Find a Lawyer

Criminal Appeal No.167 of 1985, decided on 20th October, 1986

---Ss.342 & 364--Prejudice--Statement of accused recorded under S.342, Cr.PX., not bearing certificate as required under 5.364, Cr.P.C.--Case remanded to Trial Court for recording statement of accused in compliance of requirements of 5.364, Cr.P.C.

---S5(c)--Evidence, appreciation of--Accused charged for having purchased a motor-car beyond his sources of income yet prosecution failed to lead any evidence on point of salary received by accused--a Case remanded to Trial Court for recording further evidence in respect of pay drawn by accused.

Azad Bin Haider for Appellant.

Sanaullah for the State.

Date of hearing: 13th October, 1986.

The appellant has been convicted by the Special Judge, Anti-Corruption (Pro:), Karachi by his order, dated 11-12-1985 under section 5-C of Prevention of Corruption Act, 1947 and sentenced to R.I. for one year and also to pay fine of Rs.10,000/- or in default to suffer further R.I. for one year. The basis of the prosecution was that the appellant had purchased one Toyota Corolla Car for Rs.55,000/-, which was beyond his means. The prosecution had proved the statement of assets signed by the appellant where he had stated that he had purchased the car alongwith his brother. The prosecution had been able to establish through Excise & Taxation Officer that the car stood registered in the name of the appellant and that the car was standing in front of the house of the appellant. They had also produced the person, who had sold the car to the appellant for Rs.55,000/-. The appellant was a Store-Keeper in Civil Hospital, Karachi, but the pay, which the appellant had drawn, had not been disclosed in any way in the prosecution statement.

2. The appellant, in his statement under section 342 of Cr.P.C., had taken up the position that the Car had been purchased by him through the funds supplied to him by his father, who had retired from military service in 1962 and .had received Rs.60,000/- to Rs.70,000/- as gratuity. The accused had also examined his father in defence, who had made the same statement as made by the accused. The accused had also examined his brother, who was the A.S.I. and who used to get Rs.800/- as his salary and he had 3 children.

The Car had been purchased in 1981 for.Rs.55,000/- and it was necessary that some evidence should have come from the prosecution about the income of the appellant in order to prove that the appellant was really living beyond his means by having purchased the said car for Rs.55,000/- but the same having not been done, it is not possible to reach at a conclusion that purchasing of a car for Rs.55,000/- by the appellant was really beyond his means.

3. Mr. Sanaullah wanted me to presume that a store-keeper would not be having an income of Rs.1,000/- per month. It may be so, and probably Mr. Sanaullah is right but that evidence has to come from the prosecution. I cannot substitute my inference in place of the required evidence from the prosecution. I am ref the view that the prosecution case is deficient in this respect and the necessary evidence

has been lacking. It appears to be inadvertent on the part of the prosecution, they have probably presumed that the pay of Store-keeper is not enough to allow him to purchase a car of Rs.55,000 in 1981. The presumption of the prosecution was probably justified on account of the statement made by the appellant in 1984 in writing that hr had purchased the car from the common funds of his own and of hip: brothers. Even the statement of the appellant and the statement of his father do suggest that the appellant was not in a position to purchase that car. However, the prosecution has to provide information. I am, therefore, .of the view that this case should be remanded for recording of the evidence in respect of pay, which the appellant was getting in 1981 and earlier or even upto 1984.

4. Mr. Azad Bin Haider had further submitted that the statement of the appellant under section 342, Cr.P.C. does not bear the certificate as required under section 364, Cr.P.C. That is highly technical objection, but it is justified from the provision of the Statute, therefore, on this ground also I would remand to case tip, the trial Court for recording the statement of the appellant in compliance of the requirement of section 364 of Cr.P.C.

5. The result is that the impugned order is set aside and the case is remanded for further evidence in respect of the pay of the appellant and for recording of fresh statement of the appellant under section 342 of Cr.P.C. The appellant will also be entitled to lead, any further evidence in defence, if he wishes to do so. The appellant, will continue on the same bail and present himself before the trial. Court whenever summoned. The trial Court would then take fresh: bail from the appellant and then the bail bond provide by the appellant in this appeal will be treated as discharged

S.G.D./M-138/K. Case remanded

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.