I. MAHMOOD, J.-These are two connected appeals under section 10 of Sind Special Tribunal Ordinance, 1570 (Ordinance III of 19701 arising out of the same judgment dated 64-171 of the Sind Special Tribunal, Hyderabad. In Criminal Appeal No. 126/1971 there are three appellants, namely, Niaz Muhammad, his brother Raz Muhammad and Nazar Muhammad Daudpota, Superintendent in the office of Project Director of the Sind University. Criminal Appeal No. 135/1971 has been filed by Noor Nabi Agha who was at all material times potted as Assistant Executive Engineer Incharge. All these four appellants have been convicted under sections 467, 468 and 471, P. P. C. Read with section 120-B, P. P. C. Appellant Niaz Muhammad has been sentenced to imprisonment till rising of the Court and a consolidated amount of fine amounting to Re. 75,000 or in default R.
1. For 2 years; while his brother Rex Muhammad has been sentenced to R.
1. For 3 years under each of the 3 sections all the sentences to run concurrently, and to a fine of Re. 23,000 or in default R. I. For one year. In addition to the above offences, appellants Noor Muhammad Agha and Nazar Muhammad Daudpota have been convicted under section 5(2) of the Prevention of Corruption Act, 1947 (Act 11 of 1947) and sentenced to 5 years' R. I. On each of these four counts, all the four sentences to run con--currently, and a fine of Re. 10,000 each or in default R. I. For one year.
2. The facts leading to these appeals are briefly as follows:-
3. On the basis of these allegations all the 4 appellants in these connected appeals ware charged by the learned Tribunal as follows:- "I, Mr. Justice H. T. Raymond, Chairman, Sind Special Tribunal exercising all the powers of a High Court in relation to a trial before it under the Code of Criminal Procedure, 1898 as provided for by Sind Ordinance No. III of 1970, do hereby charge you namely
(1) Niaz Muhammad son of Dad Muhammad.
(2) Raz Muhammad son of Dad Muhammad.
(3) Mazharuddin son of Fariduddin .
(4) Noor Nabi Agha son of Ahmed Shah Agha.
(5) Nazar Muhammad Daudpota son of Ahmad Khan as under:--
(1) That in or about December 1963 you accused Niaz Muhammad Contractor conjointly and in conspiracy with your brother accused Raz Muhammad, accused Noor Nabi Agha the then XEN being a public servant, accused Nazar Muhammad Daudpota, Sind University employee, accused Mazharuddin Overseer being a public servant removed and/or destroyed the Original Contract together with Schedules 'A' and 'B' thereof and placed on record of the Sind Uni--versity a forged Contract and Schedules with the intention that the said forged documents would be used for the purposes of cheating the Sind University.
And you thereby committed offences under section 467/468/477 of the P. P. C. Read with section 120-B, P. P. C. And/or section 34, P. P. C. And/or under section 5(2) of the Prevention of Corruption Act (II of 1947) read with section 120-B, P. P. C. Within the cognizance of this Tribunal.
(2) That between December 1963 and February 1964 you the aforesaid above mentioned accused entered into a Criminal Conspiracy to defraud the Sind University that in pursuance of the aforesaid con--spiracy you all accused fraudulently and dishonestly used the aforesaid forged documents as genuine documents knowing or having reason to believe the same to be forged documents.
And thereby you all and each of you committed offences under section 471/477-A read with section 120-B all of the P. P. C. And/or section 34, P. P. C. And/or 5(2) of the Prevention of Corruption Act (II of 1947) read with 120.8 within the cognizance of this Tribunal.
And I. Hereby direct that you will be tried by me on these charges."
4. It will thus be seen that the appellants were charged for an offence of criminal conspiracy for committing forgery, which is defined under section 463 of the Penal Code as follows:- "Whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any, person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.'
From what is stated above, it is clear that the making of a false document, simpliciter does not amount to an offence of forgery unless it is accompanied by other ingredients of the offence of which, intent to commit fraud is one of the main ingredients. When we remarked that the charge suffers from a serious defect by the omission to state the particulars, the learned A. A. G. Admitted that he could not possibly defend the charge but he submitted that this would justify its remand of this case. As Mr. Junejo's reply was that this would give the prosecution an opportunity to fill up the gaps in its evidence, it is necessary to consider the evidence. He drew our attention to a passage from the evidence of P. W. 1 Hassan Nazir Jaffri, then working as Divisional Accountant of Sind University from which the particulars of the charge may be gathered. He stated as follows:-- "The estimated cost for entire hostel consisting of ground floor, dining hall and first floor on both wings is shown as Its. 4.67,881 on page 2 of Rs. 2/4 but, to the figure the contractor's profit or premium of 33 % must be added and with this addition the total figure comes to Rs. 6,31,639.33. But, the figure shown at the bottom of leaves 3 and 6 is Rs. 7,52,100 thereby showing that the cost of this hostel has been increased by Rs. 1,20,461 and this too, when the first floor on the Northern Wing has not been constructed. Besides the difference of Rs. 1,20,461 as extra charge does not include the price of the steel which was supplied by the University foe of charge to the contractor. This quantity of steel was 121 tons and at Rs. 1,100 per ton the price of steel works out to Rs. 1,33,100. This figure when added to the additional cost of Rs. 1,20,461 gives us a total of Rs. 2,53,561. I am shown the 10th Running Account Bill which is the last Bill submitted for Niaz Muhammad for construction of Hostel 'E' and point to the figure at the bottom thereof Rs. 7,69,636.22 as representing the total value of work done to data."
5. In addition to this witness, the prosecution also examined P. W. 2 Mr. Muhammad Suleman Larik, Project Director to prove the offence of forgery. He referred to Exh. 2/8 which was an agreement for construction of Hostel 'E' and stated as follows:- "I am shown Exh. 2/8 the agreement for construction of Hostel 'E' between S. U. And Muslim Construction Company. This agreement consists of the printed pro forma, Schedules A and B and so far as the latter is concerned separate sheets of paper are attached contain--ing the contents of Schedule B. Each page of this Exhibit including its Annexures is signed by me and I see my signatures thereon as P. D. S. U. The annexures must have been drafted and drawn up by me 2 A. E.
Nos. Mr. S. T. Nasir and M. N. Agha accused 5 copies of Exh. 2/8 are prepared complete with Annexures and are distributed as under:- One to the XEN Second to the AEN, Third for the Accounts Branch, 4th for Audit Party and 5th for P.
Is.'s office."
6. The remaining evidence consisted of the evidence of P. W. 3 Mahmood Khoja (Clerk), Investigating Officer, D. S. P. Wazir Hussain Shah (P. W. 4) Abdul Haq Arain-Accountant (P. W. 5) and Mr. A. R. Kazmi, Additional D. M., Hyderabad P W. 6). All that P. W. 3 stated was that he was deputed by appellant Noor Muhammad Agha to go and bring true copies of Agreement of Hostels 'E' anal 'F' from office of P. D., while P. W. Abdul Haq Arain referred to another contract given to M/s MacDonald Laton in respect of another worse, namely the Administrative Block. P. Ws. 4 and 6 were examined only in respect of the confession of appellant Nazar Muhammad but as the very same confession has been discarded by this Court ire another case against the same appellant decided by a Division Bench of which my learned brother Mr. Justice Dorab Patel was a member (PLD 1972 Kar.
292), it is unnecessary to deal with that confession separately. Suffice it to say that the only material witnesses for the prosecution are P., Ws. 1 and 2 namely Hassan Nazir Jaffri and Muhammad Suleman Larik.
7. The case of the accused persons was that there was the forgery at all and that from the very beginning, work was being done on the basis of Estimates prepared by the Associated Consultant Engineers. As the rates were fared by these estimates there could be no possible fraud by substitut--ing or changing Schedule 'B', if it was at aril in existence. Moreover; payments were to be made by the Divisional Accountant after bills were, pre-audited by the Audit Party and the Engineer-Incharge was not rte disbursing officer. In short the contention was that no offence of forgery has been committed in this cast and therefore the question as to who committed it did not arise.
8. In holding that Schedule 'B' of Hostel 'E' was in fact in existence, the learned Tribunal relied on the evidence of Mr. Larik. He was also influenced by the consideration that the first 4 running bills appeared to him to leave been paid according to the Schedule "B". But that there was a change thereafter. From this the learned Tribunal concluded that Schedule "B' was removed after the payment of the 4th Running Bill. Even a cursory look at the evidence would show that this reasoning is erroneous.
9. According to the evidence of Mr. Larik, 5 copies of Schedule 'B' were prepared and one each was sent to YEN, AEN, Accounts Branch, Audit party and the 5th remains in the P. D's once. To quote his words 5 copies of Exh. 2/8 are prepared complete with Annexures and are distributed as under:- One to the XEN Second to AEN, Third for the Accounts Branch, 4th for Audit Party and 5th for P. D's office."
Assuming for the sake of argument that appellants door Nabi Agha (AEN) and Nazar Muhammad Daudpota (Superintendent in office of the P. D.) were in conspiracy with the contractor, they could only destroy and/or replace the two copse of Schedule 'B' In their possession but surely the other remaining three copies would have been available. As admitted by Mr. Larik a "The AEN/XEN are not disbursing officers." The bills are passed by the Divisional Accountant who is not under the P, W, D.
Besides, all these bills were pre-audited as a mere glance at the original bills would show. This means that the Audit Party had also to be satisfied about their correctness before payment could be made to the contractor. If the Divisional Accountant and Audit Party were, as held by the Tribunal, relying on Schedule 'B' for the first 4 Running Bills, then what happened to their dopier of Schedule '8' thereafter is not clear. It is not even the prosecution erase that the Divisional Accountant as well as Audit Party were in conspiracy with the appellants, so that they had destroyed their copies also. In the star witness for the prosecution against the appellants. If the Accountant and Audit Party were expected to proceed according to Schedule 'B' as contended by the prosecution, what advantage could the Contractor get simply by destroying the copies lying with AEN and Nazar Muhammad? The Accountant and Audit Party would continue to follow their own copies of the Schedule 'B' and there can possibly be no question of any incorrect bill being passed. By destroying their copies of Schedule 'B' the appellants stood to gain nothing.
10. On these facts, the prosecution has suppressed the original copier of the Schedule lying with the Divisional Accountant and Audit. Therefore Mr. Junejo submitted that oral evidence of the alleged Schedule was not admissible. Now either the prosecution has suppressed the original copies, if the prosecution evidence is to be believed, or the other possibility is that the Schedule was not prepared. If so, then also it is clear that the prosecution witnesses have given false evidence.
Taking first the latter possibility it cannot be ruled out because the work had already been started by Mr. Lank on 18-2-1963 as per Exh. 2/ 14, some six months before the formal agreement of which Schedule "B" was to be a part, could even be drafted after the approval of the Syndicate which was given on 21-8-1963 vide Exh. 2/13. Admittedly, during the six months, a lot of work had gone through and some bills had also been paid. These could be paid only according to estimates and not according to Schedule 'B' as surmised by the Tribunal. It appears possible that Mr. Larik did not consider Schedule 'B' to be necessary for that he forgot the prepare the same through sheer negligence and if so, it would suit him tee deny it as any admission of negligence might implicate him. It is significant to note that in the F. I. R. Of the case itself (Exh: 8/2) Mr. Larik is shown as one of the principal accused person in the case. He is, therefore, an interested witness and his oral evidence loses all weight when it is clearly falsified by the circumstances narrated above which speak for themselves.
11. The prosecution failed to produce the original contract in respect of Hostel 'H' and instead produced the contract in respect of Hostel "E. The learned Tribunal by comparison of Schedules for the contract of Hostel 'E' has erroneously held that annexure to Exh. 2/4 to be a forgery and a substitution of the original Schedule 'B'. But the prosecution could not rely on Schedule 'B' of Hostel 'E' for comparison as a "standard" because their could have easily produced the accountant's or Auditor's copy of Schedule `B' of Hostel 'H' itself. Under section 64 of the Evidence Act, contents of a document could be proved only by primary evidence except in cases mentioned in section 65. In this gas, the prosecution had not even alleged, much less established, the loss of at least 3 out of 5 copies of the same document. Under section 629 Evidence Act these will also be con--sidered to be primary evidence. But even if they were not and are secondary evidence also, the original copies of the Contract would be better evidence then the oral evidence of an interested witness like Mr. Larik who was initially himself an accused person. If a party fails to produce the best evidence which is available, it is only fair to presume that the party has some sinister- motive for not producing it, which would be frustrated if it were offered.
12. There is accordingly no escape from the conclusion that, as alleged by the defence, none of the copies of Schedule 'B' could be produced by the prosecution only because no such copies were in existence. The question of loss or destruction thereof consequently does not arise and no offence of forgery in respect thereof could be committed.
13. As the defence has established that there is no forgery lit this case, the question as to who were responsible for the Alleged forgery does not arise. The learned Tribunal, however in absence of any evidence on the point, resorted to a "process of elimination". To quote his words in para. 8 of the judgment.
"The third point for determination in this case is whether the accused or any of them forged this document Exh. 2/4 its 2 Annexures? Now this is easily the most important point for decision in this case and hence it required a careful and correct approach. Perhaps a process of elimination whereby the scope of enquiry is gradually narrowed may not be out of place here. This process could be applied by considering questions such as (a) who were to benefit or profit by this forgery?
(b) who had the opportunity to do away with the original documents and to forge a substitute? (c) who bad the motive for manufacturing this substantial document? (d) who had the opportunity and expertise for drawing up such a forged schedule. These four questions when considered and answered would result in identifying the precise persons responsible for the forged documents in question."
14. It is clear that a judicial tribunal has to decide the case only on the evidence led before it and all that the learned Tribunal points out is that appellant Niaz Muhammad had the motive, appellant Nazar Muhammad the opportunity and Noor Nabi Agha the necessary expertise. Therefore, they must have all joined hands and that the offence could not have been committed by anyone else.
This approach for proving the guilt of the accused is not warranted by law."
15. The evidence P. W. 1 Hassan Nazir Jaffri Appears also to be exaggerated, when he says that excess payment to the tune of Rs. 2,53,561 had been made. This appears to be a misleading statement as the cost of steel was brought in not once but twice. Besides he was comparing the gross amount paid in case of Hostels 'H' with 'E' although the percentage of profit allowed by the Syndicate in case of the former hostel was 35% as against only 13.75 % allowed in case of Hostel `E'.
The figures show that actual cost of Hostel H was Rs. 5,70,436 whereas that of hostel ---E' was Rs.
6,43,613. It is, in fact, less by Rs. 73, 1' a than that of Hostel `E', that is because one wing on upper storey was not constructed as soil was no: suitable. Even the Tribunal could not find excess payment over above Rs. 40,000 of which the major item of Rs. 30,000 related to earth filling, This was allowed, as earth available was black cotton soil and unsuitable for filling. Similar items were allowed in case of Hostel `E' also and even Mr. Larik did not allege that it should not have been allowed. This so---called circumstantial evidence also could have been easily explained by the appellant but this was not even put to him in iris examination under section 342, Cr. P. C. It cannot, therefore, be considered against him as that amounts to condemning the accused unheard.
16. After making the exaggerated claim in his examination-in-chief ht bad to admit in cross- examination that there was no fiver-payment as can be seen from the following passage in his evidences "Serial Item No. 3 in the Annexure to Exh. 2/4 does not show the quantity of work to be executed. In like manner Serial Items Nos. 5, 10, 14, l8 and 19 show no quantity of work to be executed. I cannot say whether absence of quantities indicates that these items were cot to be executed. Checking the R. Bs. I find that these 6 serial items do not appear there also. Totalling up the cost of the following six items mentioned in the aforesaid Annexure to Exh. 2/4 and bearing Nos. 22, 23-A, 33, 34, 35, 38 and 39 the figure reached is Rs. 1,91,856. Now when this figure is subtracted from Rs.
6,59,737 the result is the figure of Rs. 4,67,881 the original accepted Tender. Item 22 represents the cost of 111 tons of steel calculated at the rate of Rs. 1,100 per ton and the total amount is Rs. 1,22,100.
Item 22-A relates to fabrication of steel and totals Rs. 8,880. Item 22 is for earth-filling and totals Rs.
24,176. Item 34 for water-proofing "and total is Rs. 19,200. Item 35 is for collapsible steel doors totals Rs. 3,500. Item 38 is for stair-case railing costing Rs. 2,000. Item 39 is for rain-water spouts costing Rs. 12,000.
If the cost of 111 tons of steel at Rs. 100 per ton is deducted from the estimated cost of Rs. 6,59,737 the balance is Rs. 5,37,637. Adding a premium of 35% to this figure the result is Rs., 7,25,810 (the premium being Rs. 1,88,173) The 10th R. B. Exh. 2/7 shows an amount of Rs 7,69,436.22 paid to Niaz Muhammad and now deduct--ing Rs. 7,25,8 10 from this amount paid the result in Rs. 43,626.2`. I am asked to check the following items mentioned in 10th R. B. Under items Nos. 41-50, 52, 54 and 55 and to say whether these 13 items are included in the estimates of M/s. A. C. E. Ltd., Karachi. I do so and say that it is difficult for me as an Accountant and not-- an Engineer to identify each item because the descriptions vary, different words being used to express what appears to me to be more or less the same thing."
These admissions coupled with the last evasive reply clearly falsifies, the inflated claims of this witness in examination-in-chief and shows that the prosecution had not established a case for any over-payment. Therefore the prosecution has failed to make out any case of damage or injury to the University or may gain to appellants. Therefore the ingredients of the offence under'-section 463, P. P. C. Has not been made out.
17. In this connection it may also be mentioned that the measurements and calculations on the basis of which balls were paid to the contractor were done by overseer Mazharuddin who was also an accused person in the case, but was acquitted by the Tribunal. The acquittal of Mazharuddin would further indicate that there was nothing wrong with the measurements and consequently the bills paid on the basis thereof were also in order.
18. It may also be mentioned that under the clause 14 contained in all the agreements, the Engineer-Incharge could sanction sand have carried out any extra item of work. There is not even an allegation by the prosecution that any item thus carried out was unnecessary. Nor did Mr. Larik or even P. W. 1 Jafri allege that the work was defective. There is, accordingly, no question of any offence having been committed in this connection. Nor is there any evidence in that connection, against any of the appellant. I am of the opinion that in the circumstance, the, case against the appellants has not been established beyond reasonable doubt: They arc, therefore, entitled to acquittal. I would therefore allow the appeals. The appellants are all on bail. Their bail bonds are cancelled.
19. The notice of enhancement in case of appellant Niaz Muhammad is also discharged.