ALI MUHAMMAD Versus STATE
1. The appellants were charged under sections 420, 471 and 477-A read with section 34, P.P.C., and section 5(2) of Act II of 1947, and tried before the learned Special Judge, Anti-Corruption, Hyderabad, who has convicted them under sections 218, 477-A, 420, 409/109, P.P.C. read with section 5(2) of Act II of 1947 and sentenced each one of them to suffer S.I. for six months on each count (sentences to run concurrently) and to pay a fine of Rs.20,000 (Rupees Twenty thousand) each under section 409, P.P.C. or in default to suffer S.I. for one year more, while co-accused Datardino was acquitted vide judgment, dated 3rd December, 1986.
2. The brief facts of the prosecution case are that on 6-5-1979 the learned Special Judge, Anti-Corruption, Hyderabad, framed the following charge against the appellants and co-accused:-
3. "I, Ahmed, Khan Barak Zai, Special Judge, Anti-Corruption, Hyderabad charge you:--
(1) Datardino, son of Muhammad Shaikh
(2) Ali Muhammad, son of Amir Bux Shaikh
(3) Noor Muhammad, son of Ali Muhammad Memon
(4) Khamiso Khan, son of Nahal Khan Pathan, as follows:--
4. That you Datardino, Ali Muhammad and Noor Muhammad being public servants to wit Excutive Engineer, Assistant Engineer and Supervisor Highway Division, Badin at Tando Muhammad Khan respectively in furtherance of common intention with co-accused Khamiso Khan Contractor during the month of June, 1976 prepared false and forged Measurement Book No311 (Large size) dated 29-6-1979 and 30-6-1986 in respect of work of resurfacing Badin-Sujawal Road from Miles Nos.22/6 to 23/6 intending that the documents so forged shall be used for cheating though actually the work was not complete to the extent stated and mentioned in the abovesaid measurement book, details of which are as under:--
5. Item of Quantity as Cost of Quantity of Cost of Loss
6. Work per M.B./ work paid work found work
7. Bill at site
8. Applying 2 52,800 Cft. RS30,667 23,480 Cft Rs.13,637 Rs.17,030 costs of MB No. 311 @ Rs.33% as per including bitumen (L.S.) PS-27. Cft + 76% Mashir- 76% above mile 22/6 I1nd RA. nama dated to 23/6 Bill. 14-7-1976
9. Laying 52,800 Cft. Rs.41,818 Nil. Rs.41,818 premixed MB No331 @
10. Carpet (L.S.) P-29
11. Mile 22/6 and 32 to 23/6
12. Rs.72,485 Rs.13,637Rs.58,848
13. Material found at Site:
1. Bajri 1,200 CFT @ 232% Rs.2784.
2. Bitumen 12 Tones @ 1,260 per ton Rs.13,760.
14. Total: Rs.16,644
15. Total loss of RsS8,848 (-) Rs.16,644 cost of material found at site
16. Net Loss Rs.42,204
17. And further cheated and thereby dishonestly induced the Government of Sindh to pay the amounts mentioned above to the Contractor Khamiso Khan and further fraudulently and dishonestly used the said documents and cheques issued on their basis as genuine knowing or having reasons to believe that they were forged and further you Datardino, Ali Muhammad and Noor Muhammad being officers in the Highway Department wilfully and with intent to defraud falsified the documents which belonged to the Government and thereby doing this act you abused your official position which amounts to criminal misconduct.
18. And thereby you committed offence punishable under sections 420, 471, 477-A, P.P.C. read with section 34 of P.P.C. and also with section 5(2) of the Prevention of Corruption Act (II of 1947) within the cognizance of this Court.
19. And I hereby direct that you be tried by me under the said charge.", to which they pleaded not guilty.
20. At the trial prosecution examined Mr. Zahanat Hussain, Technical Officer, Anti-Corruption Establishment P.W.1, Mr. Noor Muhammad, Head Munshi and 3rd Class Magistrate P.W.2, Shafiquddin, Head Clerk, Highway Division P.W.3, Faqir Muhammad, Inspector, A.C.E. P.W.4, he has produced three sanction orders for prosecution of the accused as Exhs.20, 21 and 22.
21. After close of the prosecution case the statements of the appellants and co-accused were recorded under section 342, Cr.P.C. in which they denied the allegations. While relying upon the above evidence the learned Special Judge was pleased to convict the appellants as mentioned above, while co accused Daterdino was acquitted. The persent appeal is direct against the above judgment of conviction.
22. It was contended by Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellants that no charge was framed under section 909, P.P.C. nor such question was put to the appellants, and therefore, the conviction of the appellants under section 409, P.P.C. was bad in law. It was further contended that there is no evidence regarding entrustment and breach of trust and as such the conviction under section 409, PY.C. was illegal. That the bills paid to Contractor/appellant Khamiso were running bills/advance bills and the work having been completed at* the site the learned trial Judge had erred in convicting the appellants. It was further contended that the only evidence brought on record against the appellants was that of P.W. Zahanat Hussain, Technical Officer, Anti-Corruption, who was an interested witness, and the measurements having been taken by him in the absence of the appellants, his evidence could not form basis for conviction.
23. Mr. Rasheed Tariq Khan, learned counsel appearing for the State has contended that the case against the appellants was proved from the evidence of Mr. Zahanat Hussain and, therefore, the appellants were rightly convicted.
24. P.W. Zahanat Hussain has deposed that he had inspected the site twice, first on 28-7-1976 in presence of Mr. Noor Muhammad, Head Munshi and Magistrate of 3rd Class, and the other on 14-7-1976 in presence of Mr. Muhammad Juman, Assistant Commissioner, Badin, as well as Mr. Muhammad Sardar, Inspector A.C.E. During the first inspection of Badin Sujawal section from Miles Nos. 22/6 to 23/6 he found the following:-
(1) Metal road duly surfaced dressed with bitumen coats over the total length of about 2,348 Ft.
(2) Metal road without consolidation, bitumen coats surfaced was 450 feet long.
25. The entire portion of the surface was 10'-6" wide.
26. According to him no carpet was found by him in the above-referred section of the road. However, he found certain material lying on the road comprising 3 trucks of Bajri, 43 trucks load of stones, and 69 drums of bitumen. He has produced the inspection memo. as Exh.10 in Case No. 24 of 1979 in which the details are mentioned.
27. The second inspection was carried on by him on 28-7-1976 in which he found the following:--
(1) Metal road was without bitumen coat from Miles Nos. 20/6 to 21/3.
(2) The portion from 21/3 to 22/6 was found without work and blank.
(3) The road from Miles Nos. 22/6 to 23/2 was found metalled duly surfaced and dressed with bitumen coat.
(4) The road from Miles Nos. 23/2 to 24/0 though metalled and consolidated was found without bitumen coats.
28. Such inspection memo. was produced by him as Exh.ll in Case No. 24 of 1979 in which the` details are mentioned.
29. According to him work carried on, and material brought to the site was far below the one shown in the relevant measurement books and the running bills drawn in the month of June, 1976. According to him he had noticed only one bitumen coat instead of two coats and no premixed carpeting work was done in this case. He has further deposed that the measurement book Article `A' produced in connected Case No.24 of 1979 at page 27 Exh. 10, it was mentioned that two coats of bitumen had been recorded. Similarly at pages 29 and 30, Exh.ll of the above Article `A' quantity of premixed carpeting was shown as 52,800 sq. feet on 26th June, 1976 whereas nothing was done at the site. In the fourth running bill Exh.21 in Case No.24 of 1979, the claim paid for the quantity of work done was Rs.30,667 and Rs.41,818, though in fact the total work done regarding bitumen coat was 23,480 sq. feet worth Rs.13,637 with premium. Excluding the cost of above work, the total loss caused to the Government was Rs.58,848 and exclusion of the cost of material (Rs.16,644) available at the site the net loss was Rs.42,204.
30. In cross-examination he has deposed that the work which was to be done consisted of fillingfiepressions, metalling of the road, giving two coats of bitumen, and carpeting. He did not know as to what was the specification of depressions which existed and were to be filled in this work. In carpeting, bitumen, Bajri and sand are used. He admitted a suggestion that all the bills paid called running bills and finalization takes place in the end. Advance payment of material on the site is allowed. He had gone to inspect the work during monsoon season. He was not able to say whether rains had fallen or not. He had not written any letter to the accused personally that he would be going to examine the site on a particular date and time and that they should be present there.
31. I have considered the contentions of the learned counsel, and have gone through the R&P of the case. It is an admitted position that no charge under section 409, P.P.C. was framed against the appellants and the co accused. Even there was no evidence of entrustment and breach of trust. Even the learned trial Judge did not `put any question to the appellants regarding entrustment and breach of trust, in statements under section 342, Cr.P.C., therefore, I agree with the learned counsel appearing for the -appellants that the conviction of the appellants under section 409, P.P.C. was illegal.
32. The conviction of the appellants rests on sole evidence of Mr. Zahanat Hussain, as the evidence of Mashir Noor Muhammad, Head Munshi was only in respect of the fact that Mr. Zahanat Hussain had visited the site and prepared hiashirnamas which were signed by him, while the evidence of Head Clerk Shafiquddin was led in order to prove the handwriting and signatures of the accused.
33. As far as the evidence of P.W. Zahanat Hussain was concerned, he has admitted in cross-examination that all the bills paid to the Contractor were running bills and finalization takes place in the end. He has further admitted that the advance payment of the material on the site was allowed. It was his case in the examination-in-chief that according to the first running bill in respect of amount of Rs.58,433, some amount was paid in advance, and the bill showed that 50,000 Cft. of stone material had reached the site. That the second bill was also a running bill, and also advance payment was made in the said bill. Likewise in the third bill certain measurements were recorded, and also advance payment was made. It was also his case that some material was lying at the site.
34. In doss-examination accused Datardino has stated that first running bill was paid on 31-5-1976, the second on 28-6-1976, on the 3rd and 4th on 30-6-1976, according to him the above bills were passed and paid in succession due to the closing of the financial year. However, no question was suggested to any of the accused that the work was not completed and the contractor was paid excess amount, than the work done by him. There is another important aspect of this case which cannot be overlooked i.e. neither the F.I.R. nor the bills, inspection report, and the Mashirnamas were produced in the present case. However, it is mentioned in the evidence of the witnesses that the said documents were produced in Case No. 24 of 1979 which according to me was illegal. The Court can take into consideration the evidence which has been produced in a particular case, and no reference can be made to the documents which were produced in some other case.
35. In view of the above discussion it is clear that the work was still in progress, when P.W. Zahanat Hussain had visited the site. That the site was visited in the absence of the appellants and they were not served with any notice to be present on the day of Site Inspection. That the bills paid to Contractor/appellant Khamiso Khan were advance running bills. That even according to Zahanat Hussain some material was still lying at the site when he visited the site. The bills paid to the Contractor were not the final bills, and the Contractor has not been cross-examined by the learned PDSP as to whether he had completed the work or the same was left incomplete, therefore, the plea taken by the appellants might be true. In the case of Mir Ahmed v. The State (PLD 1962 SC page 489) it was observed by their Lordships of the Supreme Court:-
36. "Where there is a question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances the decision must not 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 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."
37. Under these circumstances I am of the considered view that the prosecution had failed to prove its case against the appellants beyond reasonable doubt, and therefore, while extending the benefit of doubt to the E appellants, I allow this appeal, set aside the convictions and the sentences of the appellants and they are acquitted of the charges. They are on bail and their bail bonds stand discharged.
38. I had decided the above appeal by a short order dated 24-3-1987 and these are the reasons for the same.
39. NHQ/A-1400/K Appeal allowed.