' This judgment in Criminal Appeal No, 197/82 will also dispose of connected Criminal Appeal No, 201/82 as both the appeals arise out of the same judgment of the learned Sessions Judge/Special Judge, Anti-Corruption, N.-W. F. P., Peshawar, dated 9-12-1982.
2. Briefly stated the facts of the case are that while serving as S. D.
0. Irrigation Division, Swabi, appellant Shah Aii Naqi in the year 1978 by abusing his official position and in connivance with his co-accused, Mustafa Gul contractor, misappropriated Government amount to the tune of Rs, 20,955 by selling five Government trees standing in the, limits of Irrigation Rest House, Jalbai (Swabi) without any lawful authority that the cost of the said trees was Rs, 22,605 while these were sold by Shah Ali Naqi appellant for Rs, 1,500 only to the coaccused Mustafa Gul appellant on the basis of fictitious entries made in the record. A case was ultimately registered against the two appellants vide F. I, R. Exh. P. W. 5/1, under sections 409/468, P. P. C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
3. After recording the prosecution evidence, which consisted of the statements of Mir Sardar Khattak, Tehsildar, P. W. 1 ; Attaullah Khan, Sub-Inspector, Special Branch, Peshawar, P. W. 2 ; Afreen Khan, Forester, P. W. 3 ; Attaul Haq, Deputy Ranger, P. W. 4 ; and Abdul Jalil Khan D. S. P. Special Branch, Peshawar, P. W. 5, the trial Judge found both the appellants guilty of the offence under section 409, P. P. C. Read with section 5(2), Prevention of Corruption Act, 1947, and sentenced them to undergo R. I. For one year each and a fine of Rs, 20,955 (in equal share) or in default thereof further R. I. For six months, vide impugned judgment dated 9-12-1982. He, however, acquitted both the appellants of the second charge under section 468, P. P. C.
4. Dissatisfied with the impugned judgment both the appellants have preferred separate appeals against their conviction and sentences, which are disposed of by this single judgment, as already indicated above.
5. Learned counsel for appellant Shah Ali Naqi contended that the prosecution has totally failed to establish the case against the appellant beyond reasonable doubt ; that the prosecution witnesses have contradicted each other on material particulars ; that the appellant had performed his duties as required of him by the "Competent Authority" and the auction was sanctioned as well as approved by the Executive Engineer (Mr. Allah Bakhsh Baloch) as a Competent Authority, thus the appellant Shah All Naqi does not figure anywhere in the matter ; that this position has not been rebutted by the prosecution ; and that the motive for his false implication in the present case has not at all been considered by the trial Judge, which if considered, renders the evidence of P. W. 3 Afreen Khan Forester and P. W. 4, Attaul Haq, Deputy Ranger as interested evidence.
6. Learned counsel appearing for Mustafa Gul appellant argued that the appellant is not a public servant and, therefore, cannot be convicted either under section 409, P. P. C. Or under section 5(2) of the Prevention of Corruption Act, 1947, for misappropriation of any property ; that there is absolutely no evidence to the effect that the Government entrusted the appellant Mustafa Gul with dominion over any property, which is the essential ingredient of criminal breach of trust, for which the appellant has been convicted ; that the prosecution witnesses have deposed against the appellant because they are inimical towards him on account of differences due to long business dealings ; and that the appellant had paid sufficient amount for the trees sold to him and the said sale was approved by the competent authority of the Department.
7. I have also heard learned Additional Advocate-General appearing for the State and perused the record with their help. Let me remark at the earliest opportunity that the trial Judge has erred in not taking into consideration the evidence produced by the two appellants in their defence, and on the other hand he has relied only on the prosecution witnesses, who are proved to be inimical towards the appellants. Exh. D. X-1 is a certified copy of the plaint filed by Mustafa Gul appellant in the Court of Senior Civil Judge, Mardan against the Forest Department, which is sufficient to prove that the officials of the Forest Department were not on good terms with the appellant, rather they were inimically disposed against him. Besides this Exh. P. 5 is a statement showing details of the auction conducted in the case, which was duly sanctioned and approved by the XEN, Mr. Allah Bakhsh Khan Baluch, who was the "Competent Authority". As such, the appellan Shah Ali Naqi, who was the S. D.
0. Of the Department at the relevant time, cannot be blamed for any misappropriation.
8. A reference to Instructions for the Sale and Disposal of Government Property, contained in Irrigation Manual of Orders Chapter II, shows that there are three methods' open for the disposal of Government property, viz. (a) by private negotiation, (b) by auction, and (c) by calling for tenders.
In the case in hand, we are only concerned with clause (b) of section 2.52 of the above orders.
Further, under subsection (3), it is provided by clause (al of the same as under : "All sales by auction must be given wide publicity. Before announcing the auction a reserve price must be fixed by competent authority for the article or property to be sold, and.
(b) At an auction held by a Public Auctioneer a Canal Officer not below the rank of a Sub-Divisional, Officer should be present in order to receive deposits and issue receipts."
' It is an admitted position in the present case, that Mr. Allah Bakhsh Baluch, Executive Engineer, Irrigation was the "Competent Authority" and he has sanctioned as well as approved the auction proceedings contained in Exh. P. 5 placed on the record. It is established that Shah All Naqi, appellant, was the S. D. O. Who was present at the time of the auction of the trees in question. Over and above, it is also admitted that no "reserve price" was fixed for the trees sold by appellant Shah Ali Naqi to Mustafa Gul appellant, who was a contractor. Therefore, the prosecution has miserably failed to prove their contentions that the S. D. 0: appellant has contravened the instructions or rules framed with regard to the auction proceedings and ha sold the trees at a wrongful loss of Rs, 20,955. It is also very strang that though the name of Mr. Allah Bakhsh Baluch, XEN, appears in Column No, 2 of the Challan submitted in this case but late on his name was dropped from the said challan for no cogent and convincing reasons available on record. It is the case of the appellants that due publicity was given to the auction by S. D.
0. Shah Ali Naqi, as admitted by the defence witnesses, and thereafter the trees were sold for Rs, 1,500 being the highest bid offered by appellant Mustafa Gul. This auction, as already indicated earlier, was sanctioned and approved by Mr. Allah Bakhsh Baluch, Executive Engineer, Irrigation, as a competent authority. Shah. All Naqi appellant ha received the amount of sale proceedings, which Mustafa Gul appellant--had deposited on 3.7-1978 and 6-8-1978 vide Exh. P. 7 and Exh, P. 6 respectively. Therefore, in my Opinion the prosecution has failed to bring home the charge against the two appellants,The officer responsible for the whole drama has been set at liberty without any reasons and the departmental inquiry conducted against him has also ended in exoneration of Mr. Allah Bakhsh Baluch.
Therefore, the learned trial Judge was not legally justified in connecting both the appellants with the commission of the offence with which they stand charged. Habiban Rehman v. The State is an authority in this respect, which runs as under :- "Section 409.-Accused stating in defence that he had handed over to his superior money entrusted to him and producing in support of his plea receipts bearing genuine signatures of his superiors- Mere remissness in duty, if any, on part of accused would not make him an accomplice-Conviction set aside."
' The next authority which is applicable to the facts of the present case is reported in Aminul Islam v. The State , wherein the observations made are as follows :- "Prevention of Corruption Act (II of 194 7), section 5(1)(d)-Government servant-Criminal Misconduct-Mens rea-Section 5(0(d) never intended directly or indirectly or by any implication to dispense with element of mens rea or criminal intention in regard to an offence of criminal misconduct-Mere contravention of instructions or rules in absence of mens rea-Does not render a person criminally liable-Such contravention may provide basis for disciplinary action by authorities-Facts and circumstances not indicating that accused in ordering payments was actuated by any criminal intention-Mere fact that payment were made would not by itself bring accused within mischief of section-Charge against accused, held, not proved and accused entitled to be acquitted."
Both the appellants have stated in their statements recorded under section 342, Cr. P. C. That the prosecution witnesses are on inimical terms with them but the learned trial Judge has failed to keep in mind this aspect of the case at the time of recording conviction against them. In this respect it has been laid down in Muhammud Bashir v. The State as under :- "Penal Code (XLV of 1860), section 161 read with Prevention of Corruption Act (II of 1947)-Bribery- Existence of previous enmity or hostility between complainant and accused-As important in corruption cases as in any other criminal case-Enmity or hostility may constitute a motive for falsely involving accused for wreaking personal vengeance."
I have already stated in the preceding paragraph of this judgment that the trial Judge has failed to take into consideration the defence evidence produced by the two appellants and has only rebed on the prosecution witnesses, who are admittedly on inimical terms with the appellants. In such circumstances, the conviction has always been set aside by the superior Courts. If any authority is needed, reference can conveniently be made to Siddique Shah v. The State , which says:- "Criminal Procedure Code (V of 1898)-Section 367-Conviction for offence of stolen property (cow) set aside in revision--Counterversion of petitioner that cow was his property-Statements of P. Ws.
Not impressing-Appellate Court failing to discuss evidence on record and dealing with appeal in1 2 3 4 perfunctory manner-Defence evidence altogether ignored-Requirements of section 367 not kept in view while writing judgment-Benefit of doubt extended and acquittal ordered."
9. Admittedly, P. W. 3 Afrin Khan Forester and P. W. 4 Attaul Haq Deputy Ranger are on inimical terms with the two appellants because Mustafa Gul appellant had filed a suit against the Department and Shah Ali Naqi appellant had appeared as a witness for Mustafa Gul, which fact is also admitted by the prosecution writnesses in their statement on record. So the only independent witness in this case is Mir Sardar Khattak, Tehsildar,' P. W. 1, whose statement contradicts the statements of the two official witnesses, named above. The witness has clearly admitted in his cross-examination that one tree out of the five trees about which measurement was made under his supervision as a Raiding Officer, was hollow from inside. He also stated in the same cross- examination that "the sheesham tree stated above from its appearance and hollowness appeared to be a dead tree." On the other hand, appellant Mustafa Gul in his statement recorded under section 342, Cr. P. C. Has stated in clear words that "an auction was held of the five dead trees which were hollow from within and purchased for Rs, 1,650 being the highest bidder at the auction, out of these five dead trees I had sold two dead trees for RS. 600 to one Saleh Muhammad of village Yaqubi, who lives in Mera Jagganat. The auction price of the dead trees was quite just and normal according to the prevailing market rate." It is also in the statements of the two witnesses, Afrin and Attaul Haq, that they have made the measurement according to their own guess. So, in such a situation and keeping in view the contradictions in the statements of the prosecution witnesses who are inimical towards the two appellants, the learned trial Judge was not correct in basing conviction of the two appellants on such evidence.
10. In my opinion also, the price paid for the five trees, which according to the statement of the Raiding Officer, P. W. 1, where hollow from within and dead trees, was not abnormal and no question of wrongful loss to the Government or wrongful gain by the appellants arises. When confronted with the above position, the learned Additional Advocate-General could not rebut the same.
11 On the view of the matter that I take, I hold that the prosecution has miserably failed to connect the two appellants with the commission of the offences, with which they have been charged, and the learned Specia Judge has legally erred in convicting and sentencing them both. It is important to note that the trial Judge has himself recorded in paragraph 18 of the impugned judgment that "while convicting and sentencing the appellants, I have taken a lenient view because the main culprit i,e, Executive Engineer Irrigation (Mr. Allah Bakhsh.Khan Baluch) has not been challan by the Anti-Corruption Establishment". But I an sorry to remark tha in spite of the above observation, the trial Judge has convicted and senten the two appellants by completely ignoring the defence evidence produced b the two appellants, which he should have not.
12. The net result of the above discussion is that I accept both the appeals, set aside the conviction and sentences of the two appellants, Shah Al' Naqi and Mustafa Gul, and acquit them of the charges levelled against the They are on bail and are hereby discharged from the obligations of their bail-bonds. 1968 SCMR,968 1970 D L C 939 1972 P Cr. L J 83C PLD 1980 Lah. 320 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.