P L D 1963 (W (PLP)

(c) Accused‑

Statement cannot be made basis of conviction unless whole of it is relied upon‑Criminal Procedure Code (V of 1898), S.

342. Peerzada M. Saleem Aslam for Appellants. Ch. Farzand Ali for Respondent. This Judgment will dispose of Criminal Appeals Nos. 43 and 44 of 1962 filed by Syed Naziruddin and Hafiz Mohammad Abdullah, who have been convicted under sections 420/109 and 420 respectively by Sh. Farooq Ahmad, Special Judge Anti‑Cor ruption Department, Multan, in a joint trial. The former has been sentenced to a fine of Rs. 4,000 and in default of the payment of fine to undergo rigorous imprisonment for a period of one year, while the latter has been sentenced to a fine of Rs. 6,000 and in default of the payment of fine to a sentence of one and a half years' rigorous imprisonment.

2. The case for the prosecution was that Syed Naziruddin appellant, while posted as Principal of Tibbiya College, Baha walpur, entered into a criminal conspiracy with Hafiz Muhammad Abdullah, his co‑accused, a local shopkeeper of Bahawalpur, to defraud the. Government and in pursuance of that conspiracy he fraudulently passed excessive and unwarranted bills for the price of the drugs purchased from Mohammad Abdullah during the period from the 1st of January 1959 to the 30th of April 1959 and thereby both of them cheated the Government of a sum of Rs. 8,767‑2‑

6. Both the appellants were tried under sections 420, 420/109 and 120‑B. Syed Naziruddin was also tried under section 5 (2) of the Prevention of Corruption Act.

3. In order to prove the above case, the following witnesses were examined by the prosecution. Allah Bachaya, Junior Clerk (P. W. 1), Fazal Din Pharmist (P. W. 2), Hakim Muhammad Diam, teacher, (P. W. 3) Kazi Ata Ullah (P. W. 4), a teacher, Muhammad Hayat, peon, (P. W. 5) of Tibbiya College, Bahawalpur, Abdul Khaliq a shopkeeper of Machi Bazar, Bahawalpur (P.W.6), Sh. Muhammad Abdullah, Inspector, Anti‑Corruption Department (P. W. 7); Ch. Qadir Bakhsh, S. H. O. (P. W. 8) and Mufti Muhammad Hasan, P. D. S. P. (P. W. 9). The last three witnesses were concerned in the investigation of this case. The evidence of Hakim Ata Ullah and Hakim Muhammad D iam, who are teachers in the Tibbiya College, has not been relied by the Special Judge because they were inimical towards Syed Naziruddin. Abdul Khaliq, who was the Chairman of the Karyana Association, Bahawalpur during those days proved the list Exh. P‑Q of the prices issued by the Association, but he admitted in his evidence that the prices shown in the list were not officially fixed and that the shopkeepers did not stick to those prices. Muhammad Hayat, Fazal Din and Allah Bachaya, proved that the disputed sales were effected by Syed Naziruddin appellant and that the price of the drugs purchased was paid by him to Muhammad Abdullah, his co‑accused. These facts are not denied by Syed Naziruddin appellant. M. A. Jawa, a shopkeeper of Akbari Mandi, Lahore and Shahid Ali of the same shop in Akbari Mandi were examined as C. W. 1 and C. W.

2. They proved that the list Exh. P. R. and Exh. P. R/1 were issued by them which contained the rates of the articles and drugs which were being sold at their store.

4. Syed Naziruddin appellant admitted that the disputed purchases were made by him from Muhammad Abdullah and the amounts paid to him were duly entered in the books of account maintained in the College. He denied that he had entered into any criminal conspiracy with his co‑accused in order to defraud the Government or that he intentionally paid exorbitant rates with an intention to get a pecuniary advantage from his co- accused. Hafiz Muhammad Abdullah also denied the allegations of the prosecution and he stated that the principal required medicines of the best quality to be supplied to the college dis pensary, consequently he supplied those of the most superior type and he charged the prices which were prevalent during those days in the market. Hafiz Muhammad Abdullah examined Muhammad Jamil‑ur‑Rahman, Fazal‑ur‑Rahman, Haji Muhammad Hussain, Abdur Rashid, Amir Ahmad and Muhammad, Ahsanur Rahman as his defence witnesses, while Syed Naziruddin examined Abdur Razzaq, Muhammad Anwar and Muhammad Yusuf as his defence witnesses. After the examination of the Court witnesses the accused examined Muhammad Ali, a shopkeeper of Akbari Mandi, Lahore, as their defence witness. Abdur Rashid (D. W. 4) and Muhammad Ali (D. W. 10) stated about the prevalent rates of different medicines. Muhammad Jamil‑ur‑Rahman, Fazalur Rahman and Haji Muhammad Hussain gave good character to Hafiz Muhammad Abdullah appellant. Amir Ahmad drafted the application which was made by Hafiz Muhammad Abdullah for being tendered pardon. He stated that he did that at the instance of Mr. Fazal Muhammad Khan, Prosecuting Inspector and his Naib Court who had assured him that if he made the application he would be tendered pardon and they will get him acquitted. The same suggestion was made by Kazi Ata Ullah P. W. Muhammad Ahsan‑ur‑Rahman, who is Imam of Jamia Mosque, Bahawalpur, corroborated Amir Ahmad D. W.

5. The learned Special Judge came to the conclusion that there was no evidence of any conspiracy between the two accused and consequently he acquitted both the accused of the offence under section 120‑B. He further found that there was no evidence that Syed Naziruddin was paid or he received any money out of the money paid to Muhammad Abdullah accused. Nor there was any evidence that Syed Naziruddin obtained any pecuniary advantage for himself. Consequently Syed Naziruddin was acquitted of the offence under section 5 (11) of the Prevention of Corruption Act. The learned Special Judge after comparing the prices as stated by the different witnesses including the defence witnesses came to the conclusion that Muhammad Abdullah accused was paid Rs. 2,808‑8‑0 over and above the highest prices of the drugs. This finding taken together with the facts mentioned in his judgment in para 18 (a) and (b) led him to believe that the Government was cheated at least of the above‑mentioned amount. The two circumstances relied by the learned Special Judge are that (a) that no quotations or tenders were invited from other shopkeepers and the indents were given only to Mohammad Abdullah accused; (b) that the Principal attached a false certifi cate with the bills showing that the prices charged were the market prices, because if this certificate had not been attached, the treasury would not have made the payment, that it was his duty as a drawing and disbursing officer to see that the proper prices for the drugs supplied to the Government dispensary were charged and paid. I am afraid that these two circumstances cannot prove. the required ingredients of an offence under section 420/109. The learned counsel appearing for the State is unable to show any rules which required that it was the duty of the Principal to invite quotations or get tenders before purchasing any medicines. No doubt, it would have been a proper thing to do but the non observance of these things would not show that there was any criminal intention behind this. Syed Naziruddin, the Principal, may have been negligent in the performance of his duties in not ascertaining the correct market prices of the drugs purchased by him or he may have accepted the word of Muhammad Abdullah, as he happened to be a Hafiz as regards the market prices of the medicines. His conduct would undoubtedly show negligence and carelessness on his part but an inference of a dishonest intention is not the only inference that can be drawn from these facts. The learned Special Judge has also relied on another circumstances that when the A. G. objected to Bill No. 132 relating to March 1959 Exh. P. 59 and asked the Principal if quotations for the drugs prices had been invited for, he wrote in his letter Exh. P. 153 that the quotations had been invited. But when he was asked to submit those quotations he stated in his letter Exh. P. 154 that no such quotations had been invited, that although he was empowered to purchase medicines not exceeding the value of Rs. 250 at a time, he purchased medicines of the value of Rs. 2,492‑8‑0‑vide Bill No. 132 Exh. P. 59 and later on got the amount divided into several bills Exh. P. 62 to P. 72 each not exceeding Rs. 150 and when he Accountant‑General asked for his explanation he wrote that the would obtain sanction of the competent authority. These facts also can be explained on other hypothesis than the guilt of Syed Naziruddin appellant. I asked the learned counsel for the State if all these actions of Syed Naziruddin appellant were such that no other inference except the guilt of the accused could be drawn from these circumstances. The learned counsel candidly admitted that it was not the only inference that could be drawn. When an action of an accused is capable of more than one construction and the possibility of the action being other than criminal cannot be completely eliminated the accused would undoubtedly be entitled to the benefit of doubt. The evidence clearly points out that the Principal, Syed Naziruddin, appellant was, in any case, extremely negligent in the performance of his duties, however, it cannot be said that he abetted the offence of cheating alleged to have been committed by Muhammad Abdullah appellant. The indents Exhs. P. 1 to P. 4 and the copies thereof Exhs. P1/A to P4/A bore an endorsement under the signatures of Syed Naziruddin appellant asking Muhammad Abdullah to supply the drugs of the finest quality and on Martial law rates. There is no doubt that after the bills were submitted to him by Mohammad Abdullah he should have taken the precaution of ascertaining whether the drugs were being supplied on the market rates or on higher rates. This action of the appellant could have been either dishonest or merely based on carelessness and negligence. In view of what has been stated above, I am inclined to give him the benefit of doubt. His appeal is accepted and he is acquitted.

6. As regards Muhammad Abdullah appellant, the only evidence against him is that he charged exhorbitant prices which were much higher than the market rates. The learned Special Judge has also taken into consideration the two statements of Muhammad Abdullah appellant made by him when the particular of the offences charged were put to him on the 6th of July 1961 and also the statement made in that behalf on the 7th of July 1961. The statement of Muhammad Abdullah appellant dated the 6th of July 1961 was a conditional one because he said "I had made the above statement under the impression that I will be tendered a pardon. But if I am not pardoned, I will make another statement with respect to the particulars of the offence put to me." Muhammad Abdullah appellant was not granted/ pardon, consequently the statement made by him in the hope of being made an approver cannot be used against him. There is evidence to prove that he made that statement at the instance of the P. I. In the statement of 7th of July 1961, after he was refused pardon, he admitted having prepared the bill for greater amounts than the market value but he stated that he had prepared the bills for excessive amounts because Syed Naziruddin, his co‑accused, was withholding his previous bills. He categorically denied that he had prepared the bills for excessive amount in order to cheat the Government. An accused person has a license to tell lies and his statement cannot be made the basis of his conviction unless the whole of it is relied. The mere prepara tion and charging of excessive amounts from the Government would not make him criminally liable, as the requisite intention of cheating has to be independently proved which is lacking in this case. There is no doubt that Mohammad Abdullah is under a civil liability to pay back the Government the excessive amounts charged by him. If there was cogent evidence to prove that the two appellants had conspired to cheat the Government of the money which was received by Muhammad Abdullah, it would only be then possible to hold Muhammad Abdullah appellant guilty of an offence under section

420. His action in charging excessive prices, in any case, is capable of two construc tions a criminal as well as of merely charging of excessive prices from the Government by making Syed Naziruddin appellant, believe that those were the market prices. He can be said to be dishonest in his dealings but this cannot certainly amount to an offence under section

420. There is a reasonable possibility of the innocence of the accused, consequently I will give him the benefit of doubt and acquit him. K. B. A. Appeal accepted.