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Criminal Appeal No. 306 of 1976, decided on 20th February, 1983.

-----S. 168-Evidence Act (I of 1872), Ss. 64 & 65-Unlawful trade by public servant-Accused allegedly entering into partnership in firm and carrying on business while in employment of WAPDA ---Prosecution not examining any witness to prove partnership deed with regard to signature of accused in accordance with sections 64 and 65, Evidence Act--Prosecution witnesses also not establishing beyond reasonable doubt that accused entered into partnership-Accused given benefit of doubt and acquitted. -[Benefit of doubt].

P L D 1965 Lah. 112 ref.

1980 S C M R 953 rel.

Muhammad Ali Shaikh for Appellant.

Memo for the State.

Date of hearing : 14th February, 1983.

Appellant abovenamed, being aggrieved by judgment dated 22nd December, 1976 of the Special Judge (Central) Karachi, in Case No. 61/75, by which appellant was convicted under section 168, P. P. C. and sentenced to suffer simple imprisonment for 3 months and to pay fine of Rs. 2,000 and in default of payment of fine to suffer further S. I. for six months, has preferred the above appeal on the following facts and grounds :-

2. According to prosecution, Inspector Abbas Ali of F. I. A. was investigating crime No. 2445/75 when it transpired to him, that appellant Ghulam Elahi, being Assistant Accountant in WAPDA at Karachi had engaged himself during June, 1975 in a private business in the name and style of Messrs Shippers Associates, Recruiting Agents, Karachi. Said business was undertaken by the appellant in partnership with one Haji Muhammad Asad as alleged. On getting this information, Ins pector Abbas Ali lodged F. 1. R. and took up investigation. During investigation, he secured an order dated 20th October, 1961 under which the appellant was appointed as Accounts Assistant in WAPDA. He also secured photo copy of an agreement between the appellant and Muhammad Asad for having formed a business concern in the name and style of Shippers Associates. On completing the investigation, he chal laned the appellant.

3. Under a letter dated 20th January, 1976, the Government of Pakistan was moved for according sanction to prosecute the appellant. Said letter was received in the Ministry of Interior, Government of Pakistan, on 23rd January, 1976. Requisite sanction was neither accord ed nor refused. Consequently it was deemed to have been accorded and such order Exh, 1 was passed on 28th April, 1976.

4. Charge Exh. 3 containing prosecution allegations was read over to the appellant, who pleaded not guilty.

5. Prosecution examined complainant Abbas Ali Exh. 6 and P. Ws. Muhammad Hakim Jan Exh. 4 and Athar Farid Exh. 5, prosecution was closed under statement Exh. 10.

5-A. In his statement Exh. 11, the appellant admitted, that under an order dated 20th October, 1961 Exh. 9, he was appointed as Accounts Assistant in WAPDA and that be continued to serve in same capacity. The appellant denied that he entered into an agreement with Muhammad Asad for running the business of recruiting agency, under the name and style of Messrs Shippers Associates. He denied remaining prosecution allegations. He admitted that on 12th June, 1975 he visited Karachi Airport, but he denied that he went there to meet P. W. Muhammad Hakim Jan and 41 others, and that he supplied air tickets, passports and forged visas for Dubai to P. W. Hakim Jan and 41 others. He added that he visited Karachi Airport on said date to meet some of his co villagers, who were leaving Karachi. Appellant explained that the witnesses were deposing against him due to some misunderstanding or enmity. He did not wish to be examined in his defence as a witness and desired to produce documentary evidence in his defence besides examining Rabba Khan.

6. In his defence, the appellant produced photo copy of. Exh. 12-A of an agreement. Under statement Exh, 13, the appellant closed his side.

7. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo of appeal.

8. The learned Advocate for the appellant in support of the above appeal submitted as under :-

(a) That no evidence at all has been produced by prosecution to establish that the appellant was the partner of Messrs Shippers Associates Recruiting Agency.

(b) That the learned trial Court has erred on relying on the photo copy of the alleged partnership, in contravention of the provisions of sections 64 and 65 of the Evidence Act and on this basis con victed the appellant and consequently appellant's conviction can not be sustained. In support of this contention the learned Advocate for the appellant relied upon cases reported in P L D 1965 Lah. 112 and 1980 S C M R 953.

(c) That Exh. 8 alleged to be in the handwriting of the appellant was not sent to the handwriting expert, in spite of appellant having denied his signatures thereon.

(d) That prosecution has failed to establish its case under section 168, P. P. C. at all against the appellant and as such conviction of the appellant cannot be maintained.

9. None appeared for the State and since this is an old appeal of 1976, 1 decided to bear in the absence of the learned State counsel.

10. I have taken into consideration the above submission made by the learned Advocate for the appellant and have gone through the R & P of the learned trial Court and impugned judgment as well as the cases cited by the learned Advocate for the appellant.

11. The original charge framed under subsection (2) of section 5 of the Prevention of Corruption Act, was not proved according to the learned trial Court. However learned trial Court convicted and sentenced the appellant under section 168, P. P. C. for the reasons given in the impugned judgment.

12. In view of above position, it is to be seen, whether prosecution by evidence brought on record has established charge under section 168, P. P. C. against the appellant, beyond reasonable doubt or not. Prosecu tion case in respect of this charge is merely based on alleged copy of partnership deed Exh. 8 and statement of P. W. Hakim Jan and P. W. Athar Farid.

13. Admittedly Exh. 8 is photo copy of alleged partnership between appellant and Haji Asad for carrying on business in the name of Messrs Shippers Associates. I find that no specific question was put to appellant, whether Exh. 8 bears his signature, although a general question was put, that under this Exh. 8 he entered into partnership agreement with Muhammad Asad and carried on business in the name and style of Messrs Shippers Associates. Appellant denied this. Prosecution did not examine a single witness to prove the said Exh. 8, in accordance with the provisions of sections 64 and 65 of the Evidence Act. In view of this no reliance ought to have been laced on such document for purposes of conviction f the appellant. Case cited by the learned Advocate for the appellant in this connection, namely 1980 S C M R 953 is fully applicable to present case, as far as Exh. 8 is concerned.

14. Statement of P. W. I Muhammad Hakim Jan in my opinion does not establish beyond reasonable doubt, that appellant partner with Haji Asad, according to careful examinations of his statement. In cross-examination this witness admitted, that Haji Asad was proprietor of his office i.e. firm. Similarly in my opinion statement of P.W. 2 Akhtar Farid also does not establish beyond reasonable doubt that appellant war partner with Haji Asad in his business of Messrs Shippers Associates.

15. In view of my above conclusions regarding admissibility of Exh. 8 and the statement of P. W. 1 Hakim Jan and P. W. 2 Athar Farid, in my opinion prosecution has failed to establish beyond reasonable doubt, that appellant was partner in the firm of Messrs Shippers Associates and h as such was carrying on business, while he was in the employment of the WAPDA.

16. Therefore I allow the above appeal and set aside conviction and sentences awarded to the appellant under impugned judgment and acquit him by giving him benefit of doubt and discharge the bail bonds executed by the appellant in the above appeal.

Appeal accepted

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