Accused Muhammad Amin, Nisar Ahmad Khan, Khan Muhammad and Arbab Mehboob A.I Khan were charged under section 409, P. P. C. Read with section 5(2), Prevention of Corruption Act, 1947 for having mis--appropriated the Government money to the tune of Rs. 10,117 is connivance with each other. The learned Special Judge, Anti-Corruption, Peshawar who tried the accused found them guilty of the offence, accordingly convicted them under the said sections and sentenced each one of them to three months' R. I. And a fine of Its. 1,500, or in default further three months R. I., vide his judgment dated 20-4-81. They felt aggrieved of their conviction and sentence and hence accused Muhammad Amin and Nisar Ahmad have filed a joint appeal bearing No. 68/81 and accused Khan Muhammad and Arbab Mahboob A.I Khan appeal bearing No. 70/81 in this Court to question the legality of their conviction and sentence. This judgment will dispose of both appeals.
2. The prosecution case, as far as relevant, briefly is that appellants were employed in the Rural Development Department, N.-W. F. P. Appellant Muhammad Amin was Assistant Director, Nisar Ahmad was Project Manager, Khan Muhammad was Supervisor and Arbab Mahboob A.I Khan was Project Leader. The Government sanctioned the sum of Ra. 40,000, under the Rural Works Programme for shingling and improvement of Kankola Road. The work was assigned to the Project Committee of Kankola village headed by Arbab Mahboob A.I as Project Leader. The stipulation was that the road would be constructed 3' thick and 10 ft. Wide and 1-- miles long and in addition to that four culverts and retaining wall were to be constructed. In this connection, two instalments of Rs. 13,000, each were paid to appellant Arbab Mahboob A.I Khan one after the other on the basis of the progress of the work. Meanwhile, the technical staff of the Department inspected the work. It measured the road and found in 3' thick, 10 ft. Wide and 4.4. Furlongs long and besides that only two culverts instead of four culverts had been constructed and the retaining had been left incomplete. According to the assessment of the technical staff, only a sum of Rs. 18,251 had been spent on the project out of the total amount of Rs. 26,000 paid in two instalments. The record shows that the Department further checked the relevant register and it transpired that in each book (Exh: P. W. I/B) the existed entries in the hand of Khan Muhammad appellant about payment of Rs. 4,940 as commission to appellants Muhammad Amin and Nisar Ahmad and in project register (Exh. P. W.
I/C) entries to the same effect also existed. Upon this, the matter was referred to the Anti- Corruption Department for investigation which was investigated by Darya Khan, Circle Officer, Anti- --Corruption Establishment, Peshawar (P. W. 4). He took into -possession the above-mentioned cash book (Exh. P. W. 1/B) and project register (Exh. P. W. 1/C). P. W. Darya Khan asked for the services of Javaid Khan (P. W 2), Political Naib Tehsildar, Peshawar, to conduct raid proceedings on the spot. Accordingly, Javaid Khan, Darya Khan, Inayatullah Khan, Assistant Technical Officer, Lal Akbar Khan I. O. And Ikramullah, Overseer visited the Kankila Road, Inayatullah, Assistant Technical Officer (P. W. 6) after inspecting the work recorded his reports (Exh. P. W. 6 and Exh. P. W. 6/A) to the effect that the shingling work of the Kankila Road was 3' thick and 10 ft. Wide and had been carried out only up to 3OOO ft. i. e. 4.5 furlongs and in the two culverts no P. P. C. Was laid in the foundation and that the retaining wall were constructed in two portions. According to his estimate, out of the sum of Rs. 26,000 only the sum of Rs. 15,883 was spent and the, balance of Rs. 10,117, was misappropriated. The learned Magistrate also recorded his report (Exh. P. W. 2/A) and his report and the two reports of Inayatualah were handed aver to Darya Khan I. O. Thereafter, the investigation of the case was entrusted to Hassenullah Khan S. I. (P. W. 7) who after recording the statements of witnesses and obtaining the necessary sanction for the prosecution of the accused put challan in the Court of Special Judge, Anti-Corruption, Peshawar, who convicted and sentenced each one of them as mentioned above.
3. In support of its case, regarding the guilt of the appellant, the prosecution produced seven witnesses. Of these, Fatahuddin Khan, Deputy Director, Rural Development Department (P. W. I), Inayatullah Khan, Assistant Technical Officer (P. W. 6) and Fida Muhammad, Sub-Engineer (P. W. 5) are material witnesses, as the case of prosecution mainly depends upon their evidence. P. W.
Fatahuddin Khan had inspected the spot and had collected the relevant record as a documentary piece of evidence against the appellant. Inayatullah had helped the I. O. In investigating the case and had submitted his expert reports (Exh. P. W. 6) and Exh. P. W. 6/A) while Fida Muhammad had submitted his expert report (Exh. P. W. 1/A) before the case was referred to the Anti-Corruption Department for investiga--petition. The prosecution also relied on cash book (Exh. P. W. 1/B) and, project register (Exh. P. W. 1/C) to show that the amount of Rs. 4,940, was mis--appropriated by the four appellants.
4. The appellants denied the charge against them saying that they are innocent and have been falsely charged. It will be proper to give below the relevant extracts from their statements:
5. Appellant Khan. Muhammad admitted that he had made entries in the cash book (Exh. P. W. 1/B), but had done so at the instance of appellant Mahboob A.I. These entries are regarding Rs. 4,940.
Appellant Arbab Mahboob A.I Khan also admitted that he had paid the sum of Rs. 4,940, to Nisar Ahmad as commission fee to him and Muhammad Amin. His statement in this respect is to the following effect:- "This amount was paid by me under pressure of accused Muhammad Amin and Nisar Muhammad as I apprehended that further instal--ments would not be released. Therefore, I paid a sum of Rs.
4,940, as commission to Nisar Ahmad accused under pressure as this amount was demanded by Nisar Ahmad repeatedly."
6. Both appellants Muhammad Khan and Arbab Mahboob A.I produced Shamsher Khan as their joint defence witness. He stated that he was a member of the Project Committee, that 3 inches thick shingle was laid up to 5 or 6 furlongs of the road and three culverts bad been constructed, that the retaining wall was constructed but was demolished and was again constructed and that the road was never inspected in their presence by any official.
7. Appellant Nisar Ahmad stated that there was no evidence to show that he had received the amount of Rs. 4,940, as commission and his co---accused have stated against him in order to save their skin. To the same effect was the stand adopted by appellant Muhammad Amin.
8. The learned Special Judge while examining the prosecution evidence, disbelieved the evidence of two experts, namely, P. W. Fida Muhammad and Inayatullah, mainly on the ground that they had varied in their opinions as to how much amount was spent on the work and how much amount was allegedly misappropriated. He however placed reliance on the cash book (Exh. P. W. 1/E) and project register (Exh. P. W. I /C) and came to the conclusion that the amount of Rs. 4,940 mentioned in these two documents were misappropriated by the appellants. In -this respect, paragraph No. 11 may be reproduced from his impugned judgment:- "In the light of the statement of Fatahuddin P. W. a perusal of the cash book Exh. P. W. 1/E and the project register Exh. P. W. I/C shows that there is a mention of the payment of commission amount in all to Rs. 4,940 to Nisar Ahmad accused who according to the evidence was the Supervisor of the Kankola road project. On page 13 of the cash register Exh. P. W. 1/E in Column No. 13 as, against the date 2-12-74 besides the name of Nisar Ahmad Supervisor the name of Muhammad Amin accused is also mentioned in Column No. 13 to have been paid commission. Both these registers were maintained by the project leader Mahboob A.I Khan and Khan Muhammad and the entries in these registers relate to the account of the Kankola road project. Therefore, according to the evidence of P. W. Fattahuddin and the relevant pages of the registers referred to above a sum of Rs. 4,940, has been paid to Nisar Ahmad accused and Muhammad Amin accused during the work carried out on the Kankola Road project and that this amount was paid from the 2nd instalment of Rs. 13,000, which was received by Mahboob A.I Khan accused as the project leader. It is in evidence that the funds out of which the commission was paid to the two accused Nisar Ahmad and Muhammad Amin were the Government amount over which the commission was paid to the two accused Nisar Ahmad and Muhammad Amin were the Government Funds, and that the amount over which Mahboob A.I Khan accused exercised domain was disposed of through Khan Muhammad accused in utter violation of the directions of law wherein the payment of commission is not 'recognized at all, and that the amount of commission was received by Nisar Ahmad and Muhammad Amin accused being public servants and that they were not entitled to receive the same in the discharge of their official duties. Both the accused Mahboob A.I Khan and Khan Muhammad have also not denied the payment of the commission to Nisar Ahmad and Muhammad Amin accused during their statements recorded under section 342, Cr. P. C. Moreover, Nisar Ahmad and Muhammad Amin accused have not led any defence to counteract the prosecution version of the entries regarding the payment of the commission in their names in the relevant columns of the registers Exh. P. W. 1/B and Exb. P. C."
9. The learned counsel for Muhammad Amin and Nisar Ahmad (appellants in Appeal No. 68 of 1981), submitted that the prosecution has failed to bring any satisfactory evidence on record against his clients to connect them with the commission of the offence. He contended that only their co-accused, namely, Khan Muhammad and Arbab Mahboob. A.I Khan (appellants in Appeal No., 70 of 1981), have stated in their statements under section 342, Cr. P. C. That the sum of Rs. 4,940 was taken by them as commission which his clients denied in their. Statement, under section 342, Cr. P. C. And as there is no other evidence to show even by indication muchless directly that his clients had misappropriated any amount, the learned Special Judge was wrong to base the conviction of his clients on the so-called statements of their co-accused under section 342, Cr. P. C.
10. While the learned counsel for Khan Muhammad and Arbab Mahboob A.I (appellants in Appeal No. 70 of 1981) submitted that the learned Special Judge had no jurisdiction to try the accused. He referred to letter No. 368/3-G. P.
1. Dated 29-7-76 addressed, by the present Special Judge while he was Public Prosecutor to the Assistant Director, Rural Department, Peshawar, to show that the Special Judge as Public Prosecutor bad expressed his opinion for the prosecution of the accused for the alleged misappropria--petition of the amount and as he bad expressed his opinion in his capacity as Public Prosecutor, the learned counsel urged that he should have withheld his hands from trying the accused.
11. Taking up the contention of the learned counsel for appellants Khan Muhammad and Arbab Mahboob A.I in Appeal No. 70 of 1981, first, I have gone through the letter in question. It shows that on a reference made to the Public Prosecutor in which it was written that `there appears to be misappropriation of public funds', the Public Prosecutor asked the Department that `before initiating criminal action against the persons concerned, a clear case of misappropriation is to be made out'. This reply of the Public Prosecutor does not. Appear to convey that he had expressed any opinion for the prosecution of the accused. By asking the Department that `before initiating criminal action against the persons concerned a clear case of misappropriation is to be made out,' it is clear that the Public Prosecutor did not consider the material forwarded to him for the prosecution of the accused sufficient and adequate and thus he withheld his opinion. I, therefore, rule out the contention of the learned counsel that the learned Special Judge bad expressed his opinion while he was Public Prosecutor for the prosecution of the accused in the present case and hence he was justified to try the accused.
12. As regards the contention of the learned counsel for appellants Muhammad Amin and Nisar Ahmad in Appeal No. 63 of 1981, recorded in paragraph 9 of this judgment, I have given anxious consideration to it and I agree with him. The learned counsel for the State conceded that Muhammad Amin and Nisar Ahmad appellants have been involved by their co-accused in Appeal No. 7U of 1981, and there is no other evidence to directly an straightaway involve them in the commission of the offence. I consider that the case against Muhammad Amin and Nisar Ahmad appellant is no proved beyond reasonable doubt. The statement of an accused under section 342, Cr. P. C. Is not to be considered a determining piece of evidence against his co-accused unless it is corroborated by other evidence of reliable nature. Mere statement of an accused person under section 342, Cr. P. C. Involving his co-accused in the commission of the offence should not constitute' the basis of a criminal charge against them. The Court must be cautious and on guard against the statement of an accused person under section 342, Cr. P. C. Implicating his co- accused in the commission of the offence and exonerating himself from the charge. His ipse dixit itself in his statement under section 342, Cr. P.. C. Should not be considered a conclusive evidence for the conviction of his co-accused.
13. In the light of the principle enunciated above, the case of appellants Muhammad Amin and Nisar Ahmad will have to be. Tested. Khan Muhammad and Arbab Mahboob A.I appellants have attributed the mis--appropriation to them in their statements under section 342, Cr. P. C. If their statements under section 342, Cr. P. C. Are kept aside from considera--petition, there would be no case against Muhammad Amin and Nisar Ahmad appellants. The. Learned counsel for the State has not disputed this position. This feature of the case has further furnished a technical ground in favour of appellants Muhammad Amin and Nisar A.I mad appellants.
14. As, a result, I accept the Appeal bearing, No. 68 of 1981- filed by Muhammad Amin and Nisar Ahmad appellant and acquit them. They are on bail and are discharged of their bail bonds.
15. As regards the Appeal bearing No. 70 of 1981 filed by Khan Muhammad and Arbab Mahboob A.I, it is clear from their statements recorded in Court under section 142, Cr. P. C. That the sum of Rs.
4,940 was misappropriated. Khan Muhammad appellant admitted that he had made entries in regard to this amount in the cash book (Exh. P. W. 1/B) while Arbab Mahboob A.I appellant admitted that he was in custody of the sanctioned amount for the construction of the road. Their explanation for the amount of Rs. 4,940 was that the same was paid to their co-accused under pressure as commission. These statements of appellants Khan Muhammad and Arbab Mahboob A.I 'are not fit to be believed in the circumstances of the case, and they can be said to have misappropriated the amount. After all, they were directly accountable for the amount and as they were charged for.
Misappropriating the same, the only possibly court for them was to shift its misappropriation to their co-accused in order t save their own skins. I am, therefore, satisfied that Khan Muhammad and Arbab Mahboob A.I appellants were responsible for misappropriating the amount in question with the result that I uphold their conviction. The sentence of three months' R. I. And the fine of Rs.
1,500 or in default further R. I. For three months awarded to each' one of them by the learned Special Judge, however, requires amendment. They are on bail. I sentence each one of them till the rising of the Court and a fine of Rs. 5,000, or in default R.
1. For three months. With this modification, their Appeal No. 70 of 1981, is dismissed. They are allowed weeks' time for the deposit of the fine.