MUHAMMAD EHSAN And 2 Others vs THE STATE

Muhammad Ehsan, Muhammad Siddique and Muhammad Shafi appellants were convicted for an offence under sections 468/34, P.P.C. Vide judgment dated 28-6-2000 rendered by the learned Special Judge, Anti-Corruption, Sargodha and were sentenced to rigorous imprisonment for three years each and a fine of Rs.10,000 each or in default of payment thereof to undergo simple imprisonment for two months each. Through the same judgment the appellants were also convicted for an offence under sections 409/34, P.P.C. And were sentenced to rigorous imprisonment for three years each and a fine of Rs.20,000 to be shared equally or in default of payment thereof to undergo simple imprisonment for six months each. The benefit under section 382-B, Cr.P.C. Was extended to the appellants. The appellants have challenged their convictions and sentences before this Court through the present appeal.

2. The necessary facts giving rise to the present appeal are that Muhammad Ehsan appellant No.1 was working as a Sub --Engineer in the Municipal Committee, Khushab, Muhammad Siddique appellant No.2 was a Sanitary Worker and was Incharge of Water-Supply Scheme No.2 in the said Municipal Committee and Muhammad Shafi appellant No.3 was a contractor at the relevant time and the allegation leveled by the prosecution against the appellants was that on 8-12-1990 an application was, submitted by Muhammad Siddique appellant before the Chairman of the said Municipal Committee to the effect that eight valves of Water-Supply Scheme No.2 needed repair which application was subsequently processed and Muhammad Ehsan appellant had required the necessary repair to be carried out after inviting quotations m that regard. According to the prosecution's case quotations were subsequently submitted by various persons including Muhammad Shafi appellant and his quotation of Rs.20,000 was finally accepted, the necessary repair work was carried out and ultimately Rs.20,000 were paid to him. According to the prosecution all this exercise was bogus and, thus, an amount of Rs.20,000 had been embezzled by the appellants in collusion with each other. F.I.R. No.260 was lodged at Police Station Khushab by the Chairman of Municipal Committee, Khushab on 14-9-1991 for an offence under section 409, P.P.C. In respect of the above mentioned allegations and the matter was then investigated by Muhammad Akram, D.S.P. (P.W.5) and Mehr Muhammad Nawaz, S.-I (P.W.9) and later on a challan was submitted.

3. At the commencement of the trial a charge with two heads under sections 468/34 and 409/34, P.P.C. Was framed against the appellants to which they pleaded not guilty and claimed a trial.

During the trial the prosecution produced nine witnesses in support of its case against the appellants and the statement of Muhammad Imtiaz, Record Keeper was recorded as C.W.1. In their statements recorded under section 342, Cr.P.C. The appellants denied and controverted all the allegations of fact leveled against them by the prosecution and professed their innocence. They, however, chose not to make any statement on oath under section 340(2), Cr.P.C. Nor did they produce any witness in their defence. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, the appellants were convicted and sentenced as mentioned and detailed above. Hence, the present appeal before this Court.

4. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. In support of this appeal it has been argued by the learned counsel for the appellants that it is a case of no evidence at all and the appellants have been convicted by the learned trial Court on the basis of a report which had never been proved according to the law. As against that the learned counsel for the State has supported the impugned judgment and has maintained that the prosecution had succeeded in proving its case against the appellants beyond reasonable doubt.

5. After hearing the learned counsel for the parties and going through the record I have been surprised to find that the appellants P had been convicted and sentenced by the learned trial Court despite the fact that the oral evidence produced by the prosecution did not incriminate the appellants in any manner and the relevant documentary evidence relied upon by the prosecution was never proved in terms of the legal requirements. The witnesses appearing in support of they prosecution's case before the learned trial Court had made general statements without positively incriminating the appellants and some of the crucial prosecution witnesses had turned hostile. The learned trial Court had mainly relied upon a report of inquiry statedly conducted by Ghulam Hussain, Chief, Officer, Municipal Committee, Khushab but the said witness had never entered the witness-box and he had been given up by the prosecution as unnecessary. It is, thus, quite clear that, the report prepared by the said witness had trot been duly proved as required by the law.

Apart from that the said report had placed heavy reliance upon the statements made before the Inquiry Officer by Aurangzeb, Chowkidar (P.W.4), Muhammad Yousaf, Driver (P.W.7) and Muhammad. Muqarram, Oil-man (P.W.8) but during the trial all the said persons had refused to support the prosecution's case and had been declared hostile. In view of this peculiarity of, facts the learned trial Court ought to have been very slow in placing a whole-hearted reliance upon such a report prepared by a Ghulam Hussain, Chief Officer, Municipal Committee, Khushab and in convicting the appellants mainly on the basis thereof.

6. After attending to all the aspects-of this case and going through the record I have entertained no doubt that the prosecution had failed to prove its case against the appellants beyond reasonable doubt This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded by the learned trial Court are set aside and the appellants are acquitted of the change. The appellants had been admitted to bail by this Court on 25-7-2000 during the pendency of this appeal. Their bail bonds/sureties shall stand discharged.