Attaullah, accused-appellant along with his co-accused Raja Saran stood their trial before the learned Judge Anti-Corruption (Provincial) N.-W.F.P., Peshawar on a charge under section 409, P.P.C. Read with section 5(2), Prevention of Corruption Act, 1947 vide F.I.R. No.29, dated 26-10-1978 and the learned trial Judge after recording evidence in the case found both the appellants guilty of the charge, vide judgment, dated 13-12-1982, convicted and sentenced them to one year R.I. Each and also to pay a fine of Rs.22,000 (in equal share) or in default thereof to undergo further R.I. For 6 months.
2. Feeling aggrieved with the order of the learned trial Judge both the accused filed separate Criminal Appeal No. 199 of 1982 and 198 of 1982 before this Court respectively. I would like to dispose of both the appeals by this single judgment as both the appeals have arisen out of the same judgment of the learned Judge Anti-Corruption Peshawar.
3. The facts giving rise to the present appeals, briefly stated, are that Lal Akbar Circle Officer Anti- Corruption Establishment Peshawar (PW5) on the receipt of reliable information that the technical staff of District Council, Peshawar had misappropriated funds in the construction of Budho-Pakha- Ghulam Road, arranged for a raid to be conducted by a Magistrate. On his application Abdul Qayyum Tehsildar (P.W.3) was deputed by S.D.M. Peshawar to supervise the raid. 'Inayatullah, Assistant Technical Officer of A.C.E., Peshawar (P.W.4) inspected the spot under the supervision of the Raiding Magistrate, Circle Officer Anti-Corruption Establishment, and in the presence of Attaullah accused Sub-Engineer. Inayatullah (P.W.4) after taking his measurements compared the same with the Measurement Books maintained by the accused and prepared his detailed report (Exh. P.W.4/1). The raiding Magistrate (P.W.3) also prepared his raid report (Exh.P.W.3/2) and handed over the same to the Investigating Officer (P.W.5). The 1.0. (P.W.5) after the receipt of the raid report registered the present case vide F.I.R. Exh.P.W.5/1. On completion of the investigation in the case the I.O. Submitted complete challan of the case in the Court of Special Judge Anti-Corruption, Peshawar. The learned Judge Anti-Corruption, Peshawar after recording evidence found the accused-appellants guilty of the charge convicted and sentenced them as mentioned in the earlier para. Of this judgment.
4. I have heard the learned counsel for the appellants and the State and have also gone through the record of the case. The prosecution has examined in all five witnesses against the appellants.
The report of the Technical Officer was also taken into consideration against the appellants by the learned trial Judge. But none of the witnesses has been able to prove the contents of the report submitted by the Technical Officer. According to P.W.3 Abdul Qayum, Raiding Magistrate, he admitted in his cross-examination that the Technical Officer of the Anti-Corruption Establishment did not complete his inspection of the road and left the work in the middle as it was quite late. But the Technical Officer in his report did not mention this fact that the inspection was continued on the second day also. P.W. Abdul Qayum in his cross-examination also deposed that he was told by the Assistant Technical Officer that the road is short of 400 feet. But in the report of the Technical Officer the road in question is short of 405 Rft. This P.W. Also admitted that he did not mention about the digging of the road on the spot in his raid report, but in the report of the Technical Officer he has stated that 4 trenches were dug out in presence of the Raiding Magistrate. P.W.4 Inayatullah, Technical officer in his statement before the Court admitted that on the second day he took measurement of the retaining wall of the said road in presence of Lal Akbar Inspector A.C.E.
And Shah Dad Khan, Sub-Inspector. But the I.O. (P.W.5) in his statement stated that on the next day he along with Technical Officer measured the retaining wall of the road. Thus, there is nothing in his statement about the presence of Shah Dad Khan Sub-Inspector. As such, I am of the view that the ocular testimony of all the P.Ws., including P.W.3 and P.W.4 without properly proving the contents of the report submitted by P.W.4 through the evidence on record, would not be sufficient for recording conviction on the appellants. Furthermore, the Technical Officer (P.W.4) has also admitted in his cross-examination that the inspection notes prepared by him in the presence of the Magistrate, who was supervising the raid, have since been destroyed by him. The relevant portion of his cross- examination is reproduced here, which, is as follows:--- "It is correct that I had taken notes of the spot inspection, but now these are not available with me. I had destroyed the same after making my report."
If this was the position even then conviction of the appellants should not have been. Legally recorded. There are numerous authorities on this point that a report submitted by any officer is not per se evidence in the case. It is only when the same is verified by the said Officer by a statement on oath that it becomes evidence. Reference can conveniently be made to a case reported in Shib Singh v . Sridhar and others AIR 1953 All. 371 wherein it has been observed that:--- "Section 539-B permits a Presiding Officer to make a local inspection but if a Commissioner is deputed to go to the disputed place and to make an inspection he should appear in the witness- box to make the statement on oath and should subject himself to cross-examination. The report submitted by him is not per se evidence in the case. It is only when it is verified by the Commissioner by a statement on oath that it becomes evidence."
5. As observed earlier the prosecution has miserably failed to prove the contents of the report Exh.P.W.4/1 through the statement of the officer who prepared recorded the same. No doubt the said officer was produced at the trial but he was duty bound to have made the contents of his report a part of his deposition by using it to fresh his memory as a medical witness does with a post-mortem report. In support of this view an authority reported in Vidyamati v. The State AIR 38 Him. Prad. 82 can be cited with advantage as under:--- "Evidence Act (1872), section 159--Post-mortem report-Use of---Criminal Procedure Code (1898), section 509.
It is the doctor's statement in Court, and not his post-mortem report, which is substantive evidence and the report can only be used by the Doctor under section 159, Evidence Act, for refereshing his memory while under examination, provided he had prepared it at the time of holding the post- mortem or so soon afterwards that the Court considers it likely that the facts noted at the post- mortem were still fresh in his mind."
There is yet another authority reported in Zamir Hussain and others v. The Crown PLD 1949 Lah. 179 wherein it has been laid down as under:---
(e) Criminal Procedure Code (V of 1898), section 510-Report of the Mint Master who was not produced as witness, is not evidence and conviction on the basis of this evidence is illegal.
According to section 510, Criminal Procedure Code, the report of Chemical Examiner or Assistant Chemical Examiner to the Government may be used as evidence in any inquiry or trial; but there is no such provision for report by any other officers of the Government."
As such, I hold that the prosecution has miserably failed to prove the contents of the report Exh.P.W.4/1 through the evidence on record, therefore, the very foundation on which the prosecution has tried to build up their case falls to the ground.
6. On the view of the matter that I take, I hold that the prosecution has failed to prove their case against both the appellants. I would, therefore, accept both these appeals, set aside the conviction and sentences of both the appellants and acquit them of the charge levelled against them. They are present in Court on bail and are allowed to go. Their bail bonds are hereby discharged.