' The appellant, Khushal Khan son of Sumandar Khan, Administrative Officer, Estate Officer, T & T Haripur, was tried by Special Judge (Federal), Anti-Corruption, N.-W.F.P., Peshawar ankle was convicted under section 409, Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. He was sentenced to suffer 7 years' R.I. Plus a fine of Rs,30,000 or in default undergo further 2 years' R.I. By the order of the aforesaid Special Judge, dated 30-8-1989. The appellant has challenged his conviction and sentence by filing this appeal.
2. The case of the prosecution, in brief, is that the appellant, in the year 1978, while posted as Administrative Officer, Estate Office T&T, Haripur, arranged and held auction either in June or July, 1978 in respect of grass spread over an area of fifteen plots, belonging to T&T, deposited Rs,2,400, representing 1/4th of auction amount, in Account Office, and misappropriated Rs,11,955 the balance of auction money, thereby committed an offence under section 409, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947.
3. In order to establish its case against the appellant, the prosecution, has, in the main, placed its reliance on the depositions furnished by Haider Zaman P.W., Deputy Commercial Manager, T.I.P.
Muhammad Ashraf Sharaf, P.W.2, Assistant Engineer, Muhammad Salim, P.W.5 Assistant Chief Engineer and Farid Muhammad, P.W.10, Auditor, T.I.P., Haripur. Of them, the last-mentioned witness, being the Auditor, was expected in Court to produce the Rules and Regulations, regarding auction of property of T&T, to show which officer was authorised to conduct auction and to receive auction money as also to deposit such money, if realized, under what head and in which particular office.
He was also expected to place on record a list of bidders, items of payment of 1/4th made by each bidder in respect of each plot alleged to have been sold. Significantly enough, in his report, the witness in hand has observed that although eleven grass plots were auctioned in July, 1978, nevertheless details in respect of each plot and the amount so realized are not available and, in the absence of names of highest bidders and amounts paid by them on foot of comparative statements of grass plots, the correctness of the amount, to wit Rs,2,400, thus for credited cannot be ascertained. Not stopping short at that, he has further remarked that the Estate Office be asked to furnish the details showing the names of persons to whom the grass plots were auctioned and amount of each grass plot realized. However these items for lack of proper record cannot be ascertained. He has not hinted which officer of Estate Office is authorized to hold auction, realize money, deposit the same under what head and in which particular office. Thus neither the report P.W.10/1 prepared by him nor his deposition in Court throws any light on the salient and vital points as to when auction was held and by whom and under what authority, who were the bidders, how much earnest and balance amount was paid subsequently. This being so, he cannot fasten the guilt on appellant on mere assumption.
4. The same infirmity afflicts the deposition of three inquiry officers, Haider Zaman, Muhammad Ashraf Sharaf and Muhammad Salim, P.Ws. Named above. While giving his statement, Haider Zaman has asserted that in the year 1978, Sajjad Akbar was the Executive Officer of T.I.P. And he had deputed his Assistant Administrative Officer, Khushal Khan, the appellant to auction the grass in various plots of the Colony, that one, fourth of the auction money was required to be deposited by auction-purchaser and on that account a sum of Rs,2,400 was in fact credited and the grass was sold for about Rs,14,000, but the balance of Rs,11,000 was not deposited in Account Office by the appellant. In cross-examination, he makes it bold to suggest that he had not seen any writing to the effect that the appellant was deputed by the then Executive Officer to manage and conduct the auction nor did he know the actual person who received the auction amount because of his absence at the time of auction. He has not named the bidders nor stated how much one-fourth amount and how much balance was subsequently paid by each of them. Whom he had examined during inquiry are also not mentioned by him. The only person who could furnish best information on the subject, in its entirety, was Sajjad Akbar, the then Executive Officer but for the reasons, best known to the prosecution and all Inquiry Officers, he was not examined at all. It is not known if the persons he had examined were in fact the bidders and who had issued the receipts relied upon and whether those receipts purport to have been signed by the 'appellant. There is no clear, cogent and convincing evidence in regard to either of these elements. The evidence of this witness toes not lead to an inference that auction was held by the appellant or he had received any amount from any bidder. He is simply drawing upon his own imagination while holding the appellant guilty in his report which is not backed by any tangible material.
5. The evidence of Muhammad Ashraf Sharaf is none-less-better, for, he has based his opinion against the appellant as Inquiry Officer mainly on photostat copies Exh.P.W.2/1, Exh.P.W.2/2, Exh.P.W.2/6 purporting to have been signed by him and issued-to auction-purchaser. In the first place, photostat copies are not admissible under section 63 of the Evidence Act. In the next place,.
Receipt Exh.P.W.2/2 relates to auction of fire wood and not grass while receipt Exh.P.W.2/3 relates to Rs,2,450 and Rs,1,125 paid as 1/4th of auction by Fakhare-Zaman in respect of auction of two plots in 1978 and receipts No,Exh.P.W.2/4 and Exh.P.W.2/5 pertain to auction held in 1979. However, receipt Exh.P.W.2/6 refers to Rs,400 representing payment of 1/4th of auction money by one Taj. Another receipt Exh.P.W.2/1 for Rs,100 was issued to M. Mushtaq for payment of 1/4th of auction amount. All those receipts are issued in the name of Sajjad Akbar and were not referred to Handwriting Expert if these were signed by him or on his behalf by any other official, including the appellant. The persons named in the receipts were not examined by the Inquiry Officers about authorship thereof. Only those persons were examined to whom no receipts were issued. Unfortunately the persons examined during trial or inquiry as bidders have not produced original receipts, nor have the bidders, to whom receipts were issued, been produced in Court to testify to the fact whom they paid the money, whether they cleared the balance or who issued the receipts to them. This aspect of the case gives a fatal stroke to the case set up by the prosecution as also to the assertion of the witness in hand that auction-purchasers directly paid money to appellant, especially such persons to whom above receipts were issued, had not been produced in Court in confirmation thereof. His report P.1/4 is not relevant for holding the appellant responsible for issuing the receipts referred to above, moreso when these were not put to him under section 342, Cr.P.C. The same considerations apply to the inquiry report Exh.P.W.4/1 prepared by Muhammad Salim P.W.S. This witness has also taken into account receipts Exh.P.W.2/2 which in fact relates to firewood as also receipts Exh.P.W.2/4 and Exh.P.W.2/5 pertaining to sale of grass in 1979. His report is based on material not relevant to the case in hand. It is not established from his report if the persons examined by him were in fact bidders, at the auction held in the year, 1978 or that the appellant was either himself competent to hold auction or had received authority from some other higher officer for the purpose. In the absence of precise evidence, it cannot be held with legal certitude that appellant held the auction, or he received the amount, whether by way of earnest money or balance of auction amount, or that he was responsible for issuing the receipts and that the receipts relied upon were in fact signed by him. Thus each inquiry report is riddled with manifold inherent defects and cannot serve to corroborate the other on the principle that one tainted piece of evidence cannot support the other tainted evidence. I feel no hesitation in discarding the inquiry reports.
6. Notwithstanding the above, the learned Deputy Attorney-General has vehemently urged that Yaqoob P.W.7, Jehandad P.W. 8 and Fazal Dad P.W.9 have appeared in Court and stated that they have purchased grass in auction and paid Rs,1,200, Rs,550 and Rs,1,000 respectively to the appellant and that they should be believed to this extent. Their assertion is not worthy of acceptance for reasons more than one. Firstly they were required to pay 1/4th of auction money and, then, subject to approval of their bid by higher authority, had to pay the balance. They have not stated what amount by way of earnest money and how much and when and where the remaining amount was paid. They have not produced any receipt during trial or inquiry in confirmation of their statement. They are employees of the T.I.P. And, being menials, are under the influence of the Inquiry Officers to depose against the appellant under the garb of being bidders at the auction. That this is so, is attested by Mehboob-ur-Rehman P.W.3. He has stated that he was Stenographer to Major (Retd.) Sajjad Akbar, the then Executive Officer in the year 1978, and in that capacity he used to receive or collect money from auction-purchasers and pay the same to appellant, who, on his own accord, issued the receipts to auction-purchasers, In this context, he has made reference to oft-repeated receipts Exh.P.2/1 to Exh.P.2/6. As already discussed, one of such receipts refers to firewood, while two of which relate to sale of grass in 1979 and the remaining pertain to payment of earnest money, far exceeding Rs,2,400 credited in account office and not doled towards the balance. Even receipts holders these documents have not come into witness- box whether their bid was accepted and they paid the balance and to whom and on what date.
Except the receipts alluded to the witness in hand has made no mention of any other receipt nor has he clearly stated before the Court that he had received balance of auction price from Yatioob, Jahandad and Fazal Dad P.Ws. Or other purchasers by name. The receipts ex facie show that these were issued in the name of Sajjad Akbar. However, in the absence of list of bidders and payment of earnest money and receipts to that effect, it is difficult to accept the present set of witnesses as bidders at the auction. The broad fact remains that these witnesses have asserted that they have made payment to appellant while Mehboob-urRehman P.W. Says that he used to receive and collect money from the, auction-purchasers and then pay to the appellant. There is a glaring conflict between the two versions and cannot be easily resolved, particularly when Mehboob- urRehman P.W.3 has admitted in his earlier written explanation that "he was unaware in respect of the auction of grass as well as the money which was collected". This witness has spoken in two different voices at various stages and thus violated requirement of law that a witness must remain consistent throughout. His assertion, therefore, that receipts Exhs.P.1 to P.6 are signed by the appellant is not worthy of acceptance.
7. For ought I know, that these receipts might have been fabricated to create evidence against appellant to involve him just to save skin of Sajjad Akbar, under whose name and authority these were purportedly issued. Only above-named holders of receipts could testify authorship of thereof as also to the participation of other bidders in the auction. The prosecution has offered no explanation why have they not put them in the witness box. They are important and vital witnesses and have been with-held. The only legitimate inference is that if they had been examined, they would not have supported the prosecution allegation or at any rate, would have contradicted, the statements of Yaqoob, Jehandad and Fazal Dad, P.Ws as being bidders at the auction. Unless first nexus of the appellant with auction is established by the prosecution with the aid of reliable evidence, it is rash to hold that auction money was paid to him. For this and other reasons listed above, no reliance can be placed on mere verbal assertion of the three witnesses under reference, moreso when it is not lent support by any documentary evidence.
8.The upshot of the above discussion is that prosecution has failed to establish that the appellant was competent to hold auction or he managed the same under the authority of his immediate higher officer or that he received the money from or issued receipts to auction-purchasers, whose identity, in turn, is not equally established. There is indeed no legal and credible evidence, either oral or documentary that appellant was at any stage or time, entrusted with any item of auction money or that he directly or indirectly converted the same to his use or otherwise misappropriated it. So all the ingredients of the offence under section 409, P.P.C. Are lacking in the instant case. In the circumstances, I have no option but to hold that the prosecution has failed to bring home the guilt to the appellant for the offence charged with. I, therefore, accept the appeal, set aside the conviction and sentence passed on the appellant and acquit him. He is released forthwith, provided he is not required in any other case or cause.