P L D 1964 (W (PLP)

4. Three defence witnesses were examined. They are Mr. Muhammad Farooq, Assistant Director, Supply Department, Mr. Rizvi, office of the Controller of Inspection, and Mr. Abdul Wahid Butt, Assistant in Department of Supply and Develop ment.

5. The learned Special Judge framed four points for deter mination, and concluded that the appellant was public servant on the relevant date, namely, the 8th of May, and the prosecution evidence proved that he had deceived the Department of Supply and Development, and fraudulently and dishonestly induced them to deliver a jeep to him, and was, therefore, guilty of an offence under section 420, P. P. C.

6. There is no dispute that the appellant is a public servant. This is not denied, and consequently the finding in the affirmative on this point.

7. As the learned A. P. P. has rightly contended, the only point for determination in this appeal will be whether the pro secution have been able to prove or establish beyond reasonable doubt that as a result of the conduct of the appellant, the Department or the officials of the Department of D. G. S. and D. Karachi had been deceived and fraudulently and disho nestly induced to deliver the jeep to the appellant. The prosecution have based their case primarily on the indent Exh. 3 placed by the appellant, according to them, in his official capacity, which thus misled the authorities.

8. It is admitted at the Bar that no deceptive corrupt of illegal acts have been made out against the appellant, and that there is no dishonest registration of the jeep by the appellant, for the appellant had admitted that after obtaining delivery of the jeep, he had registered it in his own name. It is also clear from the evidence of P. W. 5, Mr. Mody, a salesman of the Eastern Auto mobiles, who gave delivery of the jeep to the appellant, that there is no difference between the sale price of a jeep to a Government or a private individual. Besides it is established that appellant had deposited Rs. 10,000 in the Treasury advance price towards the sale price of the vehicle.

9. The prosecution witnesses examined are Muhammad Suleman, P. W. 1, Superintendent in the Office of the Supply and Development, who has mainly referred to the procedure in regard to the filling up of the indents, etc. The next witness is Mr. Clive, P. W. Exh. 10, who is a Superintendent in the Office of the Industries, Supply and Food Department of the Govern ment of Pakistan. The other witnesses are Syed Hassan, P. W. 3, Exh. 20, who is the Stores Purchase Officer, in the Office of the D. G. S. and D. Ahmed Hussain, Exh. 24, an Accountant in the Vehicles Department of the Traffic Branch in Karachi, who has testified to the Registration of the jeep by the appellant in his own personal name on the 3rd of January, and Mr. Mody, P. W. 5 a salesman in the Eastern Automobiles who made over delivery of the jeep to the appellant. P. W. Jamil Ahmed, P. W. 6 is the Treasury Officer Karachi, who permitted the appellant to deposit a sum of Rs. 10,000 on the 7th of August 1958, in consequence of which Exh. 11, the Treasury Challan, was filled in by the appellant, P. W. Muhammad Usman, P. W. 7 an Inspector of Police in the Office of the S. P. E. was the investigating officer. It is admitted by the learned counsel for the State that there is no evidence to support the finding of the learned Special Judge that any loss was caused to Government or to the State by the purchase of the jeep by the appellant. The Official price of the jeep was about Rs. 15,000 towards which appellant had deposited an amount of Rs. 10,000, and requested officially to be informed of the balance to be paid towards the price. Besides Mr. Mody of the Eastern Automobiles has also stated that there is no difference in the sale price of a jeep to Government or to a private individual.

10. The only point for determination in this appeal is whe ther the conduct the appellant in the entire set of circumstances of the prosecution case can be regarded as, having attempted to cheat, or in fact, cheated the Government or induced any of its officers to allot the jeep to him. There is a letter Exh. 44 dated 18th December 1956, addressed to the appellant by name by the Assistant Secretary to the Government of Pakistan in the Cabinet Secretariat referring to appellant's letter dated 10th November 1956, in regard to his request for a permit to purchase a Willy Jeep out of the Government quota, informing the appel lant that his name would be registered on his applying on the prescribed form through the proper channel, pointing out to him that so far no jeeps have been placed at the disposal of the Cabinet Secretariat for allotment to Government Officers. This letter is in reply to Exh. 42 dated 10‑11‑1956, by the appellant in which he states: I have to state that I have to visit places in the upcountry for inspection of plant and machinery purchased by various Departments of the Government. The places where the inspection is generally carried out by me are such that no transport except a 4 wheel drive vehicle can be used, and in absence of which, great difficulty is being experienced. To eliminate this trouble, I desire to purchase a vehicle which can be used at all places. I, therefore, request you to kindly grant me a permit to pur chase a 4 x 4 Willys Jeep so that I may use it in connection with my official visits to the upcountry. It will thus be noticed that the appellant in his official capacity had to inspect plant and machinery purchased by various departments of Government in outlying areas which could not be reached except by transport equipped with a four wheel drive. Primarily therefore, the appellant had indicated that he desired a jeep for use in furtherance of his official duties. This is not denied. It has come out in the prosecution evidence through Abdul Wahid Butt, Exh. 64, who was an Assistant in the S. and D. from 1947 to 1952, that several private individuals had been authorised by the S. and D. authori ties to purchase jeeps, and that authorization was given by the Assistant Director in charge of purchase. Amongst these was Mr. Ghulam Kadir Shaikh, the D. P. P. of Thatta. This gentle man had been allotted a jeep previously in 1954. Besides, it is not denied that Dr. Ishaq, Research Officer at Peshawar, and the Registrar of the University of Karachi, as well as the Special Officer on duty in the Karachi Electric Supply Corporation were also allotted jeeps by the Supply and Development Department. It is the prosecution case that although these were private individuals, they were allotted jeeps but made the depo sits as they were accepted by Government as depositing parties. The other factor is that the deposit of Rs. 10,000 was made by the appellant in his personal capacity. It has been shown through the testimony of Mr. Clive that no deposits are allowed to be made by private individuals, and that no deposits are made in case of purchase of vehicles for official duties.

11. In the present case, the deposit by the appellant was accepted and it was only when he asked for an adjustment of the amount paid earlier with the accounts of the Audit Office, that P. W. Clive states that he told the appellant that he should not have been allowed to purchase the jeep through the Govern ment quota. The additional circumstance is that although the appellant filled up Form Exh. 3, showing the Assistant Director of Inspection, as the Indenting Party, he thereafter in Exh. 9, which is his letter dated the.8th of May 1957, to the Director General D. G. and S. D. referred to "my indent" requesting for an early allotment of a jeep, and signed it in his personal name. Thereafter, there is a letter Exh. 19 dated the 7th of August 1958, addressed to the Audit Officer by the appellant stating quite clearly that he had deposited Rs. 10,000 towards the cost of a jeep through a Treasury Challan dated 7th August 1958, and requesting to know of the balance amount to be deposited towards the full cost of the jeep. The original indent, according to Mr. Saved Hassan, P. W. 3, Exh. 20, who was Assistant Director at the time in charge of T. V. 2 Section and P. W. Muhammad Suleman, Exh. 2 the Superintendent in the Department, was scrutinized and passed on as the Assistant Director had been shown as the Indentor. Mr. Suleman states that this officer can place an indent being a Gazetted Officer. According to Mr. Sayed Hassan he got the impression that the jeep was required for Government purposes and, he, therefore, ordered that delivery be made to the appellant, and his sugges tion was approved of by the Deputy Director, Mr. I. E. Sethi, and the Director, Mr. Khan. In consequence of this, the deli very order was passed in favour of the appellant. The cross -examination of Mr. Sayed Hassan indicates quite clearly gross negligence on the part of this officer if what the appellant did was officially incorrect, but it is difficult to believe that this officer together with the other senior officers of the Supply and Deve lopment in the circumstances of the official procedure they have referred to would pass an indent such as Exh. 3, signed by the appellant without the knowledge that it was officially incorrect to make such a request. Indeed it appears that all the acts of the appellant were acquiesced in deliberately by Sayed Hassan and the other officers, because it must have been obvious to them at that time and quite clear and definite what was the nature of the request the appellant was making and for what purpose; specially being aware of the allotments which had already been made in the past to several private individuals. This is the only presumption that can be raised accentuated by the over‑riding admitted circumstance that no deposit is allowed to be made under any circumstance by an individual until he is accepted as a depositing party. But for Mr. Sayed Hassan changing the description of the Indentor in Exh. 14, which is the delivery order, and Exh. 21, which is the acceptance order from the name of the "Assistant Director of Inspection" to that of "Con troller of Inspection," in both these exhibits, the ultimate delivery would not have gone through. I am for these reasons in no doubt from these circumstances alone, that necessary cognizant facility was afforded to the appellant in his request for a jeep, and that it was readily and officially granted. If the authorities and officials of the rank of Sayed Hassan and Muhammad Suleman had been a little more vigilant and were indeed certain of what they had adduced to in their testimonies, it would have been easy for them to verify whether the request of the appellant was genuine and whether it was for official or private purposes. Besides, it has also been admitted that the Indent Form Exh. 3, which has to be filled up when requesting for an allotment of the jeep, is the only form that is available in the Department when applying for the allotment of a jeep by Government Officials, semi‑private bodies and private individuals. No presumption can be drawn against the appellant, therefore, for doing so.

12. For these reasons, I am convinced that the appellant did not deceive any of the Government officials concerned, that he believed quite rightly and sincerely that as a jeep was necessary for him in the prosecution of his official duties as referred to in his first letter addressed to the Assistant Secretary of the Cabinet Secretariat, and would facilitate his presence at several places where it was necessary in the course of his official duties for him to be, and being no doubt aware of the allotments that had been made to other private individuals in the past that he made this request for a jeep, and as jeeps could only be allotted through the Supply and Development Department, he indented for one, and that this request was granted by the officials concerned who were neither misled or misguided. It was only the vigilence of a strict officer like Mr. Clive that the matter was brought to the notice of the Authorities. In my view, therefore, the prosecution had, failed for reasons I have already given, to establish that the' appellant had attempted to deceive or in fact had succeeded in deceiving or misleading the authorities in regard to his request for a jeep. The vehicle was necessary for him in the course of his official duties, and was allotted to him with the open con nivance of the officers of the Department of Supply and Develop ment, Government of Pakistan.

13. In the circumstances, there is no doubt in my mind that no case against the appellant under section 420, P. P. C., could be said to be made out on the prosecution evidence, and the circumstances arising out of it. I, therefore, allow the appeal, and set aside the conviction and the sentence of imprisonment till the rising of the Court, and the fine inflicted in consequence of his conviction. The appellant is on bail. He is set at liberty. The fine if paid should be refunded to the appellant. S. Q. Appeal allowed.