1. ' SARDAR MUHAMMAD NAWAZ KHAN, C.J.---The above captioned appeals arise out of a single conviction order dated August 1, 2005, recorded by Ehtesab Court Muzffarabad, therefore, the following order shall decide both the appeals filed against the impugned order.
2. ' The convict appellants Tariq Ameen and Aleem-ud-Din (hereinafter to be called appellants) have been sentenced under section 11 of Ehtesab Bureau Act, 2001, read with section 5(2), PCA for a period extending for one year and three months simple imprisonment, whereas the convict appellant Muhammad Latif (herein to be called appellant) has been convicted under section 11 of Ehtesab Bureau Act, 2001, read with section 468, APC. His period of imprisonment is one year and three months simple imprisonment with a fine of Rs,285813. The following facts resulted into aforesaid conviction order, recorded against the appellants:-- ' The Ehtesab Bureau of AJ&K filed a reference against the appellants in the Court of Ehtesab Judge, Muzaffarabad for commission of offences under sections 467, 468, 471, 419, 420 and 409, APC, read with section 5(2) PCA, section 4 of Ehtesab Act, 1997 and 11 of Ehtesab Act, 2001, on Cebruary 1, 2005.
3. The allegation against the appellants was that Muhammad Latif appellant was appointed as Junior Teacher in the education department in the year 1978 who resigned from service in the year 1980 and started a private business in Karachi. Thereafter, he contested elections of local council, held in the year 1991 and was elected as member local council Mara Kalan for the term 1991 to 1995.
4. In the year 1996,he applied for his adjustment as Junior Teacher in the department and appellant Tariq Ameen, then DEO Elementary, adjusted him in middle school Kasian Halal, vide order dated January 1, 1997, however, the said order was given retrospective effect from September 1, 1996.
5. Muhammad Latif was deputed for B-S.Ed. Training in Government College of Education Afzalpur on October 20, 1996 where he completed the said training. The appellant Ch. Aleemud-Din, then headmaster of the relevant school, issued LPC in favour of Muhammad Latif appellant showing receipt of pay by him, from the said institution till September 30, 1996. It has also been alleged that Muhammad Latif appellant left the service in the year 1980 and remained out of service for 16 years and Ch. Aleem-ud-Din, then headmaster, issued fictitious LPC in favour of Muhammad Latif, appellant for the period for which he neither received pay nor he was in service. According to the prosecution, Tariq Ameen and Ch.Aleem-ud-Din, appellants, then DEO and Headmaster respectively misused their authority and prepared a fake and fictitious record to give undue benefit to Muhammad Latif. The collusion between the appellants caused a loss of worth Rs,285,813 to the Government exchequer, therefore, the Ehtesab Bureau requested the court to proceed against the appellants in accordance with law for the commission of aforesaid offences.
6. ' The learned Judge Ehtesab Court Muzaffarabad, after due process of law, passed the impugned order for reversal of which the present appeals have been brought before this Court.
7. ' The learned counsel for the appellants, Raja Muhammad Hanif Khan and Ch. Muhammad Ibraheem Zia, Advocates, while assailing the impugned order submitted that prosecution had miserably failed to prove the offences alleged to have been committed under section 11 of Ehtesab Bureau Act, 2001, 5(2) PCA and 468 APC. According to them, the order dated January 1, 1997, on the basis of which the entire edifice has been raised by the prosecution, could not be made basis for conviction for the reasons that it was not proved against the appellant Tariq Ameen in view of legal requirement to prove a document. It is a photostat copy, which under law, is inadmissible in evidence and moreover it was not sent to handwriting expert for opinion. It has been categorically denied by the appellant Tariq Ameen that he neither issued this order nor it was proved against him, therefore, the conviction order against him was passed in violation of law, the learned counsel maintained. The next order dated October 6, 1996 is simply a proposal initiated by the appellant Tariq Ameen and this document does not link him with the alleged offence under section 11 of Ehtesab Bureau Act and section 5(2) PCA, because the same, being simply a suggestion to the higher authority, does not provide reasonable ground to link the appellant with the alleged offence, the learned counsel submitted. According to the learned counsel, the handwriting expert's report, without producing him in the witness box, could not be read into evidence against the appellant Tariq Ameen in view of section 510, Cr.P.C. No illegal gain or mens rea has been proved by the prosecution through the evidence on record and the Investigating Officer (Shafqat Tanweer) while recording his Court statement, categorically stated that no evidence was available to prove illegal gain or mens rea against the appellant Tariq Ameen.
8. ' While assailing the order of conviction against appellant Aleemud-Din, it was contended that the evidence collected by the prosecution did not link the appellant with the alleged offence for the reasons that LPC and other documents, which according to the prosecution are relevant, have not been proved against him in accordance with law, as the handwriting expert did not appear as prosecution witness nor they listed him in the calendar of witnesses. The service book allegedly prepared by Aleem-ud-Din appellant is a duplicate copy and as it appeared from the statement of prosecution witness Seemab Khan, then headmaster of the relevant school, the original record was not available with regard to service of the appellant Muhammad Latif, the learned counsel submitted. While challenging the conviction order regarding Muhammad Latif appellant, it was contended by the learned counsel standing for him that the evidence, made basis for conviction order against him, was not a legal evidence against him, therefore, the trial Court wrongly passed the conviction order on the basis of such evidence; thus, the learned Judge fell in error convicting him in the present case. Both the learned Advocates, during their arguments, relied upon case law like AIR 1980 SC 531, AIR 1979 SC 4, 2002 YLR 96, 2002 PCr.LJ 1845, 2003 YLR 2076 and 2004 YLR 747 and submitted that in view of settled law, the impugned order has wrongly been passed which needs reversal by this Court.
9. ' Conversely the learned Deputy Chief Prosecutor, while supporting the impugned order, submitted that Muhammad Latif appellant was initially appointed on temporary basis. He absented from the service in the year 1979 and thereafter he remained out of service for about 16 years. He, with the connivance of co-accused, fictitiously marked his presence in the department and by doing so, damaged the government exchequer. He, during his arguments, referred to different documentary evidence, allegedly showing the appellant Latif out of service and receiving salary and other emoluments from the department and contended that in view of the evidence brought on record by the prosecution, the guilt against all the appellants was proved beyond reasonable doubt, therefore, they have rightly been convicted by the trial Court. He, during his arguments, referred to Article 112(e) of Qanun-eShahadat Order and contended that in view of the said provision of law, the documentary evidence, used against the appellants,. Could legally be read into evidence against them and it has rightly been made basis for their conviction.
10. ' We examined the record of the case, case law cited at bar and relevant statutory provisions of law referred to and relied upon by the learned counsel for the parties:-- ' The impugned order would show that the learned trial Judge has acquitted all the appellants for the offences under sections 467, 471, 419, 420, 409 APC and section 4 of Ehtesab Act, 1997, however, the conviction order has been passed for the commission of offences under section 11 of Ehtesab Act, 2001, 5(2) PCA and 468 APC. Therefore, the controversy narrows down to the extent of the offences under section 468, APC, 11 of Ehtesab Act, 2001 and 5(2) PCA. The acquittal order for the other offences has not been challenged by the prosecution, therefore, the controversy to the extent of commission of other offences stands closed. The controversy, as stated earlier, which needs resolution by this Court is only to the extent of the fact whether the allegations under section 11 of Ehtesab Bureau Act, 2001, 5(2) PCA, and 468 APC, are proved, in view of the prosecution evidence.
11. ' The case of the prosecution is that appellants Tariq Ameen and Aleem-ud-Din misused their authority to benefit Muhammad Latif appellant and in this way caused damage to the Government exchequer.
12. ' The relevant provisions of law, which could possibly be attracted in this case, are clause (0 of subsection (1) of section 10 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 and clause (d) of subsection (1) of section 5 of the Prevention of Corruption Act, 1947. The examination of both the provisions would show that they are of alike nature. They deal with the corruption and illegal means by abusing or misusing of position by a public servant for his benefit or for any other person abetting, assisting or aiding a holder of public office or holds property obtained by a holder of public office through corruption or corrupt practices; beneficiary of any asset, property or gain obtained through corruption or corrupt practices.
13. We would like to deal with the case of Tariq Ameen first. The entire edifice raised by the prosecution rests on an order dated January 1, 1997, allegedly issued by Tariq Ameen appellant. The original order is not available on record, as per case of the prosecution, the original record, with regard to service of Muhammad Latif appellant, has been destroyed. This is a photostat copy which has got no evidentiary value; because the same, in view of law of evidence, is inadmissible in evidence. It was not sent to handwriting expert for his opinion about the signatures allegedly put by appellant Tariq Ameen on this document, rather it was immaterial to do so, because the original order was missing. It has been categorically denied by the appellant Tariq Ameen that neither he issued this order nor it was proved against him. The next document which deals with the case of Tariq Ameen is the proposal dated October 6, 1996. This is simply a proposal initiated by Tariq Ameen. There is nothing on record to show that by whom this proposal was implemented neither the prosecution could satisfy the Court as to why they left out the person who implemented this proposal.
14. According to the statement of Tariq Ameen, under section 342, Cr.P.C., he proposed appellant Muhammad Latif for training on the recommendations of relevant headmaster and by doing so, he committed no offence, because he had nothing to do with the adjustment of appellant Muhammad Latif in the service. The prosecution sent the disputed signatures of Tariq Ameen available on the proposal dated October 6, 1996 to handwriting expert and obtained his opinion, according to which, the routine signatures and the specimen signatures resemble with each other; but this was a futile exercise, because Tariq Ameen did not dispute this document or his signatures over it. The prosecution collected different papers from the custody of officials of education department allegedly bearing the routine signatures of Tariq Ameen appellant. The signatures over the documents collected by the prosecution from the office of education department have not been seized in presence of appellant neither he admits them as correct. The comparison of the signatures over these paper with specimen signatures taken in presence of the Magistrate is not helpful to the case of prosecution. Though the handwriting expert gave a positive opinion, showing resemblance of the signatures over such papers and the specimen signatures taken in presence of Magistrate; but this evidence in no way, links the appellant with the alleged offence, for the reasons that handwriting expert was not called before the Court to testify his report, as required under section 510, Cr.P.C. According to section 510, Cr.P.C. The report of handwriting expert could not be considered unless he is called before the Court in order to testify his report. The report of handwriting expert, even otherwise is to be received with great caution. Such report is always to be seen in light of peculiar facts of the case and if it finds some corroboration from the other evidence, it may be helpful for recording conviction against an accused person.
15. ' There is yet another aspect of the case. The prosecution was legally obliged to prove illegal gain/mens rea against the appellant. For this purpose, we examined the entire evidence. The statement of Investigating Officer, Shafqat Tanweer by name, is material in this respect. According to his statement, no mens rea or illegal gain was proved against the appellant during investigation.
16. The perusal of sections 10 and 11 of AJ&K Ehtesab Bureau Act, 2001 and section 5(2) PCA would show that in case of corruption and corrupt practices, existence of element of mens rea is essential.
17. Unless the prosecution proves illegal gain/mens rea, received or obtained by an accused person for his benefit or for the benefit of any person having relations with him, conviction cannot be ordered while applying the aforesaid provisions of law. The alleged signatures over service book of Muhammad Latif appellant were also sent to handwriting expert who is indefinite about the disputed and admitted signatures. To be brief, it may be observed that prosecution has failed to, prove the case against the appellant on the basis of evidence they relied upon. The Photostat copy of order dated January 1, 1997 is not a legal evidence against the appellant. Moreover, the opinion of handwriting expert, with regard to other documents could not be accepted as evidence against him, because the prosecution did not call handwriting expert for evidence. The documents dated October 6, 1996 is in fact no order. It is simply a proposal by Tariq Ameen appellant and the prosecution failed to prove that who was the person who issued order of the appellant Muhammad Latif for training; rather they left him out during investigation. In order to convict a person, a very cogent, reliable and confidence-inspiring evidence is required which is missing in this case. They were under legal obligation to prove the guilt of the appellant specially in view of section 510 Cr.P.C., sections 10 and 11 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 and section 5(2) of Prevention of Corruption Act, 1947. They failed to prove the signatures of the appellant over the documents allegedly signed by him. The recognized modes to prove handwriting of a person are listed in Chapter 5 of Qanun-e-Shahadat, 1984 and the prosecution has failed to fulfil the requirement of proving the handwriting/signatures of the appellant as recognized by law.
18. While dealing with the case of Aleem-ud-Din, it may be observed that the relevant evidence in his case is preparation of LPC of Muhammad Latif appellant and marking his presence over the attendance register in the relevant school. These documents were sent to handwriting expert for their examination and the report of handwriting expert speaks in favour of the fact that disputed and admitted signatures tally with each other in characteristics; but the difficulty here is that under section 510, Cr.P.C. It was legally essential for the prosecution to call handwriting expert in the witness box so as to testify his report before the Court. As the prosecution failed to fulfil the legal requirement, therefore, the report of handwriting expert legally stands excluded from the ambit of evidence. Moreover, the prosecution failed to prove any mens rea/illegal gain by the appellant Aleem-ud-Din for himself or for the beneficiary in this case. They have also failed to prove any relation, motive etc. To benefit co-accused Muhammad Latif. In order to convict a person under section 11 of AJ&K Ehtesab Bureau Act, 2001 and section 5(2) of PCA, 1950, it is essential for prosecution to prove mens rea and relation or motive to benefit any person. Here in this case, neither it is proved that Aleem-ud-Din appellant obtained some illegal gain nor that what relations Muhammad Latif has got with him and why he misused his authority to benefit Muhammad Latif appellant. So his case is not covered by section 11 of Ehtesab Bureau Act, 2001 nor section 5(2) PCA, 1950 is attracted in this case.
19. ' Coming to the case of Muhammad Latif appellant, it is alleged by the prosecution that he remained out of service for about 16 years and during this period, he had been doing some business in Karachi and thereafter, he contested elections of local bodies, but by using unfair means and influence, he managed to readjust himself in the service with the help of co-appellants.
20. He has been sentenced under section 11 of Ehtesab Bureau Act, 2001 and section 468, APC. The appellant, when examined under section 242, Cr.P.C. Denied the allegation, however, when he was examined under section 342, Cr.P.C., he pleaded his case with a categorical stand that he was permanent employee of education department and was declared surplus. He contested from pillar to post for his re-adjustment. His case remained with the education authorities for a considerable time and finally he was adjusted in the department. He did not commit any offence because he received his salary and other emoluments during service as of his legitimate right. As stated earlier, the case of prosecution is that he was not in service for this period. They produced some evidence showing participation of the appellant Muhammad Latif in local bodies elections. Assistant Director Local Government, Mr.Gul Zaman appeared in the witness box. He recorded his statement on the basis of the report by a project manager showing participation of Muhammad Latif appellant in the local bodies elections. The report of project manager has not been produced by the prosecution, therefore, the statement of Gul Zaman (PW) become immaterial on the ground that the said witness had no personal knowledge about the participation of Muhammad Latif in local bodies elections. The other verbal evidence has also been examined. The entire evidence with regard to participation in elections, when put in juxtaposition with the version of appellant Muhammad Latif, would show that it has nothing to do with the requirement under section 11 of Ehtesab Bureau Act, 2001 and section 468 APC, because the allegations of forgery, misuse of position or obtaining illegal gain has not been proved. He accepts to have received his pay and other emoluments; but in order to fix a criminal liability and to allow conviction order to stand under section 11 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 and 468, APC, a very strong and cogent evidence is required. His case is that he received salary and other emoluments as of his legitimate right because of his service whereas the case of prosecution is that he contested elections, therefore, it might be essentially presumed that he remained out of service. Both the parties appear to be in agreement that the appellant remained out of the department for one or the other reasons. The prosecution says that he was appointed temporarily in the service and then he resigned from service and during the period he remained out of service, he contested elections.
21. The appellant contends that he has been contesting for his adjustment for a considerable time and remained out of department. It is possible that he might have participated in the elections during the time he remained out of department. It may be an offence in respect of service liability or any other offence under election laws; but to fix a criminal liability against the appellant Muhammad Latif, in order to convict him under section 11 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 and section 468 APC, all the legal requirements provided under the said provisions of law are to be fulfilled through reliable and cogent evidence which is missing in this case, therefore, in the estimation of this Court, the prosecution has failed to make out a case of conviction against him.
22. ' The result, therefore, is that all the appellants, in view of what has been stated above, are hereby acquitted by allowing their appeals.