P L D 1966 (W (PLP)

H. T. RAYMOND, J.‑

The six respondents to this Acquittal Appeal along with co‑accused Asgharali, son of Dr. Faizullah and one Dr. Bruckner, a German National (shown as absconder) were challaned in the Court of ‑the Special Judge (Anti‑Corruption), Hyderabad for offences under sections 420, 409, 109, P. P. C. and section 5(2) of Act 11 of 1947 read with section 120‑B, P. P. C. After a protracted trial extending over several months in the course of which no less than 20 witnesses were examined and scores of documents running into thousands of pages exhibited, they were all acquitted by the Special Judge on 31‑10‑

61. On behalf of the State the present Acquittal Appeal was then filed in this High Court against the present six respondents. We have heard Mr. Haleem the Assistant Advocate‑General on behalf of the State for almost three weeks. Mr. Hayat Junejo on behalf of respondents Nos. 1 to 5 and Mr. Fakhruddin, Bar‑at‑Law on behalf of respondent No. 6 also addressed us for a day and a half.

2. Respondents Nos. 1 to 5 are engineers by profession and are all in the service of the Public Works Department, Govern ment of West Pakistan. Respondent No. 1 Mr. A. G. Sheikh was serving as Chief Engineer and Secretary to the then Govern ment of Sind from 6‑4‑53 to 13‑10‑

55. From 14‑10‑55 to 30‑9‑58 he was the Additional Chief Engineer, Southern Zone at Hyderabad and after two months' leave he was again the Additional Chief Engineer, Southern Zone from 1‑12‑58 to 13‑4‑

59. Respondent No. 2 Mr. Muhammad Sulleman Abdullah Larik was Superin tending Engineer, Buildings and Roads Division, Government of Sind, from April 1951 to 19‑2‑55 and again from 6‑6‑58 to 3‑12‑

59. It may be mentioned here that in July 1952, the Buildings and Roads Division of the former Government of Sind was altered to lower and Upper Sind Communications Circles and Mr. Larik was then designated as S. E. Lower Sind Communication Circle. Respondent No. 3 Mr. Ummaidali Walidino Qureshi was Superintending Engineer, Lower Sind Communication Circle from 11‑3‑55 to 31‑7‑

56. Respondent No. 4 Taj Muhammad, son of Wali Muhammad Sheikh was Superintending Engineer,‑Lower Sind Communication Circle from 8‑11‑57 to 6‑6‑

58. Respondent No. 5 Ghulam Hussain Pir Bux Sheikh was Executive Engineer, Thatta Roads Division from 15‑10‑55 to 30‑3‑

58. Respondent No. 6 Mr. Nooruddin Moosaji Tapal was the Managing Director of the Firm of Messrs Ameeji Valeejee & Sons which Firm had entered into partnership with the German Firm of Philip Holzman, A. G. and was t7iereafter known as Phillip Holzman A. G. Ameeji Valeejee & Sons,

3. Now, the case for the prosecution is that in the year 1952, Sra it was decided by the then Government of Sind to re‑service and improve the Karachi‑Peshawar Road from Mile No. 20 to A. Mile 110 and for that purpose to construct new bridges and Ra, culverts thereon. The Government of Pakistan had undertaken to bear fifty per cent. of the cost of these repairs. Mr. Larik as the then Superintending Engineer of the Buildings and Roads Division in Sind invited tenders for the execution of this work. These tenders were invited from approved contractors on the 18th April 1952 and they were to be submitted within a month, i.e. by 18th May 1952. Four firms by name Messrs Umerjan Muhammad, Akhlaque Hussain, Khudadad Sahib Jan and U. K. Construction Co. duly submitted their tenders within the specified period. No tender was received during this period from the firm of the Respondent No. 6 but on 15‑5‑52 a letter Was addressed by this firm to Mr. Larik asking for a month's extension on the ground that this firm was then engaged in negotiations with the Government of Sind for the construction of a Super passage for Baran Nai across the Kalri Baghar Feeder. A second letter dated 22‑5‑52 was also sent by this firm to Mr. Larik mentioning that they would file their tender by 25‑6‑

52. Further extensions of time were asked for and obtained by this firm and ultimately, the prosecution alleges, that Mr. Larik unauthorisedly rejected the tenders of the first' four Pakistani firms and induced Government to accept the tender of the firm of respondent No. 6 for the sum of Rs. 28,50,550 for the construction of 63 bridges and 20 culverts on this particular stretch of the Karachi‑Peshawar Road. The prosecu tion further alleges that no plans, no designs and no estimates were submitted to Government by the accused firm: but, despite these deficiencies, the respondent Government Engineers in collusion with the accused firm secured for them permission from Government to commence their work on this particular contract. From the total number of 63 bridges and 20 culverts that were to be constructed on this stretch of the Karachi‑Peshawar Road only 6 bridges and 5 culverts were so constructed in accordance with the schedules approved of by Government and attached to the agreement that was entered into by Government with the accused firm. Seventeen bridges and one culvert were constructed without complying with the specifications and terms stipulated in this contract. Whereas according to the agreement the accused firm were to construct 63 bridges and 20 culverts at a total cost of Rs. 28,50,550, in actual fact, they constructed only 23 bridges and 6 culverts at a total cost of Rs. 23,19,191 the prosecution further alleges that undue favours were shown by the respondent Government Engineers to the firm of respondent No. 6 both in the matter of the execution by this firm of the work under taken by them and also in the matter of unauthorised charges made by them in their running bills and, finally, in the payment of these bills. It was, therefore, urged that the respondent engineers have conspired with accused firm of contractors to defraud Government of vast sums of money resulting in heavy losses sustained by Government.

4. The respondent engineers have all denied the charges preferred against them adding that this entire prosecution has been inspired and entertained with the sole object of ruining the career of respondent No. 1 Mr. A. G. Sheikh so that it would become impossible for him to attain the post of Chief Engineer to the Government of West Pakistan. Mr. A. G. Sheikh in his written statement has explained how soon after integration and the establishment of One Unit, the question of his seniority and his claims to the post of Chief Engineer and Secretary to the Government of West Pakistan arose. The tussle at first was as between Mr. A. G. Sheikh and Mian Abdul Aziz: but on the latter being taken up as Director‑General in construction of the Capital, Mr.. M. A. Malik became the next rival of Mr. Sheikh to the coveted post of Chief Engineer. in. Malik was then anxious to besmear and tarnish the record of Mr. A. G. Sheikh and towards this end he started carrying on a propaganda and using all sorts of means to damage the name and the record of Mr. Sheikh. He fomented trouble amongst the staff arid sub ordinates of Mr. Sheikh and awailing himself of the fact that at that time his brother Mr. A. K, Malik C. S. P. happened to be the Director‑General of the Anti‑Corruption Department to this Province he manoeuvred so as to get this present case started against Mr. A. G. Sheikh. The respondent engineers have in their statements referred to their years of hard and honest work in the Public Works Department in return for which

"they have been sacrificed on the altar of tug of war for seniority between Additional Chief Engineer Mr. A.

6. Sheikh and Mr. M. A. Malik; May peace of God be upon him" Respondent No.

6. Mr. Nooruddin Tapal has also denied having entered into any conspiracy with tile respondent engineers to defraud Government and when asked as to why he been implicated in this case, he replied that‑ "this case is the result of the departmental jealousy and rivalry as stated by the engineers. I am involved by the polic e because the case against the engineers without my firm could not be put up."

5. Now, although the case against these respondents in the trial Court assumed vast proportions resulting in the examination of a large number of witnesses and in bringing on record documents running into thousands upon thousands of pages: yet, for purposes of the present appeal the points that arise for consideration fall within a very narrow compass because of the very frank admissions made by the learned Assistant Advocate General at the conclusion of his elaborate arguments extending over well‑nigh three weeks. Mr: Haleem conceded that there was no case against any of these six respondents in respect of the charge under sections 409/120‑B, P. P. C. With regard to the charge of conspiracy and of cheating he said that he could press these charges only as against respondent No.

1. Mr. A. G. Sheikh, respondent No. 2 Mr. Larik and respondent. No. 6 Mr. Nooruddin Tapal. Mr. Haleem further submitted that if the charge for conspiracy fails then he would press a substantive charge under section 420, P. P. C. only as against respondents A. G. Sheikh and Larik. With regard to respondent No. 6 Mr. Nooruddin Tapal Mr. Haleem stated that if the charge for conspiracy should fail then he would press against this respondent a substantive charge under section 409, .P.P.C. or, in the alternative, under section.420, P. P. C.

6. Now, dealing with the case as finally laid before us by the learned Assistant Advocate‑General, we would take up for consideration, firstly, the charge under section 420 read with section 120‑B, P. P. C. against respondents A. G. Sheikh, Larik and Tapal, Mr. Haleem pressed this charge on the basis of the following documents:‑ Exh. 14‑P dated 15‑5‑52, Exh. 14‑Q dated 22‑5‑1952, Exh. 14‑A, Exh. 15‑E, dated 22‑7‑1952, Exh. 14‑T dated 17‑9‑1952, Exh. 15‑G‑I, dated 11‑11‑1953, Exh.15‑H, dated 3‑4‑1952, Exh. 15‑J‑1, dated 24‑11‑1952, Exh. 10‑A, dated 12‑6‑1952, Exh. 15‑D‑1, dated 15‑7‑1952, Exh. 15‑E‑1, dated 29‑1‑1953, Exh. 15‑F‑1, dated 20‑10‑1953, Exh. 25‑R, dated 9‑2‑1954, Exh. 25‑T, dated 20‑5‑1954, Exh. 15‑J, dated 18‑4‑1954, Exh. 15‑A‑4, dated 23‑9‑1958, Exh. 15‑V, dated 24‑7‑1954, Exh. 8‑E, dated 31‑7‑1954, Exh. 8‑F dated 18‑8‑1954, Exh. 8‑G dated 12‑8‑1954, Exh. 8‑H; dated 20‑8‑1954, Exh. 8‑I, dated 27‑7‑1954, Exh. 8‑P, dated 23‑11‑1959, Exh. 8‑.U, dated 23‑11‑1959, Exh. 15‑C‑4, dated 30‑9‑1958, Exh. 15‑T‑4, dated 31‑12‑1957. It becomes necessary for us in this judgment to examine each of these exhibits.

7. Exh. 14‑P is the letter dated 15‑5‑1952, from Messrs Ameejee Valeejee & Sons to the Superintending Engineer, Communication Circle, P. W. D., Karachi, (Mr. Larik) mention ing that their German Principals Messrs Phillip Holzman A. G., Civil Engineers of Germany were then in regular conference with the Chief Engineer, Lower Sind Barrage Scheme, to enter into an agreement for the construction of the super passage for Baran Nai across the Kalri Baghar Feeder and hence they were requiring sometime for submitting their tender for the work to be done on the Karachi‑Peshawar Road from Mile 20 to Mile 110 and requesting that the period for receiving these tenders may be extended by one month. Exh. 14‑Q is a second letter dated 22‑5‑1952 from the same firm to Mr. Larik stating that they would be submitting their tenders by the 25th June 1952. Exh. 14‑A is a tote on the P.W.D. file in the handwriting of Mr. Larik addressed to his tender clerk Ali Muhammad, P. W. 14, instructing him to forward to Government the tender filed by Messrs Umerjan Muhammad as it was the lowest tender received by him. Exh. 15‑E, dated 22‑7‑1952 is the letter from Mr. Larik canceling the tender of Messrs Umerjan Muhammad, contractor and stating that the work the construction of bridges along the Karachi‑Peshawar Road from Mile 20 to Mile 110 is proposed to be given to an expert firm. Exh. 14‑T is a letter from Mr. Larik to Major‑General Latif Khan, Defence Ministry, Government of Pakistan, dated 17‑9‑1952 mentioning the various firms with which he had fixed up contracts for repairing successive stretches of the Karachi Peshawar Road through the then Province of Sind and soliciting an assurance from the Defence Ministry of the Government of Pakistan that the Central Government would bear fifty per cent. of the cost of these contracts which decision was taken, at a conference of the then Chief Ministers. Mr. Larik added that Without such an assurance the work could not be commenced.

8. It would be useful to remark here that the original tender notice issued by Mr. Larik as per Exh. 11‑A dated 18‑4‑1952 called for sealed tenders from only approved A & B Class con tractors. The tender notice further stipulated that the work to be carried out consisted, firstly, of improving and surfacing the Karachi‑Peshawar Road from Mile 20 to Mile 110 and, secondly, of constructing new bridges or additions or alterations to existing bridges to suit present day requirements on this stretch of road. It was also mentioned that preference for the work of constructing bridges and altering existing bridges would be given to firms that can put up their own designs and have their own machinery. It is plain from the evidence on record and in particular, the statement of Mr. Aftab Kazi P. W. 15 then Finance Secretary to the former Government of Sind that neither the firm of Umerjan Muhammad or any of the other three Pakistani firms that had submitted their tenders for this contract were on the list of approved contractors. This witness admitted that

"as these contractors were not approved they would not have been ordinarily sanctioned by me‑." Further, referring in his evidence to the agreement Exh. 25‑B6 entered into by the Government with the accused firm concerning the road work to be done on this stretch, Mr. Kazi said that by reason of clause (2) of this Agreement the Government stood committed to giving the contract for the construction of bridges to the accused firm. This firm had by then (July 1952) secured the contract from Government for constructing the Nai Baran super passage and they were thus already known to the Sind Government.

9. Exh. 15‑G ‑I is a letter from Mr. Larik to the Secretary to Government, Buildings & Roads Division, dated 11‑11‑1953, informing him that the file relating to this contract had been transferred to the Superintending Engineer, Upper Sind Com munication Circle, and hence he should be addressed in the matter. This Exh. 15‑G‑I in order to tie fully appreciated should be considered in its proper context that is to say with reference to Exh. 10‑A and Exhs. 15‑D‑I, 15‑E‑I and 15‑F‑I. Exh. 10‑A was a representation dated 12‑6‑1952 made by the firm of Messrs Umer Jan Muhammad to the then Chief Engineer, Sind P. W. D., Karachi, referring to the tender submitted by them, to their own qualifications and efficiency and regretting that till then no decision had been taken on their tender. A copy of this representation was by Exh. 15‑D‑I dated 15‑7‑1952 forwarded to Mr. Larik for his early remarks and Exhs. 15‑E‑I of 29‑1‑1953 and 15‑F‑1 of 20‑10‑1953 are two reminders sent by the Chief Engineer and Secretary to Government to Mr. Larik. Exh. 15‑G‑I is Mr. Larik's belated reply dated 1 I‑11‑1953 stating:

"the above‑mentioned case has since been transferred to the Superintending Engineer, Upper Sind Communication Circle. He should be addressed in future‑" A copy of this reply as appears from the original was forwarded with compliments by Mr. Larik to, tile S. E. Upper Sind Communication Circle for information and, it seems to, us, that this action on the part of Mr. Larik indicates that it was then his impression that this file had by mistake gone to the S. E. Upper Sind Communication Circle instead of to the S. E. Lower Sind Communication Circle. We have already pointed out above that in July 1952, the Buildings & Roads Department of Sind was split up into Lower Sind and Upper Sind Communica tions Circles; Mr. Larik being S. E. for the Lower Sind Communication Circle: Moreover, we are precluded from drawing any adverse inference against Mr. Larik for this belated reply sent by him in November 1953, by reason of the fact that no such question has been put to him by the prosecution in the course of his lengthy examination under section 342, Cr. P. C. Besides, it is a matter of record‑ that the then Secretary to the Government of Sind, Public Works Department, to whom this letter Exh. 15‑G‑I was addressed was none other than Mr. A. G. Sheikh who had taken over, as Chief Engineer and ex officio Secretary to the Government of Sind on 6‑4‑1953. If, therefore, the purport of this letter, according to the prosecution, was to put off and deceive Government, this objective could hardly be achieved by addressing such a letter to a co‑conspirator as Mr. A. G. Sheikh according to the prosecution then was.

10. Exh. 15‑H‑dated 3‑4‑1954 is a letter from Mr. Larik to the Chief Engineer, Sind Government, recommending the tender of the accused firm and stating‑that‑ "formalities of calling tenders were completed vide Notifica tion issued under this Office No. TC‑G‑55‑51 dated the 18th April 1952. As nobody filed the tender for the reach from Mile 20 to Mile 110, this time I have entered into negotiations for this section with Messrs Ameejee Valeejee & Sons and Phillip Holzman whose tender for the work of surfacing in this reach amounting to Rs. 17,96,617 has already been sent to Government for sanction." Exh. 15‑I‑1 is a note over the, signature of Mr. A. G. Sheikh (Exh. 15‑J‑1) referring to this particular tender and requesting that a reminder be sent to the S. E:, LSCC expediting the return of the file in question. Great reliance was placed by Mr. Haleem on this letter of Mr. Larik, Exh. 15‑H, as well as on the nothings of Mr. Sheikh, Exh. 15‑I‑

1. The argument was that Mr. Larik had in this letter made a deliberate misrepresentation by stating that no tenders had been filed in response to his tender notice Exh. 11‑A and, therefore, he was compelled to enter into negotia tions with the accused firm. The argument further went on to suggest that Mr. A. G. Sheikh, who by then must have known to the contrary being aware of the rejection of the tender of Umerjan, yet acquiesced in this misrepresentation and failed to place the correct facts on record.

11. We find it, difficult to appreciate the effectiveness of this argument. So far as Mr. Sheikh is concerned his notings Exhs. 15‑I‑1 and 15‑J‑1 appear behind a letter dated 24‑11‑1953 from, himself as Secretary to Government to Mr. Larik as S. E., LSCC. But this letter refers to the tender for improvements to the surface of Karachi‑Peshawar Road from Mile 20 to Mile 110 and not to the tender which is the subject‑matter of this case and which relates to the construction of bridges and culverts on this stretch of road. Further we can find no evidence on record to indicate that Mr. Sheikh knew that four tenders had been received from the four Pakistani Firms and had been rejected by Mr. Larik. Besides, even if we were to assume that Mr. Sheikh was possessed of this knowledge, and as alleged by the prosecution, was in conspiracy with Mr. Larik then the letter Exh. 15‑H containing the misrepresentation that no tenders had been received could have had no effect upon him because, according to the prosecution, he (Mr. Sheikh) must have known to the contrary. Therefore, the great weight that was attached by the prosecution to this letter Exh. 15‑H and their reliance upon it as being the main pillar in the case for cheating against Mr. Larik must necessarily collapse for the simple reason that one conspirator cannot deceive or cheat a co‑conspirator in the matter of the same conspiracy. In other words, if the prosecution wished to rely upon this letter as containing a gross misrepresenta tion of fact then they must admit that Mr. Sheikh was not then in this conspiracy with Mr. Larik.

12. The next set of Exhs. relied upon by Mr. Haleem consists of Exh. 25‑R dated 9‑2‑1954, Exh. 25‑T dated 20‑5‑1954, Exh. 15‑J dated 18‑4‑1954, Exh. 15‑A‑4 dated 23‑9‑1958 and Exh. 15‑V dated 24‑7‑1954. The first two of this batch of Exhs. namely 25‑R and 25‑T are two letters the first from Messrs Phillip Holzman A. G. to Messrs Ameejee Valeejee & Sons and second a reply from the latter to the former. Reliance has been placed by the prosecution on these two letters to show conspiracy between Mr. Larik and the accused firm because in the second letter Mr. Nooruddin Tapal mentions that he had interviewed Mr. Larik in Karachi and‑ had made it clear to him in the course of conversation that the road tender would be considered by them only if their bridge tender was also accepted by Government. Mr. Larik is said to have assured Mr. Nooruddin Tapal that there is no difficulty so far as the bridge tender is concerned. Exh. 15‑J dated 18‑4‑1954 is an office note stating that the tender case was handed over by Mr. Larik to the Secretary, Finance Department. Exh. 15‑A‑4 is a letter dated 23‑9‑1958 from Mr. Larik to the Additional Chief Engineer, Buildings and Roads, Southern Zone, stating that‑-- "the tender was sanctioned by‑ the Sind Government after very close scrutiny for a period of over two years in which each point was examined by the Finance Department before they gave concurrence to the sanction of this tender." Exh. 15‑V is a note by Mr. A. G. Sheikh mentioning: "F. D. has agreed to the sanction of tender. The case may now be submitted to HM, PWD and HM, FD." These Exhs. taken at their face value merely serve to show that there was contract between respondents A. G. Sheikh, Larik and Nooruddin Tapal over the tender for bridge work on this particular stretch of the Karachi‑Peshawar Road submitted by the accused firm. There is nothing secretive or clandestine concerning these letters and notings which could suggest that a conspiracy, such as is envisaged by the prosecution, was then brewing between these three respondents.

13. Mr. Haleem then relied upon Exhs. 8‑E dated 31‑7‑1954, 8‑F dated 18‑8‑1954; 8‑G dated 12‑8‑1954, 8‑H dated 20‑8‑1954, 8‑I dated 27‑7‑1954, 8‑P dated 23‑11‑1959 and Exh. 8‑U which is a duplicate copy of Exh. 8‑P but with this difference that it contains the second paragraph of' this letter which has been struck off and obliterated in the original Exh. 8‑P. Now four of these seven Exhs. namely Exhs. 8‑E to H are letters from Mr. A. G. Sheikh while in Europe in the summer of 1954, to Mr.‑Sani his sub ordinate at Karachi and the remaining three between Messrs Ameejee Valeejee and their Principals in Germany, Messrs Phillip Holzman‑ A. CT. The contention that Mr. A. G: Sheikh while in Germany attempted to secure and did, in fact, obtain undue favours from the representatives of the German Firm Messrs Phillip Holzman is clearly not borne out by these letters. Messrs Phillip Holzman in their letter Exh. 8‑P of 23‑11‑1959 make it plain that the total amount of money spent by them there on Mr. Sheikh and two other persons who were accompanying him but had nothing to do with this case was DM. 141‑

43. But what has particularly struck us in connection with this letter Exh. 8‑P is the scoring off from it of its paragraph

2. In this paragraph it is said: "Mr. Sheikh may have received one of our small presents like a four‑colour pencil or a small slide rule as we often give to our clients, but we are positive that no bills for his purchases were paid by us. Mr. Bruckner remembers very distinctly that he accompanied Mr. Sheikh to a department store where Mr. Sheikh bought some textiles for his family and which ht paid for from his own pocket." The scoring off and complete obliteration of this para from this letter has attracted our attention. Each side blamed the other for being responsible for this scandal. However, since it is perfectly plain that the contents of this paragraph are distinctly helpful to Mr. Sheikh and not to the prosecution case against him, we are clear in our own minds that it must have been the prosecution that is responsible for the scoring out and obliteration of this paragraph from this letter. If, this is so, then, we consider such conduct on the part of prosecution is nothing short of scandalous, because it only shows to what lengths the prosecution were prepared to go to achieve their purpose.

14. The last two Exhs. relied upon by the learned A.A.‑G. are Exh. 15‑C‑4 dated 30‑9‑1958 and Exh. 15‑T‑4 dated 31‑12‑1957. The first of these is a draft of a letter to the Secretary to the Government of West Pakistan, Communication and Works Department, Lahore, and forms the basis of Exh. 15‑D‑4 dated 13‑10‑1958 which is the formal letter. This Exh. 15‑D‑4 is the same as Exh. 15‑A‑4 considered above and emphasis is sought to be placed by the prosecution upon the following passage in this letter:‑ "since those tenders are rejected by the Government and permission was given to negotiate the contract with Messrs Phillip Holzman Ameejee Valeejee, this clause was dropped as the contractors were not agreeable. The tender was sanctioned by the Sind. Government after very close scrutiny for a period of two years in which each point was examined by the Finance Department before they gave concurrence to the sanction of this tender." We have in a previous paragraph already considered Exh. 15‑A‑4 of which the present Exh. 15‑C‑4 is a draft copy. However, on examining the notings in the P. W. D. file more closely we discovered that the proposal for this letter was originally put up by Mr. Baloch, Administrative Officer, and that Mr. A. G. Sheikh has merely appended his signature to Mr. Baloch's suggestion that‑ "Government may be informed on lines of S. E.'s letter." 'Exh. 15‑T‑4 is a letter dated 31‑12‑1957 from Mr. A. G. Sheikh to the Superintending Engineer, Provincial Circle, P. W. D. B & R Branch, Hyderabad, on the subject of the cost of bridge constructed by the accused firm and suggesting that payment may be made to the accused firm although, according to the prosecution this payment had been stopped by Mr. Masood on the basis‑of an audit objection. In this letter Mr. Sheikh has stated that "the case has again been looked into : the rates which have been approved finally have been based on the splitting up of lump sum quotations given by the contractors and as such they are to be accepted. You should, therefore, release payment to the company on the basis of these rates." Although reliance has been placed on this letter by the prosecution to show an eagerness on the part of Mr. Sheikh to sanction payments of the bills of the accused firm, in view of certain other Exhs. appearing in this case to which our attention was invited by Mr. Hayat Junejo, we are disinclined to attach any importance to this letter. The Exhs. referred to by Mr. Hayat are Exh. 15‑J‑9 dated 6‑8-1958, Exh. 15‑K‑9 dated 13‑10‑1958, Exh. 15‑B‑14 dated 22‑7‑1958, Exh. 25‑B‑5 dated 18‑5‑1959 and Exh. 34‑B dated 30‑4‑1960.

15. The first of these, Exh. 15‑J‑9 is a confidential letter from Mr. Inamullah Khan then Chief Engineer, Government of West Pakistan, to Mr. Sheikh concerning the claim of the accused firm and ordering Mr. Sheikh to settle this claim immediately or else " this might stand in the way of the aid‑loan which the Pakistan Government is contemplating to have from West German Government. In order to avoid such an embarass ment it is imperative that this firm is settled without further delay. I, therefore, order you that this case should please be settled immediately by sending for the Superintending Engineer, the Executive Engineer and the Accountant of the Division and other staff concerned at Hyderabad and they should sit with you to carry out day to day work till the claims are finally settled." Exh. 15‑K‑9 is a reminder from the Chief Engineer, West Pakistan Government to Mr. Larik to expedite payment to the accused firm. Exh. 15‑A‑14 dated 26‑7‑1958 is a letter from the accused firm to Mr. Sheikh threatening legal action if payment is not made and Exh. 15‑B‑14 dated 22‑7‑1958 is a letter from the German Embassy ‑in Karachi to the Chief Engineer, West Pakistan, demanding payment of the dues of the accused firm. Exh. 25‑B‑5 dated 18‑5‑1959 is a legal notice under section 80, C. P. C. on behalf of the accused firm and Exh. 34‑B is a copy of the plaint in the civil suit filed on behalf of Messrs. Phillip Holzman A. G. and Messrs Ameejee Valeejee & Sons against the Province of West Pakistan for the recovery of the balance of moneys due to the plaintiffs by Government under this contract entered into with them. In view of these documents placed before us by the learned Advocate appearing on behalf of Mr. A. G. Sheikh, we find nothing wrong in the letter of Mr. Sheikh to the then Superintending Engineer, Exh. 15‑T‑4, sanctioning payment to the accused firm.

16. It would be as well to deal at this stage with the remaining documents placed before us by Mr. Hayat which, according to him, serve to negative any suggestion of conspiracy between A. G. Sheikh, Larik and Tapal as alleged by the prosecution in this case. These ‑documents consist, in the first instance, of five letters addressed by Mr. Larik on 19‑5‑1952 to five different firms of contractors in connection with the repair work to be executed on the Karachi‑Peshawar Road. These letters are Exh. 14‑D addressed to Messrs Gammon Pakistan Ltd., Exh. 14‑F addressed to Messrs Mubarakali Shah, Exh. 14‑G addressed to Messrs Establishment Billiard French Engineers, Karachi, Exh, 14‑H addressed to Messrs M. Mian Muhammad & Sons, South Circular Road, Peshawar, and Exh. 14‑J addressed to Messrs Katta Engineering Works, Lahore. It is submitted that on the date of the expiry of the original notice Exh. 11‑A dated 18‑4‑1952 calling for. tenders within one month, the above‑mentioned five different firms were addressed by Mr. Larik on the very next day 19‑5‑1952 inviting them to interviews in connection with the improvement of the Karachi Peshawar Road. Thus, it cannot be said that Mr. Larik had any special attachment to or fondness for the accused firm so as to secure this contract for them without inviting other tenderers. In continuation of this submission of his Mr. Hayat has also placed before us Exh. 21‑D dated 1‑12‑1951 being a note of Mr. Larik to the Secretary for Government, P. W. D., Karachi, on improvements to Karachi‑Peshawar Road, pointing out that‑- "apart from standards it is difficult to find men with enough capital to complete the works. Local contractors are all right for earth and masonary works but for big road work the position is still not safe and reliable. To trust this work that is of a vital strategic importance to our local men is to give a cold attention to defence needs of Pakistan. I have, therefore, looked outside the border." Exh. 21‑E is a note of Mr. Muhammad Moosa then Chief Engineer and Secretary to Government dated 4‑1‑1952. Para. 2 of this note reads as under: "the tender as obtained is quite reasonable as explained already and better rates cannot be expected. We have already delayed sanction and if we lose these contractors we may not get another able contractor to do this difficult work in a short time as demanded. If this foreign firm is delayed by our decisions' they are bound to get disappointed and leave the work and we shall again take months to find other contractors and negotiate with hardly any better results. In view of severe criticism of‑ Sind for these portions of the road, Sind Govern ment will be well advised to get on with this emergent work. F. D. may again see and also Chief Secretary." Exh. 21‑F dated 8‑1‑1952 is a note of the Finance Department signed by Mr. Aftab Kazi then Finance Secretary and stating:‑ "in view of the recommendations of the Secretary, P. W. D. and his statement that he will not be able to get another equally suitable contractor, F. D. may agree to the tender being accepted." It may be observed here that Mr. Aftab Kazi when producing these Exhs. in the course of his evidence admitted:‑ "I have agreed with the recommendations of P. W. D. that the contract may be given to the foreign firm." Of course, we are aware that these notings Exhs. 21‑D, E and F do not, in fact, relate to the stretch from Mile 20 to Mile 1.10 of the Karachi‑Peshawar Road but to another portion of this road from Rohri to Bahawalpur. Nevertheless, these notings are not entirely irrelevant to the present case because they serve to show the manner in which and the procedure whereby decisions for assigning parts of this very road to contractors were taken.

17. There is another feature of the contract granted by Government to the accused firm as per Exh. 8‑Q which should be mentioned here and to which our attention was specifically invited by Mr. Hayat. It is that after the issuance of the original tender notice Exh. 11‑A dated 18‑4‑1952, the Central Govern ment changed its mind as to the load capacity of the bridges to be constructed on this road enhancing this capacity to 70‑ton loading. This alteration was first communicated to the Chief Engineer and Secretary to the Government of Sind, Roads and Buildings Department by Mr. J. D. Hardy then Joint Secretary to the Government of Pakistan through his letter Exh. 15‑G‑14 dated 16‑2‑1954. Speaking of this alteration Mr. Noor Muhammad P. W. 10 Executive Engineer, Buildings and Roads agreed that‑ "this was the first contract for constructing a 70 load bridge in the Buildings & Roads Division. Previous to this no big bridge was constructed." Again, this witness further admitted that‑ "no officer of CDD or B & R had any foreign qualification in bridge design and construction in 1953. Generally designs are called for from the contractors whenever big bridges are to be constructed." It was contended by Mr. Hayat that the respondent engineers had these limitations in mind when negotiating this contract with the accused firm. The four firms that had submitted their tenders in response to the original tender notice Exh. 11‑A were admittedly not on the approved list and Mr. Hayat has in this connection invited our attention to Exh. 16‑T‑1 a note of Mr. Larik to the Secretary, P. W. D. reproduced by the trial Court in its judgment in this case. It is in these words:-- "None of these contractors are approved contractors except Mr. Ashrafali. They have no road experience. Serial Nos. 1 to 3 Khudadad, Umerjan and Akhlaque Husain were, therefore, rejected by me as incompetent to be trusted this work which is of defence nature. The rate offered by Ashrafali is too low for the site conditions where the following difficulties not taken care of in our estimates will confront the contractor." When recommending the tender of the accused firm, Mr. Larik had given adequate reasons for preferring this German Firm to any other contractor. These reasons were that:‑ "(a) the firm had German Engineers who would look after the work and management; (b) they would bring equipment from Germany; (c) coming from a country where the art of road building is supreme and builders of the best roads, the standard of their work would be very high; (d) the section of the road is an important link between Karachi and Hyderabad; and (e) the price quoted is cheaper than that of local contractors, e.g. Khambatta & Co."

18. The final documents placed before us by Mr. Hayat are Exh. 25‑S‑5 dated 20‑10‑1952, Exh. 25‑T dated 20‑5‑1954 and Exh. 26‑B‑6 dated 27‑7‑1954. The first of these is a letter Exh. 25‑S‑5 from the accused firm to Mr. Larik concerning, their tender for road work and bridge construction along the Karachi Hyderabad Road and ending in these words:‑ "this offer is based on the assumption that the work of bridges and culverts in this beat will be let out to us at example rates to be decided." Exh. 25‑T is a letter dated 20‑5‑1954 from Messrs Ameejee Valeejee to their Principals Messrs Phillip Holzman A. G. to which reference has already been made in this judgment in which they have made their position clear namely that the road tender would only be considered by them if their bridge tender was also accepted by Government. Exh. 26‑B‑6 to which also we have previously referred in para. 8 of this judgment is the 50th.condition to the tender agreement Exh. 25‑B‑6 entered into between the accused firm and Government concerning road work improvement on the stretch from Mile 20 to Mile 110 and covenanting that‑ "the contractor will be awarded at reasonable prices to be decided the contract for construction of approximately 3200 R. Ft. R. C. C. bridges between Miles 20 to 110." We have already ‑dealt with this Exh. in para. 8 above where we have mentioned the admission made by Mr. Aftab Kazi, Finance Secretary, that in view of this clause Government stood committed to granting the work for the construction of bridges along this stretch of road to the accused firm.

19. Having considered the various Exhs. and pieces of evidence relied upon by the learned A. A.‑G. in support of the charge under sections 420‑120‑B, P. P. C. against M/s. Larik, A. G. Sheikh and Tapal as well as the documents and evidence to which our attention was invited by the defence Advocate, we have reached the conclusion that the finding of the trial Court that this charge has not been established against any of the respondents in this appeal is a correct finding, and one therefore, which we would not disturb on appeal and much less so in an Acquittal Appeal. We are further of the view that no case even for the substantive offence under section 420, P. P. C. has been made out either against Mr. Larik or Mr. A. G. Sheikh. The great emphasis laid by the prosecution upon the alleged gross misre presentation made by Mr. Larik in his letter Exh. 15‑H dated 3‑4‑1954, to the Chief Engineer, Buildings & Roads Division, Karachi, in which he said that no tenders had been received for the reach from Miles 20 to 110 and, therefore, he had entered into negotiations with the accused firm, has, in our view, entirely been misconceived. We cannot forget that the very opening words of the tender notice Exh. 11‑A invite tenders from approved contractors and that it has been admitted in the course of his evidence by no less a person that the Finance Secretary himself that the four Pakistani firms that had replied to this tender notice were not on the list of approved contractors. This being so, it seem to us, that the tenders submitted by them were invalid and not tenders stricto sensu and, therefore, there was no necessity for Mr. Larik to forward these tenders to Government for rejection. He could very easily reject them himself. At the cost of repetition we would repeat here the admission made by Mr. Aftab Kazi that‑ "I do not remember any case where tenders have been sent for rejection. As a matter of fact, I do not remember any case at all in which tenders have been sent for rejection." Nor, do we feel that any case has been made out against. M. A. G. Sheikh for the substantive offence of cheating. The allegation against him throughout has been that he was a co conspirator with Mr. Larik in a conspiracy to cheat Government but no specific act of cheating has been pinned down against him. The allegation that he passed the bills of the accused firm despite audit objection would not bring him within the purview of section 420, P. P. C. It is also not possible to bring the case against respondent A. G. Sheikh under section 420, P. P. C. on this count because of the view we have already taken namely that the payments made by him were so made on instructions from the Chief Engineer to the Government of West Pakistan. Therefore, we find that there can be no case against respondents Larik and Sheikh for the substantive offence under section 420, P. P. C.

20. There remains the case against respondent No. 6 Mr. Nooruddin Tapal. Mr. Haleem submitted that he would press as against this respondent a substantive charge under section 409, P. P. C. or in the alternative under section 420, P. P. C. The charge under section 409, P. P. C. is based on the allegation that the accused firm of which this respondent was Managing Director received advances for spare parts which were not contemplated in the agreement entered into with them by Government. The charge under section 420, P. P. C. was also based on similar allegations. Mr. Haleem was conscious of the fact that the original charges made against this respondent at his trial in the Court below did not include substantive charges under section 409 or 420, P. P. C. but, he contended, that by reason of clause 4 of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (Act No. XL of 1958), it would be possible for him to urge substantive charges under sections 409 or 420, P. P. C. against this respondent. We examined the provisions of clause 4 of section 6 and pointed out to Mr. Haleem that .under this sub‑clause it was only the Special Judge who may convict an accused of any offence which from the facts admitted or proved he appears to have committed. We put it to Mr. Haleem that, sitting as we ‑ are in appeal under section 417; Cr. P. C., we could not, in such circumstances, substitute ourselves for the Special Judge and, therefore, this sub‑clause would not apply to us. Mr. Haleem appreciated the force of this difficulty that stands in our way and said that, in that view, he had nothing more to say. But, quite apart from this technical difficulty, a further obstacle in the way of considering a sub stantive charge under section 409 or 420, P. P. C. against this respondent is the fact that in his examination under section 342, Cr. P. C. no such question which could form the basis of such a charge has been put to him. In fact, this was never the case of the prosecution against him in the lower Court. The Rubkari read out to him at the commencement of the trial is silent on this point: no argument to this effect was submitted by the learned Public Prosecutor in the trial Court: nor has the learned Special Judge considered this aspect of the case against this respondent in his judgment. This being so, we cannot now consider either of these charges against Mr. Tapal and we agree with the learned A. A.‑G. that neither of these charges can now be pressed against him.

21. In conclusion, then, we find that no case has been made out in respect of any of these offences alleged against these respon dents and, therefore, agreeing with the trial Judge, we uphold their acquittal and dismiss this Acquittal Appeal. K. B.A. Appeal dismissed.