1971 P Cr (PLP)

Dates of hearing : 16th and 17th November 1970. The appellants have been convicted by the learned Senior Special Judge Kalat Division by his judgment dated the 10th June, 1970 and have filed an appeal against their convictions and sentences which has come up‑for hearing before me. The first appellant has been convicted under section 409, P.',P, C: and under section 5(2) of the Prevention of Corruption Act 1947 and sentenced to two years R. 1:‑ and a fine of Rs. 2;000 or six months R.I. in default and to two years R.‑I., in default: respectively. The substantive sentences of imprisonment are to run concurrently The second appellant has been convicted, under three counts, section

409. P. P. C. section 477‑A, P. P.C. and section 5(2) of the prevention or corruption Act. He has been convicted under section 409, P. P. C. to two years' R. I. and a fine of Rs. 10,000 or six months' R. I. in default, under section 447‑A, P: P. C. to two years' R. I. and a fine of Rs. 10,000 or six months' R. I. In default, and under the Prevention of Corruption Act to two years' R. I. and a third fine of Rs. 10,000 or six months' R. L in default. In his case also the substantive sentences are to run concurrently.

2. According to the prosecution, the facts material to this appeal are as follows. At all material times the first appellant was the Executive Engineer, Makran Irrigation Department at' Turbat, whilst the second appellant was the Sub‑Divisional Officer (S. D. O.) working under him. In November 1962 a notice was published inviting tenders for the construction of the Shinzani Bund Project which was expected to cost about Rs. 4 lakhs. The lowest offer was of a contractor by the name of Masood Ahmed, now absconding and hereafter called the absconder. As the absconder's offer‑ was the lowest, it was accepted, and after he had been informed orally about it, a formal letter of acceptance dated the 27th April 1963 (Exh. PH) was sent to him. According to the practice of the Public Works Department, the absconder became entitled to an advance against the security of the material of a permanent nature required in the contract obtained by him. But before he could get this advance, as Executive Engineer, the first appellant had to issue a certificate that the value of the material brought by him to the site of the contract was required in the contract and was sufficient security for the advance to be. given to him; therefore, the appellants issued a certificate dated the 27th April 1963 (Exh. PD.) certifying that material of the, value of Rs. 1,09,600 consisting of 18 tons of M. S. Bars, one thousand cubic feet of shuttering planks and 120,000 cubic feet of bajri had been brought to the site of the contract, and on the basis of this certificate he gave the absconder an advance of Rs. 75,

624. However,: according to the prosecution, most of the material against which the absconder had obtained this advance had not really been brought to the site at all and the certificate (Exh. PD) had been falsely issued by the appellants in order to enable him (the absconder) to obtain the advance dishonestly from the Government. As soon as this fraud was discovered which was after the appellants had been transferred, complaint, was filed against them and the absconder, The absconder could not be traced, but in due course the appellants were convicted and sentenced as stated above.

3. As the convictions and sentences passed against the appellants are based on the same facts Mr. Junejo submitted, on the basis of section 26 of the General Clauses Act, that they could not be separately convicted and sentenced for the same facts, and in support of this submission learned counsel relied on a judgment in Mirza Mehboob Beg v. The State (1970 P Cr.. L J 1248). In the judgment, on the basis of an unreported judgment of the Supreme Court in Dawood Hashmi v. The State (Cr. App. No. K-4 of 1966) it was held that even though the same facts may constitute more than one offence the accused cannot be convicted twice for the same set of facts. In view of this judgment, the learned Advocate‑General was compelled to concede that the manner in which the appellants had been convicted was totally illegal, therefore it is not necessary to consider this aspect of the case further, and I shall now examine the merits of the case against the appellants.

4. As it is not even alleged in arguments before me that the appellants had themselves appropriated the advance given to the absconder, Mr. Junejo submitted that no case for criminal breach of trust whatever had been made out against either of the appellants. However, the learned Advocate‑General submitted that the appellants had been entrusted with or had dominion over the funds released to the absconder, therefore by falsely issuing the certificate (Exh. PD) they had wilfully suffered the absconder to convert and misappropriate Government funds (namely the advance received by him) to his own use within the meaning of section 405, P. P. C. On the footing that the appellants or any one of them had control over the advance given to the absconder, the prosecution can succeed only if it can establish that the appellants or any one of them had wilfully allowed the absconder to misappropriate Government funds, but in order to do so it has to prove beyond reasonable doubt that the certificate issued by the first appellant (Exh. PD) was false to his knowledge and that the second appellant was also similarly aware that the absconder had not brought to the site material he was alleged to have brought to the site, vide the certificate (Exh. PD). In the light of this principle, I would now examine the case against the appellants.

5. The first appellant has said in his statement under section 342, Cr. P. C. that he had issued the certificate (Exh. PD) without visiting the site. However, he said that the second appellant had visited the site and certified the amount of material brought by the contractor, therefore, relying on the second appellant's certificate he had countersigned it (Exh. PD) and had granted an advance of Rs. 75,624 to the absconder in accordance with the rules. As the prosecution has produced absolutely no evidence to rebut the first appellant s statement that he had issued the certificate (Exh. PD) without visiting the site, and solely on the basis of the second appellant's verification, the learned Advocate‑General submitted that the first appellant should have inspected the material before issuing the certificate (Exh. PD), that he had been grossly negligent in issuing the certificate without visiting the site and that this gross negligence, together with the other circumstances of the case, proved that he had issued the certificate dishonestly and with the full knowledge that the absconder had not brought to the site the material shown in ire certificate. In support of this argument, the learned Advocate‑General referred me to the indenture bond (Exh. PH) signed by the absconder arid by, the first appellant. According to clauses 4 and 5 of this bond, the contractor (namely the absconder) was responsible for the safe custody of the material brought by him on the site and he was prohibited from removing it "except with the written permission of the Divisional Officer or an officer authorised, by him in that behalf." As the Divisional officer would include the first appellant, the learned Advocate‑General submitted that the words quoted imposed an obligation on the appellant firstly to see that any material certified as having been brought on the site had been so brought, and secondly a duty to ensure that material so brought was not thereafter removed without his consent. Mr. Junejo very rightly submitted that on a proper construction of the indenture bond it merely entitled the first appellant to inspect the site with the object of protecting the material brought by the contractor at the site but it did not impose on the first appellant any obligation to verify that material had been brought to the site before issuing the certificate (Exh. PD). Secondly, assuming for the sake of argument: that the indenture bond imposed such an obligation does the fact that the first appellant had failed to carry out his obligations under this document necessarily mean that he had failed so to do dishonestly and with the intention of helping the absconder to cheat the Government? Mr. Junejo submitted that at the highest the appellant's failure to visit the site for verification of the material before issuing the certificate (Exh. PD) amounted to negligence but not to any intention to defraud the Government. In the absence of rules or of evidence of some practice to the contrary, Mr. Junejo's submission is correct, and here I have to observe that not only has the prosecution not produced a shred of evidence to show that the first appellant should have inspected the material before certifying for its existence in the certificate (Exh. PD), but Mr. Junejo referred me to rule 228 of the Rules of the Public Works Department (Central). According to this rule, payment for an advance ‑to a contractor against the security of his material has to be certified by a Divisional Officer who would in the instant case be the first appellant, and the rule expressly states: "Payment of such advances should be made only on the certificate of an officer not below the rank of Sub‑Divisional Officer

" The evidence establishes that the first appellant had issued the certificate (Exh. PD) on the basis of the information supplied to him by the second appellant. As the second appellant was admittedly a Sub‑Divisional Officer, at the relevant time, it is clear that the first appellant acted strictly in conformity with the rules of his organisation, therefore his failure to inspect the site of the contract before issuing the certificate (Exh. PD) cannot be described as an act of gross negligence, much less can it be said that his conduct either by itself or with other circumstances amounted to an intention to cause wrongful gain to the absconder. I therefore accept Mr. Junejo's submission that the prosecution has failed to prove that the first appellant had issued the certificate (Exh. PD) with any dishonest intention, and it is most unfortunate that this aspect of the case was not considered by the learned Special Judge.

6. I now turn to the case of the second appellant. This appellant has admitted in his statement that the first appellant had certified the value of the material brought by the absconder on the basis" of the information supplied by him. However, he has emphatically said that he had himself seen at the site all the material against which the absconder had obtained his advance (vide the certificate Exh. PD). The learned Advocate‑General submitted that his statement should not be accepted because it was not corroborated by any documentary evidence. But Mr. Junejo referred me to the note to Rule 226 of the Central P. W. D. Rules: This note states that when measurements are taken for giving a contractor a secured advance "no record should be kept in measurement books of the quantities of the materials . . . . . ." In view of this note, no adverse inference can be drawn against the second appellant for not producing corroboration of his claim, and further the burden of proving that this claim is false falls heavily on the prosecution. In order to discharge the burden which thus falls on it, the prosecution examined several witnesses, but the only witnesses who had visited the site and whose evidence is therefore relevant to this question are P. Ws. Sardarali, Hafiz Gut Muhammad and Abid Hussain Shah. The learned Special Judge has accepted the evidence of these witnesses without any hesitation and largely on the basis of their evidence he has convicted both the appellants. Mr. Junejo therefore invited me to hold that the learned Special Judge's appreciation of evidence was perverse and I shall now briefly examine this aspect of the case.

7. P. W. Sardarali, D. S. P. had visited the site on 22nd October 1963 and prepared an inventory of the material on it (Exh. PC) which he proved. Unquestionably, the material on the site according to this inventory, was much less than that certified in the first appellant's certificate (Exh. PD). But as this inventory by P. W. Sardarah was made nearly six months after the date of the first appellant's certificate it is of no assistance to the case of the prosecution. However, the evidence of P. Ws. Hafiz Gut Muhammad and Abid Hussain Shah requires consideration. Both these witnesses had taken over from the first two appellants in May 1963, and P. W. Hafiz Gut Muhammad has said in evidence that, after he took over from the first appellant, he had visited the site on 23rd May 1963 and was shocked to find that the absconder had obtained an advance against material much of which was not on the site. According to the witness, the bajri was short by one lakh fourteen thousand cubic feet, and the M. S. bars by about one ton. This witness also said that shuttering material was not part of the contract, and that it should not have been treated as security for the advance to the absconder. He however admitted that, although he had been accompanied by an officer whose name he could not even remember, he had not prepared an inventory of the material on the spot. His explana tion was that an S. D. O. was required to prepare the inventory and P. W. Abid Hussain Shah had therefore gone in June to prepare the inventory. P. W. Abid Hussain Shah claimed in his evidence to have visited the site on 13th June 1963 and again on 20th June 1963 and found only 2,203 cubic feet of unscreened bajri in place of the one lakh twenty thousand cubic feet which had been certified by the first appellant. He claims to have made these visits with another overseer by the name of Muhammad Ismail who was not examined. Even if this evidence is accepted, it would mean that in May or June 1963 the material on the site was different from the quantity certified in April by the first appellant. I shall presently examine this aspect of the case, but I would first consider whether the evidence of P. Ws. Hafiz Gul Muhammad and Abid Hussain Shah is fit to be believed.

8. P. W. Hafiz Gul Muhammad was not sure in his cross examination of the exact date when he visited the site and, despite the gravity of the alleged crime by his predecessor (the first appellant) he never made another visit to the site. It is also difficult to understand why he was not able during his visit to measure the material on the site with the aid of an overseer. Again, assuming that an overseer was not capable of measuring the material, P. W. Hafiz Gul Muhammad has not explained why P. W. Abid Hussain Shah went to measure the material after a completely unjustified and unexplained delay of two weeks. Additionally, P. W. Abid Hussain Shah has not explained why he had to make two trips, on 13th June 1963 and 20th June 1963, to carry out the fairly simple job of making an inventory of the material on the site: The consequence of these delays was that P. W. Hafiz Gul Muhammad sent his report on the alleged fraud by the appellants (Exh. PF) to his Superintending Engineer, P. W. Abdul Wahab, as late as 26th June 1963. Here I have to point out that P. W. Abdul Wahab has said that he had learnt about the fraud in July 1963, but as he never visited, the site his evidence is hardly relevant. Therefore, the prosecu tion case is really based on the evidence of P. W. Hafiz Gul Muhammad who, to say the least, appears to have been extremely slow and negligent in taking action on the alleged fraud. Additionally, Mr. Junejo referred me to the discrepancy between his evidence and the progress reports (Exh. C) signed by him for the months of April to September 1963 for the Shinzani Bund Project. I may observe here that this was a discrepancy which the witness appears to have admitted very reluctantly in cross‑examination. Now, according ‑to the progress reports, the progress of the contract between April and September 1963 was from 20% to 22%. Even P. W. Abid Hussain Shah, who visited the site has said that, as late as 20th June progress was only up to 22 %, and that there was no progress from 20th June 1963 until 22nd October 1963. He has also admitted that progress in a progress report includes not only construction work for the Project but the bringing to the sate of the contract the material required in the Project. According to the progress report for May, when P. W. Hafiz Gul Muhammad took over as Executive Engineer, no construction work had been done, but the progress was certified as 20%. and this was again certified for the succeeding months. As no work had been done, this 20% could have had reference only to the material brought on the site by the absconder. But if the absconder thus had so much material on the site, it is clear that the evidence of P. Ws. Hafiz Gul Muhammad and Abid Hussain Shah about the material on the site was false. In view of all these discrepancies in the evidence of these two witnesses, which escaped the atten tion of the learned Special Judge, I am not impressed by their evidence and especially by the evidence of P. W. Hafiz Gul Muhammad. I therefore do not believe P. W. Hafiz's statement that he had visited the site on 23rd May 1963. However, in view of his report dated the 26th June 1963 (Exh. PF), and P. W. Abid Hussain Shah's report, I am of opinion that the site must have been inspected shortly before 26th of June 1963. But as the certificate of the appellants (Exh. PD) had reference to the material on the site at the end of April 1963, the possi bility that material could have been removed or stolen between the date of the certificate (Exh. PD) and the visit of the prosecution witnesses is so obvious that it cannot reasonably be ruled out. The result is that the prosecution case turns entirely on the assumption that no material had been removed from the site by any person after it had been brought there in April 1963, yet the prosecution has produced no evidence whatever in this respect. To overcome this difficulty; the learned Advocate General submitted that the removal of material from a lonely site in Mekran was an impossibility. However, even, according to the prosecution; the material removed consisted of about one ton 2 cwt. of iron bars and about 114,000 cubic feet of bajri. As a ton of iron bars can be removed even in one day, the submission that such material could not have been removed from the site over a period of weeks and months does not merit serious consideration. However, the removal of 114,000 cubic feet of bajri is another matter. This would be difficult, and as the learned Special Judge has given three reasons for holding that this quantity of bajri could not have been removed from the site, I would first examine these reasons.

10. The first reason given by the learned Special Judge for his finding against the appellants was that, as the material certified by the first appellant in his certificate (Exh. PD) was not the material required for the contract, it had been dishonestly certified as security for the contract. Here I have to explain that, although the absconder's tender had been admittedly accepted for a sum of about Rs. 4 lakhs, later the Chief Engineer, who was not examined, had revised the scheme, and according to prosecution witnesses Abdul Wahab, Hafiz Gul Muhammad and Abid Hussain Shah, under the revised scheme, the contract was only for about Rs. 2 lakhs. On the footing that the contract was for only Rs. 2 lakhs, Mr. Junejo' did not dispute that the security given would have been excessive, but he said that there was no evidence whatever to show that the appellants knew that the contract had been revised when the certificate (Exh. PD) was issued. The learned Advocate‑General was not able to refer me to any evidence which would establish that either of the appellants knew of the revision of the, contract before 27th April 1963, the date when the first appellant had issued the impugned certificate. How then did the learned Special Judge come to the conclusion that the appellants were aware of the revision of the contract? The prosecution has filed the inspection notes of the Chief Engineer (Exh. PK) dated the 29th March 1963. This note relates to many projects in the Mekran Division; and according to Note No. 24, the Shirezani Bund Project had been revised so as to reduce its cost. Because this note was prepared and signed by the Engineer on 29th March 1963, the learned Special Judge has observed in para: 11 of his judgment: "In any case, inspection having taken place in March 1963, the accused persons are presumed to have knowledge of the changes ordered by the Chef Engineer before the work order was issued on 27th April 1963." I have to point out here that apparently the attention of the learned Special Judge was not drawn to the admission of P. W. Hafiz Gul Muhammad that even when he became Executive Engineer in May 1963 the position about the contract had not been finalised. Be that as it may, I am constrained to express my very great regret that the learned Special Judge should have resorted to a presumption unsupported by any evidence whatsoever in convicting the appellants. Further, as rightly pointed out by Mr. Junejo, the presumption appears to be based on a misreading even of the inspection note. Although it is dated 29th March 1963, nowhere does it state that it had been forwarded to the first appellant before 27th April 1963 and, on the contrary, the endorsement of the Executive Engineers are dated 9th May 1963 and 13th May 1963. Therefore I have to observe with regret that the view of the learned Special Judge is contrary to the evidence on the record.

11. As the prosecution has failed to prove that the first appellant had been informed about the revision of the contract before he issued his certificate (Exh. PD) it follows that its contention that this appellant had certified material not required for the contract can succeed only if it can establish that the material certified was not required for the original contract of Rs. 4 lakhs. The prosecution did not produce the original contract and P. W. Haji Bachal Shah has admitted that the original contract was handed over to the Anti Corruption Department (Establishment). The failure of the prosecution to produce this contract leads to a very strong inference against its contentions. I therefore accept Mr. Junejo's argument and hold that, as the prosecution suppressed the original contract, it has failed to prove that the material certified by the first appellant in his certificate (Exh. PD) was not required for the original contract. Additionally, I may observe here that I am not able to understand the relevance of the lengthy arguments addressed on the question of whether the material certified was proper or not. Thus, according to the learned Advocate‑General, the first appellant had given a certificate for material including shuttering material, that shuttering material was not required for the contract, therefore the certificate had been issued dishonestly. First of all, as I have explained, as the prosecution has suppressed the first contract, there is no evidence to show that shuttering material was not required in that contract. But even if I assume that it was not required, I cannot understand how it can be said that the first appellant had caused wrongful gain to the absconder or wrongful loss to the Government by certifying the existence of shuttering material. After all, wooden planks would be much better as security for an advance than aggregate which should admittedly have been there. Therefore even if I assume that shuttering material was not required in the contract, at the highest, it could be said that the first appellant had issued the certificate carelessly or negligently, but it cannot possibly be said, in the circumstances discussed, that it had been issued dishonestly. I therefore do not agree with the first reason of the learned Special Judge:

12. The second reason given by the learned Special Judge for holding that the absconder had never brought aggregate was that nearly 120,000 cubic feet of aggregate was missing at the end of May 1963, that this quantity of aggregate could have been removed only by 1200 trucks, therefore it was inconceivable that it had ever been brought to the site. As the learned Special Judge has convicted the appellant on this hypothesis, I must express my very great regret that .he did not care to question the appellant on it. Be that as it may, is the hypothesis even remotely tenable? If the aggregate .could only have been removed, so to say, in one fell swoop by a vast fleet of trucks, it ,might be possible to argue that the hypothesis of the learned Special . Judge was reasonable. But even according to the prosecution evidence the loss of the aggregate was discovered one month after the certificate, and. as I have explained, I have no doubt whatever that the loss was discovered two months after the certificate. As the site of the contract was only 15 miles from Pasni, I see nothing improbable in the removal even of 120,000 cubic feet of aggregate in a period of two months. Secondly, in holding that/ the, aggregate could have been removed only by 1,200 trucks, the learned Special Judge has assumed that the loading capacity of a truck was 100 cubic feet only. Once again there is not a shred of evidence in support of this assumption, nor were either of the appellants questioned on it; and I may observe here that when I asked the learned counsel to make enquiries, the first appellant stated that generally a truck could load 200 cubic feet of aggregate. I cannot possibly accept this statement as evidence. But, in the circumstances discussed as the learned Special Judge did not care to question the first appellant about the loading capacity of a truck, I have to observe with regret that he has convicted the appellants on conjecture and not on evidence.

13. The learned Advocate‑General was aware that there was no evidence in support of the view of the learned Special Judge that the missing aggregate could only have removed by 1,200 trucks, therefore he submitted that the site of the contract was in a desert and that, bearing in mind the expenses of transportation, it was inconceivable that any thieves or any person would remove the aggregate. I agree that it is rather unlikely that thieves would remove aggregate but not steel bars or planks. But the possibility that the aggregate could have been removed either by the absconder or by another contractor could have been excluded only by producing evidence to show that there were no contracts going on in the vicinity of the site. Unfortunately, the prosecution has not cared to give evidence on this aspect of the case, although it could easily have done so. Therefore the learned Advocate‑General's submission is not based on any evidence. Additionally, Mr. Junejo has referred me to the evidence of P. W. Abid Hussain Shah. This witness has admitted that the absconder had other contracts with the P. W. D. and that he had a contract with the P. W. D. even at Pasni, which was only 15 miles from the site. In these circumstances, if the circumstantial evidence implicates any person in the theft or removal of the aggregate it is the absconder and not the appellants.

14. I now turn to the third reason given by the learned Special Judge for holding that the aggregate had never been brought by the absconder to the site. According to P. W. Hafiz Gul Muhammad, the material on the site was lying in the open exposed to the sun and without any Chowkidars when he visited the site in May 1963. Further, no Chowkidar appears to have been present when the other prosecution witnesses visited the site m June, July and September 1963. Because the material was found unguarded on the few days on which the prosecution witnesses went to the site, the learned Special Judge has held that the absconder never kept ally Chowkidar and that this could only be so because he had never brought proper material to 'the site. First of all because Chowkidars were absent on 4 or 5 occasions over a period of several months it does not mean that no Chowkidars had been employed, the more so as the most valuable part of the material, namely the steel bars, were more or less in tact. Secondly, assuming for the sake of argument that the absconder did not keep Chowkidars, can his conduct be relevant to and form the basis for convicting the appellants? Mr. Junejo submitted that the learned Special, Judge committed an error of law in condemning the appellants on the basis of the conduct of a third party, namely, the absconder, therefore the learned Advocate‑General submitted that, as the absconder was a co -accused, the Court was entitled to treat the absconder's conduct as relevant. On the assumption that the conduct of a co -accused is relevant, the prosecution had at least to show that it had taken reasonable steps for prosecuting the absconder. But the only evidence in this respect that of a Police Constable, Ghulam Rasool, that he went to serve notice of the case to the absconder in Quetta, and that as none would give him the address of the accused he was not able to serve the notice. On this evidence, the learned Advocate‑General invited me to hold that the prosecution had not been able, despite its best efforts, to prosecute the accused. As I did not think it possible that the prosecution would give up an accused, after a solitary attempt to effect service on him, I examined the record of the case. But, despite the many adjournments in the case, I was shocked to find that no other attempt was made by the prosecution to trace the absconder or to take other proceedings against him. In the circumstances discussed I agree with the submission of Mr. Junejo that the appellants should not have been convicted on the basis of the alleged conduct of the absconder, and I would further observe here that the gross negligence of the prosecution in not taking proper steps against the absconder has damaged its case and defeated the ends of justice.

15. In the result, I am not able to agree with the reasons given by the learned Special Judge for holding that the material found on the site by the prosecution witnesses was the material left on the site by the absconder on or about 27th April 1963. and I hold that the possibility that the material left by the absconder on the site in April 1963 had subsequently been removed by him or been stolen cannot reasonably be excluded. As the case of the prosecution is based entirely on the assump tion that no material brought to the site had thereafter been removed it follows that it has failed to prove beyond reasonable doubt the guilt of the appellants. I therefore allow the appeal and set aside the convictions and sentences passed against the appellants. The bail bonds executed by them shall stand cancelled. Appeal allowed.