Appellant Rasool Bux son of Ghulam Hussain Bhatti, who at a material time's was posted as Tapedar incharge of Tape Shaikh Bhirko, has been convicted by the learned Special Judge-cum- Enquiry Officer, Hyderabad for an offence under, section 409, P. P. C. And sentenced to suffer R.
1. For 1' years and to pay a fine of Rs. 500.00 or in default to suffer R I, for six months more.
2. The prosecution case in brief was that complainant Ahmed Hussain had about 450 acres of land in taluka Matli, Tapo Shaikh Bhirko in the district of Hyderabad where the appellant was posted as a Tapedar. It is alleged that the appellant approached Ahmad Hussain for payment of land revenue of Rs. 500.00 (Rupees five hundred) outstanding against, him on which complainant Ahmed Hussain gave him a letter, Exh. 3, addressed to P. W. 2 Chooharmal requesting the latter to pay his amount to the appellant on his behalf. It is alleged that the appellant received this amount and signed a receipt in token thereof in the account books maintained by Chooharmal, vide Exh. 9, but instead of crediting the same towards his account he misappropriated the said amount. The matter was reported by Ahmed Hussain to the Anti-Corruption Inspector, Hyderabad; as a result of which an investigation ensued. The First Information Report relating to the offence was lodged on behalf of the State by Mr. M. S. Siddiqi, Circle Officer Anti-Corruption, Hyderabad on 29th May 1963.
After the usual investigations were concluded the appellant was challaned and convicted as stated above.
3. The defence of the appellant was that he was falsely involved on account of enmity as his father-in-law Gul Mohammad was a partner with Ali Hussain brother of the complainant, who was employed as a Sub-Inspector in the Police, It was contended that the two partners had fallen out and the appellant was falsely involved in this case on account of that enmity. In support of this contention the appellant examined one witness D. W. Khamiso. The appellant also examined two other witnesses D. W. 2 Din Mohammad and D. W. 3 Khair Mohammad. The appellant admitted having received this amount of Rs. 500.00 from P. W. Chooharmal but his explanation, appeared in the following words: -- "P. W. Ali Hassan's Kamdar has given land on lease to my father-in-law. They forcibly took away the crop. I produce the lease deed as Exh.
26. The lease was taken by Abbasi, and possession was of Ali Hassan over the land. Rs. 500 I obtained towards the batai of Bajri. The words `towards land revenue' in Exh.9 has been added afterwards. I have been falsely involved because of lease."
4. The prosecution evidence against the appellant consists mainly of complainant Ahmad Hassan whose evidence is substantially in accordance with the prosecution case narrated above and, therefore, need not be repeated. The complainant is also supported by Chooharmal P. W. 2 and Allah Bux P. W.
3. The prosecution examined P. W. 4 Allahdino, Mukhtiarkar who produced his report Exh. 16, sent to the Additional Deputy Commissioner, Hyderabad. In this report the Mukhtiarkar had recommended that the case against the appellant was doubtful. The rest of the prosecution evidence is not very material for the purpose of deciding this case.
5. Mr. Nooruddin Sarki, the learned counsel for the appellant has contended before me that the entire case against the appellant is false and has been fabricated on account of enmity. The learned counsel referred me to the original entry, Exh. 9, where the words "Dhal Babat" (concerning land revenue) appeared to have been added subsequently. This was also suggested by the Mukhtiarkar in his report Exh. 16, and I agree with him that the matter is suspicious on this point. Mr. S, M. Noorul Hassan, the learned counsel for the State also admits that the possibility of these words having been added subse--quently cannot be ruled out. In view of this position the benefit of doubt on this point has to be given to the appellant. If these two words are omitted from consideration, the rest of the entry is consistent with the version of the appellant.
6. Mr. Noorul Hassan also contended that the letter Exh. 3, was a forgery and has been fabricated afterwards as it was not produced before the Mukhtiarkar in the Enquiry wherein P. W. Chooharmal was examined but he did not even refer to this letter. As to how and under what circumstances this letter was delivered is also a mystery. All the three witnesses, namely, complainant Ahmed Hussain, P. W. Chooharmal and Allah Bux have given conflicting versions in respect thereof. It does not appeal to reason that P. W. Chooharmal will send this letter to his Munshi Allah bux even without an endorsement thereon. P. W. Allah Buy further stated that this letter was brought to him by one Khairoo. The appellant has examined one Khairoo as D. W. 3 and he has contradicted Allah,Bux. It was not contended in cross-examination or even in the arguments by the learned counsel for the State that this Khairoo was different from the one who is alleged to have brought the letter, Exh.3 to Allah Bux. In view of this state of evidence, I feel that the letter Exh. 3, has to be ruled out of consideration. The appellant has examined D. W. 1 Khamiso, whose evidence is in the following terms: - "I know Gut Muhammad. He is father-in-law of the accused. I know Ali Hassan. He is Sub-Inspector of Police. Gut Muhammad and Ali Hassan were partners in land. They had quarrelled. I decided their matter. My judgment was not accepted. The fight continued. I gave my decision at Chooharmal's shop. No cross-examination to P. L"
It will be seen that this witness has not been cross-examined at all and his evidence has gone totally unchallenged with the result that I find no ground whatsoever for not relying thereon. If this evidence is accepted it conclusively shows that there was enmity between Gut Muhammad father-in-law of the appellant and Ali Hassan., brother of complainant who was a police officer and could have easily involved the appellant in a false case on account of this enmity in cases of this nature where two conflicting theories are advanced by the prosecution and the accused the principles enunciated by their Lordships of the Federal Court in the case of Safdar Ali v. The Crown (PLD 1953 FC 93) have to be kept in mind. In the said case their Lordships observed as follows "It is of coursenot possible to arrive at any conclusion that the, accused person acted as he alleged he did, on a consideration of his statement alone. It is necessary to place his evidence along side all the other evidence and circumstances appearing in the case, and only then can a Court be in a position to weigh the testimony and the probabilities with the requisite degree of thoroughness before reaching its conclusion. The process by which the Court at the close of the case assesses the evidence and circumstances in relation to the charges preferred by the prosecution is precisely similar. Clearly,, it is necessary to place the defence version and its supporting evidence and circumstances in juxtaposition to the prosecution case for the proper estimation of the extent to which the charges may be held to have been proved, as it is to examine the prosecution case side by side with the defence case, in reaching a decision on the accused's special pleading." This principle was approved by their Lordships of the Supreme Court in the case of Mir Ahmad v. The State (PLD 1962 SC 489).
7. Following these principles I have no doubt in this case that there is more than a reasonable possibility that the defence o the appellant my be true. The appellant is consequently, entitled to the benefit of doubt. In the result; I allow this appeal and set aside the conviction and sentence passed on the appellant. He is on bail and need not surrender. He is on bail bonds stand cancelled.
The fine if already paid shall be refunded to him.