Appellant Muhammad Ayub son of Qaimuddin, who was at all material times posted as Naka Munshi attached to Sakrand town Sub-Committee, has been convicted by the learned Special Judge-cum-Enquiry Offence, Hyderabad for an offence under section 418, P. P. C. And sentenced to suffer R. I. For 9 months.
2. The prosecution case in brief was that complainant Santumal P. W. I owns a shop at Sakrand town and used to send for goods from Sukkur and Hyderabad through trucks. It is alleged that on one such occasion he sent his labourer Siraj and R/R for bringing the goods and had given Rs. 10 to Siraj for this purpose alongwith the invoice of the goods to be given to the appellant. The labourer brought the goods.
On 18-1-1963 Octroi Inspector Noor Ahmad P. W. 2 found that the goods had arrived and he enquired from the appellant whether he had issued the receipt. The appellant showed him the receipt (Exh. 3) which was for Rs. 4.43. The appellant also showed him a Katcha bill for Rs.
142. The Octroi Inspector went to the shop of Santumal and enquired from him about his goods on which the latter informed him that he had sent the invoice to Ayub accused. Santomal, insisted that he had sent the Pucca bill. Repeated enquiries however, on this point brought out that he had not done so because he thereafter opened his box and showed the Pucca bill Exh. 4, to the Octroi Inspector. This bill was for Rs. 974-12-6. Santomal entreated the Octroi Inspector not to report the matter but in spite of this a report-'' was sent to the Secretary Town Committee in which it was stated that the dishonesty was entirely on the part of Santomal. The First Information Report Exh. 17, was registered on 2t-12-1964 against the appellant. In the meantime, however," he was fined Rs. 25 for negligence in the performance of his duties in connection with the same transaction. This can be seen from the report Exh.
11. As the appellant had ceased to be a public servant no sanction for his prosecution was necessary and he was challaned to stand his trial and was convicted as stated above.
3. The defence of the appellant was that he had not committed any cheating. He admitted that he had issued the receipt Exh. 3, but stated that Santomal sent him a Kutcha 1 bill for Rs. 142.00 through a labourer and on the basis thereof he issued receipt. In other words, the defence of the appellant was that he merely trusted Santomal but he had no guilty consciences whatsoever.
4. The prosecution examined 6 witnesses. These were P. W.
1. Santomal P. W. 2 Noor Ahmed, P. W. 3 Siraj, P. W. 4 Abdul Ghafoor, P. W. 5 Abdul Ghafar and P. W. 6 Mohiuddin who is the investigating officer. P. W. 5 Abdul Ghafar stated that the material which was brought by Santomal from his shop was worth Rs. 974-12-6. P. W. 4 Abdul Ghafoor is the Secretary of the Town Committee and his evidence showed that he had recovered Rs. 304.90 from Santomal as fine for this misconduct. P. W.
3 Siraj is supposed to be a Coolie of Santomal. He on the contrary falsified Santomal by saying that he had paid no money; that the Seth was with him and he had directly talked to the accused. It would thus appear that on this point there is a conflict between the case of Santomal and that of his Coolie Siraj, as Santomal had stated that he had not gone himself but sent Rs. 10 only through the Coolie.
5. From the facts as brought out on record it is obvious that Santomal is at best a witness in the nature of an accomplice as on his own showing he was a party to the fraud. He was also fined and an amount of Rs. 304.90 was recovered from him. It has come out in the evidence of Noor Ahmed P.
W. 2 that he begged of him not to report this matter. All these circumstances would show that he was himself responsible for this fraud. The question then arises whether the appellant was acting in collusion with him or his case was one of simple negligence. In such situation it is not necessary that the appellant must prove his defence beyond a reasonable doubt. It is sufficient if he raises a reasonable possibility that his defence may well be true. Reference in this connection may be made to the authority of the Supreme Court reported as Mir Ahmed v. The State (PLD 1962 S G 489). I have examined the evidence on record in this case in the light of the observations of their Lordships in the case cited above and to me it appears to be more than reasonably possible that the appellant may not have been a party to this fraud, but only guilty of negligence. In this connection it is significant to note that in the report, Exh. 11 also the reporting Authority had recommended as follows: - "For the above facts I am of the opinion that the goods of Santomal should not have been released without receiving original bills by Nakha Munshi. But at the same time Santomal is a shop-keeper of the town, hence, the Nakha Munshi relied upon him for which he was not competent. Had the Nakha Munshi noted down the complete details of the goods, Santomal could not have had such chance. It reveals the slackness and negligence on the part of the Nakha Munshi. The correspondence regarding the fraud committed by the businessman is in progress. In this connection a notice is being issued today to Santomal asking him to come personal for deciding the case. But the Munshi be convicted for the negligence. In this connection I am of the opinion that the Nakha Munshi be imposed a fine of Rs. 25 for slackness and negligence in the performance of the duty."
The order thereon shows that the appellant was fined Rs. 25 for "negligence in the performance of the duty" and he was transferred to Mehrabpur Nakha as punishment. This fact by itself would show that the authorities concerned thought that departmental punishment was sufficient, and that the appellant was not guilty of cheating.
6. I am, however, not bound by their opinion and accordingly I have examined the case on merits.My analysis of the evidence shows that it is more than reasonably possible that the appellant was only guilty of negligence. Santomal was admittedly a businessman who, was running a shop for the last 25 years acid very well-knew that the, Oetroi Tax was charged at the rate of 2 paisa per- rupee as admitted by him in his cross-examination. In that case it is strange as to why he sent Rs. 10 only. It is well-'known that goods are not released on credit and cash payment of the Octroi duty has to be paid. Moreover, it is common in such cases that business--men try to under invoice their goods. It does not necessarily follow in every case that the assessing official is mixed up with them. Indeed that would be a far-fetched presumption. The evidence of P. W. Noor Ahmed shows that the appellant showed him the Kutcha bill for Rs.
142. If the appellant and Santomal were mixed up this circumstance of Santomal's sending a Kutcha bill would not be consistent with the prosecution case. The very fact that a Kutcha bill for Rs. 142 was sent by Santomal and this fact was repeatedly denied by him shows that he himself wanted to cheat the appellant. This circumstance also gets support from the fact that the Pucca bill, Exh. 4 was taken out by Santomal from his box. It was admitted by Noor Ahmed P. W. 2 that sometimes goods were released on Kutcha bills also. To quote his words- "Sometimes Katcha bill is shown and goods are to be released on that bill if Pucca bill is not received by the parties. On my threat that I was going to report against him, Santomal showed me that Pucca bill. Santomal entreated me and requested me not to report."
The evidence on record is, therefore, consistent with the fact that Santomal himself wanted to cheat the appellant by under-- invoicing the value of the goods and thereby to escape the octroi duty. In any case this conclusion is equally possible with the case of the prosecution which is that of collusion. It is well---settled that when two inferences are equally possible the Court should draw the one that is more favourable to the accused. On the record of the evidence as it stands I have no option but to hold that the prosecution has not succeeded in establishing the guilt of the appellant beyond a reasonable doubt. This appeal is accordingly allowed and the conviction and sentence of the appellant are set aside. He is on bail and need not surrender. His bail bonds stand cancelled.