SYED JAMSHED ALI, J.--- The conviction and sentence recorded against the appellant by the learned Accountability Court, Sindh. Karachi, dated the 11-3-2002 was affirmed by the learned Sindh High Court with slight modification in the sentence vide impugned judgment, dated 30-10- 2002. Leave was granted vide order, dated 27-2-2003 with the following order:-- "After hearing Mr. Aziz Ullah Sheikh, Advocate Supreme Court and going through the contents of the judgment impugned, we are of the view that the entire case requires reexamination of evidence, particularly, with regard to the culpability of the petitioner. Furthermore, in order to ascertain A as to whether the procedure followed by petitioner could have made him responsible for the offences under section 10 of the NAB Ordinance. To reappraise the entire evidence, we grant leave to appeal which should be heard on the basis of same record."
2. On a complaint made to the Minister of State for Water and Power, that funds allocated for the Left Bank Out-Fall Drain WAPDA (hereinafter refer to LBOD), had been misappropriated, an inquiry committee was constituted. On the basis of its report a detailed inquiry was conducted by the F.I.A.
And ultimately by the NAB as a result of which four public servants (two Project Directors), the petitioner who was Land Acquisition Officer, Mangharam Sherma, successor of the petitioner and fifty-two, landowners were indicted for an offence under section 9 of the National Accountability Ordinance (No,XVIII of 1999). According to the report under section 173 of the Code of Criminal Procedure, the Government had sustained a total loss of Rs,3,81,81,932 on account of illegal payment of land which was not acquired or did not belong to any private individual and this overpayment was because of the forged "B" Forms (indicating measurement of the acquired land).
Precisely, the allegation was that although land measuring 192.37 acres was actually acquired yet payment was made for 716.20 acres. Thus, excess payment was made for 523.23 cres.
3. In this case, awards Exhibits 52/2 to 55/99 (98 in number) were involved but a disputed fact is that the petitioner passed/rendered awards Exhibits 55/77 and 55/87 (in all eleven awards).
4. On consideration of the oral and documentary evidence of the parties, the petitioner was convicted under section 10 of Ordinance No,XVIII, 1999 and sentenced to undergo five yearsR.I. With a fine of Rupees sixty lacs and in default to undergo simple imprisonment for two years. On his appeal to the learned High Court the sentence was reduced to 2-1/2 years and sentence in lieu of fine was reduced from 2 to 1 year. The benefit of section 382 of Criminal Procedure Code was also extended to the petitioner.
5. It may be noted here that the tenure of the petitioner as Land Acquisition Officer has been from 2-6-1994 to 20-11-1994 and all the awards were rendered by him on 4-10-1994. It is also not disputed by the prosecution that no payment was made during incumbency of the petitioner. We will like to add that three official co-accused absconded, 16 private landowners who were tried entered a plea bargain the rest did not appear.
6. The learned counsel for the petitioner has vehemently contended that the learned two Courts have not attended to material prospects of the case and have either ignored material evidence or have misread it. His contentions are as follows:--
(i) No compensation was paid by the petitioner, therefore, he could not be held responsible for the loss caused to the Government exchequer.
(ii) While rendering the awards the petitioner had acted upon the report of measurement jointly carried out by the Local Revenue Department and the WAPDA officials.
(iii) Nobody had challenged the awards rendered by the petitioner under the provision of law.
(iv) According to the minutes of meeting of the Land Acquisition Committee held on 11-9-1994, which was constituted under the direction of the Prime Miner, the Land Acquisition Officer was required to prepare the land statements and get it verified from the Mukhtarkar and thereafter 'general award under section 15 of the Land Acquisition Act be prepared'. The petitioner acted on this direction/decision.
(v) The contention based on this decision was that verification of the Director Settlement and Land Record was not necessary.
(vi) The learned High Court had also condemned the petitioner for having paid excessive amount as compensation although the said amount of compensation i,e, Rs,50,000 per acre was even settled by aforesaid Committee while the Mukhtarkar had reported more than Rs,50,000 per acre as market price of the acquired land. Further, it has never been a charge against the petitioner that the compensation was determined dishonestly on the higher side.
7. On the other hand, the learned counsel appearing for the respondent (NAB) has defended the impugned judgments. He maintains that the matter stands concluded by concurrent findings of the learned two Courts that the charge against the petitioner stood proved. He contended that according to the Standing Order No,12, issued by the Board of Revenue of the Sindh, the petitioner was required to get verification of the measurement of the acquired area, ("B" Forms) from the Director Settlement and Land Records which the petitioner deliberately avoided and acted on forged forms "B" resulting into huge loss to the exchequer and even the land which was not acquired was paid for on the basis of the awards rendered by the petitioner.
8. The submissions made by learned counsel for the parties have been considered and the record examined with their assistance. It will be appropriate to reproduce the charge against the petitioner:- "That you Fazaullah Siddiqui son of Mushtaq Ahmed Siddiqui during the period 1994 to 1996, were holding public office being Land Acquisition Officer in LBOD WAPDA Mirpurkhas Project, funded by the Government of Pakistan for construction of Sem Nala. You were entrusted the duties, to acquire the land for the project, verify the claims of the land affectees with the record of revenue, to ascertain the actual amount of claim and to pass the Awards for payment to the land affectees.
That you in collusion, connivance and collaboration with the absconding accused Hassan Zaeem Aftab and Muhammad Kaleem Farooqi, the Project Directors Mangharam. Sherma, Land Acquisition Officer, with mala fide intention and common object to provide illegal gains and benefits to co-accused misused your authority and passed the Awards on the basis of forged/fake documents without getting the same verified from the concerned authorities and thereby caused the loss to the public exchequer to the tune of Rs,3,81,81,932 and thus by such acts you have committed the offence of corruption and corrupt practices as defined in section 9 of National Accountability Bureau Ordinance, 1999 punishable under section 10 of National Accountability Bureau Ordinance, 1999."
9. To satisfy ourselves that the findings of the learned two Courts are backed by evidence, we examined the award files (Exhs.55/77 to 55/87) and the other evidence produced in the case in the light of the leave granting order. The result of our examination is as under:--
(i) Exh.55/77 It is the file of Award No,15, dated 4-10-1994 and is for 3.15 Acres comprising:-- Field No,Acres 83/2 0-20 83/3 0-30 95/12 0-35 95/13 0-30 95/14 0-20 However, according to notification (a copy of the relevant extract of which is on the file of this award), except land measuring 0-31, Acre no other land from the above described area was acquired. Thus, there was an excess of 2.24 acres.
(ii) Exh.55/78 It is the file of Award No,13 dated 4-10-1994 for an area measuring 10-20 acres comprising:--- Field No,Acres 68 6-05 79 4-15 10-20 However, according to the copy of the notification (which is on the record of this award file) the area acquired was as follows:-- Field No,Acres 68 0-33 69 0-37 1-30 Thus, an excess of 8.30 acres.
(iii) Exh.55/79 It is the file of Award No,9, dated 4-10-1994 for an area measuring 1-34 Acres. Photo copies of the covering letter and of Form "B" are on the record. No Notification is on this award file.
(iv) Exh.55/80 It is the file of Award No,4, dated 4-10-1994 for 7-20 Acres.
No Notification is on the record. Photocopy of covering letter, dated 28-5-1994 and Form "B" are on the record.
(v) Exh. 55/81 It is the file of Award No,5, dated 4-10-1994 for 9-09 acres. Photocopy of covering letter and Form "B" are on the record. According to an extract from Notification, dated 21-2-1994 on the record of this award file, the area in the award and area in this Notification is as follows:-- Field No,Awarded AreaArea in the Notification 46 3-11 0-4 47 3-21 Nil 59 1-37 0-12 60 0-20 1-0 9.09 1-16 Excess:-- 7.33 Acres
(vi) Exh.55/82 It is the file of Award No,3 for 21-02 Acres. An extract from the copy of Notification dated 3-1-1994 is there. The area in the award and this Notification is as under:- Field No,Awarded AreaArea in the Notification 25 8-02 Nil 28 6-01 0-39 38 6-01 5-11 (as 38/4) 20-4 6-0 Excess: 14.04 Acres
(vii) Exh.55/83 It is the file of Award No,10, dated 4-10-1994 for 7.28 acres. A copy of extract from Notification dated 3-1-1994 is on the record. The awarded area given in the Notification is as under:-- Field No,Awarded AreaArea in the Notification 129/3 0-39 Nil 4 0-38 0-10 5 0-38 0-21 6 0-39 0-32 11 0-39 0-31 12 0-38 0-25 13 0-38 0-23 14 0-38 0-25 7.28 4.07 Excess: 3.21 Acres
(viii) Exh.55/84 It is the file of Award No,3 dated 4-10-1994 in favor of Manzoor Ahmad for 21-02 acres. Award Exh.55/82 was in favor of Bashir Ahmed. Both awardees are real brothers. The area involved in both the award is the same and separate payments were made in both these awards. Excess: 21.2 Acres.
(ix) Exh.55/85 It is the file of Award No,6, dated 4-10-1994 for 15-0 Acres. "B" Form is there. No Notification is on the file of this award.
(x) Exh.55/86 It is the file of Award No,18 of 23-03 acres. No Notification is on the record of this file.
(x) Exh.55/87 It is the file of Award No,18 in favor of the same persons and exactly for the same area. Excess: 23.03 Acres.
It seven awards (details given above). Compensation for an excess area of 80-37 was awarded which was not acquired while in four cases, in absence of relevant Notifications, it could not be ascertained whether in these cases area awarded was or was not in excess.
10. According to the report under section 173, Cr.P.C. The appellant had awarded compensation for an excess area of 71.36 Acres although on the basis of the award files, our conclusion is that the excess was 80-20 acres. The Investigating Officer (P.W.17) testified that he had verified the genuineness or otherwise of the "B" Forms on these award fifes but these were found to be forged and bogus. P.W.13, whose signatures purport to appear on the "B" Forms on these award files, also categorically deposed that the said forms did not bear his signatures. We are quite mindful that on the award files were only photo copies of the notification but since these were before the appellant, these should have at least put the appellant to an enquiry as to the area which was actually acquired because the "B" Forms on the record of these files were not in accordance with these copies of the notifications of acquisition.
11. Therefore, unless the notification of acquisition of land and "B" Forms were reconciled, the awards could not have been rendered/ announced by the appellant. He clearly misused his authority.
12. As far as the contentions of the learned counsel for the appellant are concerned, all these pertain to factual domain. In any case none has merit to absolve him of the criminal liability. Taking the first, it may be noted that on the basis of the awards rendered by appellant, payment was made to the landowners exactly of the same amounts which were awarded by the appellant. As far as the second contention is concerned, in view of copies of the extracts of the notifications on the files of the awards, the appellant should not have acted on the "B" Forms which were forged and the area given therein was not got verified by the appellant from the Director, Settlement and Land Record. As far as the third contention is concerned, the fact that the award was not challenged could hardly be a ground to claim immunity from being prosecuted as the circumstances of the case found by the learned two Courts and noted by us, leave no manner of doubt, that the appellant did not act in good faith. We will like to observe that nothing done without due care and caution can be accepted as having been done in good faith. This principle has statutory backing by virtue of section 52 of the Pakistan Penal Code. Although, since the trial of the appellant was held under Ordinance No,XVIII of 1999, the definition aforesaid may not be stricto senso applicable to a trial under the said statute yet the principle is well-recognized in the administration of criminal justice. The minutes of the meeting of the Land Acquisition Committee being relied upon did not, in any manner, authorize the appellant to grant compensation for the land which had not been acquired.
13. As far as the contention No,(vi) is concerned, we have noticed that appellant was neither charged that he assessed excessive amount of compensation nor he was convicted and sentenced on that score. However, we will like to say that the observations of High Court in the impugned judgment do not have the effect of abrading the sustainability of the judgment.
14. The charge as framed against the appellant alleged an offence under section 9(vi) of the Accountability Ordinance, punishable under section 10 thereof. The evidence brought on the record read with the presumption under section 14 of the said Ordinance established the charge against the appellant beyond any reasonable doubt. The findings of fact recorded by the learned two Courts below are based on evidence and, therefore, do not warrant any interference.
15. The question of substantive sentence has, however, attracted our attention. The appellant was arrested on 29-5-2001 and was ordered to be released on bail on 19-3-2003. Thus, he has been confined to the prison for a total period of about 22 months while the learned High Court had reduced the sentence to 2-1/2 years allowing him the benefit of section 382-B, Cr.P.C. It may be noted that although the appellant rendered awards but it is in evidence (P.W.17) that before making actual payments to the landowners 141 "B" Forms was sent to Director, Settlement and Land Record for verification but certain queries were raised by the said office and before these were settled payment was released to the land owners. The fact remains that actual disbursement, on the basis of the awards rendered by the appellant, was made after appellant's transfer from the post of Land Acquisition Officer. We see it as a mitigating circumstance and are of the opinion that the sentence (including the benefit of section 382-B, Cr.P.C.) undergone will meet the ends of justice. We order accordingly. As far as fine of Rupees sixty lacs and sentence of one year in default is concerned, it is maintained. The appellant is, however, allowed a period of two months to deposit the fine and in case he fails to do so he shall be taken into custody to serve the imprisonment in lieu of fine.
16. Accordingly, this appeal is dismissed with the modification of substantive sentence of imprisonment as indicated above.