' Appellant Allandino Khan was tried by Special Judge, Anti-Corruption, Hyderabad, for the offence under section 5-C of the Prevention of Corruption Act, 1947, who found him guilty and sentenced him to suffer R.I. For three months and to pay a fine of Rs,10,000 or in default to suffer R.I. For six months. The properties, viz., agricultural land and Datsun Pick-up which were found disproportionate to the known sources of the income of appellant were also forfeited to the Provincial Government. By this appeal filed under section 10 of the Pakistan Criminal Law Amendment Act, 1958, the appellant has challenged his conviction and sentence awarded on 7-6- 1987.
2. In the year 1982, the Circle Officer, Anti-Corruption Establishment,Thatta, received an application against the appellant who was serving as Tapedar in that district, in which some disclosures about his integrity were made. Iqbal Ahmed, Circle Officer conducted preliminary investigation on this complaint bearing No,97 of 1982, and then submitted his report to S.P. Anti-Corruption Establishment, Hyderabad, who directed him to register a case against the appellant. It is alleged that the appellant being a public servant committed act of criminal misconduct by acquiring the following movable and immovable property by improper means disproportionate to the known sources of his income:---
(i) Datsun Pick-up No,843-550, Karachi, valued at Rs,1,20,000,
(ii) Agricultural land measuring 30 acres, situated in Dch Baro Siri, Taluka Mirpur Bathoro, District Thatta, valued at Rs,60,975, and
(iii) One house situated in Thatta town, valued at Rs,27,500.
3. During the course of investigation the Cirlce Officer recovered the record pertaining to the above properties. He also recorded the statements of all the material witnesses and after obtaining requisite sanction challaned the appellant in the Court of Special Judge Anti-Corruption, Hyderabad.
4. At the trial the prosecution examined Allah Warayo Tapedar (P.W.1), Hajiani Dur Bibi (P.W.2), Ghulam Abbas Sub-Engineer (P.W.3), Hazrat Khan (P.W.4), Haji Muhammad Khan (P.W.5), and lqbal Ahmed C.O. (P.W.6).
5. In his statement recorded under section 342, Cr.P.C., the appellant has admitted the ownership of the house. He admitted the ownership of Datsun Pick-up purchased on instalments, but pleaded that the funds for its purchase were provided by his father. He has also not disputed the purchase of agricultural land in the name of his minor son Muhammad Aslam but claimed it to be a BENAMI transaction made by his father. He has filed his detailed written statement (Exh.18) in which he has accounted for the possession of the above properties.
6. The appellant has examined himself (D.W.1) in defence. He has also examined Janoo (D.W.2), and Muhammad Siddique (D.W.3) in his defence.
7. On the assessm ent of evidence available on record the learned Special Judge found the appellant guilty and convicted him accordingly. It is in these circumstances that the present appeal has been filed.
8. I have heard Mr. Azizullah Shaikh, learned counsel for the appellant and Mr. S.ZA. Qureshi, learned counsel for the State. I have also gone through the record of this case carefully.
9. Section 5-C of the Prevention of Corruption Act, 1947, whereunder the appellant was convicted provides as follows:-- Possession of property disproportionate to known sources of income.---(1) Any public servant who has in his possession any property, movable or immovable, either in his own name or in the name of any other person, which there is reason to believe to have been acquired by improper means and which is proved to be disproportionate to the known sources of income of such public servant shall, if he fails to account for such possession to the satisfaction of the Court trying him, be punishable with imprisonment for a term which may extend to seven years and with fine, and on such conviction the property found to be disproportionate to the known sources of income of the accused by the Court shall be forfeited to the Provincial Government.
(2) The reference in subsection (1) to property acquired by improper means shall be construed as a reference to property acquired by means which are contrary to law or to any rule or instrument having the force of law or by coercion, undue influence, fraud or mispresentation within the meaning of the Contract Act, 1872.
10. The language in which the above section is couched makes it clear that in order to bring the case within its mischief the possession of movable or immovable property by any public servant must have been acquired by `improper means' and which is proved to be 'disproportionate to the known sources of income of such public servant'. The word 'and' (underlined by me), which is conjunctive enjoins upon the prosecution to prove both these ingredients before securing the conviction of a public servant. The failure of the accused to account for the possession of such property will be relevant factor only after the prosecution successfully establishes the two ingredients mentioned above
11. As regards the house situated in Thatta town, owned by the appellant the learned Special Judge was of the view that the construction of the nature found on site inspection could have been raised by the appellant from his own resources. He had, therefore, dropped the charge against the appellant in respect of the house.
12. Admittedly the agricultural land involved in this case was purchased in the joint names of Allah Bux, brother of the appellant and Muhammad Aslam minor son of the appellant. Hajiani Dur Bibi (P.W.2) has testified about this deal. She has, however, admitted in clear terms that a part of consideration was received by her late husband, from Allah Bux, one of the vendees. The appellant has not disputed this transaction which is also proved from the record produced by Allah Warayo Tapedar (P.W.1). It is, however, the case of the appellant that the land was purchased by his father Haji Isso from his own funds in the name of his grandson. There is satisfactory evidence on record to show that Haji Isso inherited agricultural land. The records-of-right (Exh.18/1, Exh.18/2 and Exh.18/3) establish this position. It is the case of the appellant that his father was an illiterate person and in fact he was managing the lands on his behalf. The defence put forward by the appellant in written statement (Exh.18) in his own words is as follows:--- "We used to cultivate these lands with mainly tomato and sugar-cane crops. I produce token receipts for the years 1973 to 1975, 1977 to 1982, 1984 and 1985 as under:--- {{TABLE}} 1973 (10 cash memos) D/1 to 10 1974 ( 9 -do- ) E/1 to 9 1975 (12 -do- ) F/1 to 12 1977 ( 7 -do- ) G/1 to 7 1978 ( 7 -do- ) H/1 to 7 1979 ( 4 -do- ) I/1 to 4 1980( 4 -do- ) J/1 to 4 1981 ( 6 -do- ) K/1 to 6 1982 ( 3 -do- ) L/1 to 3 1984 ( 5 -do- ) M/1 to 5 1985 ( 5 -do- ) N/1 to 5. {{TABLE}} ' I also enclose herewith the bills of Thatta Sugar Mill for the years 1979 0/1 to 5 (5 bills), 1980 P/1 (1 bill), 1981 0/1 (1 bill), 1982 L/1 to 7 (7 bills). I have also produce token slips for the years 1979 S/1 to 5 (5 receipts) 1980 T/1 to 3 (3 receipts), 1981 U/1 to 2 (2 receipts), 1982 U/1 to 4 (4 receipts). I beg to submit that the sugarcane credits in our account were being made in Muslim Commercial Bank, Thatta. I produce 2 W/1 to 2 sheets for the years 1979 and 1981 of the account sheet showing that an amount of Rs,29,950 was drawn from this account for purchase of the said vehicle for transport of the agricultural produce of these lands. I have produced only token receipts bills and slips in order to avoid inflating the Court record with bulk of other indentical documents which are available with me and are placed before the Hon'ble Court for its perusal."
13. Besides Janoo (D.W.2), and Muhammad Siddique (D.W.3), the sound financial position of the appellant is proved from the evidence of Allah Warayo (P.W.1) Tapedar who has testified as under:- -- "It is a fact that accused Allandino has inherited some land from his forefathers and he has sufficient property...."
14. The burden of proof in a criminal case always remains upon the prosecution. However, in a case of this nature the accused has to account for such possession; but that burden can be discharged by showing preponderance of probabilities and unlike the prosecution the defence is not obliged to prove its case beyond any shadow of doubt. If from the evidence given in support of the defence plea a reasonable doubt is created in the mind of the Court about the guilt of accused, he is entitled to an acquittal.
15. The appellant has made an attempt to discharge the burden. He has pointed out the circumstances whereunder the agricultural land and Datsun Pick-up were purchased. The fact that an amount of Rs,29,950 was drawn from credit account of sugarcane towards the first instalment paid for the purchase of Datsun Pick-up fully supports the defence plea. An alternate hypothesis inconsistent with the guilt of appellant is very much there and in the event of such a possibility of two versions, the settled principle of law is that the one favourable to the accused has got to be preferred.
16. The learned Special Judge has discarded the defence plea mainly for the following reasons:- "The accused Allandino, as already mentioned, claims that such Datsun Pick-up was purchased by his father from his own reasources and that he had submitted suc'i applications Exhs.15/6 to 15/10 to the Excise and Taxation Officer as his father and brothers were illiterate' persons. But his such version could hardly be accepted as he has not examined his father lsso or his brother Allah Bux. So I think it stands also proved that such property viz. Datsun Pickup was also purchased by the accused Allandino."
17. He has, however, lost sight of the fact that Haji Isso died about two years prior to recording of defence evidence. It was, therefore, not possible to, put him in the witness-box. It is thus difficult to allow the reasoning of the learned Special Judge.
18. As a result, therefore, of the unsatisfactory state of evidence in this case, I find myself unable to uphold the conviction of the appellant and giving him the benefit of a reasonable doubt, I set aside his conviction and sentence and would discharge his bail bond. The appeal is accordingly accepted.