore, on this ground also I would remand the case t the trial Court for recording the statement of the appellant in compliance of the requirement of section 364 of Cr.P.C.
5. The result is that the impugned order is set aside and the case is remanded for further evidence in respect of the pay of the appellant and for recording of fresh statement of the appellant under section 342 of Cr.P.C. The appellant will also be entitled to lead, any further evidence in defence, if he wishes to do so. The appellant will continue on the same bail and present himself before the trial Court whenever summoned. The trial Court would then take fresh bail from the appellant and then the bail bond provided by the appellant in this appeal will be treated as discharged.