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Criminal Appeal No. 306 of 1974, decided on 21st April, 1979.

-- S. 5 (1) (e)-Evidence, evaluation of-Appellant's salaries coming to Rs. 1 lac during material time which he has to explain as to how he came to manage a sum of Rs. 30,000 for various investments--Appellant joined service in 1943, living bachelor life thereafter for about 8 years and then having three children of tender age from marriage-Appellant having no wasteful habits and no other dependents-Petitioner, held, could have disputed money from known sources-Conviction and sentence set aside, in circumstances.

Mohammad Ali Shaikh for Appellant.

R. A. Qureshi for the State.

Date of hearing : 21st April 1979.

The appellant was convicted by the Special Judge (Central), Karachi for an offence under section 5(l) (e) of Act, II of 1947 and sentenced to a fine of Rs. 2,000 or in default to undergo R. I. for one year. He has come in Appeal.

2. The allegations against him were that he had acquired properties beyond his resources 'the F. I. R. was lodged on the 2nd of October, 1968 and the investigation in the main was done by Mohammad 'Hussain Siddiqui.

3. The appellant is alleged to have contracted for the purchase of a piece of agricultural land in the sum of Rs. 23,513.69 in an auction from the Government and paid one fourth of the purchase price; if house at Azizabad in the sum of Rs. 9, 291.69; a plot in Latifabad on which he raised construction in all valued at Rs. 25,579 and a Vespa Scoter valued at Rs. 2,515 in all making a total of Rs. 44,960.88.

4. As many as 13 witnesses were examined and it is an admitted position that so far as the agricultural land is concerned the appellant had paid only one-fourth of the amount, i.e. Rs. 6-575.10, at the time the bid was accepted. He and not paid the balance and made as application for extension of time. Shorn of all details, it is further an admitted position that no further payments were made and the amount paid by him earlier was subsequently refunded. As for the house in Latifabad, it is of a poor quality as deposed to by the Engineer examined in the case. It was also conceded by the Investigating Officer that it was built by the appellant under his own supervision. Under the circumstances, the middle man was not there and the money was properly utilized. The position also remains that a sum of Rs. 13,000 bad been acquired by way of loan from the House Building Finance Corporation. This amount of Rs. 13,000 has to be taken out from computation of Rs, 44,960.88. So the appellant in all has to explain as to how he came to manage a sum of Rs. 30,000 for various investments including the purchase of the Vespa Scooter.

5 It is common ground that the appellant had joined services is India in the year 1943. He was a bachelor till 1951. He had only three children from the marriage and at the time of various investments they were of tender age. He had no other dependents. It appears that they had been educated in some primary school in Hyderabad with no tuition fee upto fifth Class and very nominal amount towards tuition fee was paid thereafter. The salaries, which had been received by him during the material time come to Rs. 1,00,000. It is also an admitted position that the appellant had been attached to the Pakistan High Commission to India where he was getting some extra payment; and his contention that at the time of his return, he had brought tax free goods which he had sold for the purpose of construction of a house would not be totally wide of the mark His stay in India was for a period of about four years. The Investigating Officer had also admitted that the appellant had no servants whatsoever and had no wasteful habits. The only thing, which could be observed by the Investigating, Officer was that the appellant was a smoker. There is also no mention even remotely, that he regaled himself with high quality cigarettes. The appellant has himself stated that it was nothing more than "K-2" Brand. To my min no construction therefore can be placed on the allegations preferred against the appellant. He could have the money in question from the known resources.

6. Mr. R. A. Qureshi, learned counsel appearing on behalf of the State also drew my attention to the fact that section 5(I) (e) of Act 11, 1947 was not on the statute book at the time of the commission of the offence, and therefore, there could be no indictment against the appel lant with retrospective effect. In view of what has been said earlier, it is not necessary to examine that position.

7. The conviction and sentence are totally insupportable and are hereby set aside, and the appeal is allowed. I am informed that the' amount of fine has been deposited by the appellant. The same will be' refunded to him in that eventuality. He is on bail and his bail bonds' stand cancelled,

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