Sardar Muhammad Sarfraz Dogar, J:- Khalid Rafi and Shahid Hameed (appellants) along with Hamid Hameed, Muhammad Yaseen Chughtai and Muhammad Amjad were tried by the learned Special Judge Anti-Corruption Sargodha in case FIR No.28, dated 24.4.2000 under Sections 42, 468, 471, 409 of the Pakistan Penal Code 1860 read with Section 5(2) of Prevention of Corruption Act, 1947 registered at Police Station A.C.E. Sargodha on the complaint of Rana Ittefaq (PW-1). At the conclusion of the trial vide judgment dated 05.6.2008 the appellants Shahid Hameed and Khalid Rafi were convicted and sentenced as under:- "Under Section 5(2) of Prevention of Corruption Act 1947 appellants were sentenced to ay fine of Rs.2,00,000/- (rupees two lacs) each, in default of payment of which they will further undergo six months S.I."
It was further ordered by the learned trial Court that on realization of fine, Rs.1,50,000/- from each accused be transferred to the account of Municipal corporation Sargodha under Section 545 Cr.P.C. For purchase of street lights as compensation for loss for quality of goods provided by Malik and Malik Corporation. Other co-accused Hamid Hameed, Muhammad Yaseen Chughtai and Muhammad Amjad were acquitted of the charge given benefit of doubt. Khalid Rafi and Shahid Hameed (convicts) have lodged the instant criminal appeal against their convictions and sentences.
2. Epitome of the prosecution case as divulged through complaint (Exh.PA) initiated by Rana Ittefaq Khan against Hamid Hameed, the then Mayor Municipal Corporation Sargodha along with three others, the Municipal Corporation Sargodha, had invited quotations for the provision of street lights but subsequently, through another advertisement, date for filing of quotations was shortened to 24.4.1999 from 24.5.1999. It is further contended that Khalid Rafi (appellant) the then Deputy mayor, Municipal Corporation Sargodha, got contract awarded to a new firm of his real brother, Shahid Hameed accused, namely Malik and Malik and a fictitious deposit at call was mentioned through their credit and contract was awarded to such firm as well initial demand of 100 street lights was enhanced to 1000 street lights. It is also contended that sub-standard equipment was procured through such contract which were purchased at rates higher than market price.
3. During the course of investigation, appellants along with their co-accused were found guilty and challaned under section 173 Cr.P.C. Who were formally charge sheeted to which they pleaded not guilty and claimed to be tried.
4. Prosecution has produced as many as 15 witnesses. Complainant himself entered appearance as PW-1 and examined Muhammad Jamil (PW-2), Ejaz Ahmed (PW-3), Sh.Muhammad Naseem (PW-4), Syed Nusrat Ali Light Inspector (PW-5), Ehtsham ul Haq (PW-6) and Ghulam Murtaza (PW- 7). The said witnesses furnished ocular account. Ghulam Abbas D.D. (T) ACE entered in the witness box as (PW-9), Ejaz Hussain CO/ACE (PW-10), Ahmed Nawaz AD(I) (PW-11), Liaqat Ali CO/ACE (PW- 12), Aasim Iftikhar CO/ACE (PW-13), Amjad Ali Manager HBL (PW-14) and Khizar Hayat (PW-15).
5. At the conclusion of the prosecution evidence, learned trail Court recorded the statements under section 342, Cr.P.C. Of the appellants and the acquitted respondents whereby they denied each and every piece of prosecution evidence while pleading their innocence and contended that they have been falsely implicated in this case with malice. Appellants and acquitted respondents also produced defence evidence.
6. I have heard the learned counsel for the appellants as well as well as the learned DDPP for the State and carefully gone through the record.
7. Perusal of record transpires that the prosecution case against the appellants is that Khalid Rafi appellant being Deputy Mayor has awarded the tender to his brother's firm working with the name and style of Malik and Malik Company for supply of street lights. Khalid Rafi is partner in the said company. The said company provided substandard street lights, hence, this case was registered.
Perusal of record reveals that Khalid Rafi while appearing as DW-3 has categorically deposed that he had no administrative or financial powers under the law or conferred by the House. There were five Deputy Mayors and he had not presided over any of the sessions of the House authorizing purchase of street lights. He was not joined in the investigation. Further added that Malik and Malik Company has also been executing other work of Municipal Corporation Sargodha prior to the disputed work. His brother has not signed any document with regard to purchase of street lights.
While facing cross-examination, he denied that Shan Associates and MAB had submitted quotations for supply of street lights. He also denied that he influenced the Mayor to get contract awarded to his brother's firm.
8. As per account opening sheet (Exh.PG), the bank account opened with Habib Bank Limited Sargodha in the name of Malik and Malik Company reflects that Shahid Hameed is the only proprietor of the firm. Hamid Hameed Mayor acquitted co-accused while appearing as DW-2 has produced copies of repopulations of the House and stated before the Court that he made all purchases with the approval of House. He further added that if any resolution of the House was passed in contravention of Rules, efficacious remedy was available by access to the competent officer under the Punjab Local Government Ordinance 1979 rather to initiate criminal proceedings.
He further deposed that it was the Engineering Branch of the Municipal Corporation, which made demand of street lights as well processed all the steps necessary for calling tenders and got approval from the House.
9. Record further reflects that as per first tender 100 lights of Phillips and Hitachi were to be purchased, thereafter, a corrigendum was issued for correction of name of manufacturer wherein last date for submission of tenders was fixed as 24.5.1999 and security of Rs.5000/- was demanded through deposit a call. Hamid Hameed Mayor has denied that the House has sanctioned to purchase only 100 lights and he changed the demand from 100 to 1200 without authority. Hamid Hameed Mayor deposed that the street lights were provided by the company as per specification and approved by the House. Syed Nusrat Ali Light Inspector (PW-5) was declared hostile and cross-examined by the prosecution. While facing cross-examination, he denied that he was handed over tenders of Shan Associates and Malik and Malik by Deputy Mayor or he was asked for preparation of comparative statements as per such quotations. It is also on the record that complainant (PW-1) while facing cross-examination has admitted that Khalid Rafi Deputy Mayor got registered a case against him on behalf of Malik Manzoor Ahmed Sanitary Inspector. Mian Muhammad Jamil (PW-2) the then councilor has expressed his ignorance regarding resolution No.36 dated 06.9.1999 adopted by the House for purchase of 1200 street lights against a sum of rupees one million. He also expressed his ignorance if Resident Auditor in the Corporation pre- audited the bills in dispute. He further admitted that he neither raised any objection in writing in any meeting of the House nor made any application to the Commissioner Sargodha. He conceded that at the start of inquiry there were two groups in the Municipal Corporation, one headed by Abdul Hameed father of Hamid Hameed and the other by Anwar Khursheed. He further admitted that there is political rivalry between him and Hamid Hameed and he has also made a statemnet in Ehtsab Court against Abdul Hameed. Ejaz Ahmed (PW-3) while facing the cross-examination deposed that all the facts are in the knowledge of his assistant and he is unable to tell whether the matter was supplied as per quotations and work order. Muhammad Naseem (PW-4) while facing cross-examination deposed that he has not made the statement (Exh.DA). Nusrat Ali Shah (PW-5) deposed in his cross-examination that after quotations and supply of material entire House has passed all the proceedings and purchases. Further deposed that his colleague Mazhar Abbas Shah has received the entire purchased articles but he never made any explanation to any quarter about quality and quantity of purchased material. He further deposed that tenders were opened in the presence of committee constituted for the purpose including Head Clerk of the Municipal Corporation Sargodha. He further conceded that sample of street lights set was demanded by Engineering Branch from Malik and Malik and after examining the same, he only objected to the Patti to be attached with holder for fixation of rod as it was not up to the mark, and the same was replaced by the contractor and then it was approved. It is also conceded by him that after approval from the House and expiry of one month and 16 days Municipal Engineer issued work order on 10.6.1999 after due verification. He further conceded that payment was made to Malik and Malik Company after due verification by him as well as by the Municipal Engineer. He further deposed that rate of Rs.810/- per street light given by Malik and Malik Corporation was lowest and there was a guarantee of five years of such lights and their components and they only had complained about some choke prepared by Hero Company, which was replaced by said company.
10. In the given state of affairs, it is crystal clear that the work done by the Malik and Malik Company was under the approval of the House. There is no allegation of corruption or bribe against the appellants. Admittedly, Khalid Rafi was Deputy Mayor at the relevant time and there are four other Deputy Mayors of the House, therefore, there is no chance of his influence upon Mayor. There exists political rivalry between the prosecution witnesses and the accused. The prosecution has miserably failed to produce any reliable evidence and to prove any criminal misconduct on the part of the appellants through reliable, confidence inspiring and independent evidence. There are material contradictions and discrepancies in the prosecution evidence to prove the charge against the appellants. There is nothing on record with regard to the commission alleged crime against the appellants as well and the impugned judgment passed by the learned trial Court, awarding conviction and sentence to the appellants, is passed on wrong premises of law and facts and based on misreading and non-reading of evidence.
11. As regards vicarious liability, suffice to say that prosecution has not been able to bring any evidence on the record in order to establish the same. In the absence of any cogent evidence on this dimension, the plea of vicarious liability raised by the prosecution appellants is not proved. It is an established principle of criminal law that prosecution remains under heavy burden to prove the charge beyond any shadow of doubt. In the instant case, the prosecution has failed to bring the guilt home to the appellants beyond any shadow of doubt. For given the benefit of doubt, it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit as held in the case of iftikhar Hussain and others vs. The State (2004 SCM R 1185).
13. It is an established principle of law that the conviction cannot be based on untrustworthy testimonies of the prosecution witnesses. The learned trial Court has failed to correctly appreciate the prosecution evidence while convicting the appellants. Therefore, the convictions and sentences of the appellants cannot sustain being untenable and are liable to set aside. There is nothing on the record to establish that the prosecution has filed any appeal against acquitted co-accused.
14. For the above reasons, this appeal is allowed and conviction and sentence awarded to Khalid Rafi and Shahid Hameed appellants by the learned trial Court vide judgment dated 05.6.2008 is set aside and they are acquitted of the charge given benefit of doubt.