1989 PLP 4202 (MLD)

16-3-77 to 31-3-77 Rs. 4,58,333 203691 1-4-77 1-4-77 to 15-4-77 Rs. 4,58,333 You are therefore requested kindly to lodge the complaint with you against the Contractor for playing fraud with the Government and copy of the FIR sent this office for suitable legal action accordingly. The early action in the matter is requested: Sd/- (Khawaja Wasimuddin), S.D.O. Highway Sub-Division ????? ????? Hyderabad, Copy Fwca to the Executive Engineer Highway Division Hyd for favour of kind information." That in the meanwhile on 22-3-1978 another F.I.R. was lodged by Ishrat Yar Khan, Inspector, ACE, Karachi, on behalf of the State which reads as under: "Received the following information from DACE under his No. Con. No. 2890 dated 22-3-1978 under endorsement of SPACE No. 721/78, dated 22-3-1978. It has been reported that M/s. Al-Mehran Builders of D/16, Block 8, Gulshan-e-Iqbal Karachi on 24-12-1978 executed a contract with the Executive Engineer, Highway Division, Sind, Hyderabad for Collection of Toll Tax at the Toll Plaza on Super Highway. The firm cited M/s. Hamidullah, s/o Mohammad Jaffar and Agha Ghulam Ali s/o Mohammad Jaffar as their sureties, who submitted duly executed surety bonds declaring them to be seized and possessed of the under-mentioned properties:--

1. Hamidullah S/o Mohammad Jaffar R/o 202/1-C Block 2 P.E.C.S. Society Karachi Building No. 202/1-C Block 2 PECHS. Society Karachi

2. Agha Ghulam Ali S/o Mohammad Jaffar R/o 107/KDA Scheme No.1, Karachi. Building No. 107-D KDA Scheme No.l. Karachi On the failure of the contractor, M/s. Al-Mehran Builders in making deposit of the amount persuant to the agreement executed by them, enquiries about the sureties were made and it was revealed that the sureties Hamidullah s/o Mohammad Jaffar, and Agha Ghulam Nabi, s/o Mohammad Jaffar did not own the aforesaid properties and had dishonestly and fraudulently and in collusion with Fazal Haq Khan of M/s. Al-Mehran Builders submitted sureties bonds making therein false declaration of having the title of the said properties and thereby committed offences punishable under section 420/468/471, P.P.C. r/w section 5(2)-II Act 1947 and MIR. It is certified that the above information has been recorded correctly by me."

3. After necessary investigation in Crime No. 34/77 under section 406/420, P.P.C., Mir Fazale Haq of AI-Mehran Builders and the two sureties were challaned before the Mukhtiarkar and FCM Kotri. Mir Fazale Haq filed Criminal Misc. No. 842/77 under section 561-A, Cr.P.C. for quashment of the above proceedings before this Court which was allowed on 15-1-1980, and the proceedings were quashed with the observation that the criminal case was uncalled for and was designed to pressurise the contractor to pay the dues of the Government. According to the High Court the correct remedy for Government was to cancel the contract and file a suit for the recovery of the amount or to claim damages.

4. After necessary investigation in respect of F.I.R. lodged 22-3-1978 the applicants were challaned by the Anti-Corruption Police. The applicant moved an application under section 249-A, Cr.P.C. before the learned Special Judge (Anti-?Corruption but the same was dismissed vide order dated 12-4-1988. The present application has been filed for the quashment of the above proceedings. It will be appropriate to mention here that prior to the present quashment application, the applicant had filed two such applications, out of which first application was withdrawn, the second was dismissed on technical ground.

5. I have heard Mr. Nooruddin Sarki, learned counsel for the applicant, Mr. M.I. Memon, learned counsel for the respondent No.2, Mr. M.A.I. Qarni, learned counsel for the State and have also gone through the documents produced alongwith the quashment application.

6. It has been contended by Mr. Nooruddin Sarki, learned counsel for the applicant that the applicant was working as Head Clerk in Highway Department at the time of execution of contract and he had simply signed the contract as a witness: That there was no evidence that the applicant had received cheques instead of pay orders towards instalment of lease money/Toll tax and, therefore, his prosecution was an abuse of the process of the Court.

7. Mr. M.I. Memon, learned counsel for the respondent No.2, Fatah Mohammad Bhatti, has contended that the respondent had sent the surety papers to the Superintendent Engineer, Highway Circle No.l, Hyderabad, for further submission to the Chief Engineer, Highway, for taking further necessary action vide letter dated 5-1-1977 and the sureties were accepted by the Chief Engineer after necessary verification.

8. That the cheques were deposited by the Contractor in the office instead of pay orders, and the respondent was unaware of the fact that the contractor had deposited cheques instead of pay orders, and that some of the cheques were dishonoured. He has further contended that as soon as the respondent No-2 came to know about the above irregularity he immediately directed S.D.O., his subordinate, to lodge report with the police which was accordingly lodged on 3-6? 1977. That the respondent No. 2 has been dismissed from service by the Department, and he has already suffered agony of protracted trial for more than 10 years.

9. Mr. M.A.I. Qarni. learned counsel for the State, has conceded that looking to the circumstances of the present case, applicant Noor Hussain was not liable for any offence as he had merely signed the lease deed as a witness, while the respondent No. 2 was of course negligent but no criminal offence appears to have been committed by him, therefore he had no objection if the proceedings were quashed. However, the accused were liable for departmental action,

10. I have considered the contention of the learned counsel. It is an admitted position that applicant Noor Hussain had signed the lease agreement as witness No.2, the photo copy of the lease agreement has been produced as Annexure A. It does not show that the applicant had either identified the sureties or had signed the agreement otherwise than as a witness. It was contended by Mr. Nooruddin Sarki learned counsel for the applicant that there was no evidence that the applicant has accepted the cheques instead of pay orders and this factual contention was not controverted by Mr. MAJ. Qarni and, therefore, the applicant could not be held liable for any criminal offence. The report dated 4-7-1977 sent by Superintending Engineer, Highway Circle-I Hyderabad, to the Chief Engineer, Highway Department, Government of Sind, Hyderabad, a copy of which has been produced as Annexure B, also shows that the Head Clerk can be held responsible for making entries in the cash book carelessly and irregularly as will be evident from the statement attached showing the various dates of receipts and entries of the cheques in the cash book, and thus he does not appear to be responsible for accepting cheques in lieu of pay orders and his reply seems to be convincing. In the last para, it is stated that: "It is also pointed out that the Head Clerk is a subordinate of the Executive Engineer and is bound to obey him and carry out his instructions. As such he could not help acceptance of the cheques in lieu of Pay Orders of cash as provided in the lease agreement. The cheques were in the knowledge of the Executive Engineer and he was supposed to know the conditions of agreement much better than the Head Clerk?. Therefore, the Head Clerk cannot be held responsible for deviation from the agreement."

11. The letter dated 11-1-1981 written by the Superintending Engineer, Highway Circle-I, Hyderabad, addressed to S.P. Anti-Corruption Establishment Sind at Karachi, photostat copy of which has been produced as Annexure `C' shows that Fatah Mohammad Bhatti, Executive Engineer, was dismissed from service while two annual increments falling due on 11-2-1978 and 1-12-1979 to applicant Noor Hussain Pathan were stopped with cumulative effect.

12. As far as respondent No.2 Fatah Mohammad Bhatti was concerned, he was of course Executive Engineer, Highways, at the relevant time and had signed the lease agreement as lessor. There is no evidence that he had accepted the cheques instead of pay orders from the contractor. It may be presumed that he might have accepted the cheques instead of pay orders but the presumption, however strong cannot take `place of evidence. There are certain circumstance which show that he was not a party to the fraud committed by the contractor. H First the surety papers submitted by the contractor regarding the sureties were immediately sent by him to the Superintending Engineer for further submission to the Chief Engineer, Highways, for taking further necessary action vide letter dated 5-1-1977. The letter dated 14-1-1977 sent by Superintending Engineer, Highway Circle, Hyderabad, shows that the above papers were forwarded to the Chief Engineer; secondly out of the above cheques two cheques were encashed, and thirdly since the respondent came to know that the cheques were dishonoured he immediately directed S.D.O., his subordinate, to lodge FIR against the contractor and sureties which was actually lodged on 3-6-1977. The above facts clearly show that the respondent No. 2 had no mens rea to commit offence as alleged. He may have been negligent so far the strict compliance of the terms of agreement was concerned but it cannot be said that he had committed any criminal offence. Even the proceedings against Mir Fazal Haq, Proprietor of Al-Mehran Builders Contractors initiated by S.D.O. have been quashed.

13. This brings me to another important question whether the proceedings could be quashed against the respondent as well when he has not filed quashment application. In the case of Mrs. Hamida v. The State and another (PLD 1973 Kar 478) late Tufail Ali Rehman, C.J. (as he then was) was pleased to observe that `the power under section 561-A, Cr.P.C. is not dependent upon the application of any- particular person. The fact that the other co-accused have not been impleaded nor have any notice of these applications served on them, also does not in my view matter inasmuch as an order of quashment can hardly be to their prejudice. However, in the present proceedings the respondent No. 2 is a party and his counsel Mr. M.I. Memon has raised the contentions mentioned in the earlier part of this judgment.

14. From the above discussion I am clear in my mind that no criminal offence was made out against the respondent No. 2 as well, and therefore, continue with the proceedings against him will be an abuse of the process of the C Court and, therefore, the same are hereby quashed against the applicant as well as respondent No.

2. However, this will not affect the departmental action which might have been taken or may be taken against the accused. M.Y.H./N-202/K Proceedings quashed.