' SARDAR ABDUL HAMEED KHAN, J.---This appeal has been filed against the judgment of Judge Ehtesab Court No,1 Muzaffarabad dated 30-3-2002, whereby the reference filed by respondents was accepted and the appellant was convicted.
2. The precise facts giving rise to the instant appeal are that Ehtesab Bureau/respondent filed a reference under sections 468/467/ 409/471/109, A.P.C., 4-Official Misdemeanor Act 1948, 4-Ehtesab A Commission Act 1997, 11-Ehtesab Bureau Act 2001, 2(5) Anti-Corruption Act 1950 against the appellant and others in the court of Judge Ehtesab Court No, 1 Muzaffarabad on 22-8-2001. It is alleged by the prosecution that the contract for the construction of Middle School Seri Hill was allotted to the contractor Wajid Ali Gillani under Work Order No, 625-29 dated 20-10-1999. The contract amount was Rs,996,233 and the period of completion was 9 months. It is alleged that the contractor done the work amounting to the Rs,441,988 while he was paid Rs,672,284 in the light of work done recorded in the measurement book through bogus bills and in this way, the officials paid excess amount of Rs,129,459 to the contractor without and reason. It is also alleged that the construction work of the Middle School is closed for last 6 months. It is further stated that the accused Sardar Muhammad Iqbal XEN, Tahir Hussain Shah SDO, Muhammad Arshad Overseer and Wajid Ali Gillani contractor had dishonestly got Rs, 129,459 through bogus bills and misappropriated the amount and caused a great loss to the Government, therefore, they have committed the above mentioned offences.
3. After hearing the parties, the learned Judge Ehtesab Court No,1 Muzaffarabad convicted accused/appellant Arshad Iqbal Overseer under above offences read with section 4 of Ehtesab Bureau Act 1997 and inflicted three years rigorous imprisonment and fine of Rs, 150,000. The other accused Sardar Muhammad Iqbal XEN and Tahir Hussain Shah SDO were absconded and the trial- court ordered that till the recovery of these accused persons, the file shall remain in record and the accused Wajid Ali Gillani Contractor was acquitted from the charge levelled against him, hence this appeal.
4. Mushtaq Ahmed Janjuha Advocate the learned counsel for appellant while arguing the case has categorically pointed out that the appellant was never assigned the duty of Overseer of the construction of building of Middle School Seri Hill and MB allegedly prepared by the appellant is totally false and frivolous, which is proved from the evidence of the prosecution and the prosecution witnesses have categorically exonerated the appellant. Inspite of this, the trial Court has passed the impugned judgment against the appellant. The learned counsel, for appellant further argued that the impugned judgment is nullity in the eyes of law, which has been passed in contravention of section 367(2) of Cr.P.C. The learned trial Judge has passed the impugned judgment for all offences in lumpsum by sentencing the appellants as noted above. The learned counsel further added that in 10 offences narrated in the impugned judgment, one/common sentence has been passed which is totally illegal and does not come within the definition of judicial order. The learned counsel also argued that in the instant case other accused person Sardar Muhammad Iqbal has been acquitted on the basis of plea-bargain. The Ehtesal Court vide its order dated 30-3-2002 has acquitted one Muhammad Sarwar Contractor in (Reference No, 13/2001), whereas in (Reference No, 12/2001) appellant and 2 other accused persons Tariq Masood and Babar Ali Gillani have been acquitted for the reasons that the building under dispute has been completed according to the specification of the concerned department. The learned counsel further contended that there is no cross appeal/revision for enhancement of sentence of the appellant. The learned counsel referred certain portions of statements of some prosecution witnesses and contended that the prosecution has miserably failed to bring even an iota of evidence against the appellant to substantiate the allegations levelled against them, rather the version of the appellant is proved by P. Ws.
5. It was further contended that the concerned government servants SDO Tahir Hussain Shah and Sardar Muhammad Iqbal XEN who were the DDOs, one of those Sardar Muhammad Iqbal has been acquitted by the Ehtesab Court on plea-bargain vide its order dated 13-6-2003, whereas the SDO is still an absconder. The learned counsel pointed out that measurement Book (MB) alleged to be prepared by the Overseer is signed by the absconded accused, who was the responsible officer. It is further contended that the building of Boys Middle School Seri Hill has been completed. It was forcefully argued that the contract was not cancelled and the matter of advance payment was a routine matter which are always adjustable on the finalization of the project/bills.
9(sic.) The learned counsel while concluding his arguments, maintained that if there are two probabilities, one which is favourable to the accused has to be taken in consideration, and benefit, of each and every doubt has to be given to accused, because it is the golden principle of criminal jurisprudence. The learned, counsel referred the following case-law and prayed for acquittal of appellant by setting aside the impugned judgment:--
(1) 1991 PCr.LJ 2272
(2) Judgment of this court passed by honourable Chief Justice on 22-7-2004 in a writ petition filed by one of acquitted accused Sardar Muhammad Iqbal.
10. While controverting arguments advanced on behalf of counsel for appellant, the learned Deputy Chief Prosecutor (DCP) Zafar Iqbal has repudiated the arguments advanced on behalf of appellant and contended that the trial Court has passed the impugned order of conviction against the appellant in a lawful manner. It was contended by the learned DCP that the prosecution has proved their case to the hilt without shadow of any doubt and trial Court while exercising its powers and found the appellant guilty as defined under section 10(f) of Ehtesab Act 2001 and passed the conviction order under section 11 read with schedule 2 item 1 of Ehtesab Act. The learned DCP referred measurement book, allegedly a fake document prepared by the appellant Arshad Iqbal to give illegal benefit to contractor, which comes within the definition of corruption and corrupt practices and misuse of his powers.
12(sic.) We have gone through the record of the case scrutinized the evidence of the prosecution, as well as the statements of accused persons recorded under section 342, Cr.P.C. And documentary evidence placed on record.
13. From the perusal of operative part of the impugned order of conviction, it reveals that the trial court has passed a collective order of conviction in the offences under sections 468/467/409/471/109, A.P.C., 4-Official Misdemeanor Act 1948, 4-Ehtesab Commission Act 1997, 11- Ehtesab Bureau Act 2001, 2(5) Anti-Corruption Act 1950 and inflicted 3 years' RI along with Rs, 150,000 fine to the appellant which will run concurrently and in default of payment of fine the appellant has to undergo for 6 months' R.I. Too.
14. It is obvious that the learned Ehtesab Judge had passed the general sentences on the appellant under above sections of different laws, although separate charges had been framed against them .For each offence. Whereas, it was mandatory for the Ehtesab Court under law that when the accused persons were charged and convicted under various sections of Azad Penal Code, and other law, then separate sentence under each section had to be passed by the trial Court and its noncompliance violates the provisions of section 367, Cr.P.C. Which are mandatory in nature. The impugned judgment, conviction and sentences, therefore, cannot sustain on this count alone.
15. This view of our is fortified by 1991 PCr.LJ 2272 referred by the counsel for appellant. The section 367(2)(3), Cr.P.C. And relevant observations of the above case-law are reproduced hereunder:--
(a) Code of Criminal Procedure ' Section 367 (2)---It shall specify be offence (if any) of which and the section of the Pakistan Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced.
(3) When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which of two parts of the same section, of that Code, the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative."
(b) PCr.LJ 1991 2272 case titled Ali Muhammad and 5 others v. The State.
"Since after hearing the learned counsel for the parties, I feel persuaded to set aside the conviction and sentence of the petitioners on account of legal infirmities in the judgment, so I need not set out the facts in detail and enter into the merits of the case. I find that although the petitioners were charged and convicted under as many as four sections of Pakistan Penal Code, yet no separate sentence under each section was passed by the trial Court. This being violative of the mandatory provisions of section 367(2) (3), Cr.P.C., conviction and sentence of the petitioners cannot sustain.
16. The learned DCPs have referred certain portions of statements of P.Ws., and we have gone through the impugned judgment. The trial Court had itself entertained some doubts and opined that the completion of project has become possible due to the fear of Ehtesab Bureau; hence it is admitted that the project is completed without cancellation of contract, then the commission of offences is heavily doubtful. In such eventuality the benefit of doubt had to be resolved in favour of accused/appellants, because the Court while deciding a criminal case has to consider the evidence of prosecution keeping in view the evidence brought on record if reliable to award or sustain the punishment and if any doubt is created in the mind of the Court, benefit of the same has to be given to the accused.
17. So when the Ehtesab Court had itself entertained a doubt, it had no legal justification to inflict the penal sentence and the convict-appellant had a right to the "benefit of doubt". We are also of the opinion that learned Judge Ehtesab Court has misconstrued the legal principles of evidence relating to criminal cases like proof beyond any shadow of doubt, reasonable doubt and on the other hand the preponderance of evidence in civil case. Here, we refer to one of the most celebrated judgment recorded by a former Chief Justice of the Supreme Court honourable Mr. Justice Raja Muhammad Khurshid Khan, reported as Aksar Ali and 2 others v. Fazal Karim and 11 others (1982 CLC 1309), who, while associating Mr. Justice Abdul Majeed Mallick, another Judge of the apex Court, observed in para 11 of the report as under:-- "11. The ordinary classical requirement of adverse possession is that it must be adequate in continuity and in extent to show that it is a possession adverse to the competitors. A wrong notion, it appears, is entertained by the subordinate courts that the quantum of proof in the civil cases is as much strict as is required in criminal cases. In fact it is-not so. In civil cases only preponderance of probability is sufficient to record a finding in favour of the parties, while in criminal cases the offence must be established beyond reasonable doubts. It, therefore, follows that in civil cases the Courts have to see cumulative effect of all the material placed on record and if such material creates the preponderance of probability in favour of a party, that party must win the case."
18. Similarly in the case reported as Ghulam Muhammad and another v. Muhammad Ashraf and 2 others [PLD 1981 SC(AJ&K) 118], it was held in para 6 as under:- "6. In the first instance it seems proper to know the standard of proof in criminal and civil cases.
The rules of evidence for civil and criminal cases are, in general, identical, but some provisions in the Evidence Act are peculiar to criminal cases and others peculiar to civil cases. Thus, whereas in a civil case a mere preponderance of probability is a sufficient basis of decision, in a criminal case persuasion of guilt must amount to "such a moral certainty as convinces the minds of the Tribunal beyond all reasonable doubts." In a criminal case before a person can be convicted the Court has to satisfy itself that there is no possibility of his innocence. Where, therefore, there is no such moral certainty, and there is reasonable doubt as to the guilt of the accused, the benefit of doubt is to go to the accused. This means that the greatest possible care should be taken by the Court in convicting an accused. Unlike criminal cases, in a civil case all that is necessary to insist upon, is that the proof adduced in support of a fact is such that should make a prudent man to act upon the supposition that it exists and it cannot be said that the benefit to every reasonable doubt must necessary be given to the defendant. Queen v. Madhub Chander Giri Mohunt (i) is to the same effect. It has been observed in this case:- "In ordinary civil cases, a Judge of fact must find for the party in whose favour there is a preponderance of proof although the evidence be not entirely free from doubt. In criminal cases no weight of preponderance evidence is sufficient, short of that which excludes all reasonable doubt. The party accused is entitled to the benefit of the legal presumption in favour of innocence and in doubtful cases that may suffice to turn the scale in his favour."
19. In the light of above stated reason, it is concluded that the prosecution has failed to prove the charge against the appellant, hence the appeal is accepted, the conviction and sentence of the appellant is set aside for want of proof.
' Hence appellant stands acquitted.