1. ' SHAHID ANWAR BAJWA, J.---Appellant was tried and convicted for offence under section 5(2) of the Prevention of Corruption Act, 1947 and was punished to undergo rigorous imprisonment for a period of 2 years and fine Rs,50,000 and in case of failure to pay the fine to further undergo imprisonment for six months. Being aggrieved by the judgment dated 1-2-2006 this appeal has been filed. On 7-2-2006 sentence was suspended and the appellant was ordered to be released on furnishing surety in the sum of Rs,100,000 with P.R. Bond in the like amount.
2. ' Factual context is that on 7-7-1991 an F.I.R. Was registered at Police Station ACE Shikarpur being F.I.R. No,14 of 1991. Case was registered as a result of inquiry consequent upon Complaint No,24 of 1991. Complainant was Ramchand, a commission agent of Stuart Ganj Shikarpur, who alleged in the application that the present appellant being a Tapedar of Revenue Department and thus being a public servant had purchased one tractor bearing Registration No,1034 of 1986 and one Jeep bearing Registration No,561 in the name of his brother-in-law one Meeral and had also constructed house worth Rs,20,000 at Banguldero from ill-gotten sources of income. It was further stated that the appellant sold tractor and jeep to the complainant for Rs,1,75,000 out of which he received Rs,1,50,000 in presence of witnesses and signed agreement. Balance Rs,25,000 was to be paid on clearance of loan taken from Agricultural Development Bank of Pakistan (ADBP). The loan was not cleared and the vehicles therefore, were never transferred.
3. ' Charge was framed on 17-10-1998 and is in the following words:-- "That you on or about 1-2-1987 being a public servant working as Tapedar in Revenue Department, purchased a tractor bearing Registration No, LAA = 1034-1986 and a jeep bearing Registration No,ND-561 from ill gotten sources of income in the name of your sister's husband namely Miral Khaskheli which were later on sold out by you in Rs,1,75,000 to Ramchand by way of deed of agreement signed by you and you thereby committed an offence punishable under section 5(c)
4. Act-II of Prevention of Corruption Act, 1947, within the cognizance of this Court."
5. ' Stamp Vendor Khuda Bux was the first witness. He produced agreement between Sharafuddin present appellant, Meeral and the complainant which is stated to be executed on 1-2-1987. He stated that the agreement was written by him in his handwriting in presence of the complainant, present appellant and said Meeral. He stated that he wrote document on dictation of present appellant. In cross-examination, he admitted that he did not know the appellant prior to the day of execution of the agreement. He admitted that he did not know handwriting of the appellant. He denied that signatures of the appellant were bogus. There were two marginal witnesses of the agreement, one Gulzar Ahmed and other Ghulam Ali Gulzar was subsequently given up by the prosecution. Ghulam Ali in his evidence stated that he was sitting in the Otaq of the Stamp Vendor and the present appellant on behalf of Meeral sold tractor and jeep to the complainant for Rs,1,75,000 and received Rs,1,50,000 and promised to prepare the papers after release of documents by ADBP. He further states that the jeep and tractor were of Meeral and he did not know anything more. He stated that the accused/appellant informed him that he was a Government Official and that is why papers were in the name of his brother-in-law, Meeral. Witness in cross- examination denied that he in collusion with Meeral and Ramchand had forged signatures of the accused. Mir Hazar SCO Anti-Corruption Establishment was produced. Nothing turn on his statement. Thereafter Khuda Bux retired DSP Anti-Corruption Establishment appeared as a witness.
6. In cross-examination he admitted that agreement related to tractor and jeep and that they were not the Government property. Thereafter one Ghulam Nabi was produced who stated that house of the petitioner at Banguldero was of 644 Sq.Fts, it had wooden door, Sirkunda roof with Bamboo pattis. It was stated to be a in rural area, of Katcha Pakka construction with two rooms and a Veranda. He assessed its value at Rs,22,500. Azizullah Head Constable Police Station New Faujdari and Mir Muhammad C.O. Anti-Corruption Establishment Shikarpur were produced. Thereafter the complainant appeared as a witness, reiterated what he had stated in the complaint. In cross- examination, he stated that he did not know if the tractor in question was mortgaged with the ADPB. He further stated that he did not know if the tractor was mortgaged against the land of Meeral. He also stated that he did not know that after death of Meeral ADBP had filed a suit for Recovery of Dues against heirs of Meeral in the Banking Court, Larkana and heirs had deposited the loan amount in the Banking Court. He further stated that he did not know if the accused was living in his ancestral house. He denied the suggestion that the agreement was not executed by the accused. Thereafter Mr. Ghulam Umar, the Excise and Taxation Officer appeared and stated that the tractor is registered in the name of ADBP in account of Meeral.
7. ' Thereafter statement of present appellant was recorded under section 342, Cr.P.C. The accused denied the allegations. He stated that he wanted to get himself examined on oath and will also examine Mukhtiarkar Larkana to bring record of his signatures in his examination-in-chief. He stated that the disputed agreement did not bear his signatures and the Mukhtiarkar produced some record of entries stated to have been executed by the present appellant when he was working as Tapedar. Thereafter one Nisar Ahmed Tapedar was produced as Court witness. He stated that he is conversant with the signatures of the appellant and stated that the agreement bore signatures of the appellant. In cross-examination he admitted that he had produced entries for the year, 2000 and not for the year, 1987. Thereafter on 1-2-2006 after hearing arguments the judgment was announced and the present appellant was convicted at stated above.
8. ' Learned Court below discussed allegations in the following words:-- "Points Nos.1 and 2 are inter connected and inter-related, therefore, both the points are discussed together. The accused is being charged that he being public servant had purchased Tractor bearing Registration No,1034-1986 and a jeep bearing Registration No,ND-561 from ill-gotten sources of income in the name of Meeral and later on sold it for Rs,1,75,000 to Ram Chand by way of agreement signed by him. In support prosecution has examined P.W Kadir Bux Soomro who is stamp vendor and has deposed that he had written stamp No,91 which was agreement between Ram Chand Sharafuddin and Meeral. He has deposed that Sharafuddin had appeared at the time of agreement before him. Meeral was also present. The agreement was in respect of Jeep No,ND- 0561 and Tractor No,LAA-1034 of 1986. According to the agreement accused went to execute agreement wherein he had mentioned that Meeral was his man and he used to do the work in his name as he was Government servant. It is further mentioned in agreement/stamp that Tractor and Jeep originally belong to the accused but were pursed by Meeral. He has further deposed that he has written agreement on the dictation of accused Sharafuddin. He has also deposed that it is mentioned in the stamp that Tractor and Jeep were sold to Ram Chand for consideration of Rs,1,75,000. After writing of agreement it was read over to the accused and obtained signature and LTI of Meeral on it. The agreement was attested by Mukhtiarkar. He has identified accused in the Court. He has categorically deposed that since accused was present before him and he is identified by him. It has been suggested that signature of accused is bogus. Nothing material has come out from the mouth of P.W., the agreement has been produced as Exh.4-A, a photocopy of NIC of Meeral also been produced with Exh.4-A, prosecution has examined P.W.2 Ghulam Ali who is attesting witness of agreement. He has categorically stated that accused Sharafuddin on behalf of Meeral who is his brother-in-law sold away Tractor to Ram Chand after receiving Rs,1,50,000. He has deposed that accused informed them that he was government official hence papers were in the name of his sister's husband. Meeral was present but the amount was received by present accused. Such agreement was reduced in writing and he witnessed the agreement. Another witness was Gulzar. He has seen agreement and has deposed that it is same, correct and bear his signature. In cross-examination he has voluntarily deposed that money was paid and documents were executed in his presence and he signed it. Nothing material contradiction has come out on the record. It has been suggested that agreement is false and forged except suggestion has been made to the witness that he in collusion with Meeral and Ram Chand forged signature of accused which suggestion has been denied by him but it has not been suggested that agreement does not bear his signature meaning thereby that there is signature of accused on the agreement but it is false. P.W. Mir Hazar has been examined, who was Sub-Inspector has recorded statement of accused Sharafuddin. He was not examined. The prosecution has examined P.W.4 Khuda Bux Noohani who was circle officer and had registered the case and recorded statement of complainant, secured sale agreement and produced Mashirnama at Exh.7-C in cross-examination there is only one question is "The agreement was relating to sale of Tractor and Jeep those were not the Government property." He has produced order of SP, ACE, along with application of complainant at Exh.7-A, F.I.R. At Exh.7-B, and Mashirnama at Ex-7-C. Prosecution has examined Ghulam Nabi, who is technical officer and has visited the house of accused and assessed value at Rs,22500 and has given report, which he has produced at Ex.10. Prosecution has examined P.W. Mir Muhammad; he had arrested the accused and produced Mashirnama at Ex.13. They have examined P.W. Ghulam Ali, so also P.W. Qadir Bux. Prosecution has examined P.W. Ram Chand who has deposed that he had purchased Tractor from accused in the sum of Rs,1,75,000 and paid Rs,1,50,000 to him. He has deposed that papers were in the name of brother-in-law of accused as he was government servant. Agreement was executed before Mukhtiarkar. He has seen agreement as Ex.4-A, which bears his signature as well as of witnesses. He has deposed that accused owned one Bungalow in this village Bunguldero. Nothing material has come from his mouth in the cross- examination. Prosecution has examined P.W. Muhammad Umar Khuhro. Inspector Excise and Taxation, at Ex.15, he has produced relevant record of Tractor. The statement of accused was recorded and he has examined him on oath and has examined D.W. Mumtaz Ali, who has given no favourable evidence to the accused. The accused has closed his side, witness Nisar Ahmed was examined as Court witness as Exh.22. He has seen Ex.19-A and 19-B. In cross-examination has stated that he has brought entry of year, 2000 not of year 1987. In the trial of an offence punishable under subsection (2) the fact that the accused person or any other person on his behalf if in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved. That the accused person is guilty of criminal misconduct and his conviction therefore, shall not be invalid by reason only that it is based solely on such presumptions. Points Nos. 1 and 2 are decided in affirmative.
9. ' And thereafter reached the following conclusion:-- "From the perusal of the above evidence it is clear that accused purchased Tractor and Jeep in the name of Meeral who is his sister's husband and sold it to Ram Chand by way of agreement. The attesting witness has categorically supported the prosecution case that agreement is attested.
10. The accused has not examined Meeral as Defence Witness to show that Tractor and Jeep were his property. The evidence is not shattered. It is proved that accused is in possession of property in the name of Meeral and constructed house from improper means and it is disproportionate to his known sources of income and has not accounted for to the satisfaction of Court. Since the burden lies on the accused to prove that he is not guilty of the offence, which he has failed to discharge.
11. The case of prosecution is proved beyond shadow of doubt, therefore, it is presumed that he is guilty of the misconduct and is punishable under section 5(2) of the Prevention of Corruption Act-II of 1947, consequently he is punished to undergo Rigorous Imprisonment for a period of two (2) years and fine of Rs,50,000 (Fifty thousand). In case he failed to deposit fine amount he shall undergo R.I. For six (6) months more. The accused is present on bail he is taken into custody and remanded to jail to serve out sentence awarded to him. Learned counsel for the appellant made the following submissions:--
(1) In a criminal trial it is for prosecution to prove beyond any shadow of doubt that the accused had committed the offence alleged against him. Except agreement there is no other evidence produced. Firstly the agreement is not signed by the appellant and secondly the question relating to loan by the ADBP has not been considered by the Court below.
(2) That the offence under sections 5(c) and 5(2) is not made out even if whatever is stated in the F.I.R. And charge is admitted as gospel truth.
(3) That under section 5-B of the Prevention of Corruption Act, 1947, it was incumbent upon Government to order submission of declaration of assets by the present appellant. No such declaration has been called from the appellant.
12. ' Learned State counsel supported the impugned judgment of the Court below. He submitted that the appellant has been proved guilty beyond any shadow of any reasonable doubt. He therefore, prayed that the appeal may be dismissed.
13. ' I have considered the submissions made by the learned counsel.
14. ' The charge, as reproduced above, is under sections 5(c) and 5(2) of the Prevention of Corruption Act, 1947. The said sections are reproduced as below:-- 5(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or 5(2) Any public servant who commits [or attempts to commit] criminal misconduct shall be punishable with imprisonment for a terms which may extend to seven years, or with fine or with both.
15. ' Since the reference has been made to sections 5-B and 5-C, those are also reproduced below:-- [5-B. Declaration of assets.---(1) When the Provincial Government, on receipt of information and after making such enquiries as it may deem necessary, is satisfied that there is reason to believe that any public servant or any other person on his behalf is in possession of pecuniary resources or property disproportionate to the known sources of income of such servant it may, by order, require such public servant or other person to furnish in the prescribed manner and within the prescribed time a statement of his property and liabilities and such information relating thereto as may be required by the order.
(2) If such public servant or person:-
(a) upon being so required by an order under subsection (1) fails to furnish the statement or information or furnishes a statement or information which he knows or has reasonable cause to believe to be false or not true in any material particular; or
(b) makes in any book, account record, declaration, return or other document, which he is required by an order under subsection (1) to furnish, any statement which he knows or has reasonable cause to believe to be false or not true in any material particular, he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.] [5-C Possession of property disproportionate to know sources of income.---(1) Any public servant who has in possession any property, movable or immovable, either in his own name or in the name of any other person, for which there is reason to believe to have been acquired by improper means and which is proved to be disproportionate to the known sources of income of such public servant shall, if he fails to account for such possession to the satisfaction of the Court trying him, be punishable with imprisonment for a term which may extend to seven years and with fine, and on such conviction the property found to be disproportionate to the known sources of income of the accused by the Court shall be forfeited to the Provincial Government.
(2) The reference in subsection (1) to property acquired by improper means shall be construed as a reference to property acquired by means which are contrary to law or to any rule or instrument having the force of law or by coercion, under influence, fraud or misrepresentation, within the meaning of the Contract Act, 1872] A bare perusal of section 5(c) indicates that it is applicable to the case where a public servant dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so. Such act on his part would be criminal misconduct which is punishable under section 5(2) of the Act of 1947. In this case there are no allegations in the charge regarding any misappropriation or conversion of any State property. Obviously therefore, section 5(c) under which the present accused has been charged is not attracted to the facts of the case. However, in the judgment in the very first line with regard to offence section 5-C appears. One may also notice here that even in statement under section 342, Cr.P.C. The section quoted is 5-C and not section 5(c). But then there is another aspect. It is stated in the judgment as well as statement under section 342, Cr.P.C. That the present appellant has been tried under section 5-C and section 5(2) of the Act, 1947. Section 5(2) is a section which prescribes punishment for criminal misconduct. As stated above, since section 5(c) is not attracted to the allegations against the appellant. Thus since section 5(c) is not attracted obviously section 5(2) could not have been brought into play. This conclusion is further supported by reading provisions of section 5- where the sentence is provided in that section. A reading of the charge also indicates that the charge is of having property beyond the known sources of income. Therefore, section 5-C was attracted and statement in charge that it is under section 5(c) appears to be a clerical slip. No ground whatsoever has been made out as to what prejudice has been caused or what injustice has been occasioned by this slip.
16. ' Learned counsel submits that as per section 5-C it was essential for the inquiry officer to ask the accused to produce a declaration of his assets before finalizing the inquiry and sending the matter for registration of F.I.R. In my humble opinion, the word used in section 5-B is 'May' and therefore, there is discretion vested in the investigating agency to require declaration of assets or not. Since the allegation is of having assets disproportionate to his income without calling upon the employee to furnish declaration of his assets and then matching them with his income, it would not be normally proper to run and proceed with the registration of the F.I.R. However, this aspect need not detain us any more.
17. ' What are the assets of the deceased. One is stated to be a house which is located in a rural area.
18. There is no allegation or evidence that the land on which house stood was purchased by the appellant. Mr. Ghulam Nabi who appeared as technical witness in his examination-inchief stated that it was a Katcha Pakka house with two rooms and a veranda, it had totally wood doors and windows, it had a Sirkunda roof with Bamboo Pattian and the covered area is stated to be 644 sq.Fts. It would be unfair to call a 644 sq.Ft. House as a Bungalow, more so when it is in rural area and there is no evidence as to how the land of that house was acquired by the present appellant.
19. Was it purchased land or was it an ancestral land. Record is silent. The benefit of any doubt has to be given to the accused.
20. ' Coming to the question of vehicles, it has come in evidence and unimpeachably so, that the tractor was purchased by obtaining loan from ADBP. If one purchases a property worth Rs,100,000 and he had obtained loan for purchase of it, say, Rs,90,000 what would be his assets. If wrong be wrong to say that his assets would be Rs,100,000 because net worth is to be computed after deducting loan liability from gross assets and therefore, in this hypothetical case if liability is deducted from the assets such persons would be having assets of Rs,10,000. In the present case it has come in evidence that the tractor was purchased by taking a loan from ADBP. Excise and Taxation Inspector has confirmed this position. Even complainant has confirmed this position because he has repeatedly stated that he was promised that the tractor would be transferred after loan is repaid to ADBP. It has Also come in the evidence that ADBP loan was obtained on the basis of security of mortgage of property of Meeral. Sons of Meeral, it has come in evidence, were sued in a Banking Court for recovery of loan. Learned Court below has not considered question of deduction of amount of loan from assets of the appellant.
21. ' Another aspect which should have been considered is that in case of assets what is to be seen is their acquisition value and not the value at which a particular asset is sold at a particular time. No proof regarding any amount or acquisition value has been submitted either in the inquiry report or by any of the witnesses which came and stood in the witness box. Therefore, in my opinion, the prosecution has failed to establish guilt of the appellant bound any show of reasonable doubt. I consequently, allow this appeal and set aside the impugned judgment of the Court below.
22. Appellant is already on bail. Let P.R. Bond be discharged and surety be released.