TEHMURASP RUSTAMJI SETHNA Versus THE STATE

These five connected appeals arise out of the judgment dated 18-1-1969 of the learned Senior Special Judge, Karachi, whereby he convicted the 5 appellants namely T. R. Sethna, Mazharali, Habib Usman, and Shaukat Ali for an offence under section 5(d) of Act II of 1947 and the remaining appellants namely Khan Muhammad Eshai Lt. Col. (Retired) for abetment of the said offence. Appellant Eshai wa3 sentenced to imprisonment till rising of the Court and to pay a fine of Rs. 3,00,000 or in default R. I. for two years, appellant Sethana to R. I. for two years and a fine of Rs. 50,000 or in default R. I. for one year, appellant Habib Usman to R. I. for five years and a fine of Rs. 25,000 or in default R. I. for two years, appellant Mazhar Ali to R. I. for two years and a fine of Rs. 1,000 or in default R. I. for one year, while appellant Shaukat Ali was sentenced only to pay a fine of Rs. 1,000 or in default to suffer S. I. for one month.

2. All the five appellants were charged for conspiracy to cheat the Government of Pakistan by arranging purchase by the Karachi Irrigation Project (hereinafter referred to as K. I. P.) of two generating sets from appellant Eshai for an amount of Rs. 2,60,000. It was alleged that the two Mirrlees Generating sets bearing Nos. 9274/43 and 9269/43, then valued at Rs. 63,000 each were originally installed at Manora Power House on 1-4-1948 and removed after one years' constant use in May/June 1919 when these were dismantled and sold as scrap to one Hashim Ghanchi for a total cost of Rs. 12,500 through R. P. Kharas & Co., Government Auctioneers. These were later purchased by P. Ws. Abdul Karim and Juma for Rs. 14,500 who again sold the same to P. W. S. A. Latif for Rs. 20,000. P. W. Latif got the sets repaired and sold them to appellant Eshai for Rs. 1,45,000. The prosecution alleged that these engines were not better than "junk" but appellant Eshai sold them at the price of Rs. 2,60,000 of which he had received Rs. 2,34,000 because all the other appellants bad conspired with him as a result of which appellant Shaukat Ali, Executive Engineer, made false Inspection Notes (Exh. 8) while appellant Mazllar Ali, Asstt. Engineer recorded the particulars of the Engines dishonestly.

3. To substantiate their allegations the prosecution led the evidence of as many as 22 witnesses while two more were also examined as Court witnesses. Of. these P. W. 2 Moinuddin, Asstt. Director, P. W. 12 M. Nizamuddin Ahmed, Director of Inspection, P. W. 13 S. M. Nazir, Deputy Director-General, C. W. 1 M. S. Hassan, Deputy Director, Engineering Wing and C. W.2 Abdul Rahman Butt, Director of Coordination were all officers of the Department of Supply and Development (hereinafter referred to as D. G. S. & D.) who mainly gave evidence to the effect that appellant Sethna had accepted these generators on his own responsibility. The second category of witnesses deposed to the history of these engines and consisted of P. W. 4 Muhammad Husain S. D. O. at Manora, P. W. 10 P. Kharas, Manager R. P. Kharas & Co. (Auctioneers), P. W. 8 Juma and his brother Abdul Karim (P. W. 17) and P. W. 20 S. A. Latif. P. W. 1 Amir Ahmed was Accounts Clerk in K I. P. and produced its Measurement Book Art A. I. while P. W. 7 Saeed Ahmed an Overseer in K. I. P testified to having found pits in the crank shaft of the engine at the time of its fixation. The defects were also noticed by P. W. 9 Fariduddin Engineer working with Messrs Gillander Arbuthnot & Co. P. W. 5 C. Francis another employee of the same Company, P. W. 6-Wazir Ahmed, Manager Punjab Motor Workshop and P. W. 11 R. D. Minwalla were contacted to repair the Engines by supply of defective parts. Messrs Gillanders Arbuthnot & Co. were contacted through P. W. 19 Muhammad Afzal Ahmed, S. D. O. in K. I. P. The last category of witnesses includes Bank Employees i e. P. W. 14 Mahmoodul Haq of National Bank of Pakistan who proved payment of Rs. 2,34,000 to appellant Eshai and subsequent payment of Rs. 1,45,000 from the same account by appellant Eshai to P. W. S. A. Latif. P. W. 15 Mansoor Ali and P. W. 16 A. S. Raza were employees of Habib Bank who deposed to Mst. Zainab Begum, wife of appellant Habib Usman having introduced her nephew Habib Ali to their Branch. They produced the statement of accounts of Habib Usman and Habib Ali as Exhs.104 and 106 respectively. P, W. 18 Dr. Muhammad Ahmed who deposed to the relationship between appellant Habib Usman and Habib Ali may also conveniently be included in the same category. The remaining two witnesses were police officers namely Najumal Husain, Inspector Special Police who investigated the case and P. W. 2 Abdul Hafeez who lodged the F. I. R. Exh. 131.

4. All the appellants denied the existence of any conspiracy. The defence of appellant Eshai was that he did offer the set as "almost new" but he did not know that it was second hand or was purchased from P. W. Abdul Karim. He blamed P. W. Abdul Latif, his partner in the Karachi Transport Syndicate for misrepresentations and stated that the latter had given evidence as a P. W. as he was "responsible for all this". He denied that there was any conspiracy with the other appellants. He further asserted that he had started negotiations with late Mr. A. F. Kureshy and not with appellant Sethna. In support of his plea that it was in fact P. W. Latif who had deceived him, appellant Eshai examined D. W. Iqbal, Chief Inspector, Ali Autos, who was at the relevant material time working as Manager, Karachi Transport Syndicate, to show that P. W. Latif had made the misrepresentation that the set was almost new and used for testing purposes only.

5. The case of appellant Sethna was that he did not even know appellant Eshai previously, and he came into the picture only on 11-8-1958 when a meeting was held to finalize the deal, as the late Chief Engineer Mr. Kureshi died only one day earlier. This meeting was attended by the Officers of D. G. S. & D. and Ministry of Finance and before that these sets were inspected minutely by the Directorate of Inspection D. G. S. & D. and certified as almost new. Later the price was also fixed by the D. G. S. & D on the assumption that the sets were new. He stated that he did take the responsibility for the erection of the sets but this was on the assumption that the same were new as certified by the Directorate of Inspection. He also filed a written statement where he stated as follows:-

"I agreed to accept the machinery in good faith as the Supply Department had inspected the same and Engineer in Chief had recommended it besides Mr. Azimuddin. Moreover, Col. Eshai was a high Army official and it could never be imagined that he would con?ceal facts. Moreover inspection of machinery and its purchase are the duties of the Department of Supply and Development. An advance acceptance of tender was issued on 20th November 1960, by the Supply and Development Authorities and that document laid down that initial inspection was the duty of that department, since prosecution is withholding that document I file the photostat copy of the same.

I submit that I made no misappropriation nor did any act to induce purchase of this machinery. Now the officers of the Department of Supply and Development want to make a scape-goat out of me."

6. Appellant Habib Usman denied that he knew P. W. Abdul Karim, but admitted acquaintance with P. W. Latif who was running a factory next to the Power House at Mirpurkhas where this appellant was employed as an Engineer in the year 1955. He admitted that he had then received an amount of Rs. 2,000 from P. W. Latif and that the Receipt Exh. 64 bore his signature. He also admitted that one Habib Ali was his wife's nephew but he did not know whether she had introduced him to Habib Bank. He altogether denied having anything to do with the purchase of the sets from appellant Eshai.

7. The case of appellant Shaukat Ali who was X. E. N. under appellant Sethna was that he had countersigned the Inspection Notes Exh. 8 under orders of appellant Sethna which he produced as Exh.

166. This he did because appellant Habib Usman who was then actually working as Mechanical Engineer had not received his formal posting orders which were notified on 30-7-1968. He clarified his defence further by stating as follows:---

"Those days were peculiar. Col. Eshai was a man from the Army. No one could displease him. I signed on the orders of accused T. R. Sethna. I produce the copy of the Gazette to show that Habib Usman was appointed from 30-7-58 Exh. 167."

8. The last appellant namely, Mazhar Ali who was Assistant Engineer, K. I. P. also denied that there was any conspiracy and stated that he had not inspected the machinery himself as they had to accept the machinery supplied by D. G. S. & D.

9. Apart from D. W. Iqbal whose evidence has been referred to above, the only other witness examined in defence was D. W. 2 Tufail Ahmed, Senior Administrative Officer Engineer-in-Chief's Branch, G. H. Q. who was examined by appellant Sethna to identify the signature of Major Akbar on Exh.

117. This was a letter from G. H. Q. recommending the purchase of the seta from appellant Eshai.

10. It may be mentioned at the outset that there is no direct evidence of conspiracy in this case, such as one normally finds in cases of this type in the shape of the testimony of an approver. The entire case for the prosecution is based only on circumstantial evidence. The learned trial Judge, after discussing the evidence, came to the conclusion that the prosecution had established the following circumstances which he enumerated in para. 19 of his judgment thus--:-

"To sum up, the prosecution has been able to prove the existence of following events ;

(i) Accused Habib Usman was known to Abdul Karim Kabari.

(ii) Accused Habib Usman was instrumental 'in the purchase of the sets by S. A. Latif from Abdul Karim Kabari and he received commission for that deal.

(iii) Accused Khan Mohammad Eshai joined P. W. S. A. Latif in Karachi Transport Syndicate in the year 1955.

(iv) Accused Khan Mohammad Eshai then utilised his contacts with highly placed officials to secure a good bargain for these useless sets and that he had purchased these sets without paying any price for them at the time of deal.

(v) Accused Khan Mohammad Eshai knew that these sets were unserviceable and yet represented them to be almost new having been used for testing purpose only.

(vi) Accused T. R. Sethna then got interested in the purchase of these sets and purchased these sets even after having come to know that these were unserviceable sets although alternative arrangements existed.

(vii) Accused Habib Usman was also appointed to the Karachi Irrigation Project and he also took part in the meeting.

(viii) Accused T. R. Sethna through accused Mazhar Ali prepared false measurement book and false inspection note and made accused Shaukat Ali Siddiki also sign them.

(ix) On the strength of the measurement book and the inspection note which were admittedly prepared without inspection, payment was made to accused Khan Mohammad Eshai.

(x) After receiving Rs. 2,34,000 from the Government for these sets. accused Khan Mohammad Eshai paid Rs, 1,45,000 to P. W. S. A. Latif and 2 per cent. of this amount was given by S. A. Latif to one Habib Ali, who is a relation of accused Habib Usman."

This according to the learned Judge constituted a chain of events which, established the charge of conspiracy between the various appellants whom he convicted and sentenced as stated above.

11. These findings of the learned Judge have been vehemently criticised, by the learned counsel appearing in support of these appeals. Before dealing with their contentions however, it would be convenient to consider the circumstances leading to the purchase of these generating sets from appellant. Eshai as these are not disputed.

12. In the year 1958 the Karachi Irrigation Project (K. I. P.) required generating sets and other accessories for pumping water at Bund Murad Khan Mr. A. R. Kureshy, Chief Engineer of the K. I. P. accordingly sent a. telegram (Exh. 115) on 3-6-1958 to General Anwar, Engineer-in-Chief, General Headquarters, Rawalpindi enquiring if they could spare three new 350 K. W. sets from Army Stores. In their reply dated 21-6-1958 (Exh. 156)?the Engineer-in-Chief's office informed the Chief Engineer that two G. E. C.. Generating sets, one Mirrless Engine and its extra parts, all in new condition having been used for testing purposes only, were available with Lt.-Col. Khan Mohammad Eshai (Retired) and could be had for a total cost of Rs. 4,00,000, if he was contacted as early as possible. This letter it appears was also brought to the notice of the Minister for Works as can be seen from the following endorsement thereon;-

"Minister for Works desires to know if the above machinery can be utilised at any of our projects as this will save ?? foreign exchange which will have to be spent if it were to be imported from abroad."

Appellant Eshai had in the meantime sent his officer (Exh. 150) to Mr. Kureshy quoting a price of Rs. 4,00,000 but it appears the same was reduced to Rs. 3,75,000 vide appellant's letter dated 1-7-58 (Exh. 97). This letter was also accompanied by a Certificate (Exh. 98) signed by appellant Eshai to the effect that the machinery was all new and was used for testing. purposes only. On 3-7-1958 Mr. Kureshy enclosed the said quotation to the Ministry of Works, Irrigation and Power with the following recommen?dations:----

"I recommend that a committee may kindly be set up by the Ministry immediately including technical officer from the inspection side of the ?D. G. S. & D. who may inspect the plant and equipment available and: recommend whether or not the machinery may be purchased and also advise on the reasonable cost. The report of the committee may kindly be made available by Thursday the 10th July 1958. I am too busy to be a member of this committee."

It appears from the office noting produced in original as Exh. 79 that the case was discussed by the Chief Engineer Mr. Kureshy with the Secretary, Ministry of Works, Irrigation and Power, Government of Pakistan and as the latter decided that the purchase should be made by the Ministry of Supplies, the case was passed on to Mr. Yousuf, Joint Secretary, Ministry of Supplies who directed that "the stores in question may be immediately inspected by the Director of Inspection and a report on their availability, present condition and suitability together with an idea about their market value may be put up to him early next week". Mr. M. Nizamuddin Ahmed, Director of Inspection, D. G. S. & D. who was assigned this duty, accordingly inspected the stores. He did a preliminary inspection himself and declared it to be in "sound condition and fit for purchase" as the component appeared "almost new and sound". Subsequently his Assistant Directors Messrs M. D. Kureshi and M. S. Rind had a detailed inspection of the set and on the basis of their reports (Exh. 13) the Director of Inspection recommended the purchase of the set. A meeting was accordingly convened for 11-8-1958 to be attended by Deputy Secretary Finance, Chief Engineer, K. P. I., the contractor appellant Eshai and officers of the U. G. S. & D. including Messrs S. M. Nazir Deputy Director-General, M. N. Bakar, Director Stores (Engineering) M. N. Ahmed, Director of Inspection and M. S. Hassan, Deputy Director Supplies (Engineering). Mr. A F. Kureshi unfortunately died one day earlier and his Deputy Chief Engineer appellant Sethna had to attend the meeting. It was decided in the said meeting that the sets offered by appellant Eshai could be purchased for a total price of Rs. 2,60,000 and offer to this effect was given to him. The question of price was, however, discussed the next day between the officers of the D. S. G. & D. and appellant Eshai and after the latter accepted the offer, Mr. M. N. Bakar, Director of Supplies, D. G. S. & D. made the following noting dated 12-8-1958:-----

"We may now get the formal indent duly signed from K. I. P. and placed the order immediately as per decision at meeting accorded at 14/N."

How this price was to be paid was discussed later as can be seen from the following note of Mr. Bakar on 15-8-1958 which was accepted by the Ministry of Finance as well as higher officers of the D. G. S. & D: ---

"Col. Eshai has informed me that although the price Rs. 2,60,000 was acceptable to him he would insist on 96/5 per cent. payment. It was discussed with D. D. G. and D. S. and also D. S. (F.). We may agree to 90/10 per cent. payment and issue an advance of A/T at once. There is no P/E involved at the moment. When any shortage of an essential item is reported which the Col. is unable to provide locally the question of a licencee will then be considered."

The deal was finalised with the noting dated 20-8-1958 which reads as follows:--

"The indent has also since been received. Order may now be placed immediately. Draft A/T is put please."

On 20-8-1958 the contractor Col. Eshai was informed that his tender was accepted. This advance tender which is Exh. 173 reads as follows:----

"Government of Pakistan, Department of Supply (Supplies Wing) illegible----------------------------A/Tender No. Eng-X/56030/58/64, dated 20-8-58

Lt.-Col. Khan Md. Eshai, Karachi.

Sub:-----Your Tender No. Nil dated 1st July 1958 and year corres?pondence resting with No. Nil dated 12-8-58 for the supply of generators one Mirrless (Engine and its spare parts).

Dear Sir,

The above tender submitted by you and duly accepted to fulfil on terms and conditions, has been accepted for the supply of following items as specified below. This purchase will be governed by P. S. 35 and 38 as amended todate.

(a) one Mirrless Engine No. 5269/43.

Mark T. L. C. 8

Speed 750 R. P. M.

12 Hours rating B. M. P. 495

(b) extra parts of Mirrless Engine as per annexure attached.

(c) one Generator G. E. C. No. W. O. 56328/5 with Excitor switch board 310 K. W. 750 volts 3 phase, 50 cycles, 4 wires and 400 volts.

P one extra generator not G. E. C. No. W. O. 5632/6 with exciter, switch board 310 K. W. 750 R. P. M., 3 phase, 50 cycles, 4 wires, and 400 volts.

For the total cost of Rs. 2,60,000 (Rupees two lacs and sixty thousand only).

2. The prices are now firm and final and for the complete equipment... torn. . . . in working condition at site.

3. Free delivery to consignee.

4. Terms of payment 90 Y. after delivery and balance 10 % three months after final inspection and taking over by the consignee at site.

5. The Controller of Inspection will carry out the inspection of stores preliminary at your premises and final after erection of stores at site.

6. The erection will be arranged by the Indenter directly but the responsibility for completeness and satisfactory working according to the manufacturers guaranteed performance will rest with the supplier.

7. The missing defective parts both at the time of preliminary inspec?tion and as well as at the time of erection will be made good by you free of costs.

Please go ahead with the supply and acknowledge receipt of this "Acceptance of Tender in advance."

Yours faithfully, (Sd.)

Initials of various ???????????????????????????????????????????????????????????????????????????????????????????????????? ????????????????? Amanullah Assistant persons (not legible) ??????????????????????????????????????????????????????????????????????????????????????????????????????????????? Director of Supplies for and on behalf of the President of

Pakistan.

Copy to: Attention Mr. Sethna.

(1) Indenting Offixr; Project Engineer, K. I. Project

(2) Consignee: Executive Engineer, K. I. Project 2/179 P. E. C. H. S., Karachi. He should report defect within 3 months after taking over of the stores with a comprehensive list of defective parts to be made good by the supplier free of cost.

(3) Controller of Inspection, Department of Supply, Karachi. Attention Mr. Mohammad Aslam Khan.

He is requested immediately to carry out the preliminary inspection at supplier's premises and final at site after reaction and in running condition. He is requested to furnish the comprehensive list of the equipment offered as well as the parts and equipment found short or defective so that the supplier may be asked to make good of it. Any other information to be incorporated in the confirmatory A/Tender may please also be intimated.

(4) Director of Inspection Incharge (Attention Mr. M. N. Ahmed). Department of Supply, McLeod Road, Karachi with reference to his U. O. No. KYS/1/31(31)/58 dated 3-8-58"

13. This was followed by confirmatory A/T dated 18-10-1958 Exh. 34; according to which also the Director of Inspection. D. G. S. & D. was the Inspection authority, but final inspection, which according to clause (13) was to take place at the site after the erection, was to be done by the consignee, namely, the Executive Engineer, K. I. P. It appears this A/T was amended further by Exh. 35 issued on 20-10-1958, whereby the Executive Engineer, K. I. P. was to be responsible for both the inspections. Appellant Shaukat Ali accordingly signed the Inspection Notes and thereafter 90 % of the accepted price i.e. Rs. 2,34,C00 were paid to appellant Eshai by a cheque (Exh. 95) dated 28th October 1958 which was credited to his account on 30-10-1958. When the sets reached the site of erection, however, it was found that the crank shaft of the engine had pits and that the sets were old and unserviceable. Efforts were thereafter made to contact appellant Eshai but he had gone over to Murree. On his return he promised to supply the missing parts as also to get the defective parts repaired and orders for the same were placed with Punjab Motor Workshop and Alwin & Co. but he did not thereafter care to do anything in the matter and it appears the project itself was thereafter abandoned.

14. In the light of this background, two most important questions which arise for consideration are-

(a) Whether appellant Eshai cheated the Government that is to say, whether by deceiving the officers fraudulently or dishonestly induced them to part with an amount of Rs. 2,34,000 which they would not have done if they were so deceived, and if so;

(b) Whether it was an individual act of appellant Eshai or a result of conspiracy with the other appellants or many of them.

15. As I have already pointed out, there is no direct evidence and the case rests entirely on circumstantial evidence. In such case it is well settled that no presumption of guilt is to be drawn unless the proved facts are in compatible with the innocence of the accused person and incapable of A explanation on any other reasonable hypothesis except that of his guilt. In Monir's Law of Evidence (4th Edition), Vol. I at page 14. the position is Bummed up thus:---

"Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on considera?tion that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence. For proof by circumstantial evidence four things are essential:

(i) that the circumstances from which the conclusion is drawn be fully established;

(ii) that all the facts should be consistent with the hypothesis;

(iii) that the circumstances should be of a conclusive nature and tendency;

(iv) that the circumstances should, to moral certainty actually exclude 'every hypothesis but the one proposed to be proved."

16. In Fazal Ilahl v. The Crown (PLD1953FC214) the Federal Court of Pakistan pointed out the need for caution while dealing with a case resting on cir?cumstantial evidence alone, in the following passage appearing at page 222:-

"In the ordinary case, this Court is content to accept findings of fact reached in the High Court. The present case, however, rests on nothing but circumstantial evidence, i.e. evidence relating directly to a number of minor facts, which facts the prosecution regarded as sufficient, in the total absence of direct evidence, to sustain an inference that Fazal Ilahi murdered Jamal Din. It may be conceded that "a concurrence of well-authenticated circumstances composes a stronger ground of assurance than positive testimony, unconfirmed by cir?cumstances usually affords (Paley). Nevertheless, where the direct evidence relates only to minor facts, and consequently, the case rests wholly on circumstantial evidence, it is necessary to remember that 'processes of inference and deduction are essentially involved frequently of a delicate and perplexing character, liable to numerous causes of fallacy' (Wills on Circumstantial Evidence). This danger points the need for caution in accepting proof regarding any one of the minor facts adduced, before it is held to be established for the purpose of drawing inference therefrom. A mere concurrence of circumstances, some or all of which are supported by defective or inadequate evidence, is apt to create a specious appearance which is calculated to lead to fallacious inference. Hence the necessity of accepting as the basis of inferences, only such circumstances as are 'well authenticated'."

17. These weighty observations were reiterated by their Lordships of the Supreme Court of Pakistan in the case reported as Azim v. The State (PLD1965SC 44).

18. Keeping in mind these principles I propose to consider the prosecu?tion evidence as against each individual appellant, and in this connection it will be convenient to deal with the case of appellant Eshai in the first instance. 1t is no doubt true that appellant Eshai was the person supposed to gain by this transaction and he in fact received a payment of Rs. 2,34,000 for machinery which the prosecution described as "junk". He also made various representations to the Engineer-in-Chief's Office G. H. Q., K. D. A. Karnapbully Project and finally to K. I. P. to the fact that the machinery was new and had been used for testing purposes only. This position he un?equivocally admitted in his written statement (Exh. 163); and can hardly be disputed in view of the documentary evidence on record in the shape of Eshai?s own letters namely Exhs. 126 and 151 dated 12-6-1958 addressed to Mr. Kureshy, the Chief Engineer, K. I. P., letter (Exh. 125) dated 13-6-58 addressed to Brig. Farooqui, Director of Works, Engineer-in-Chief's Office, G. H. Q. and another letter (Exh. 97) dated 1-7-58 to Mr. Kureshi, Chief Engineer, K. I. P. which also enclosed a certificate (Exh. 98) to the same effect. It is no doubt true that the entire negotiations leading to the contract took place on the basis .of these representations being true and in the said correspondence appellant Eshai has also referred to the machinery being approved by Khawaja Azimuddin, Chief Engineer, Karnaphully Project. There is yet another letter from appellant Eshai addressed to the Deputy ,,Director-General Supplies (Exh 124) wherein he complains that the price of Rs. 2,60,000 offered to him was "far below my expectations and very much below my own cost". This was obviously false in view of the fact that he =had till then paid nothing for this machinery and it was only after he received Rs. 2,34,000 from the Government that he paid a part thereof viz. Rs. 1,45,000 to P. W. S. A. Latif. All this establishes beyond any reasonable doubt that he made misrepresentations in order to sell this machinery and as a result thereof did in fact induce the Government to offer him a price of Rs. 2,60,000 of which Rs. 2,34,000 were in fact received by him. If this equipment was actually a scrap worth a total value of Rs. 20.000 or so which P. W. S. A. Latif had paid for it, the Government was no doubt defrauded to the tune of over Rs. 2 lacs. The learned counsel appearing for the appellant Eshai has however contended that it was not so. He has in this connection referred to the evidence of P. W. S. A. Latif who had stated that "he spent about one lac of rupees over the generators." This witness was also confronted with his police statement wherein he had stated that it was in very good condition and he had himself fixed its value as Rs. 2 lacs. No doubt, this statement before the police could not be used as evidence but the same has been used to contradict P. W. Latif's evidence which was being led to show that the equipment was worthless. The learned counsel also referred to evidence of P. W. 3 Mohammad Yunis wherein the witness admitted that generating set was an expansive item and to import it one would require a considerable amount of foreign exchange. According to P. W. M. N. Ahmed the spare parts offered with the equipment alone were worth Rs. 75,000. Exhibit 54 which are quotation of Gillanders Arbuthnot show that a substitute engine was worth Rs. 72,000 which nearly came to Rs. 1 lac at the official value then. The learned counsel emphasised that foreign exchange was a very rare commodity those days and shortly thereafter Bonus Voucher Scheme was introduced under which one English pound was worth about Rupees 25. At that price according to learned counsel, the cost of 2 G. E. C. generators and spare parts would be more than the total price paid to appellant Eshai. It is -no doubt true that 2 G. E. C. alternators and spare parts were offered by appellant Eshai alongwith Mirrless engines. While the prosecution has led evidence only as to the condition of the engines, there is no evidence about the value and condition of the generators as well as the value of the spare parts. P. W. S. A. Latif claims to have spent Rs. 2 lacs on spare parts alone as can be seen from receipt (Exh. 64) produced by the prosecution themselves. In the circumstances it is difficult to assess the actual loss caused to the Government and since loss or damage is an essential ingredient of an offence of cheating the prosecution cannot be deemed to have established the same beyond a -reasonable doubt.

19. Another important circumstance forming the plea of appellant Eshai that he was himself misguided by P. W. S. A. Latif as he implicitly relied upon his assurance that machinery was almost new and consequently he conveyed this information to every one concerned without himself having any knowledge about the real condition of the generating sets, is the fact of his having paid a major portion of the amount received by him to P. W. Latif. It is not conceivable that appellant Eshai should have paid an amount of Rs. 1,45,000 to P. W. S. A. Latif leaving a much lesser amount for himself if he knew that the equipment was only worth Rs. 20,000 or so. After all he was taking all the responsibility on himself and considering that he was a person holding a high position of Lt.-Col. in the Army wherefrom be Dad recently retired and was just starting to do some business it would be extremely unreasonable to hold that he would indulge in such gross misrepresentations to the General Headquarters and other Government agencies thereby rendering himself liable both to a criminal prosecution as well as civil liability, only for the amount that he himself received. In such an event one would have expected that be would retain the bulk of his ill-gotten earnings for himself and not pass them on to P. W. Latif. This circumstance therefore supports the version of appellant Eshai that he may have himself been mis-guided by P. W. Latif and that he had in fact suffered as a result of placing implicit reliance on his assurance. This position seems to have been to some extent impliedly accepted by the learned Special Judge himself who in para. 22 of his judgment observed as follows:----

"It was also suggested that P. W. S. A. Latif was in fact no better than?an accomplice. Prima facie this appears to be so and he should be proceeded against according to law."

20. It may be observed here that this was hardly a proper way to deal with the arguments advanced before the learned Judge. He was considering the case of an accused person before him and the fact that P. W. S. A. Latif was according to him guilty of cheating was a relevant circumstance for considering the plea which was of a factual nature to be reasonably possible or otherwise. The learned Judge, however, instead of considering the implica?tions of his finding with reference to the case of the accused persons before him, merely ordered the prosecution of P. W. S. A. Latif. This was neither correct nor a fair approach to the case of the defence. It was observed by their Lordships of the Supreme Court in the well known case of Mir Ahmed v. The State (P L D 1962 S C 489) that:----

"Where there is a question of correct treatment of the plea in defence which is of a factual nature and is supported by evidence and circumstances the decision must not to be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter the Court is of the opinion that there is a-C reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case, and the accused is entitled to the benefit of such doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt."

A somewhat similar point was considered in a recent case reported as Barkat Ali v. The State (P L D 1973' Kar. 659) where the question arose whether in spite of the provision of section 177-A of the Sea Customs Act which cast a burden on the accused to prove that the goods in question were not smuggled; the accused could be said to have discharged the burden by offering a reasonable explanation which may be acceptable. His lordship the Chief Justice, after very ?detailed examination of the point urged before him and referring to the case of Mir Ahmed referred to above observed as follows:---

"Now it is true that there was in this case no question of the presumption but nevertheless the prosecution had put up a positive case as of course it bad to and, in answer thereto, the defence did not merely contend itself with any weakness in the prosecution case but set up an independent case. Clearly the onus of establishing that independent case was on the accused. If that onus is to be regarded as heavy as that upon the prosecution then the defence must prove that case fully or fail in its defence. Nevertheless the Supreme Court held that any doubt which arose upon the case as a whole must be resolved in favour of the accused. I can see no reason therefore to distinguish between a case where the accused attempts to put up a positive case and one where the law presumes him guilty: unless he establishes the contrary or to hold that the duty of establishing that contrary case should be regarded as being any heavier than it would have been even in the absence of such a provision had he attempted to establish a positive case."

His Lordship referred with approval to the following passage in an earlier Karachi case reported as Sultan All v. The State (P L D 1971 Kar. 78):----

"When the law raises a presumption against the accused and calls upon him, to prove the contrary, it is well established that the contrary can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that' suggested by the prosecution," and summed up his conclusions thus--

"After a very careful consideration of the principle involved as also the? authorities, which are at least binding on me, namely those of the Supreme Court I am of the clear view despite section 177-A of the Sea, Customs Act, if upon the end of the evidence the Court is of the opinion that there is a doubt as to the guilt of the accused the benefit of that doubt must be given to him and he must be acquitted."

'These observations would apply with a greater force to a case of this nature where there is not only no statutory provision casting any burden on the accused to prove his innocence but which rests on circumstantial evidence alone and must be judged in the light of principles enunciated in para?graphs 16 and 17 above in the judgment. The case against the appellant Eshai is, accordingly, doubtful and be is entitled to the benefit of doubt and his guilt cannot be said to have been established with that degree of certainty as one would normally insist upon in a criminal case. Of course, this does, not mean that he is not liable in any civil action that may be pending or may henceforth arise, between the parties. That will be decided on the evidence led therein and any observation of this Court in this criminal appeal will not even be relevant for deciding the same, much less binding on the civil Court.

22. I shall now deal with charge of conspiracy. Section 120-A, P. P. C. ?which defines criminal conspiracy reads as follows:-----

"120-A. When two or more persons agree to door cause to be done,---

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."

It will be seen that the gist of the offence of conspiracy is the bare engage?ment and association to break the law whether any act is done in pursuance -thereof by the conspirators or not. This is, however, not a case where the agreement itself has sought to be punished. On the other hand the prosecu?tion case is that the offence of cheating was actually committed and this was done in pursuance of a criminal conspiracy between the various appellants. In this context if the charge of cheating is not established against the principal accused, namely, appellant Eshai, the question as to who were in conspiracy with him does not arise. Assuming, however, without holding of course that Eshai was guilty of cheating it is to be seen as to what is the evidence of conspiracy and in this connection it may be convenient to deal first with the case of appellant Sethna.

Appellant Sethna admittedly was not concerned with any negotiations with the appellant Eshai which were started by his predecessor Mr. A. F. Kureshi. It is also an admitted position that Mr. Kureshi died on 10.8-58 .one day earlier than the meeting fixed on 11-8-1958 wherein the deal was finalised. Appellant Sethna has stated in his statement under section 342, Cr. P. C. that he did not even know appellant Eshai before the latter got this ..contract and the prosecution has not brought any evidence on record to cast any doubt as to this assertion; or to show Sethna's association or connection with Col. Eshai. Mr. Murtaza Hussain the learned counsel appearing on behalf of the State has, however, invited my attention to Exh. 114 which is a letter of appellant Sethna to one Mr Mughal explaining the circumstances in which the generating sets were purchased from appellant Eshai; and in particular to the following passage appearing therein:

"Mr. Kureshi had fallen ill and Col. Eshai to make me sure that the engine was new took me to Khan Bahadur Azimuddin retired Chief Engineer of the Central Engineering Authority to convince me that khan Bahadur Azimuddin was to purchase this machine for East Pakistan but due to lack of shipping facilities it cannot be sent where it was needed."

From this the learned counsel sought to draw an inference that appellant Eshai and Sethna were in contact with each other. It is no doubt correct that this letter would be relevant under section 21 of the Evidence Act and this can be considered as an admission of the fact stated therein; but it is well -settled that if there is no other evidence of a particular aspect of the case except an admission of an accused person, it has to be accepted or rejected as a whole. From this letter it is not at all clear as to at what particular stage appellant Sethna accompanied the appellant Eshai to Khan Bahadur Azimud?din. Nor is there any evidence to bear out this assertion of the appellant. Assuming, however, that this admission is held to be correct as the learned counsel for the State contends, this fact by itself negatives any inference of conspiracy between Sethna and Eshai, for in that case if the two of them were already hand-in-glove and were conspirators there was no need for Eshai to take Sethna to Khan Babadur Azimuddin to convince him about the suit?>ability of the sets; nor was it expected of Sethna to ask Eshai to do so. This circumstance, therefore, far from suggesting any conspiracy, positively negatives any such inference being drawn.

The learned Special Judge. however, relied on two circumstances which he had held to have been established against this appellant, as can be seen from para. 19 of his judgment reproduced earlier. These according to him are (1) accused T. R. Sethna then got interested in E the purchase of these sets and purchased these sets even after having come to know that these were unservice?able sets although alternative arrangement existed; and (2). Accused T. R. Sethna through accused Mazhar Ali prepared false measurement book and false inspection note and made accused Shaukat Ali also sign it.

It may be mentioned that these findings of the learned Judge are based on misreading of evidence, as there is no evidence on record about appellant Sethna having come to know at any time prior to the purchase of these sets that these were unserviceable. In this 11onnection even in Exh. 114 which is the earliest version of the appellant and, has been strongly relied upon by the learned counsel for the State, the appellant although not denying that he took responsibility for the erection of the engine stated as follows:-

"Whatever responsibility I have taken I have done so in the interest of work to see that water was supplied for cultivation as early as humanly possible. If I had the slightest doubt that the engine was a used one, I or as matter of fact even a man half mad would not have gone near it. Responsibility was taken for running a new engine and not an old one."

There is nothing on record to controvert this assertion. No doubt the prosecution has in this respect strongly relied on Exh. 80 the minutes of the meeting held on 11-8-1958 and in particular of the following passage appearing therein:-----

"The Director of Inspection also explained that he was not prepared to take any responsibility. But the Indenters representative Mr. Sethna and his erector, were prepared to accept the equipment and to erect under their own arrangements. Mr. Sethna however explained that they were committed for this Irrigation Project of Karachi and had arranged for the pumps etc. but were held up only for the generating plant and that they have it at any cost and without any delay."

But this document itself nowhere shows that the Department of Supply and Development or its director of inspection at any time had any doubts that the engines were not new, much less old and unserviceable.

The case of the appellant Sethna is that even these minutes are not correctly recorded. Normally one would presume the correctness thereof but these are in any case no better than contemporaneous record which can at the most be used to corroborate or contradict the evidence given on oath; but cannot be a substitute thereof. In this case while Mr. M. S. Hasan (C. W. 1) has testified to the correctness of this record, the Director of Inspection himself, namely, Mr. Nizamuddin Ahmed (P. W. 12) did not deny his own responsibility in the matter. Nor did his Assistant Director namely Moinud?din Qureshi (P. W. 2) do so. The latter admitted that "by appearance the equipment that we have inspected appeared co be unused and new" and "the alternator and other parts appeared new except those lying and open which was found rusted". In his evidence he admitted at as many as four places that he found the sets to be new. He also produced the inspection notes as Exhs. 12 and 13. Exhibit 13 related to the alternators and other parts which were certified to be new in the following terms : "the alternators and other parts appeared new except those lying outside in the open were found rusted certain parts which occurred due to recent rains. Otherwise the condition of the sets seemed to be new."

Similarly Exh. 12 was dealt with inspection of the equipment certified the same to be new. Para. I of this document related to the Mirrless engine reads as follows:----

(1) Mirrlees engine 8 cylender. 1 No. The following cases which con?tained diesel engine parts opened and operated to be in new condition:

Case No.

A7 ?????????????????????????????????????????????????????????????????????????????????????????????????? Engine Bottom Block & Cam Shaft ... 1

A8 ?????????????????????????????????????????????????????????????????????????????????????????????????? Engine Top Block ... ... 1

A9 ?????????????????????????????????????????????????????????????????????????????????????????????????? Crank Shaft ... ... 1

A10 & A 11- ??????????????????????????????????????????????????????????????????????????? Cylinder Heads with studs ... ... 8

A12 ??????????????????????????????????????????????????????????????????????????????????????????????? & Bl. Fly wheel ... ... ????????????????????? 2

A13

A14 ??????????????????????????????????????????????????????????????????????????????????????????????? Air-receiving tanks with valve and body . ... 4

BB3 ??????????????????????????????????????????????????????????????????????????????????????????????? Air-receiving tanks with valve and body . ... 4

B4 ? ????????????????????????????????????????????????????????????????????????????????????????????????? Air-receiving tanks with valve and body . ... 4

A15 ??????????????????????????????????????????????????????????????????????????????????????????????? Air-receiving tanks with valve and body . ... 4

A16 ??????????????????????????????????????????????????????????????????????????????????????????????? Air-receiving tanks with valve and body . ... 4

A17 ??????????????????????????????????????????????????????????????????????????????????????????????? Air-receiving tanks with valve and body . ... 4

A19 ??????????????????????????????????????????????????????????????????????????????? These contained parts. In the absence of any catelogee it was A20 not possible to sort out each item and give proper part

B2 ? ??????????????????????????????????????????????????????????????????????????????? numbers and nomenclature. B5 B6

A18 ????????????????????????????????????????????????????????????????????????????? In the supplies list it is mentioned as name plate, but actually there was no name plate, but only embossed as Mirrless on then cover-plate."

At the end of these inspection notes the report concludes as under:---

"Although the entire equipment appeared to be in a new condition but it was observed that the components in some of the cases lying in the open yard have rusted at certain places due to the penetration of some rain water. Under the circumstances this Inspectorate cannot take any responsibility for the completion of the plant and its satisfactory performance after erection. In order to safeguard Government interest, suppliers should be made fully responsible for the completeness of the equipment and for any shortages or discrepancies detected at the time of actual erection, and also for satisfactory working of the plant after erection."

This document itself shows that although the space for the date is left blank the month of September is mentioned at the top right corner. Reference to A/T dated 20-8-1958 is also given which necessarily implies that the document was prepared after the acceptance of tender on 20-8-1958. On the other band all the prosecution witnesses have stated that all the three inspections by the Directorate of Inspection were carried out in July 1958, before the meeting held on 11-8-1958. There is accordingly force in the contention of the defence that this document was prepared subsequently to shift responsi?bility to some extent from the D. G. S. & D. to the consignee. But the question then arises as to where are the original inspection notes and why are these being suppressed. Since these were in the custody of the D. G. S. & D. a presumption had to be drawn against them. Assuming, however, that these inspection notes are genuine documents, the fact still remains that till September 1958 the D. G. S. & D. bad certified all this machinery to be new; and they had at no stage informed or conveyed to appellant Sethna or given him slightest hint that it was otherwise.

Although the Deputy Director (Mr. M. S. Hasan) (C. W. 1) tried to show that the responsibility for purchasing these engines was that of appellant Sethna, he had to admit in cross-examination that "the responsibility for the purchase is also ours. The indenter can ask us to purchase on his own responsibility. I cannot off hand cite a case where we might have purchased the goods at the instance of the indenter against our own opinion. The purchase was approved in the meeting of 11-8-1958. There Deputy Secretary Finance was also present. I subsequently put a note to this effect and all concerned signed it. In my note of 15-8-1958 I have shown that the Col. Eshai wanted 95 % payment and I suggested 90 % payment. This note has also been signed by all concerned." Similarly all that the Deputy Director--?General Mr. S. M. Nazir (P. W. 13) stated was that Sethna "was prepared to accept the set and to erect it on their own arrangement". This is the maximum that the prosecution has alleged against appellant Sethna. They have at no stage even suggested that any one informed Sethna or he had any reason to believe that the sets were unserviceable. One is therefore at loss to understand as to how and on what evidence the findings of the learned Special Judge on this point are based.

The most important evidence as to the inspection of the sets has come through the Director of Inspection himself, namely, Mr. M. Nizamuddin Ahmed (P. W. 12) who has stated in the examination-in-chief itself that he carried on a preliminary inspection of the equipment himself and "declared it to be in sound condition and fit for purchase". He also stated that he had himself recommended the purchase with some conditions. The witness further admitted as follows:-

"On my inspection I found the components appearing almost new and sound. Subsequently Messrs M. D. Kureshi and Rind had detailed inspection of the set and made a report. They made a report on some conditions and on the basis of their report I recommended for the purchase of the set. They were not required to make any recom?mendation but they had to simply report about the condition of the set and this is what they had done. In case the machinery is kept in open and there is water it gets rusted and deteriorates but in this case the major parts were in packing cases and the water had not affected them. The detailed examination disclosed that some parts were rusted. At the time I was Head of the Inspection Organisation of the Department of Supply and Development, my function was to inspect the articles which were required by the Government and re?commend the purchase. I inspected the set before 15-7-1958 as my report is dated 15-7-1958. It may be likely that during 15-7-58 to 13-9-58 the set, was examined thrice by my staff. Mr. Sethna accused was also present in the meting. I do not remember whether any letter from Army Headquarters, Pindi, for recommending the purchase of the set was read at the meting. I had no concern with the fixation of price. But it was fixed by the Purchasing Department which war represented by Mr. Hasan who was present at the meeting. The price shown in the minutes was fixed by Purchase Department. The Purchase Department was branch of Purchase and Development. As far as I recall Mr. Sethna was in favour of purchase of the set with same condition which I had laid down. I cannot recollect that the life of the machine was discussed in the meeting."

This evidence leaves no room for doubt that appellant Sethna only agreed to the Director of Inspection that the set be purchased on the condition laid down by him and that he never took any responsibility to erect an old and unserviceable engine. This the appellant has already explained in Exh. 114 itself and there is nothing on record to show that what he had stated was incorrect or contrary to facts.

Prosecution has however relied on Exh. 49 which purported to be a letter from Brush International Limited, Karachi and addressed to D. G. S: & D. It reads as follows:.----

"We refer to our letter of 17th July and now offer our comments con?cerning the above engine.

This particular engine is one of a number originally supplied to the Ministry of supply during the war years for special waber service at 750 R. P. M. and were not intended for regular power station duty at his speed. In fact, at the time the war office were advised that the running life of the crank shafts would not amount to more than.. 2/3000 hours, this being due to the fact that the shafts were running very near a critical at 750 R. P. M.

In replying, the war office informed us that this did not really matter, because the engines as they had specified, were only required for standby purposes, and in any case, would possibly not run for more than a total of 1000 hours, the whole purpose of their supply being to help the country during the emergency period.

Since these engines were supplied for an emergency for a special duty and we were passed to give the maximum possible power, there is very little we can do in the matter to make them reliable units running at this speed. In a number of cases, however, we have recommended to people who have bought these engines to reduce the speed down to 600 R. P. M. for coupling up to new alternators running at this speed. This speed alternation also entails certain other modifications, such as the fitment of heavier flywheels etc.

We trust that the above comments will give you all the information you require but we shall be pleased to help you further if you will write to the above address."

This letter has not been proved in manner under section 73 of the Evidence Act. It was exhibited through Francis (P. W. 5) an employee of Gillanders or Arbuthnot & Co. who did not even claim to be familiar with the signature of the writer much less did be identify the same. The said letter was there?fore inadmissible in evidence. Moreover it could at the most be used in evidence to corroborate the writer if he was himself examined in evidence. The case of appellant Sethna was that the reference to the life of engine in the letter was an obvious mistake. This also appeals to reason as no engine costing Rs. 63,000 which was a huge amount in the year 1948 could have been manufactured in U. K. and shipped to the Sub-Continent just to run 2C00 or 3000 hours only. In any case if the writer had been examined the appellant may have brought out in cross-examination that this was a mistake in the letter or he could have even discredited the witness by showing that the facts stated in the letter could not be correct.

Moreover, the prosecution allegation that the machines could not have been used for more than 1000 hours is obviously based on misreading of the letter itself. All that it said was that the war office informed the manu?facturers that these engines may possibly not be used for more than 1000?` hours. The life of the crank shaft has been mentioned as 2000 to 3000 hours, if engines were at 750 R. P. M. which "was very near a critical". This speed has been mentioned to be the main reason for short life of the engine. The letter itself states that at 600 R. P. M. the result may be altogether different. Even in Exh. 114 which has been brought on record by the prosecution itself appellant Sethna has explained the position thus:

"The Dy. Director, Supply and Development read out extract from letter of firms's representative and said that the life of the engine was -not more than 1000 hours. The life of ordinary Mirrless engine of the low speed type is generally 15 to 20 years.

I said that there was some mistake in putting down the life of an engine as 1000 hours. If it be a war model and even if its life be 1/2 or 1/3rd the ordinary it would serve our purpose as we wanted it for only 3 or 4 years use. It was subsequently that I learnt that these engines are run continuously for full 24 hours as long as injectors are not checked and the lubricating oil is not spoiled. Working for a week or 10 days continuously is ordinary routine for electric supply, Generating Station.

I agreed to the purchase of the machinery as we had a compressor which, we could use for starting the engine if we could not get one especially for the purpose secondly that we being on the bank of the river there was plenty of supply of water and a 2 H. P. Electric Motor fitted with, a 2" pipe line could easily pump water for cooling the engine and warm: water could be thrown back into the river.

Now I find from the note by the Assistant Director that interpretation given was incorrect. What the firm had written was that the set could not possibly run for more than 1000 hours continuously."

There is nothing on record to show that this assertion of appellant Sethna was false. Nor is there any thing to show that K. I. P. required the engine for continuous use at the speed of 750 R. P. M. At the lower speed of 600 R. P. M. and for 8 hours daily use a new engine of the same type may well knave lasted for the entire period of time for which these were required. In any case it will be against all rules of justice and fairness to condemn an accused person for not being able to erect and run an engine which the prosecution themselves described as a junk, when he had only agreed to erect it and run it on the clear understanding that the same was almost new as certified by the Director of Inspection D. G. S. & D. After all even the letter Exh. 49 was considered by all the concerned officers in their meeting held on 11-8-58 and it was thereafter that they decided to purchase the engines and even the price of the same was fixed at Rs. 2,60,000 by the D. G. S. & D. itself. Mr. S. M. Hassan (C. W. 1) has admitted that he had himself recommended that the contractor be given 90 % payment in advance although this was against the general conditions of the contract applicable to D. G. S. & D. namely, form T. S. 35 (Exh. 89) clause 15 whereof relates to "system of payment" and provides in sub-clause 'C' that "the system of 90 %. and 10 % payments are not applicable to claims amounting to Rs. 200 or below nor to bills for stores delivered locally irrespective of the amount. In such cases only single bill for the full value should be submitted". It has already been pointed out that the fixation of price was purely the concern and responsibility of D. G. S. & D. and when they fixed the same at Rs. 2,60,000 after several inspections any reasonable person in the position of appellant Sethna would presume that the equipment would be worth that much amount; and not merely junk. Moreover if the Department of Supplies had only followed the provisions relating to mode of payment as reproduced above there could have been absolutely no possibility of any loss to the Government as final payment which would also have been the full payment and not only 10 % was to be made only after the erection and a satisfactory performance of the sets. After all the inspection notes which were signed by appellant Shaukat Ali was supposed to relate to yet another preliminary inspection after so many had already been carried out by the Director of Inspection. It is, therefore, obvious that but for the fact that this 90 payment was agreed to be paid before the final inspection contrary to form P. S. 35, there could be no possibility of any loss to the Government. It is therefore, the Directorate of Supply and Development and not appellant ? Sethna who could be deemed to be responsible for the alleged loss.

In view of what has been said above there was no basis for the conclu?sion of the learned Special Judge that the appellant Sethna prepared false measurement book and false inspection notes. In this connection the pro?secution has also relied on Exh. 166 produced by appellant Shaukat Ali to show that appellant Sethna ordered him to sign the inspection notes. The reason for this is however mentioned in Exh. 176 namely that the formal orders of appointment of appellant Habib Usman as Executive Engineer (Mechanical) were not yet officially notified. The same appellant has also produced Exh. 167 which shows that this appointment was not notified till 10th February 1969. Appellant Sethna could not therefore hold over the inspection notes for this technical requirement for four months specially when the equipment had already been inspected several times by the Directorate of Inspection consisting of high qualified and experienced technicians; and he cannot be said to have acted irresponsibly muchless rashly or negligently in trusting their judgment. He was in fact fully justified in doing so. That this signing of the notes was in fact mere formality is borne out by minutes Exh. 80 itself which is to the same effect as the portions thereof already reproduced above would show. Even the draft A/T was put up as the noting dated 20-8-1958 would show. Moreover if the inspection carried out by the D. G. S. & D. were genuine and honest there was no risk in accepting the same as correct and appellant Sethna had absolutely no reason to suspect them to be otherwise, and was more than justified in acting on the assumption that these were correct. After all this was supposed to be only yet another 'preliminary' inspection after several carried out by Directorate of Inspection D. G. S. & D. Moreover the whole project was held up for these engines and the matter was all along considered to be urgent as the correspondence on the point would show. Appellant Sethna was also not dealing with an ordinary businessman but a retired Lt: Col. of the Army. The learned counsel for the State has laid greater stress on the amendment of A/r Ech. 35 dated 27-10-58 and contended that after this amendment the entire respon?sibility rested on the appellant Sethna. It may, however, be stated that the p appellant Sethna has at no stage denied his responsibility for erection and satisfactory performance of the engine if it was a new one as certified by the D. G. S. & D. Seven .in his earliest version in Exh. 114 he explained the position thus:---

"As I was much pressed by both the Chief Commissioner as well as the Ministry that the water must be given I had no other course left but to take the responsibility. At no time any one from the D. G. S. & D. had ever said that the engine was a used one. The engine when received1ooked as if it had been used for at least five years if not more.

'When the D. G. S. & D. issued the final A. I. G. Co. Eshai wanted money to get the equipment released from the bank. The Executive Engineer was requested to do the needful. Since the inspection branch people were on it since the last week of July i.e. nearly 3 months and since I had seen their report on title files that the equipment looked like new one I told the Executive Engineer to sign the inspection note as a formality to get the equipment quickly. It is incorrect on the part of the Mechanical Engineer who recorded the measurement to say I got angry and compelled him to record measurements. I do not remember the exact words I told him but it was something like this that the inspection people were on it for nearly three months and what more inspection he was going to do.

The Chief point on which the D. G. S. & D. were not prepared to accept the responsibility was about the life of the engine. I would request that they again write to the firm and say that if the engine is run 12 hours a day what do they consider.

If I had the slightest doubt that the engine was a used one, I or as a matter of fact even a man half mad, would not have gone near it. The responsibility was taken for running a new engine and not old one."

There is nothing on record to doubt this statement of the appellant. More?over the Directorate of Inspection had carried out all the inspections before the meeting held on 11-8-1958 and if they wanted to put the responsibility entirely on appellant Sethna the A/T dated 20-8-1958 Exh. 173 which was proved through Mr. S. M. Hassan would not have shown the Controller of :Inspection to carry out both the preliminary as well as Final Inspections. This was signed by Mr. Ahmadullah Dy. Director D. G. S. & D. for and on 'behalf of President of Pakistan. The Confirmatory A/T Exh. 34 dated 18-10-58 also showed in para. No. 13 thereof that the Director of Inspection was to be the inspection authority for the preliminary inspection but the final inspection was to be done by the Executive Engineer K. I. P. ?Clause `C' of para. 13 of this document however further provided that final inspection was to take place at site after erection. Exhibit 173 was also to the same effect and in this respect; and this position is further confirmed by P. W. Mohammad Younis, Assistant Director, D. G. S. & S; who admitted that "The final inspection is done after the particular machinery is put into commission". One is therefore left questioning as to what happened in-?between 10th and 27th October that needed amendment of the A/T by Exh.

35. It was submitted by the learned counsel for the appellant Sethna that ` 27th October 1958 was a very significant date and it was the fear of Martial Law that led to the guilty conscience of D. G. S. & D. officers to manifest <itself in the shape of Exh.

35. Be that as it may, since they had not done any further inspection in-between 20-8-1958 and 27-10-1958 appellant Sethna? had no reason to believe that they had discovered anything wrong in the equipment. He had therefore, no reason not only to rely and trust their earlier judgment. Moreover, as I have already pointed out if the provisions ?to the mode of payment, described in Form P. S. 35 had not been violated by the D. G. S. & D., there was no possibility of any wrongful gain to the contractor or any loss to the Government as the fraud if any would have been completely detected at the time of erection of the equipment and the? question of making any payment to appellant Eshai thereafter would not have arisen. The entire mischief was therefore the outcome of this violation ?of the prescribed mode of payment which is designed to protect the Govern?ment interests in cases of local purchases where the danger of fraud is likely. Appellant Sethna may well have thought that since preliminary inspection by the D. G. S. & D. had already found the equipment to be new there was no~ point in carrying out yet another preliminary inspection by his staff which was ?not as highly qualified for that job as the Directorate of Inspection D. G. S. & D. This was more so as final inspection was to take place after the erection of the sets.

It has also come in evidence that when appellant Sethna asked appellants Shaukat Ali to sign the inspection notes the same were already initiated by appellant Habib Usman in token of their correctness. In fact this has been put in as a circumstance against appellant Habib Usman in his examination under section 342, P. P. C. Even according to Exh. 35 the inspection: authority was the Executive Engineer, K. I. P. and not its Chief Engineer, namely, Sethna Since Habib Usman had already initiated the notes in token of their correctness but could not sign the same for want of a technical difficulty of his appointment not having been officially notified, no sinister interpretation can be placed on the part of appellant Sethna in asking appellant Shaukat Ali to sign the inspection notes as a matter of formal: compliance of the requirements of the same being signed by the X. E. N.

In view of what has been said above there is absolutely no evidence to show that Sethna acted in conspiracy with appellant Eshai and dishonestly ?agreed to purchase this equipment from appellant Eshai.

I now come to the case of Habib Usman. As against appellant Habib Usman the findings of the learned Special Judge are that he "was known to P. W. Abdul Karim Kabari", that he was "instrumental in the purchase of the sets by S. A. Latif from Abdul Karim Kabari and he received commission for that deal" and that "he took part in the meeting" held on 11-8-1958. The prosecution has further relied on two receipts namely Exh. 64 which is a receipt dated 28-11-1958 for Rs. 2000 received by appellant Habib Usman from S. A. Latif & Co. as his" commission against purchase of some parts of Mirrless engine and generator from Abdul Karim!' and Exh. 127 which is dated 14-I1-1958 signed by one Habib Ali acknowledging receipt of an amount of Rs. 2,900 from S. A. Latif & Co. towards commission of the sale of Mirrless engine by Latif to Col. Eshai.

Appellant Habib Usman has admitted that he knew P. W. S. A. Latif, as he has an Engineering Factory at Mirpur Khas next to the Power House where the appellant was working as an engineer. The prosecution has not led any evidence that the appellant was a public servant in the year 1955 so that he could not do private business. Being a mechanical engineer he may be rendering technical advice and assistance to several factory owners and he cannot be held criminally liable for getting some commission from them for the services rendered by him. Indeed the very fact that a proper receipt was issued in this form would show that the transaction was legitimate. It is also no doubt correct that appellant Habib Usman attended the meeting on 11-8-58 but even the minutes Exh. 80 do not show that he played any part therein muchless any active part. Nor is there any oral evidence to this effect. This circumstance is therefore hardly of any importance. Moreove how would Habib Usman know that the Mirrless engine sought to be purchased from Col. Eshai were the very same which were purchased by Latif from P. W. Abdul Katim several years back. If the Government was purchasing the same from. P. W. Latif perhaps there was some reason for the appellant to be on guard and inform the Officers concerned about his suspicions; but not so when the supplier, was Col. Eshai with whom he was not previously concerned in any business deal. It is not even the case of the prosecution that P. W. Latif was himself negotiating for the same. In fact what they allege is that Eshai had purchased the engine already. This is also Eshai's case from the earliest when he wrote to Brig. Farooqui of G. H. Q. about the sale of this equipment. In the circumstances no adverse inference can be drawn against this appellant from the mere fact of his knowing P. W. Abdul Karim and for getting commission from him several years back specially when he is not shown to be a public servant at that time. The mere initialing of the inspection notes, in absence of anything more, is also not strong circumstance suggesting any guilty intention of appellant Habib Usman. The prosecution case itself is that appellant Sethna was responsible for the preparation of these notes. The benefit of doubt on this point is consequently to be given not only to appellant Sethna but Habib Usman as well. As pointed out, by their Lordships of the Supreme Court in the case of Sher Hassan v. The State (P L D 1959 S C (Pak.) 480), if there is any doubt as to whether one of two possibilities represents the truth and one possibility goes in favour of one accused while the other possibility goes in favour of the other accused both the accused persons are entitled to the benefit of doubt notwithstanding the fact that both the possibilities may be mutually conflicting. The only suspicious circumstance against this appellant however is the receipt Exh. 127 which is alleged to have been signed by one Habib Ali, nephew of the wife of the appellant. This is proved through Dr. Mohammad Ahmed (P. W. 18) a relation of Habib Usman. This Habib Ali opened an account in Habib Bank on 15-11-1958 vide Exh_ 102 and he was introduced by Mst. Zainab Begum wife of the appellant. Habib Ali's statement of account produced as Exh. 106 by A. S. Raza P. W. 16 shows that a cheque of Rs. 2,900 was deposited in his account on 17-11-1958 and the whole amount was withdrawn by two different cheques encashed on 18-11-1958 and 26-11-1958 respectively. The statement of account operated by Habib Usman Exh. 104 however does not show that these amounts were deposited therein. In fact his account shows a credit balance of Rs. 133-3-6 only at the end of the year 1958. There are few deposits of small amounts in the year 1959 but the prosecution has not connected the same in any manner to the amount received by Habib Ali. In fact this account by itself does not show that Habib Usman had a credit balance of over Rs. 5,000 at any time up to the year 1961. Maximum being Rs. 4,590 on 24-2-1959 there is, therefore, no evidence to show that he was in possession of resources disproportionate to his known sources of income:

The fact that Habib Ali received a commission from S. A. Latif is no doubt a suspicious circumstance, but as pointed out time and again by their Lordships of the Supreme Court, in a criminal trial suspicion alone however strong cannot take the place of proof. After all payment was not made by Eshai but by S. A. Latif who has not been made an accused person and as the receipt itself shows it was for sale by Latif to Eshai and did not relate to the sale by Eshai to the Government. Besides the money was taken up by Habib Ali who may have got it for himself even without the knowledge of Habib Usman. Cases are not unknown where a relation of a public servant accepts a bribe even without the knowledge of the public servant concerned. Therefore from the mere fact of Habib Ali having taken Rs. 2,900 from P. W. Latif would not amount to evidence against appellant Habib Usman.

There is also another aspect of the case which cannot be lost sight of. If prosecution alleged that this amount was paid as a bribe for appellant Habib Usman, then why was Habib Ali not made an accused person in this case. After all he bad committed an offence under section 165-A, Pakistan Penal Code for abetting an offence of corruption. The prosecution by not joining Habib Ali as an accused person has virtually given up its case on this point. What is more this amount of Rs. 2,900 was paid to Habib Ali by a crossed cheque and a receipt was obtained from him. This act could hardly have been the case if it was being paid as a bribe to Habib Usman. After all an amount of Rs. 2,900 could be easily paid in cash and no bribe giver would insist that the money paid by him as a bribe should be given by a crossed cheque against a proper receipt. I must frankly confess that this is the first case I have come across where even the prosecution has alleged that a bribe was paid by a crossed cheque and the bribe giver had also obtained a receipt for the amount paid by him. It may be that sometimes truth is stranger than fiction but when considering a criminal case one cannot lose sight of what would be considered to be ordinary course of human conduct in a particular situation and to draw the inference only on the basis thereof. This circum?stance therefore however suspicious it may appear on the face of it, cannot be properly used as evidence against appellant Habib Usman and there being no other evidence against him he is entitled to benefit of doubt.

The case against appellant Mazhar Ali and Shaukat Ali is practically one of no evidence. It is contended by the learned counsel for the State that obedience to an illegal order of a superior is no defence to a criminal charge, This is no doubt correct but only if the order is on the face of it illegal or amounts to an offence. In this case if appellant Sethna himself was con?vinced on account of inspection of the D. G. S. & D. that the machinery was new no offence appears to have been committed if appellant Mazhar Ali recorded the details of the parts etc. while appellant Shaukat Ali signed the inspection notes.

In result the guilt of the appellants has not been established beyond reasonable doubt and their convictions and sentences cannot, therefore, be upheld which are accordingly set aside. Three of the appellants namely T. R. Sethna, Habib Usman and Mazhar Ali are all on bail and their bail bonds stand cancelled. Fines if already paid by the appellants should be refunded to them. Appeals allowed.

Appeals accepted