' This is an appeal against the order of Mr. Javed Nawaz Khan Gandapur, Special Judge Anti- Corruption, N.-W.F.P., Peshawar dated 28-6-1984 whereby he convicted Muhammad Bashir Shaheen, the appellant, an Ex-Overseer, Rural Works Programme, Mansehra, under section 5(2), Prevention of Corruption Act, 1947 and sentenced him to three years' R.I. In addition he was directed to pay fine of Rs,2,74,800 or in default thereof to undergo.Further R.I. For one year. The co-accused, superiors of the appellant namely, Ghulam Ali Shah and Shakirullah, Ex-District Engineers, were however acquitted by the same order.
2. The facts of the prosecution case, as is evident from the record,are that Muhammad Zaman Khan (P.W. 5) Circle Officer, A.C.E,at the relevant time was investigating case No,15 dated 13- -1976 under section 5(2), Prevention of Corruption Act, 1947. When h reached Shinkiari there some notables informed him that a bridge or the pedestrians connecting Shinkiari and Tanda villages, had been w shed away because of its poor construction and that the piers under t e bridge had been erected by the local people on self-help basis whil the bridge over it was constructed by Rural Works Programme Officers namely the District Engineers and Sub-Engineer Muhammad Bashir Shah en. They however, did not care to re-enforce the piers, while it was their duty to do so. .
And because of it, the bridge fell down and thus Government was subjected to great loss. Malik Mahboob Elahi, the then technical Officer, who accompanied the Circle Officer, carried out technical examination of the bridge and informed that because of the incompetence of the Engineers, the bridge gave away, as the piers of the bridge had not been raised from scour depth though it was their duty to have examined the spot and made proper investigation before constructing the bridge. Their failure to do so. Has resulted in considerable loss to the Government.
3. Muhammad Zaman Khan, thereafter, submitted an application Exh.P.W.5/2 to the District Magistrate with a request that a Magistrate be deputed to supervise the raid proceedings.
Muhammad Salim Khan Jadoon M.I.C. Mansehra, since dead, was deputed to supervise the raid. He complied with the directions of the District Magistrate and in result of the raid, drafted his report Exh.P.W.5/3 in substance that while constructing the bridge, it was not noted if the piers had been raised from the required depth or not and would bear the weight of the bridge.
4. The I.O. Took into possession the record of the officer of the Engineers concerned, which was checked by the Auditor namely, Lal Badshah whose report is Exh.P.W1/1.
5. On completion of the investigation, charge-sheet was put in Court.The accused were supplied with the copies of the documents as provided under section 241-A, Cr.P.C. Formal charge-sheet against the accused was framed to the effect that with their connivance and collaboration they have caused wrongful loss of Rs,1,37,400 to the Provincial Government by using substandard and below specification material, as a result whereof the bridge collapsed soon after its construction.
6. The accused having claimed trial, therefore, in order to establish its case, the prosecution got examined the following witnesses:- ' Lal Badshah (P.W.1), who was posted as Auditor A.C.E, Peshawar, on the request of Muhammad Zaman Khan, the I.O. Had checked the measurement book and running bills and prepared report Exh.P.W.1/1. According to his report, an advance payment of Rs,6,000 was made to the Contractor in the 6th and 7th running bills by the appellant, Muhammad Bashir Shaheen. Overseer and Shakiruilah S.D.O., giving undue aid to him (the contractor).
' P.W.2 Abdur Rashid Overseer is one of the marginal witnesses of recovery memo. Exh.P.W.2/1 vide which Muhammad Zaman Khan took into his possession file of Pedestrian bridge' Shinkiari Exh.P.1, M.Bs. No,33, 38 (Exhs.P.2 to P.4), and tender register Exh.P.5.
' Malik Mahboob Elahi (P.W. 3) was at the relevant time Technical Officer, A.C.E, Peshawar. He in the company of Muhammad Zaman Khan inspected the bridge in question. According to him he took measurements of the bridge and prepared his report on his own inspection as well as record mentioned in Exh.P.W.3/1. According to his report, the piers of the bridge were raised on the old foundation built by the Project Committee. He had made it clear that as a matter of fact the foundation of the bridge was shallow and the same should have been kept for the scour depth. In his cross-examination he categorically stated that the construction of the bridge was carried out over the already existing piers. To make it further clear, he deposed that it was in the estimate that the construction should be erected on the existing piers. He testified that the report Exh.P.X./1 (page 41) of the report was written by the Deputy Director Technical which he appended with his report Exh.P.W.3/2.
' All Akbar (P.W. 4) was posted as constable. He performed the duties of photographer. He took the snaps Exh.P.W.4/1 of the bridge in question.
' Muhammad Zaman as already stated was Circle Officer A.C.E. At the relevant time who recorded the report and conducted investigation.
7. All the accused including the appellant when examined under section 342, Cr.P.C. Denied the allegations and professed innocence. The accused-appellant in his statement alleged that "the piers (Pillars) were constructed by the Project Committee during the year 1967. The rest of the bridge,, i,e, slabing etc. Was done by them which was supervised by the locals, including the Imam Masjid as well as Project Committee besides the District Engineer. The amount of Rs,1,37,400 was sanctioned by the Government for laying the abutments, slabs and retaining wall (excluding the piers'). Earlier to a question put to him the pedestrian bridge collapsed and washed away by the Sirin, during his tenure, because substandard material had been used in the construction of the bridge, he replied that "in the year 1976 when he as Overseer Incharge, heavy floods came in the river Sirin and a boulder hit one of the piers (out of 7 piers) and the pillar collapsed with the result that the slabs on a portion of the bridge also collapsed and fell into the river where they were still lying. The material used in the slabs and rest of the construction of the bridge was upto the mark".
8. The learned trial Court believed the prosecution case as far as it pertained to the appellant and convicted him as described earlier, out finding the case doubtful against the remaining co- accused, ordered heir acquittal.
9. I heard the arguments advanced by the learned counsel for the parties and also went through the record with their assistance.
10. The learned counsel for the appellant raised legal as well as factual objections to the effect that the impugned order was not tenable as the appellant during the period in question was a subordinate official and could not be called upon to account for the misconduct or lapses f others (if at all there was any such misconduct is that on the basis of same evidence, the two co-accused were acquitted while he alone was convicted; that in the circumstances he was also entitled to the equal treatment; that the piers of the pedestrian bridge were constructed in the year 1967 by the Project Committee, supervised by the then District Engineer and the said Committee: that the sanction being for construction of the bridge on the pillars already in existence, and the said pillars having given way on account of high floods, therefore, the damage to the bridge was but natural and he could not be held guilty for any omission or commission.
11. On the other hand, the learned counsel for the State, supported the judgment of the trial Court and it was argued that the conviction of the appellant was well-founded on the evidence.
12. It is clear from the perusal of the F.I.R. Exh.P.W.5/1 that the appellant and the acquitted co- accused were charged under section 5(2), Prevention of Corruption Act, 1947, for having failed in their duty to technically examine if the pillars already in existence were strong enough to carry the load of the bridge proposed to be constructed. However, instead they were charged for having used substandard and below specification material in the construction of the bridge which resulted in its collapse. Clearly the formal charge is not inconformity with the allegations against the accused. It appears that the learned trial Court was not sure of the accusations against the accused, as no evidence was examined to show that substandard and below specification material was used in the construction of the bridge which resulted in its collapse. On the other hand, it the case of the prosecution as appears from the F.I.R. That he failed in his duty to point it out that the pillars, already in existence, would not be able to support the load of the bridge.
13. It would not escape attention that the charge of causing loss to the Government will not fall within the mischief of any clause of provision of section 5 of the Prevention of Corruption Act, 1947.
To make it further clear, a public servant is only said to commit the offence of criminal misconduct if it is covered by any of the subsections of section 5, which read as below:-
(a) if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for an other person, any gratification (other than legal remuneration as a motive or reward such as is mentioned in section 161 of the Pakistan Penal Code, or
(b) if he accepts or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been on to be, or to be likely to be concerned in any proceeding or business, transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(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 person to do so, or
(d) if he, by corrupt or illegal means,. Or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or ...
' The case against the appellant as stated evidently does not fall within the purview of any one of the sub-clauses of section 5, reproduced above.
14. Factually too, the case of prosecution stands on shaky foundation. As far as the charge is concerned, there is no allegation in the F.I.R. Or even evidence that substandard and below specification material was used and in consequence thereof, the bridge in question collapsed. On the other hand, it appears from the evidence brought on the file that the bridge was constructed on old foundation, built much earlier and as the said foundation was shallow, therefore, it gave way under pressure of load of the bridge or flood.
15. The main question would be if the appellant could be held responsible for the construction of weak or faulty pillars. The reply to my understanding, would be in the negative for more than one reason. Firstly, the appellant was never charged for his failure to have checked the pillars on which the construction was being made, secondly, there is no evidence that he was associated with the construction of the said pillars and thirdly there is no material on the record that he had been directed to examine the said pillars if they could stand the load of the bridge proposed to be constructed over it. It is clear from perusal of Exh.P.X. /1, copy of the report of Deputy Director Technical, who too had inspected the bridge that pier No,3 from Shinkiari side had completely failed while pillar No,4 had titled and was likely to be further damaged, had resulted in the collapse of two spans of the bridge. The said report of Mr.Rauful Hassan, a qualified Engineer has been duly proved by Malik Mehboob Elahi. It has been, therefore, unnecessarily kept out of consideration by the learned trial Court. It proves beyond doubt that partial collapse of the bridge in question is the direct result of failure of piers to bear the load of the bridge.
16. Furthermore there seems substance in the argument of the learned counsel for the appellant that the three accused having been charged for identical misconduct and identical evidence having been led to connect all of them with the commission of the offence therefore, the learned trial Court could either convict or acquit all the accused. The benefit of doubt having been extended to two of them, therefore, there was no cogent reason for treating the case of appellant differently.
17. The appellant at the relevant time was an Overseer while the two co-accused, his superiors were responsible for the proper maintenance of all works in their charge and for the preparation of the projects, designs and estimates, whether. For new works or repairs. It was also part of their duties to organize and supervise the execution of works and to see that they were suitably and economically carried out, with materials of good quality (Buildings and Roads Department Code, First Edition Chapter I, rule 1.58). Rule 4.5 further makes it obligatory on Sub-Divisional Officers to make all measurements themselves. In other words, it was not only the duty of the Overseer but equally that of his superiors to see it that the works are properly carried out. The Overseer alone could not be held responsible for the shortcomings if any, discovered subsequently.
18. In result of the discussion, the appeal is accepted and the impugned order set aside. The appellant is acquitted and if not required in connection with any other matter be set at liberty forthwith.