TUFAIL ALI A. REHMAN, C. J.-This appeal under section 10 of the Pakistan Criminal T. Aw Amendment Act, 1958, calls into question the acquittal of the five respondents by Mr. Mehdi A.I Siddiqui, .Additional Sessions Judge, Karachi, acting as a Special Judge, in Anti-Corruption Case No. 40/59. The first three respondents who were at the material time all officials in the Karachi Development Authority were charged with offences punishable under section 5(2) of Act II of 1947 and section 120-B of the Pakistan Penal Code while respondents 4 and 5, who are said to be connected with a construction company known as the Bhatti Construction Company were charged under section 120-B of the Pakistan Penal Code and sec--petition 5(2) of Act II of 1947 read with section 109 of the Penal Code. Two other persons were also alleged to be concerned with the crime, the first being A.I Nasir who was an Overseer in the Karachi Development Authority at the material time and the second being one Bashir Ahmed said to be connected with the construction company in question of these, the first committed suicide before the prosecution could be launched while the second was actually sent up as an accused person but died before the trial effectively began.
2. In the end of 1957 the Karachi Development Authority had in hand work on the new water line for Greater Karachi and while there was at that time a sub-division in Division No. 3 of the K.D.A. Which was incharge of the work of Syphons, probably on account of the importance and perhaps the urgency of the work, it was decided to create a separate Division and, at the head of this Division, was placed Malik Mohammad Hanif, respondent No. 1, as the Executive Engineer and the entire Sub-Division was placed under this Divisional Officer. Respondent No. 2 Ehsan A.I, who till then was the Assistant Engineer, Incharge of the Sub-Division continued as such but of course he now became subordinate to respondent No. 1 instead of the Executive Engineer. Incharge of Division No. III. Respondent No. 3, Abdur Rauf was, at all material times, a clerk under respondent No. I while A.I Nisar was the Overseer. Tenders were invited for the work of constructing the Syphons and that of the Bhatti Construction Company was accepted the work was to be executed at a total cost of Rs.
31,47,020 and was to be completed within a period of ten months. Of this company respondent No. 4, Inayatullah, was admittedly the proprietor and the deceased accused Bashir Ahmad was his brother and also his attorney so far as the contract with the K.D.A. Was concerned. Respondent No. 5, namely, Afzal Bhatti is admittedly the son of Bashir Ahmad but, although the prosecution alleged that he was concerned in the work carried out by the company for the K.D.A., he himself denies any such connection. Although a formal agreement had yet to be drawn up the work was to commence upon the 28th January, 1958 and, it being common ground that the construction company never completed the work although the reasons for its failure to do so are in dispute, it submitted four running bills on 28-2-1958, 19-3-1958, 28-3-1958 and 14-4-1958 for various amounts which total up to Rs. 5,80,958 and these were paid. It is the case of the prosecution that these figures are inflated figures not corresponding to the actual work done and not based upon genuine measurements but upon additions, alterations and forgeries made to the measurement books to justify bills of a higher amount than were actually due and these are the bills in relation to which the offences with which the respondents were charged are alleged to have been committed. It must be added, however, that, even according to the prosecution case, there was nothing wrong with the first running bill and it is only upon the second, third acid fourth that the prosecution based their case.
3. That there are additions and alterations in the measurement books Nos. 167 and 291 which are Article ---A--- & ---N--- in the case the first of which is concerned with the first and the second running bills while the second contains the measurements in respect of the third and fourth, is admitted and indeed could hardly be denied inasmuch as a bare visual examination of the books clearly makes this out. The work, as I have said, was left incomplete by the Bhatti Construction Company and it was, according to the prosecution abandoned by them, the word 'absconded' being freely used in connection with the conduct of the proprietor and members of the construction company ; obviously by this is meant only an abandonment of the work and not absconding in any criminal sense. According to the Bhatti Construction Company, on the other hand, the K.D.A. Was itself guilty of several breaches of the contract which made it quite impossible for them to carry out and complete the work. Civil litigation is pending between the parties or at any rate was commenced (there being no evidence on the record whether it has concluded and if so, how) and it is quite unnecessary for the purposes of this judgment to decide whether there were breaches of contract on the part of Karachi Development Authority or on behalf of the construction company. What is important for my present purpose is the fact that it is only after the abandonment of the work that the forgeries in question were detected by the authorities that is to say, the authorities superior to the respondent/accused. On behalf of the prosecution the main evidence that was led and upon which reliance was placed, one is almost tempted to say the sole evidence, was the fact of these additions and alterations, it being sought to be inferred from them both that the additions and alterations were not innocent and that they were the result of a conspiracy of which all the five respondents and the two persons who have died were members.
There were indeed some other minor pieces of evidence with which I shall of course deal in due course but these also in turn show, at most, that the additions and alterations were deliberately made to justify the inflated bills and not as the result of an honest correction of the entries in question. Accordingly, M. A. Hamid, Superintending Engineer of the Karachi Development Authority and the immediate superior of respondent No. 1, directed his Personal Assistant. Agha Manzoor A.I, to carry out a physical check and it was as a result of this check supplemented by some checking personally carried out by M. A. Hamid himself, that he made a report to his Chief Engineer which in turn resulted in a letter dated the 9th September, 1958 from the Secretary of the K.D.A. To the Inspector-General of Police which might usefully be reproduced: Phone 34317 Karachi Development Authority Kings way Karachi No. 1 No. F.I. (367) Est-1/58.Dated the 9-9-1958.
My dear Alain, The Water Supply & Sewerage Wing of this Authority entered into a contract in January last with a firm known as the Bhatti Construction Company who were entrusted with the construction of Syphons between Dhabeji and Tunnel at a cost of Rs. 31,47,020. The work was to be completed within 10 months but the contractors could not show progress according to the prescribed schedule and ultimately abandoned the work and absconded. Certain running bills were, however, submitted by the Sub-Divisional and Divisional officers concerned of the Water Supply & Sewerage Wing for payment to the contractors on account of the work stated to have been done by them. It was noticed from one of those bills that while the actual work carried out amounted to Rs. 34,269 only, a secured advance amount--ing to Rs. 1,94.440 was allowed to them. Preliminary enquiries pursuant to this observation revealed startling facts. For instance in one case the total quantity of excavation work done was only 9,42,283 a. But it was shown as 19,42,283 a. And a payment of Rs.
2,00,000 was made on this item. This and certain other facts have created a strong suspicion that undue favour has been done to the contractors at the cost of Government work and illegitimate financial help afforded to them in a fraudulent manner. The letter bearing No. SE/W-86/3301 dated 30-8-1958 will give you a synopsis of the whole case. We have yesterday issued orders suspending from service an Executive Engineer and an Assistant Engineer and other officials who were suspected to be responsible for such grave irregulari--ties. I am forwarding herewith our files dealing with this matter and I shall be grateful if you will kindly get it thoroughly investigated as early as possible. In case further information is needed, the officer deputed to investigate this case may please be directed to contact M/s. K.H. Rizvi, Chief Engineer and M. A. Hamid, Superin--tending Engineer, W. S & S. Wing.
I shall be grateful if you will kindly acknowledge receipt of this letter and its enclosures.
(Sd). Z. A. HASHMI, Secretary.
S.N. Alam Esq., P. S. P., Inspector-General of Police, Pakistan Special Police Establishment, Karachi.
It will be seen that the two main facts which are stated in this letter are that while the actual work carried out amounted to Rs. 34,269 only, a secured advance amounting to Rs. 1,94,440 was paid to the contrac--tors. The other is that while the total quantity of excavation work done was only 9,42,283 a., this was shown as 19,42,283 a., and that a payment of Rs. 2,00,000 was made on . This item. It is obvious that the implication is that the digit "one" was added at the beginning of the figures showing the measurement of the excavation work but whether the sum of Rs. 2,00,000 is the entire sum paid or is the excess is not made clear.
4. This letter was accompanied, as it itself indicates, by another letter dated 13-8-1958 (though the date is wrongly described in the letter of the Secretary as 30-8-1958) which is written by M. A.
Hamid and is addressed to the Chief Engineer. This is rather a long letter purporting to be a report to the Chief Engineer of the facts of the case including the checking which had been carried out by M.A. Hamid and his personal assistant and it would be convenient, instead of reproducing it in full, to state the principal points which were made in the course of the letter ---
(i) that checking has been carried out to find out the actual work done but that during the process heavy rains had intervened ;
(ii) that the number of stacks that were visible after the rains was 13 as against 22 which had been seen before the rains commenced but that measurement book showed as many as 254 ;
(iii) that in the fourth running bill the excavation work has been shown as amounting to 19,42,283 a., but that the corresponding entry in the measurement book shows that the figure was originally 9,42,283 and that by the addition of a digit in the beginning the higher figure has been made out, but that upon actual measurement the excavation work was seen to be 1015837 a. (It is curious that the actual excavation work found by checking turns out to be higher than the original figure in the measurement book though of course considerably lower than the later false figure but the difference is not great and ft is to be remembered that we are dealing just now with running bills payment for which, although made upon the basis of actual work done, is nevertheless payment towards the final bill for the preparation of which, it is to be presumed, greater care would be taken).
(iv) Although the rules allow only one bill per month actually four have been passed in the space of 1-- months ;
(v) that a secured advance has been allowed on materials without a recommendation of the Assistant Engineer supported by a certificate as is required by the rules ;
(vi) that a sum of Rs. 95,040 has been allowed on wooden planks for shuttering calculated on the basis of 7,920 a., of wood but that this is contrary to the rules inasmuch as this is not "material consumed" for which alone the rules permit an advance payment ;
(vii) that it is strange that the quantity of material actually found at the site added to the quantity allegedly stolen during the course of the work is roughly equal to the quantity of material which would justify the payment of advance actually made.
5. In order to understand the last fact stated above it is necessary to add here that, according to the respondents, a theft bad taken place resulting in the loss of a large quantity of valuable material upon which the advances in question had been made. The implication of the fact as stated in the letter of course is that the quantity shown to have been stolen has been deliberately calculated to achieve this purpose but it is obvious that the fact of the total being roughly what was needed is capable of an innocent explanation as well which would support the respondents and that the strangeness of the coincidence assumes that the story of the theft is fictitious.
6. Studying the record of this case and hearing arguments in the matter I have been quite unable to avoid the conclusion that, right from the beginning of this case, there has been considerable confusion of thought on the part of the prosecution which has resulted in a nebulousness of approach to the case which in turn has made the task of the trial Judge and our own unnecessarily difficult. Several causes have contributed to the extreme delay in the disposal of this case (the offence took place in 1958 and it is only now in November, 1973 that the appellate judgment of this Court is being delivered? And to this I shall have to return in greater detail but one, at least, of these causes has been this confusion and one of its more serious consequences has been both the introduction of wholly unnecessary evidence and the failure to bring more material evidence on the record. The purpose of my quoting the letter of the Secretary of the K. D. A. To the police and summarising the report of the Superintending Engineer is not only to state how an investigation came to be commenced but also to indicate how, even at this stage, this confusion has crept in and affected the case. Considered as a stage in the investigation of the case, this was no doubt the very inception but it is also to he remembered that these documents have been prepared after what is stated to be a most careful examination of the case departmentally. Indeed virtually the investigation was already over and although the police investigation took quite some time it neither did, nor could be expected to, add to the examination of the relevant papers and a physical check and other technical investigation, for which the department itself was more equipped than the police could possibly be. The police must of course have examined all these papers and checked the calculations but they have not nor could they have discovered any real fresh material on these matters. Indeed, so far as is apparent from the record of this case, their investigation resulted only in the collection of those minor pieces of evidence to which I have made a passing reference earlier.
7. The first and major example of this confusion is reflected in the allegation "that while the actual work carried out amounted to Rs. 34,269 only a secured advance amounting to Rs. 1,94,440 was allowed to them." A little consideration of the purpose of a running bill and the meaning of the expression "secured advance" will reveal not only the contradiction which is implicit in this sentence but the unreal nature of many arguments that have been addressed to us by the prosecution as well as the defence and which, it, would seems were addressed to the learned trial Judge. A running bill is one of several bills submitted and paid during the progress of the work and, while, therefore, such payments are clearly payments towards the such Payment, at which stage the actual amount due to a contractor would be carefully calculated on the basis of the work done and the payments in the course of the work being deducted, the final figure payable to him would then be paid. Of course it might happen that he had already been over-paid and in that case he would be liable to refund such excess payment and, as part insurance for this contingency, the contractor has to deposit some money by way of security which in this particular case was Rs.
20,000. Nevertheless payments on running bills are not ad hoc payments but are made on the basis of work actually done, less a certain percentage which then becomes available like the security deposit as a guarantee against excess payment. An advance, on the other hand, is the major part of the value of goods actually brought by the contractor to the site which would be used in the completion of the contract and would, therefore, be accounted for in the final bill. Again while this is a payment "on account" it is not an ad hoc payment tin the that it is arbitrarily evaluated but is based upon the actual goods brought. The question, therefore, as to how much work has been done at any given time has no relevance, whatever, to the concept of a secured advance. Yet we find, after what purports to be a most careful technical investigation, the quite absurd claim has been advanced that the secured advance was not justified by the work done.
8. This lack of clarity affected even the argument put forward by the defence in this case for, over and over again, it was argued on their behalf that even if it was completely established that the contractors bad been paid more than they were entitled to receive on account of the work actually done, this would expose them at most to a civil liability inasmuch as these were after all payments merely 'on account'. On the one hand, there-- for" while the prosecution confused the issue of advance payments with the work done, the defence entirely overlooked the essence of the criminal Offence which lay in forgery with the intention to cheat, that is to say, in so fabricating the figures as to show themselves entitled to a payment which the When they received the payments, entitled to. If it can they satisfactorily shown that in fact a forgery was committed for the purpose of obtaining payments which could not otherwise have been made, then clearly such persons as have committed the forgery or have abetted it would be guilty, and it is no answer to say that so far as excess payments are concerned these could be rectified by a final adjustment of accounts.
9. A major consequence of this failure to keep the difference in pay--ment for work done and secured advances clearly in mind was that the substance of acquisition read out to each of the respondents made no men--petition, whatever of secured advances, and yet, the prosecution led evidence on this point as well. Referring to this aspect of the matter, the learned trial Judge observed:-- "The substance of the accusation was read over to the five accused here by Mr. K. M. Mirza, Special Judge on 18-9-1959. A point of fact and a point of law are relevant at this particular stage. The point of fact is that before the case was sent up A.I Nasir Overseer had committed suicide. Later it seems Bashir Ahmad Bhatti died during the trial. Secondly this accusation of charges does specifically refer to the secured advance being on inadequate; security. Whereas it was made a special point of stress in the evidence as well as the argument by the prosecution, however, as from the beginning this item was being pressed I hold that the accused were not misled and so I am bound to consider this part of the accusation as well."
"537. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account ---
(a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or 2 . . . . . . . . . . . . . . . . . . . . . . . . .
(c) of the omission to revise any list of jurors (or assessors) in accord--ance with section 324, or
(d) of any misdirection in any charge to a jury unless such error, omission, irregularity, or misdirection bas in fact occasioned a of justice."
Neither this section nor the obvious principle which is applicable in any authority, whatever, for the preposition that an original Court may consciously refuse to follow a prescribed mode of proceeding upon the ground that its failure so to do does not occasion a miscarriage of justice. To be fair to the learned Judge who decided this case, it is only right to point out that it was not he who drew up the substance of accusation or even recorded the evidence. He heard only the arguments and proceeded to decide the case, the case having been before a number of Judges in the earlier stages.
10. The matter is now, however, before an appellate Court and it is necessary for us, therefore, to decide whether this irregularity is one on account of which we shall order a re-trial. For the purpose I am inclined to agree with the learned Judge that no prejudice was caused and, therefore, unwilling to direct a re-trial. Apart from any other consideration, the respondents can hardly be said to be prejudiced when the final decision has been in their favour and, since, as I will show, I have been unable to persuade myself that the acquittal of the respondents of the charge of wrongly and dishonestly making advance payments, though that charge was not specifically framed, is incorrect no prejudice can be said to have been caused to the respondents in the final disposal of the matter, as far as this Court is concerned, either. The prosecution, of course, can hardly claim to have been prejudiced inasmuch as they were allowed to lead evidence upon a question that was not covered by the charge. In any view of the matter, therefore, there is no occasion to direct a re-trial.
11. Before examining the evidence in this case and the arguments that have been addressed to us, it I think, will be useful to consider precisely what was required to be established against the respondents and the nature of evidence that would suffice, if believed, to establish such matters.
The charge against the first three respondents was that they entered into a criminal conspiracy with one another and the members of the contractor firm "to obtain by corrupt, illegal means and by otherwise abusing their position as public servants a pecuniary advantage of Rs. 3,19,149 by forging and making false measurements of excavation in soil of all kinds and material brought at site in measurement books Nos. 167 and 291, payments for which were authorised by the respondents on the last three running bills" and that in pursuance of this conspiracy they did obtain such an advantage. In effect the charge against the others was also the same, suitable language being used for making it a charge of abetment. One way, therefore, of establishing the charge would have been to show that the actual figures in the measure--ment books, as corrected, were in fact false in the sense that they did not correspond to the actual work done and, if this was established, clearly all the persons concerned in the preparation of the bills and the authorisation to pay would be guilty unless, when at the time they signed the relevant bills or otherwise handled them, the alterations had not yet been made. It would have been practically impossible in such an event to resist the inference that false figures were deliberately and dishonestly used. The involvement of the non-official respondents would also, in that event hardly admit of any doubt for, the pecuniary advantage that would accrue, would go in the first instance to themselves and, since people do not commit crimes of this nature without a pecuniary motive, obviously the official respondents could only get their share of the reward after the money was paid, in the first instance, to the non-officials who would then, presumably, pay them their share.
The only persons among the non-official respondents who could then be found not guilty would be some persons who could be shown - not to have played any part in the affairs of the company with reference to this particular contract at least. The attempt to produce evidence of this kind was, at moat, feeble and the prosecution had eventually to rely, at least before us, upon the inference only from the admitted additions and alterations in the figures without reference to the question whether the corrected figures were in accordance with the true state of affairs. I shall nevertheless examine this evidence in due course to show that the prosecution had really no alternative.
12. The other way would be to depend upon the alterations themselves, as indeed the prosecution have done, but then I think it would be necessary to establish two matters, first, that the alterations are so many or of such an order or both they could not have been innocent and, second, in relation to any one particular respondent, that he signed the bill or otherwise dealt with it with the knowledge that the figures had been so altered. As to the first of these considerations it might be possible, in the present case, to take the view that the alterations are indeed so numerous and of such a character as do not admit of an innocent explanation. In this connection it might be a not wholly immaterial consideration that no one from amongst the respondents admits that he made the corrections and sets up the claim that the corrections were innocently made; in taking this circumstance into account, however, the greatest care must be exercised, for it must be first possible to reach the conclusion that the figures are such as to make innocent correction impossible and that, in the case of any one particular respondent, that he was aware of' this for, otherwise, too heavy a reliance upon this circumstance might really be placing the burden of proof upon an accused person which of course is entirely unwarranted. The circumstance will be useful only if the prosecution can first, prima facie at least, discharge its burden when it might be possible to say that the evidence being circum--stantial in character acquires an enhanced weight by reason of a failure on the part of an accused person to explain it.
13. It will be seen, therefore, that one matter which the prosecution has to establish, in relation at least to each of the official respondents, is a knowledge of the actual or inferred falsity of the figures in question and that without this it would be impossible to establish the case. In assessing the evidence, therefore, I propose to regard this question as one of fundamental importance.
14. What I have said in the last two paragraphs is obviously relevant to so much of the running bills as are concerned with payment on the basis of work done and not by way of secured advances.
On this second issue the real question was whether it has been established by the prosecution that the goods brought by the contractor to the site were not actually as large in quantity or worth as much as has been shown and it is only when that is satisfactorily established then the further question arises, who was responsible for manipulating the records to support the allegation that such material bad been brought. This is the part of the case which was not covered by the charge and to which I have made reference earlier. It would be convenient to dispose of this question first.
15. Now upon this part of the case the only real evidence that has been produced by the prosecution is the deposition of Agha Manzoor A.I, Personal Assistant (Technical) to the Superintending Engineer, that is to say, M. A. Hamid. This evidence, which is supported by M. A.
Hamid himself, was to the effect that the witness was ordered by M. A. Hamid on the 27th of June, 1958, to go to the site and to carry out a physical check of the work done and the material upon the site. Now on this date the work had of course already been abandoned and it is a part of the prosecution case itself that suspicions arose in the minds of the higher authorities that the bills were inflated only after the abandonment of the work. The case of respondent No. 1 indeed is that, so far from conspiring with the contractors, he had repeatedly reported to the higher authorities that the contractor was avoiding completion of the work and that in fact it was he himself who finally terminated the contract on the 11th June, 1958. That in June, 1958, he did report against the contractor and did terminate the contract can hardly be doubted because the documents support such a case but, whether this would suffice to demolish the case of the prosecution against him, if it was otherwise proved, it is not necessary, at least at this stage, to consider. The fact is important only for the purpose of emphasising that it was not until the 27th June, 1958, that any steps were taken towards a physical check. In obedience to his orders Agha Manzoor A.I proposed to visit the site on the 28th June. 1958, but this had to be postponed to the 30th on account of the illness of Ehsan A.I, respondent No. 2. Accordingly on the 30th he went to the site and on that day he conducted what he calls 6 a flying survey"; he explains the meaning of the expression thus "by `flying survey' I mean just seeing the site of Syphons Nos. 3 to 9. There are in all 14 Syphons between Dhabejee and Tunnel." Going on to say that he had been directed to take measurements he admits that on that day he returned to his office without having taken any measurements. He was again ordered to go on the 11th July, 1958, and on this date he did take measurements but these were of the excavation work; as to the stacks of the various materials he merely counted the number of stacks but did not measure each stack. On the next day he was to resume the work of measurement but, since it started raining, he had to return to his office again. The work of measurement was resumed on the 16th July, 1958, but in the meantime it had rained heavily. The evidence of this witness has been very severely criticised by the defence not only upon the ground that he lacked the experience necessary for the job that he undertook but upon various other grounds as well. Some reference to this criticism I shall have to make when dealing with the question of what evidence there is to show that the actual excavation work was less than that which is shown in the altered figures in the measurement books or in the running bills but, for my present purpose, it suffices to mention a few matters which rob his evidence of any reliability as to the quantity of material available at the site. In the first place the witness admits that whatever notes be made upon the site were recorded on loose sheets of paper and even these loose sheets which have been produced in Court. The documentary corroboration of this word, therefore, would have given his evidence greater weight is missing. Without, therefore, accepting the contention of the defence that the evidence of the witness was dishonest there is at least reason to suspect the reality of this evidence.
16. Far more important, however, is the consideration that, admittedly, before the rain started the witness had only counted the number of stacks and not measured the quantity. The rains were, it is rains between extraordinarily heavy; In the words of the witness there were heavy July, 1958 to 15th of July, 1958. As a result of the rain, some of the excavations done were obliterated. The rains were so heavy that crushed stones at Syphon No. 3 were washed away because they were lying in the bed of the nala." Clearly, therefore, the witness's measurement of the material after the rain is hardly helpful.
17. It is true that in the letter of the Superintending Engineer dated the 13th August, 1958, to which reference has earlier been made, it is stated that on 16th July, 1958, the number of stacks found at the site was 13 but that even on the 11th of July, there were 22 as against the recorded figure of 254 in the measurement books. Apart, however, from the technicality that the witness himself does not say so and the more substantial point that he recorded this only on loose sheets of paper, the fact does remain that there is no evidence of the quantity of material available on the 11th of July, 1958, and that it is admitted that between that date and the 16th, when the quantity was measured, the rain was heavy enough not only to obliterate the excavation work but even to wash away heavy material, I cannot but hold, therefore, that the prosecution have not established this part of the case or that, at least, the matter is in doubt, the benefit of which, must go to the respondents.
18. As against this, is the admitted fact that on the 10th of June, 1958, the Assistant Engineer, presumably respondent No. 2, reported to the S.H.O. Incharge of the Police Station Thatta, theft of a quantity of timber brought by the contractor to the site. This is followed up by a letter written by the respondent No. 1 on the 16th of June, 1958 addressed to the Superintendent of Police, Thatta, reciting the fact of the earlier report and stating that since the exact quantity could not, at that time be given, he had had proper measurements taken since and stating the shortage. I should have thought that prima facie this would be a circumstance very much in favour of the respondents but, curiously enough, the prosecution sought to use it as a circumstance incriminatory to the respondents. It will be recalled that among the facts stressed in the letter of M.
A. Hamid to the Chief Engineer which the Secretary of the K. D. A. Forwarded with his own letter to the Inspector-General of Police one of the facts which was emphasised was that if the quantity still available at the site was added to the quantity alleged to have been stolen then the total will be roughly equal to that on the basis of which an advance had been taken. This was stated in language clearly implying that this pointed to the guilt of the respondent officials. To put the matter at its lowest, the circumstance is at least capable of an innocent explanation and indeed an explanation which sup--ports positively the case of the respondents that the quantity at the site was such as justified the advance payments made. It is also to be noticed that the dates of these reports to the police are not only much earlier than the survey carried out by Agha Manzoor A.I but are substantially earlier even than the date upon which he was ordered to carry out a check. Even before us, it was strenuously argued that the respondent No. 1 has failed to give any explanation of the fact that he lodged this first information report. Clearly, the argument is based upon the assumption that the first report was in fact false. No attempt, whatever, was made to show that it was in fact false. It was, on the contrary, the duty of the prosecution to show that the contractors had not in fact brought the stated quantity of the material on the site and, instead, they relied upon evidence which would at least go some step towards showing that they had, for the purpose of building a circumstance against the respondents, which assumed the falsity in the claim of the contractors made in the bill. 7 he only argument that was advanced against the truth of the report made to the police was the improbability of so large a quantity of the material on the site but I think the learned Judge was quite right in pointing out that the argument over--looks the fact that a large number of labourers ranging from 250 to 1600 had been employed by the contractor and the theft is, therefore, by no means so improbable as it is made out to be. There else also the fact, upon which the learned trial Judge has commented, that when it was reported to the higher authorities that such a report had been made to the police the reaction was a threat to the Assistant Engineer of being handed-over to the police and yet a suggestion that the material could be handed-over to the other contractor with whom an agreement would have to be concluded since the Bhatti Construction Company's contract would be terminated. In all the circumstances, therefore, I am quite unable to agree that the acquittal of the respondents, in so far as it concerns the question of the payment of advance against material brought to the site, ought to be reversed.
19. The other part of the case is concerned with the allegation that the Bhatti Construction Company were overpaid, in that, they drew running bills, which were accepted, on the basis not of the actual work done but a grossly exaggerated estimate of that work based upon false entries. As I have said earlier, one of the two possible modes whereby the prosecution could have established their case was to prove that the actual work, done was in fact not as great as was claimed in the running bills. In other words, that there should have been evidence as to the actual measurements of the work done contrasted with what was claimed by the final figures shown in the running bills, irrespective of the fact that these final figures were them--selves the result of alterations and additions. If this could be proved and it could be shown that the difference was so great as could not be explained upon the basis of a mere error of measurement which, particularly at that stage of the work, could well have been more or less approximate, it seems to me that every one of the respondent officials would have been proved guilty or at least that the case of the prosecution advanced so far that unless an individual accused person from amongst them could show that he was honestly misled, a conviction could be justified. It would also follow, for reasons which I have already stated, that the persons who stood to gain from this manipulation, namely, the persons concerned with the Bhatti Construction Company would be necessarily guilty of having abetted them and of having been members of a conspiracy with them. The only means of escape then for the non-official respondents would be shown, in the case of any one individual amongst them, that he was not so concerned with the construction work as to make the inference justifiable as against himself.
20. Now there were in all four running bills which the contractor firm drew in this case and it is only in regard to the second, third and fourth that the prosecution claimed that they were false, it being conceded that, so far as the first is concerned, there was nothing wrong with it and that the amounts claimed there were due and were paid quite honestly. Although I propose to deal first with the question whether there is any evidence to show that the figures as finally given in the measurement books in question, whether altered or not, were in excess of the work actually done, in view of the allegation made in regard not merely to a question of forgery in relation to the measurement books in question but to the wholesale sub--stitution of leaves or perhaps even the book itself so far as the measurement book No. 291 is concerned, it is worthwhile noting that the measurements 9n regard to the first and second running bills are noted in book No. 167 while those in regard to the third and the fourth running bills are noted in this book 291, which are Articles' A' and 'B' in the case respectively. Although in regard to the measurements concerned with all three of the running bills it is claimed, and it is indeed evident to the naked eye, that there have been additions and alterations, in regard to Article 'B' it is suggested that the leaves upon which the measurements were recorded were substituted by freshly printed leaves which had never been supplied officially or that the entire book itself was replaced by a freshly printed book; the prosecution is not all clear as to which of these two allegations it is making. I shall revert to this again in more detail later on when I have to deal with the question as to who committed these forgeries, if indeed there are forgeries and for whose benefit. At the moment I am emphasising the circumstance for the purpose of showing that it is at least curious that if these forgeries have been committed in pursuance of a conspiracy then the modus operand which, according to the prosecution, was adopted in regard to the third and the fourth running bills, should not have been the same as it was in regard to second bill. The coincidence is this that the measurements of the first and the second running bills having been recorded in Article 'A', although additions and alterations are alleged in regard to those which are concerned in the second running bill the first bill is not claimed to be a false one. Is it then claimed that the conspiracy was hatched after the first running bill was presented but before the second one was presented or is it merely this that the conspirators thought of a better method of carrying out the fraud after they had already made the alterations so far as the second running bill is concerned ? Upon closer examination I think really that there is no coincidence because I am not at all convinced that the second running bill was a false one.
21. The learned trial Judge summarised the position in regard to all the four running bills thus:-- "It would be much better if I point out here the main items Exh. 45 which show very distinctly that some inflated figures were placed in the measurement books as compared to the work done found on the spot, as given in the list, by P. W.
1. All this work is covered by 4 running bills. In the first running bill the total worked out and that in the measurement books is shown as the same. In the second running bill the total worked out in the measurement books is less than actually done on the site. It is, therefore, clear that no charges can be based against the accused on the basis of the first two running bills. It is only on the 3rd and 4th running bills that excess is shown as noted in the measurement books and this is really noticeable in two items marked as Exh. 32 in the 3rd running bill and Exh. 40 in the 4th running bill. These appear on measurement book No. 291 on pages 4 and
10. The excess shown is more than 8 lacs and 9 lacs a. These inflated figures are shown as accomplished work in the extract of costs on pages 5 and 6 on which the 3rd running bill is based and in the extract of costs on page 14 for the 4th running bill. But it is safe to recall here that these excesses are there according to the checking of P. W. 1 only."
"That the investigation disclosed that the first running bill (Exh. 47-B) which was for Rs. 22,827 for the excavation work done from 28th January to 28th February 1958, was prepared according to the measurements recorded by deceased A.I Nasir, Overseer, in measurement book (Article A) at pages 69 and 70. The second running bill (Exh. 48-B) which was prepared for Rs. 88,599 by Respondent No. 3, the then Divisional Clerk was signed by respondents Nos. 1 and No. 2. This was a false bill and not according to the measurements as recorded by deceased A.I Nasir, Overseer, at pages 71, 72 and 73 of the measurement book. The amount calculated by A.I Nasir deceased 144 was for Rs. 74,835 and not Rs. 88,599 as paid to the con--tractors. The subsequent amount was paid on the basis of forged and false entries in the measurement books. Respondent No. 3 had certified a cent per cent check which was authorised and passed for payment by respondents Nos.
1 and 2."
Orally reliance was placed before us on Exh. 11 which is headed by the words "Statement A" which is a statement prepared by Agha Manzoor A.I and which both as stated by himself and as is evident from the statement itself shows not a comparison between the, figures in the measurement book, as altered, with the work which he actually found done but a comparison between the figures as they originally stood and as they were altered. The portion of this statement which is relevant is reproduced below, the balance dealing with the question of secured advances which I have already considered "STATEMENT 'A'
Running Account No. illegible) No.M.
BNo.PageNo.Parti- culars of items.(Cft) Total as given in the M.B. out. pages.(Cft) total as worked out.DifferenceRemarks ST. R. B. 167 16769Excava- tion etc.1,33,491 1,33,491@195/-215/- approx.
71 2,96,277 2,98,173 1,896Less shown in the M. B. torn 72 5,24,135 5,23,031 1,104 Excess shown 1 1,40,868 1,46,268 5,400 Less shown rd R. B. 2912 2,87,434 2,92,948 5,514 Less shown 970 3 5,36,222 5,41,736 5,514 Less shown 4 14,28,764 5,75,758 8,53,005Excess shown 7 2,33,223 2,32,783 443 Excess shown the R. B. 8 4,42,329 4,51,759 9,430 Less shown 9 7,76,356 7,99,219 22,863 Less shown 10 19,42,283 9,05,823 9,76,460Excess shown @ 195/-1,66,336/- Approx. excess over and above the quantity of 3 R. A. (illegible) 123, 445 Cft. 0195/- 24,587 980total.
The paper is somewhat torn but it is perfectly plain that the first entry refers to the first running bill as is evident from the fact that the letters "St. R. B." still appear while the second and the third entries clearly refer to the second running bill inasmuch as in sequence thereafter comes the entry relating to the third and the fourth running bills. Now even a cursory look at the two entries in question shows that the learned Judge was per--fectly correct. So far as the first entry is concerned the total as given in the measurement book is 2,96,277 while that as actually worked out amounts to 2.98.173 that is to say 1896 less than the total which should have been worked out on the basis of the figures shown. It is impossible to regard this as being anything other than an arithmetical error; one may perhaps with justice say that some carelessness is evident in the totalling but that is hardly the same thing as to say that this is evidence of a criminal offence. But, mistake or not, the point to be emphasised is that the total worked out is less than that which would have worked out if the figures had been correctly totalled. It is true that so far as the second item is concerned an excess is shown, the figure in the measurement book being 5,24,135 while the correct total should have been 5,23,031 but it seems to me obvious that this is as much a mistake as in the first case. In any event a difference of less than two thousand upon a figure which totalled nearly three million in the first case and a difference of little over one thousand in a figure which totals over five million in the second case can hardly be described as being so gross as to admit of the inference only that there was a deliberate over-calculation, if there was an over-calculation at all. As a matter of fact since both the items are concerned with excava--petition it will be seen that the total not difference, if the two figures are taken together, amounts to about 800 a. Less in the total as shown in the measure--ment book than in the total as it should have been shown upon a correct totalling of all the items put together. It must always be borne in mind that these are not figures of comparison of the work recorded with the work actually found to be done but a mere question of re--calculating the totals and detecting an error therein. Even, however, if the comparison was between the work as shown and the work as actually done it does seem to me that a difference of a mere 100 a. In a total of over five million is hardly so much as justifies the argument of the prosecu--petition. All this quite apart from the fact that we are dealing after all with running bills and it may safely be assumed, I think, that a trivial mistake in the measurement or even a figure shown slightly in excess of the actual work done can hardly be regarded as evidence of criminal intent, since the final and most careful measurements would have to be taken at the time when the final bill was presented. As it is, the learned Judge may not have been strictly right when he said "in the second running bill the total worked out fn the measurement books is less than actually done on the site" it is perfectly plain that what he meant was that the total worked out in the measurement books is actually less than should have been worked out and it is no criticism against him to say that he should have separately said that one item works out to be greater while the other work item works out to be less and that the total not difference is actuallyrd less. I am, therefore, in entire agreement with the learned Judge that no charge, whatever, can be based upon the basis of the second running bill.
22. Nevertheless I shall have to return to this running bill because the measurement book does show other alterations in the figures whereby the measurements in several items have been enhanced and the discussion that I have so far made concerns only the totalling of the figures as corrected. This would have to be considered in the context of the argument of the prosecution that even though they may not have been able to give proof of a discrepancy between the work as recorded in the measurement book and as actually carried out the mere fact of a correction of the figures, con--sistently upwards, leads to the irresistible conclusion that there was forgery with intent to cheat. A special feature of this particular measurement book in relation to the second running bill also is that it is only in this set of recorded measurements or the corresponding bill that there is any evidence that any of the respondents actually saw the bills or the measurement book in its corrected form and that it is plain that at least respondents 1 and 3 signed the measurement book as corrected while in the case of the others that is the question upon which there is, as I will show, at least doubt, if not a complete absence of evidence. For the moment, however, dealing with the contention that there is forgery, it seems to me sufficient, to say, that the mere fact that the totals were incorrectly worked out can yield no such inference when, as have shown, the incorrect total does not result in any advantage to the contractor or in any excess payment. In order that the making of a false document amount to forgery and be punishable as such it is necessary that ft should be "with intent to cause damage or injury, to the public or any person, or to support any claim or title, of 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." Section 463 of the Penal Code). Now obviously if the only result of the miscalculation, deliberate or otherwise, was not to obtain excess payment from Government but in fact to obtain a payment less than what was due, I cannot possibly see how forgery can be said to have been committed. It is true of course that the respondents were charged not with forgery as such but under section 5 of Act II of 1947 and the offence of criminal conspiracy and abetment thereof. Section 5 of the Act punishes criminal mis-- conduct and it is subsection (1) of that section which defines it and of the various clauses under that subsection clause (d) alone is material for my present purpose and it reads : "If be, 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."
The provision is no doubt widely worded but, in the great majority of cases would cover what are already offences by reason of the Pakistan Penal Code or some other penal provision though of course conduct which could be brought within the meaning of the clause, even though not specifically punishable under any other law, would be included. In the present case, however, the entire basis of the prosecution is one of forgery and the attempt at the trial as before us was to make out that there was a case of forgery. Even if this, however, was not so, the question would still be that in order to convict any of the respondents it must be shown that one or more of the official respondents by using his position as a public servant obtained for himself or for any other person any valuable thing or pecuniary advant--age and, in this case, it is difficult to see by what means the prosecution can claim that he had done so if not by forgery. Upon the basis, at least, therefore, of the discrepancy as stated in Exh. 11 to which I have referred there can be no question of the charge being sustainable against any of the respondents, so far at least as the second running bill is concerned.
23. I turn now to an examination of what the evidence was as to actual falsity, that is to say, evidence of what actual work had been done as contrasted with what was claimed to have been done either in the measurement books or in the running bills. Upon this question the only evidence is that of the witness Agha Manzoor A.I and to some extent that of Muhammad Abdul Hamid, the Superintending Engineer. According to the latter, it was in June, 1958 that it having come to his notice that excess payments had been made to the contractors he directed his Personal Assistant, that is, Agha Manzoor A.I, to check the measurements. His directions to Agha Manzoor All were to carry out a cent per cent check but after this had been done he claims that he carried out a check himself but it is plain from his evidence that this was not a thorough check but merely what he describes as a "token check" which can in the circumstances mean only that it was some little assurance that his own subordinate, Agha Manzoor A.I, had not done his work carelessly or dishonestly. The witness himself says: "Check measurements were carried out by my P. A. Agha Manzoor A.I and he submitted the result of measurements to me on 17-7-58 which I produce Exh. 97 (12 leaves). I then sent to the site on 23- 7-58 myself taking Exh. 97 with myself as well as the Measurement Books Arts. A and B. I checked the measurements in the presence of my P. A. Agha Manzoor A.I accused, Ihsanali Assistant Engineer and accused Mallik Executive Engineer and Ashfaq Farooqi the then Assistant Engineer. I made only a token check and not 100% check. The items which I checked in the measurement books I signed on the measure--ment book. For instance, on page 11 two places encircled in blue and red. Page 12 at 4 places (illegible) blue and red, and also checked on the measurements submitted by the P. A. Wherever I have checked the items I have made an endorsement with my signature on the measurement Exh. 97."
Clearly, this can only mean that so far as the measurements which he himself checked are concerned the evidence of Agha Manzoor A.I, for what it is worth, was found correct by Abdul Hamid himself. It is, therefore, of prime importance to see what it is that Agha Manzoor A.I did.
24. Before, however, I deal with the evidence of Agha Manzoor A.I and the work which he claims to have carried out in checking the measure--ments, it might be convenient to deal with the argument of the defence that Agha Manzoor A.I was not technically qualified or at any rate experienc--ed enough to carry out the work. The claim was that he was after all only a personal assistant and the work of checking out, regard being had to its size, was entirely beyond his capability. I am not at all impressed by this argument. It is no doubt true that at that time Agha Manzoor A.I was working as a Personal Assistant of Abdul Hamid but he is not a lay--man and in fact the designation of the post that he held was "Personal Assistant (Technical)" and he was a Bachelor of Civil Engineering and was in the grade of an Assistant Executive Engineer. The work that he was entrusted with was merely measurements, by no means, a work requiring extraordinary engineering ability or long experience. Indeed it is the kind of work which, admittedly, is expected every day not only from an Assistant Engineer but even from an Overseer. The deceased A.I Nisar who actually did the work in regard to some part of the construction was only an Overseer and respondent No. 2 is an Assistant Engineer. It is true that he admits in cross-examination that he had taken his degree only in 1955 and that prior to this particular assignment he had not taken check measurements of such a heavy work as was done by the contractor in this case. But the mere fact that the work was higher than he had ever done in his life is not to say that it was necessarily more difficult. All he had to do was to carry out actual measurements and I should imagine that this would be well within the scope of an engineer with only three years experience; it might well even be within the scope of a layman who has some practical experience. I am, therefore, quite unable to accept the suggestion of the defence that Agha Manzoor A.I's evidence must be discarded on that account alone.
25. There are, however, other and graver matters which have led me to the conclusion that the evidence of this witness in so far as it attempts to establish that the actual work done was less than that which was paid for is entirely worthless. Although I have already given a brief account of what the witness says he saw at the site I think it will be useful to reproduce a comparatively short passage from his lengthy evidence which brings out clearly what is it what he did: "Before 28-6-58 information was received by Mr. Hameed A. C. That the Assistant Engineer Mr. Ihsanali accused was ill hence the date was changed to 30-6-58. Accused Mr. Malik and Ihsanali had come to the office of A. C. And they were informed but not in my presence. As Mr. Hameed ordered me to be present at the site on 30-6-581 do not remember whether I asked Mr. Hameed whether the accused would be present on the site or not. I do not remember whether Mr. Hameed told me to be on the site. The work had closed. I did not intimate the contractor to send their representative to the site.
On 30-6-58 I went at about 7 a.m. To Gharo at Syphon No. 3 which is about 8 miles from Gharo. I went in a pick-up van along with Mr. Ashfaq Ahmad Farooqi. No body was at site. None of the accused were there. I assisted by Ashfaq Ahmad had a flying survey. By flying survey I mean just seeing the site of Syphons Nos. 3 to No. 9. There are in all 14 Syphons between Dabejee and Tunnel.
The distance between Syphons No. 1 to 16 is 18 miles. These Syphons were to be constructed to allow passage of Nalla, 'Nalis' which were to be constructed by the contractors. Excavation work had already been done and material for building up of concrete structures were collected at the different sites namely stone ballast, crush stone, bajri, sand, had been collected. Mr. Hamid had directed me to take measurement because once payment to the contractor was suspected. After survey that day I and Ashfaq returned back to Gharo and I came to office at Karachi. Mr. Ashfaq who is posted at Gharo remained there. I then verbally informed Mr. Hameed about what I had seen there. We had not taken any measurements that day. I was ordered by him orally to go again on 11-7-58, I again went to Gharo on 11-7-58, picked up Mr. Ashfaq from Gharo and met accused Mr. Malik Executive Engineer and Ihsanali, Assistant Engineer at Gharo. They had come in their jeep to Gharo at about 7 a.m. No representative of the contractors Messrs Bhatti & Co. Were there. Then we all went to the site of Syphon No. 3 which is the nearest point to Gharo. I started taking measurements of the excavation work with the assistance of accused Mr. Ihsanali in the Presence of Mr. Malik accused and Ashfaq I took measure--ments by tape. We took measurements and recorded these measurements on loose sheets of paper. I myself was writing these measurements.
We started from Syphon No. 3 and took measurements to Syphon No. 9. The measurement was taken of the excavation work done which was not covered yet as the Syphon work had not yet commenced. I took these measurements till evening time that day. I not only took measurements but also counted out stacks of various material ballast, sand etc. At each Syphon and different sites. I did not measure the stacks that day but merely counted them. There is no fixed measure for each stack. The stacks had to be measured but this work was undertaken by me subsequently. I merely counted the stacks that day. On 12-7-58 it started raining so I came back to the head office.
Again I went on 16-7-53 after the rains alongwith Mr. Ashfaq Farooqi to Syphon No. 3 where accused Mr. Malik and Mr. Ihsanali were present but no representative of Mr. Bhatti at the same time i. e. About 7 a.m. And started taking measurements of the stacks of material that day.
Accused Ihsanali again helped me in taking measurements in presence of accused Mr. Malik.
Ashfaq Ahmad was also with us. I measured the length, breadth and depth of each stack. The stacks of stone ballast were regular. Bajri was in heaps so also sand. I measured the perpendicular and the base of the triangle in case of heaps of material. I noted down the measurement as I took them on sheets of paper. I was able to do only this work that day till Syphon No. 9.
I produce Measurement Book No. 167 Art. A and Book No. 291 Art. B in which all the measurements were made of this work by accused Ihsanali and Mr. Malik. I compared the copies of measurements supplied to me Exhs. 9(1) to 9(8) with the entries in Arts. A and B and found them correct copies.
To Court: Measurement books are kept in the Divisional Office. The actual measurements are to be made either by an Overseer or by the Assistant Engineer. Measurement Books Arts. A and B contain measurements of this work of 4 bills drawn by the contractor.
Apart from the measurements taken by me at the spot, I checked along--with the accountant Mr. Qadir Khan, arithmetically checked the entries both made by myself and also those in the measurements book and also worked out the totals."
26. Now even apart from the express admission of the witness that upon the 30th of June, 1958 he carried out no actual measurements, the circumstances clearly indicate that it was quite impossible that he should have done so. There were, as he says, to all 14 Syphons and the distance from Syphons No. 1 to No. 16 is as much as 18 miles. Anyhow the witness returned that day and informed Mr. Hameed as to what he had seen though he had not taken any measurements. He then took measurements on the 11th July. But even on this day he took no measurements of the stacks of the material which he merely counted and such measurement work as he did was of the excavation only and this, of course, as ho himself says, was very far from complete. The next day he could not continue the work because it started raining and his next visit was on the 16th. As he has admitted elsewhere in the course of his evidence between the 10th of July and the 15th of July, however, there were such heavy rains as to obliterate some of the excavation work and even to wash away crushed stones. By itself and, without questioning the honesty of the witness, this would render his final report entirely useless.
27. What is worse, however, is that all these measurements were recorded upon loose sheets of paper and these he claimed to produce in the course of his evidence as Exhs. 10/ 1 to 10/4. There does seem to be some mistake in this because there is not among the original papers any exhibits bearing these numbers and the relevant entry in the case diary which is dated the 5th March, 1960 states that the documents produced were Exhs. 7, 8, 9/1 to 8, 10,
11. On the other hand Mr. Hameed, in the course of his own examination, stated that the measurements carried out by Agha Manaoor A.I were submitted to him upon the 17th 'of July, 1958 and he himself produced them as Exh. 97 consisting of 12 leaves. In any event, therefore, the measurements were carried out on loose sheets although obviously a proper measurement book could well have been used for the purpose and that by itself must necessarily make this evidence less reliable than it otherwise would have been.
As it is, however, Exhibit 97 is, in the main, a typed document although there is considerable hand- written material upon it and the curious thing is that much of its material which is hand-written consists of corrections and no explanation, whatever, is red as to how and by whom these corrections were made. I find it offered difficult to believe that at the site Agha Manzoor A.I would be accompanied by a typist carrying a portable typewriter and typing out at his dictation- Besides the documents clearly bear all the indications of a neatly typed set of papers, copies from some other original material; although there are thereafter corrections. All these corrections appear to be in one and in one ink though of course there are other remarks upon it in hand which presumably are the result of checking carried out by Hameed himself later so far as can be deciphered from the initials which they bear and the date.
28. Agha Manzoor A.I produced another very curious document which has been the subject-matter of criticism before us. This document, which is Exh. 45 reads as if it was evidence given in Court but is in fact a detailed critical note upon the various discrepancies and the details of the various additions and alterations in the measurement books and was in fact prepared, as is now admitted, during a short pause in the examination of the witness granted by the Judge who was then hearing the case, to enable precisely such a note to be prepared. Learned counsel for the respondents argued, not without force, that this was mode of giving evidence not at all warranted by the law.
Indeed it was suggested and the record all too plainly shows that it was prepared by the witness in consultation with and under the guidance of the investigating officer, Muhammad Usman Khan, in the Court Room itself. Such 3 practice can only be deprecated but, in the peen liar circumstances of this case, I do not think that this technical illegality or regularity is material: after all Exh. 45 merely states what is visible from irregularity records properly and legally produced and what is contained in that document could have been brought on record on oath as it should have been, though that would have undoubtedly taken a longer time. I am not, therefore, inclined to pay any serious attention to this criticism as affecting the merits of the case. For reasons which I have already stated, however, I have come to the conclusion that if the prosecution case is to rest upon one of the modes of proof that I have postulated, namely, that the bills were false inasmuch as the claims have been based upon work actually done and that it was found as a fact that this was not so, there is no evidence upon which a conviction can be recorded against any of the respondents.
29. It is, therefore, necessary now to take up the alternative case, namely, whether a case can be made out against the respondents or any of them based purely and simply upon the submitted facts that there were additions and alterations made in the measurement books and that the corresponding bills were based themselves upon the increased figures. It will be necessary for this purpose to examine some at least of the alterations but, before I do so, it is worthwhile I think to state the method by which these bills are prepared. I regret to have to say that throughout the hearing of this appeal the paper book of which runs into over 600 typed pages, at no time, despite repeated questionings did any of the counsel explain to us the procedure involved. It is true that each of them commented upon this part or that part of the matter in support of his own particular argument upon a specific part of the case and it is also true that widely dispersed in the course of the however, except there in passages which tend to explain the procedure. Nowhere, the short passage which I am about to quote, is a proper statement of the procedure made. Only the witness Hamid A.I Khan, Assistant Financial Adviser in the K. D. A. At the relevant time stated :- "I was Pay and Accounts Officer in Karachi Water Joint Board in 1958. The bills are first prepared in the office of the Assistant Engineer and they are submitted to the XEN for checking. The Accountant of the XEN verifies the bills and then submits the same to the XEN for his approval. The bills are verified by the Accountant from the measurement book, which disclose the work actually done by the contractor. The XEN then authorises the payment, and the bills are then passed The bills are then arithmetically checked by on to the accounts office the accounts office and if there is any mistake they are corrected by the account office and the payment made accordingly, The bills in the a of arithmetical mistake are not returned to the XEIV for correction."
Even this is not a full account for, obviously it starts only with the prepara--petition of the bills themselves, but, precedent to that, as the witness himself says, must be the measurements. No doubt from a departmental point of view the measurements had to be done by the Overseer or by the Assistant Engineer and, in the former case, had to be signed also by the Assistant Engineer in token of his satisfaction that the measurements were correctly recorded, but surely the contractors themselves must also have been interested in having the measurements made and the bills prepared. I presume, though it does not appear from the evidence that somebody from their firm must have been present when the measurements were taken and possibly that they themselves took the measurements also either in addition to the measurements officially taken or on as a basis for the checking to be done by the official concerned, that is the Overseer or the Assistant Engineer, for preparing his own measurements. The measurements in the measurement books of course are those recorded by the Overseer and/or the Assistant Engineer It is a remarkable feature of this case, as is stated in the evidence of Abdul Hamid himself, that none of the entries fn Articles A & B have been signed by the contractor although he himself says that the contractor should sign the measurements book in token of acceptance of the measure--ments. This is all the more remarkable when one remembers that this is a case in which the prosecution alleges a conspiracy between the contractor and the official respondents.
30. Looking at the case from this point of view, now, it would be convenient to consider the third and the fourth running bills separate inasmuch as the second running bill and the measurement book in relation on thereto presents features different from those which are involved in the case of the third and the fourth running bills. Now so far as the third running bill (Exh. 49-B) is concerned I am unable to see on the bill itself, excepting for a few items which I shall presently mention, any alterations nor were any pointed out in Court before us. The first of these alterations is in the very first item which is described as "Item No. 1 of Schedule B. Excavation in all kind Of sail, soft rock, grave, soil, I/C all leads and lifts comp fete " The amount of moue item, which columns are headed ed in columns 5 and 6 against this upto date and "since previous bill (total for each sub-head)" are shown originally as Rs. 2,78,609 and Rs. 1,76,403. These figures have then been stricken off and for them have been substituted respectively, the figures Rs. 2,78:608-13-0 and Rs. 1,76,402-8-0 There is no question here of any over-writing or obliterating; there is a straightforward cancellation and a new figure written but, what is far more important, IS that the new figures vary by Only a few annas and that towards the lower side. The quantity that is escribed in relation to this item is 14,28,763 a.
And this in the same hand and ink as the original figures of money that I have mentioned and remains intact. It is obvious that, whatever be the explanation, no suspicion can attach to this alteration. Very possibly the mistake is one of mere calculation and is in any event a matter of merely 0-11-0 and that too as a deduction and not as an increase, and the proportion would seem rediculous in dealing with a figure amounting roughly to rupees two lacs. Then follow various other items in which there is no alteration and upon the next page, that is, the other side of the single leaf which constitutes the bill, under the same column, what is described as brought over but is quite clearly the total the figures Rs. 3,52,249 and Rs. 2,28,443 have been stricken off and in their place have been substituted respectively the figures Rs. 3,52,248-13-0 and Rs. 2,28,442-8-0. Clearly this alteration is the consequence of the earlier alteration, and again is in the same ink. The additions and alterations, therefore, upon which the prosecution rely in regard to this bill are not to be found in the bill itself but in the measurement book upon which they are based.
31. The prosecution case as to these alterations is summed up in Exh. 45, which it will be recalled, is the note written out by Agha Manzoor A.I during the course of his evidence in Court. I have already discussed the somewhat irregular manner in which this note was written out but it is nevertheless convenient to refer to this as the clearest possible statement of the prosecution case on the point after a full examination of the record and also because learned counsel for the appellant before us did not himself enter into any details but preferred to rely upon this document. The portion of this note which is relevant is as follows:---- ---In the 3rd R. Bill under item stone ballast instead of 10,000 a 1,00,000 was allowed. Now as already discussed above in the 4 R. A. Bill detailed measurements have been given of 1,40,000 a on page (ii) of the measurement book (291) but on showing the total it is found as 1,29,459 a.
On page (13) the item (5) total of sand has been shown as 10,600 a. Whereas written as say 1,00,000 but the total of detail measurement works up to 1,01,050 I.e. 1960 a. Was shown less.
On page (13) the item (6) of Bajri has been shown as 80,964 a. Or gay 81,000 whereas the actual total comes to 81,034 i.e. 34 a. Less shown.
On page (12) of M. B. (291) it appears that originally on line (17) it was 1 x 20 x 11 x 2 but later on it is made as 210 x 20 x 11 x 2=92,440 by prefixing 2 and suffixing Zero to 1 in No. And 92 in the total.
Even this total should have been 92,400 and 92,440. Practically not possible such huge number of identical measurements."
The last sentence of this note is not quite intelligible and learned counsel for the appellant was also not able to throw any light upon it but I do not think that in the circumstances of the case this really matters. Now the reference to the 4th running bill, which has already been discussed in Exh. 45, is not quite clear because under the 4tb running bill the item now spoken of does not clearly appear but possibly the reference might be to an earlier passage where the witness was talking of the figures generally instead of specifically under each bill and the passage to which this might have reference is as follows :--th "I see page (4) M . B. (291) the original detail measurements of stone ballast for basement was given as 10,0(0 a. But in the abstract it the same original handwriting it is shown as 1,00,000 a.
Coating to Rs. 20,000 at Rs. 20 per oft. And thus the contractor has been allowed 90,000 a. In excess at Rs. 20 per a. And thus the contractor has been allowed 90,000 a. In excess at Rs. 20 per cent. a, totalling Rs. 18,000.
(1) Excavation . . . . . . .1,66,336
(ii) Crushed stone8,100
(iii) Stone ballast18000 1,92,436 From the above it will be seen that a total of Rs. 1,92,436 was paid in excess towards 3rd R. A. Bill."
If this be so then the two mistakes would cancel each other because the obvious and, possibly the only, method of calculating these measurements at the stage of running bills is to calculate the work done at a particular stage and to deduct therefrom the work already shown to have been done at an earlier stage and paid for and to claim the difference. Consequently, therefore, if it was merely a question of inflating the figure at the earlier stage but the figure at the later stage was correct then the excess claimed at the earlier stage would get absorbed by reason of the decreased quantity of further work that would be shown.
32. However, for what it is worth I have examined very carefully not only the items expressly mentioned in Exh. 45 but every page of these measurement books which shows any alteration so as to be able to say whether these alterations are such as yield the inference which the prosecu-- petition wishes to draw. It might be mentioned, however, in the first place, that the page numbers that are referred to in the quotation that I have given from Exh. 45 are all entirely wrong and are yet another symptom of the confusion that seems to have prevailed in the thinking of the prosecution right up to the end of this case in a manner and to an extent which 1 find wholly un- understandable. It was alleged in paragraph 8 of the recital of facts in the memorandum of appeal that, despite the fact that the 3rd and the 4th running bills showed that the measurements had been recorded at pages 1---6 and 7-10 on 28-3-1958 and 12-4-1958 respectively the measure-- ment books themselves showed that they were taken on the 12th April 1958 and 14th April 1958, and shown at pages 7 to 10 and 71to 14, respectively. An actual examination of the measurement books shows that in fact they purport to be recorded on 28-3-1958 and 14-4-1958 respectively at pages 1 to 6 and pages 7 to 14 respectively. (At the moment I consider this apart from the allegation, with which it is connected, that either the book itself or the leaves in it have been replaced by freshly printed and unauthorised books or leaves). For the purpose of examining these entries, therefore, I am ignoring the pages in Exh. 45 but examining the entries themselves. Now a number of these entries have been marked by the trial Judge as Exhibits and they have been given Exhs. Nos. 27 to 44 and this comes out in the evidence of Agha Manzoor A.I. If in the course of the deposition each of these entries had been specifically referred to and the fact that the prosecution had to find with them been stated, the position would of course have been satisfactory but there appears to me to be little purpose in the witness merely stating as he did "I produce the entries from the measurement book Article A Exhs. 12 to 27 at pages 71, 72 and 73. I see Article B measurement book and produce entries Exhs. 28 to 44 at pages 1 to 14". There is no further reference to these entries in his evidence and the case was immediately thereafter adjourned on the ground that the witness had been fasting and had been in the witness-box to some time and could hardly give further evidence. The only other detailed account, if it can be called a detailed account, that we have, is Exh. 45 and that is why I have had perforce to have recourse to this docu--ment. In Court before us no attempt, whatever, was made to take up each item in detail and attempt to show its falsity.
33. Ignoring the incorrectness of the paging, therefore, the only entry that I can find corresponding to this allegation of increase from 10,000 to 100,000 a. Is the one which is marked Exh.
38. Now here the figure very clearly is 100,000 and a remarkable feature of the manner in which this figure is written is, as appears in other figures in the same handwriting and on the same page, that the five zeros are connected by a upper horizontal line, that is to say, that the pen after having written each zero has not left the paper but gone on horizontally to write a short dash and then the next zero and so on. There is, even after the last zero a fair amount of space before the letters "a" meaning cubic feet, appear and there is no question, whatever, of the last zero having been cramped into a space disproportion ate to that which appears between any other pair of zeros in the sane figure.
The calculation at the rate of Rs. 20 per hundred cubic feet, which rate s appears against the same entry and which is clearly not tampered with, does work out to Rs. 20,000 which is the amount stated in the last column. The only possible cause for suspicion that there could be in regard to this entry is that there is a comma after the first two zeros and the only rational basis, therefore, upon which the prosecution allegation can be understood is that if the figure originally was one lac then there would be a comma after the digit "1" and again after the second zero but this system of separating the figures of lacs from thousand is peculiar to the Indo-Pakistan Sub-Continent and the English way of writing would certainly be to insert a comma only after the second two zeros and another comma would be needed only if the figure ran into million and not lacs fn which case there would be a comma before the digit 1. It might also be argued that not all the figures on this page show commas at all but as against that, on some other pages at some places such commas have been used and I must say that the circum--stances would be far too trivial, to base the allegations of forgery upon, specially when contrasted with the fact that the figures otherwise tally.
It is true also that the comma is in somewhat thicker pen stroke than the remaining figures but clearly is of the same ink and upon the whole I am unale to regard the entry as suspicious.
34. Obviously no discussion is necessary in regard to the figure of 140,000 as against 1,29,459 mentioned in the same paragraph because this, the writer himself indicates, is dependent upon the earlier.
35. The next Item to which objection is taken in Exhibit 45 is item No. 5 on page 13 and though this is shown as under the 3rd running bill, it is in fact under the 4th running bill Now there is no question of any over-writing or alteration as is evident from a visual examination and as is also the case as put forward by the witness. What the witness is saying is that the total of the various figures which number as many as 8 has been shown as 10,600 and yet in words it has been said "say 100,000". In other words the allegation was that the figures having totalled 10,600 a claim for 100,000 has been made ; if this was so of course even though the figure is more or less rounded off it would be a grossly exaggerated figure. Even so the possibility of a mistake, genuinely made, can hardly be ruled out. I have, however, taken the trouble of working out the total myself and, curiously enough the mistake lies in the total 10,600 which really should be 1:01060. The figures actually are as follows :-- "23,100 1,000 26,200 19,320 18,000 9,520 1,680 2,240 10,600"
The total that have put is the one shown in the measurement book but a simple arithmetical calculation will show that the correct total was 1,01,060. I can only express my surprise that when Agha Manzoor A.I himself has clearly taken the trouble of working out this total and even according to himself shows that 1060 a. Were shown less than actually due the prosecution still relies upon this as an item of forgery and of fraud.
36. Precisely the same criticism can be made of item No. 6 on page 13 (which of course again is the 4th running bill and not the third) where, according to Agha Marzoor A.I himself the total is first incorrectly worked out at 80,964 and then rounded off to 81,000 but the actual correct total is 81,034 so that 34 a. Less are charged for, than were due. But supposing it had been the other way round and the total figure was 80,964 and was rounded off to 81,000 which meant that 34 a. More were claimed than actually were due is that really a matter, in the case of a running bill, and regard being had to the proportion upon which the inference of fraud can he drawn ?
37. There is finally the allegation that on page 12 at line 17 the figures appear as 1 x 20 x 11 x 2 but have later on been made to appear as being 210 x 20 x 11 x 2 so as to make the total 92,440 instead of 00. Now I have examined the figure "210" as it now appears very carefully and it is quite clear that the digits "2" and "zero" are in the same ink and handwriting of there was a correction at all, therefore, it was made immediately. It is surely not wholly fantastic to assume that a mistake was detected even while the measurements were being made as this is supported quite clearly by the facts that the final figure of 9,440 is not only not cramped but there is no indication whatever of the second "4" being one altered from a zero, I arm therefore, unable to accept this particular criticism either.
38. Although I have had, of necessity, on account of Exh. 45, to travel into the fourth running bill while I am really discussing the third and although I have finished dealing with the criticism made in this Exhibit, I chink I should also refer to some other matters that are evident in the pages which refer to the 3rd running bill. One of these is a clear alteration of a sure under entry No. 2 from Rs.
25,040 to Rs. 44,640, the first having been scored out in a different ink and the new figure substituted in the ink in which scoring out has been done. Now the quantity and the rate are mentioned in the original ink as 3,720 Cft. At the rate of Rs. 12 per Cft. And this clearly works out to Rs. 44,640. There is no question of any addition or alteration in the quantity and the rate and this is, therefore, obviously a mistake which has been corrected; not, it would seem, by the person making the measurement but later, presumably either in the Divisional Office or in the Central Office. In any case the correction is clearly a genuine one and the similar alteration at the end of the page increasing the total from Rs. 3,32,619 to Rs. 3,52,249 is a clear reflection of the increase in this item.
39. Then at the foot of page 2 appears the total of 2,87,434 which has been exhibited as Exh. 29 but since upon the next page the item brought forward is shown as 2,87,434 and is obviously in the same handwriting and ink I cannot understand what the purpose of exhibiting this item was. The same applies to the total shown at the foot of page 3 and brought up on page 4 both of which items tally and yet are marked as Exhibits 30 and 31. Finally at the end of the item the total figure, which is not-claimed to be in--correct, has also been marked as Exhibit 32. There appear upon the same page five other items which are exhibited but here again there is nothing which I can see that is suspicious nor anything which has been said in the evidence about these items. If the evidence of Agha Manzoor A.I had not been as laconic as it was and if Exhibit 45, whatever its technical irregularities, had made a greater and more genuine effort towards explaining the prosecution case perhaps there might have been more to say.
40. In regard to the 4th running bill the statement made in Exhibit 45 is as follows :- "4th R. Bill.
I see 4th R. A. Bill on page (7) of measurement book (291) the total as shown on that page is 2,33,226, whereas it works out to 2,32,783 a. i.e. 443 a. Were shown In excess.
The total of page (8) is shown as 4,42,329 a. Whereas it comes to 4,51,759 a. i.e. 9,430 a. In excess.
The total on page (9) is 7,76,356 a. Whereas it works out to 7,99,219 a. i.e. 22,863 a. Shown less.
Total of the 4th R. A. Bill excavation details comes on checking to 9,65,823 a. On page (10) of the measurement book (291) and it has been shown as 19.42,283 a. Thereby in excess 9,75,460 a. @ Rs.
199 per a comes to Rs. 1,94,316."
The first criticism that is made is that is that on page 7 the total is shown to be 2,33,226 whereas it works out (and by this 1 suppose the witness means that on calculation it works out) to 2,32,783, that is to say, some 443 a. Were shown in excess. Now in relation to a figure which is substantially higher than two lacs a mistake of 443 a. Might well be regarded as innocent. But even that much is not the prosecution case all that is alleged is that arithmetically the total should have worked out to the slightly lower figure. What does this allegation in all come to? The very worst that could be said is that respondent No. 2 either miscalculated or did not spot the mis--calculation done by the Overseer and that in turn respondent No. 3 also was not able to detect the error. It is not even claimed that it was the respondent No. 1's duty to enter into so minute an examination of the figures as to carry out the entire arithmetical calculation himself. A great deal has been said in this case as to who was the final authority to sanction payment, it being the prosecution case that it was the Executive Engineer, that is, respondent No. t, while it is the defence case that it was finally the responsibility of the Accounts Officer and to this and other matters which appear to me to be of a minor character, I shall make a brief reference later. Suffice it for the moment to say that in any view of the matter this item can hardly no regarded as supporting the case of fraud
41. Almost exactly the same can be said of the next two allegations in regard to the totals on pages 8 and 9 although in these cases the excesses are somewhat higher but still I think well within limits which prevent any inference as to criminal conduct.
42. The final allegation with regard to this bill is that on page 10 the total which should have worked out to Rs. 1,94,316 has been varied to show Rs. 19,42,283. Orally, it was explained to us that the implication was that the digit "1" has been added in the beginning so as to make a difference of ten lacs a. Obviously, however, it is not as simple as this. Even if the digit "1" is not added there is still a discrepancy, due obviously, again to an arithmetical mistake which has resulted in showing a lesser figure than was actually due ; ignoring for the time being the digit "1". Here again I have checked the figures myself, and made the totals and, to my regret, I have not arrived at a total exactly the same as that which the witness has or which the person originally wrote the figures did (again ignoring the initial digit 15, but roughly they are more or less the same, running into 6 and not 7 figures. Clearly, therefore, there is either a mistake or the deliberate addition of the digit. Now this being the one and only case in all these figures where despite several arithmetical mis- calculations, the mistake is in favour of the contractors and by a substantial amount. I ask myself the question whether it is possible upon this one item alone to come to the conclusion that there was fraud. Now there is no clearly marked difference between this digit l and the several other places on the same and preceding pages where the same digit has been used to make it evident that this was added. That it was added, if it was added at all, even while these figures were being made out is clear and is even conceded by the prosecution. I have not, therefore, been able to persuade myself that this one item yields sufficient evidence upon which to found a conviction and this wholly apart from the question as to who made the addition and at what stage. It is true of course that the prosecution themselves concede that it was made at the time when the figures were drawn up but when one is regarding the question as a matter of placing liability upon any one of the respondents such a concession by the prosecution can really have no material bearing because, in that context, it is not a concession at all but an allegation. Although I have come to this conclusion on the basis of this evidence alone I think it would be right to say that in some measure I have also been influenced by the allegation of the prosecution that these pages were substituted wholesale, if not the book itself, and I find it, therefore, rather difficult to believe that if these were made ex post facto, as it were, then the figures would not have been manipulated so as to justify the total and obviate the more crude method of merely adding a digit.
43. Having dealt with the allegations made in Exhibit 45 specifically in reference to the 4th running bill I go on to mention the result of my own examination of the details of the work stated in the measurement book under the 4th running bill which are at pages 7 to 14. I think it might be added that there are no other entries in this book after page 14 the remaining sheets being blank. In regard to two of the items in this I have had, of necessity, to deal with them while I was discussing the 3rd running bill inasmuch as the details, as I have already stated, were mentioned under the heading of the 3rd running bill in Exhibit 45. These are the alleged alterations from the figure 1 to 210 resulting in the change in the total from 400 to 92,440 and the figure 10,600 which has been rounded off to 100,000; it would, therefore, be futile to go over this ground again. Here again there are about half a dozen entries which are given Exhibit numbers and here again therefore, the criticism applies that there is nothing in the evidence or in Exhibit 45 which indicates the purpose why these were exhibited or the particular fault that the prosecution found with them. In the case of each of the entries there is no alteration whatever that can be detected either by the naked eye or by examination through a magnifying glass. There are, however, three entries on page 12 in each of which the linear measurement originally made has been encircled and in some of the cases, outside the circle in a different ink appears a lower figure; corresponding with these there are in the first two columns in the same ink as has been used in the encircling, and the new figure a calculation apparently upon the corrected figure and, in yet another ink, appear the initials presumably of Abdul Hamid since one of these bears an exhibit number and is produced as an exhibit in the deposition of that witness. The implication I think is that upon the token check that he carried out he found these figures incorrect in the sense that they did not correspond with the actual work done. I have already said sufficient as to the comparison between the work claimed to have been done and that found actually to have been done to make any further comments upon this superfluous. There is nothing else on the pages concerned with the 4th running bill which calls for any comment nor has any been pointed out to us during the course of arguments in Court.
44. A curious criticism was made in regard to the second of these measurement books numbered 291, Article B, which records the measure--ment: in regard to the 3rd and the 4th running bills and this is one of the matters which I have referred to above as the comparatively minor questions that have been raised in this case. The argument was that the entire book has been substituted by a freshly printed and unauthorised measurement book or that while the covers of the original were retained the leaves inside were re-printed and rebound into these covers. The prosecution has never at any time been clear as to which one of these allegations they mean. Taking the second branch of the allegation first, it was alleged that while both the front and the back covers show irregular area roughly 4" in length and about an inch or more in breadth worms eaten there is no cor--responding evidence of eating by worms on the leaves in between, thus making it clear that the leaves as they now appear in the measurement book were not have been when the book was originally supplied but have been freshly, and therefore, unauthorisedly, printed so as to enable false measurements to be recorded therein and justify the inflated bills claimed. Even a casual glance at the measurement book does not bear out this allegation, it is true that there is clear evidence of worm eating, not upon the front cover in its entirety but merely upon the paper pasted upon the card-board cover and not entirely penetrating the card-board itself. There is certainly not the slightest evidence of worm eating on the back cover. The entire argument, therefore, collapses.
45. Faced with this clear and incontrovertible disproof of the alle--gation learned counsel for the appellant shifted his ground and pointed out to a small irregular punched kind of hole which appears on the front cover and said that this is what was meant and not the worm eating. But here again the hole in question appears in the front cover only and nowhere else, that is to say, neither on the back cover nor upon any one of the intervening leaves arid we are, therefore, left no further forward than by the result of the allegations as to worm eating.
46. We pointed out to learned counsel that if the allegation was being seriously made that these printed leaves were of a different order than those which had been officially supplied then them surely should lave been some evidence from the printing press, the persons charged with the responsible of supplying these books and similar officials but he pointed out to none, in fact there is such evidence on record and I shall presently deal with that. To be fair to learned counsel, the argument as it was put in Vic memorandum of appeal was different. 1n paragraph 4 of the grounds o1 the memorandum of appeal it was stated "it is respectfully contended that the measurement book (Article B) is not the same as was issued originally to respondent No. 1. The cover is the same but the inside pages have been inserted . . . . The pages inserted were also of a different type." There is no doubt that the pages in Article 'B' ace of a different type than those: which appear in Article `A' and other admittedly genuine measurement books. But the difference lies not in the general get up fur even in the actual columns but in a slight variation in the thickening of the printing and little differences as to alignment. Certainly when one looks at the two together, the difference is apparent but the difference is not so great that any person who is normally used to seeing the genuine books would at once spot the difference, and any argument, therefore, based merely upon this that the official who dealt with the measurement book should have imme--diately seen that this was a forged book in the sense that the leaves had been printed differently is, I think, entirely untenable. From time to time in Government Offices fresh stationary is printed and the mere fact that the difference exists particularly when the difference is so small as not to be detectable except by actual comparison is hardly a circumstance on which such an inference can be based. As a matter of fact, in the present case itself, the 4th running bill is a different set of printing than the 2nd and the 3rd and the differences between the two are so very apparent that any person accustomed to using the earlier stationary would immediately notice the difference. The 2nd and the 3rd running bills consist of two pages, that is to say, two sides of the same sheet, and are entirely in black print while the 4th running bill is upon two sheets, that is to say, four pages, and is entirely in red. A person having memory of the earlier bills, and it is to be remembered of course that the respondent officials would have such memory and that in fact it is the case of the prosecution that these bills were presented in rapid succession, could not but be attracted by the differences in question. Nevertheless, it is no body's case either that the 4th running bill is upon unauthorised paper or that the difference in the paper was such as should have attracted the attention of those dealing with it. Of greater importance upon this question was the evidence of two witnesses, namely, Khurshid Alam and Abdul Hamid, prosecution witnesses 7 after 8 respectively. The former was the proprietor of a concern known as the Alam Stationary Works, Karachi and his deposition, which is short, is worth reproduction: "In March, 1954, I have printed 500 Measurement Books from 1 to 500 for Karachi Joint Water Board.
The order was placed with me by the Assistt. Secy., Joint Water Board. The matter was composed one only which means that the printing of all the books was alike. These books were all bound and were handed over on 31-3-54. I see the M. Books Exh. 148-A, Article "A", 149-A and 149-B. They are books Nos. 293, 167, 418 and 440. These books were printed in my press. I see M. Book No. 291, which is Article 'B' and say that it was not printed in my press as there is lot of difference in the print and the placement of work. There is some difference even in the paper in the Article '13' and those which I printed in my press as shown above. Exh. 149-B i.e. Measurement Book No. 40 was also printed in my press. I produce the order Exh. 149-C."
The other witness Abdul Hamid was, at the relevant time, the store-keeper in the Karachi Joint Water Board, Incharge of stationary, forms etc. And says that he received measurement books Nos.
1 to 500 from one Tauqir Hssain, who was a Lower Division Clerk in the Joint Water Board and that used to issue them as and when required. According to him Books Nos. 291 to 300 were issued to respondent No. 1 and upon a comparison between Article 'A' and Article B', the first of which it is to be remembered is numbered 107 and the second is 291, it is clearly evident that article 'B' is bogus.
Now this evidence was certainly evidence of some worth. The very first page, however, of Article 'B' bears the endorsement "blank measurement book No.291 containing pages from 1 to 100 issued to Mr. Ihsan A.I, A. E.". The endorsement bears a signature and the date 14-3-58 but the prosecution made no attempt to prove whose signature this was nor been asked the witness Abdul Hamid whether the signature was his. This was the only evidence of any value upon the point and I should certainly have taken more serious note of it if the prosecution had presented it with more care than they have done. As it is, there is an apparent contradiction in the case of the prosecution upon the point. Upon the one hand it is alleged that alterations and forgeries were made to justify inflated bills and upon the other, it is alleged that leaves were taken out of the note book and fresh ones, with presumably fresh measurements, inserted in order to justify the inflated claim. One would, therefore, normally expect that in the latter case there would be no need of additions and alterations and the learned Judge, I think, was therefore quite right in refusing to place any reliance open this evidence. The learned Judge's discussion on this point has been severely criticised and a particularly vehement attack made upon that part of it which in the following quotation I have underlined: Then a very curious piece of evidence has been brought on record by Mr. Hameed. In respect of the fourth running bill, he says that the bill pages of the measurement book cover from 7 to 10, as given in the 'swill Exh.
50. But in the measurement book Article 'B' itself, the measurements are fund on pages 7--I4. From this he concludes that she measurement books have also been changed. This according to him must be another indication of the malpractices of the accused of strengthen this evidence other witnesses have been examined. P . W. 8 Abdul Hameed said that he is a store keeper in the K, D. A. And measurement books are issued by him, and Major Malik Hanif accepted them and according to him the Article 'A' is genuine but Article 'B' is not genuine but a bogus one.
What can one say about a Prosecutor who first depends upon certain. Books to make out a charge of inflation of figures as if the books are genuine and the work done was not correctly measured and then himself goes to prove that these hooks themselves are not genuine. By what standard they will judge the actual work done? The senior authority who initiated the prosecution was then duty bound to take final measurement to give .Is a starting point from which to judge whether the measurement books themselves were originally correct or not. In any case the necessity of having a final Bill prepared whether or not the contract was abandoned cannot hr desired. See para. Of the C. P. W. A. Code para 4(10) and para 224(b). But none of this latter.
It might have been better, I think, if the learned Judge had expressed himself in somewhat less rhetorical language but I can sympathise with the exasperation which betrayed him into this expression of his irritation.
47. Both in the Court below and before us some time was taken up in the controversy as to whether it was the respondent No. 1 as the Executive Engineer or the Central Pay Office which were the final sanctioning authorities for payment. A number of references were made to the various rules governing these matters but I have come to the conclusion that no useful purpose will be served by entering into a full discussion of these rules for I think that the arguments on both sides miss the central point in the case. In a certain sense of course there can be no doubt that the Central Office would be the final paying authority because it is only after they sanction a bill that payment is made, but, whatever the rules might say and I do not think they say anything to the contrary-it is not to be expected, in the nature of things, that that office can be held responsible for over- payment when over-payment is due to incorrect measurements, whether the incorrect. Ness be deliberate or accidental. On the other hand, it is admitted by the witness Hamid A.I Khan from whose evidence I have already quoted that the measurement books are sent with the bills to the Accounts Office and any mistakes are to be corrected by them. It seems to me, therefore, that, if it is necessary to speak of final responsibility at all, it is a shared respon--sibility. Assuming, however, without holding that there was any neglect of duty on the part of any of the respondent officials or of the Accounts Office I cannot agree that that is a criterion by which criminal responsibility in a case like this can be finally fixed. Departmental responsibility for negligence is one thing and criminal liability quite another. For the latter it must be established that the person sought to be convicted for deli--berate fraud made or at least connived at the making of over-payments and while negligence may be one circumstance which may enter into the question, it can hardly be the most important much less the conclusive factor. It was said, for example, on the one hand that respondent No. 1 should have done at least a 10% check and that if he did not then he is criminally responsible. On the other hand, it was argued for the defence that the requirement of a 10% check relates to the final payment and not to the running bills and the argument was similarly put in regard to respondent No. 2 though in this case it would be a cent per cent check. In the circum-- stances of this particular case, the details of which I do not propose to narrate all over again, this seems to be besides the real point.
48. Upon the assumption of forgery-and I have found little evidence of that-it must moreover be shown that the forgery had been committed before a particular officer examined the bills and authorised them and the is no evidence, whatever, in this case as to the stage at which these forgeries were committed. It is true that there is a charge of conspiracy but a charge of conspiracy is also a criminal charge and, under the shield of the word "cons--piracy," the prosecution cannot escape its responsibility for leading specific evidence which would fix individual criminal liability.
Despite several questions in Court and the most careful study that I have been able to do of the papers thereafter, I am entirely "unable to come to the conclusion is regard to any one of the respondent officials that this has in fact been done.
49. In regard to respondent No. 3, however, I think it is necessary to add that the prosecution case against him was not only that he had prepared the bills and calculated the amounts but that in regard to the 3rd and 4th running bills (and I am considering these at the moment) he had really by-passed the Accountant of the Division, namely, prosecution witness Mirajuddin. Now respondent No. 3 is a Clerk and admittedly, when the second bill was prepared, he was performing the functions of Mirajuddin who was apparently on leave but who took over before the 3rd and the 4th bills came to be prepared. The allegation of the prosecution is that Mirajuddin had been by- passed. But upon this the only evidence that we have is that Mirajuddin says that he did not handle the bills and, unless one assumes conspiracy there is no evidence of any by-passing. Obviously conspiracy must be proved and not assumed. In dealing with the case of respondent No. 3, therefore the learned Judge observed "Then there is a general charge that the bills were not arithmetically checked at the Division Accounts Office has been levelled against the accused Rauf.
Surely the figures and the words in the attract as well as the bills Exhs. 62, 49 and 50 appear in the hands of Rauf. But the calculations of the accounts of the bills neither in the abstract against the items of work nor in the bills Exhs. 49 and 50 appear to be in the handwriting of Rauf. It is said against him that he by-passed the accountant of the Division Mr. Mirajuddin who took over recently. Had that been a very important matter, and arithmetical checking is not an important matter, the Central Accounts Office would not have passed the bills in spite of the certificate of arithmetical checking by Divisional Accounts Officer. I see that in no case was the any serious objections raised to the passing of the bill by the Central Accounts Office. On the contrary in Exh.
50-B though the Divisional Accounts Office passed the bill for Rs. 2 lacs (sic) thousand eight hundred and thirty-eight rupees the Pay and Accounts Department had issued a cheque after adding to it the sum of Rs. 19,444. This would clearly show that the over--payments, if any, must have been made on forgeries with any of the accounts branches, but it is difficult to fix the responsibility for such forgeries."
I am not able to find any fault with this reasoning.
50. Another general point of criticism that was made and which I consider minor is that according to the rules only one bill was to be passed during one month and in this case as many as four bills were passed during a period of six weeks, that is to say, from the dates 1-3-58 to 16-4-1958. At worst this would amount to an infraction of the rules and for reasons which I have already stated, does not amount to proof of criminal liability. But that is not really all. The work was estimated as worth about thirty lacs and was to be completed within ton months and, indeed, work was even directed to be started before the final and formal agreement had been signed. Admittedly, on the part of the Department itself there was urgency and if, therefore, during a period of six weeks bills amounting to roughly rupees five lacs were paid can hardly be said to be a disproportionate figure, regard being had to the stipulated completion period of ten months. It would be remarkable indeed if bills of say ten lacs each in two consecutive months were permissible but four bills amounting to five lacs in six weeks were not permissible, the total quantity of work being estimated at thirty lace and the completion period at ten months. There are no doubt good reasons for such rules and in financial matters no doubt the Government and semi-governmental institutions have to insist upon certain rules of payment but the infraction of such rules cannot by themselves lead to the kind of inference which the prosecution wishes us to draw and in the present case. I think, it is completely impossible to draw them.
51. It will be recalled that I commenced dealing with the question of proof by means of forgery in itself (that is to say, without reference to evidence of actual work done) by taking up the third and fourth running bills without first dealing with the second running bill, because of the different considerations arising in the two cases. One of these, for example was, that the allegation in regard to the forged leaves of the measurement book does not apply to the second running bill which is on the admittedly genuine measurement book No. 167, Article 'A'.
52. Nevertheless some considerations of a general character apply to all the three and I do not mean to burden this already long judgment by recalling them again. The measurements in question appear at pages 71, 72 and 73 of the measurement book Article 'A'. The passage in Exh. 45 which deals with the second running bill reads as follows:- "2nd R. Bill.
I see Measurement Book 167, page (71) in respect of the measurements of 2nd R. Bill of Bhatti Construction Company. The total of the measurements recorded in the Book are in fact 2,98,173 a.
And not 2,96,277 a. As shown therein.
Originally it appears that item No. (7) on page (71) of the Measurement Book in fact was 60 x 17 x 10 coming to 10,200 a., but later on it appears to have been changed to 600 x 14 x 12 equivalent to 1,00,b00 a.
I see page 72. It appears that the first line of 1,100x 14x 10 equal to 14,000 has been added later on because it is not in the line. Lines 2 to 7 originally were 100 x 7 x 10 equal to 7,000 a. Each. Later on it appears to have been made as 100 x 14 x 10 equal to 14,000 a. Each by over figuring 7 as 14.
I see, originally the total of excavation was 4,90,137 a. Appearing not only on page 72 but also in the abstract on page 73 alongwith its correspondence cost of 95,577 at Rs. 195 per cent. a. But later on by over-figuring the original measurements thereby increasing the same, the total excavation has been made as 5,24,135 a. Both on page 72 and in the abstract on page 73 alongwith the cost as Rs.
1,02,206 instead of 4,90,137 a. Amounting to Rs. 95,577 in different handwrit--ing or other than the original one thus Rs. 6,729 was shown in excess in excavation.
I see that the Deodar wood was shown as 2100 a. In the original hand--writing both on page 72 and in the abstract on page 73 alongwith its cost as 8,400. It appears that in the writing other than the original one 2800 a. Were added and also its total was made as 4,900 a. Both on pages 72 and 73 alongwith its cost as 19,600. Thus by altering the two items the total amount of Rs. 17,929 is shown in excess and allowed to the contractor.
All these over-figuring in different handwriting are encircled in red pencil.
Measurements are shown collectively and not individually.
The total given as 14,28,763 a. In fact ought to have been 5,75,558 a. As totalled from the detail measurements recorded on pages 2 to 4 in Measurement Book No. 291.
Thus of 8,53,005 a. @ 195 per % a. Cost of Rs. 1,66,336 in excess allowed to the contractor."
Now so far as the first allegation made is concerned it obviously needs only to be stated to be dismissed all that is alleged is that the correct total was 2,98,173 and not 2,96,277 as shown, that is to say, less was shown than has been claimed for and this obviously cannot furnish any basis for the allega--petition of fraud. The second allegation clearly appears justified. The alterations are as alleged in the linear measurements and in the total but it is curious that before that there is another item in which out of the four items of measurement three have been corrected but the total remains the same and, although this is encircled and given an exhibit number, no more is said about this. Similarly on pages 72 and 73 there are again a number of corrections but it is not quite clear whether these corrections are really in the same person's handwriting who originally wrote them: they appear to be in the same ink but somewhat thicker. Now how and when these corrections were made is a matter which the prosecution has not cared to establish or to bring evidence upon from which a reasonable inference can be drawn. What struck me as more important, although it was not referred to at all in the course of oral arguments is, that the final total of Rs. 74,835 has been stricken off and a new total of Rs. 88,599 has been added. This alteration and the subsequent certificate, signed admittedly by respondent No. 3 that the calculations have been checked by him as also the endorse--ment that the bill is passed for the higher amount are all in the same ink and clearly in the same handwriting, which would mean that of respondent No. 3. The endorsement itself bears the signature of respondent No. I but not, it is to be noted, in the same ink or with the same pen as the corrections. At least, therefore, so far as respondent No. 1 is concerned it is quite impossible to say that the corrections were made before or after he signed them. Both the date under respondent No. 3's signature in his own hand--writing and the date under the signature of respondent No. 1 again in his own, that is to say, respondent No. 1's handwriting are the same, namely, 19th March, 1958. The signature of respondent No. 2 which appears above the endorsement bears the date 18-3-1958 and it is quite impossible to say, whether, on an examination of these papers alone, he was or was not a party to the change. If the dates are to be believed then he certainly was not. As against this, however, it is to be remembered that the duty of respondent No. 3 was merely to carry out an arithmetical calculation and if the figures had already been altered before he examined them then he would be perfectly justified in correcting the total since admittedly the total which he has put in the correct total if one takes the altered figures. Again, therefore, it boils down to a question of the stage at which the alterations were made and, in the absence of any proof on that point, it is impossible to fix responsibility. If this was indeed a case of conspiracy then they would all be liable but then there must be some evidence of conspiracy and it is difficult to rely upon the allegation of conspiracy to prove facts which are themselves sought to be used as evidence of the conspiracy itself.
53. In these circumstances I have come to the conclusion that upon the second running bill also there can be no conviction recorded against any of the respondent officials.
54. In regard to the non-official respondents, I am quite clear in my mind that if it could be established that there was deliberate forgery then even if responsibility cannot be fixed upon any one of the respondent officials, it must be held that the forgeries were committed for the benefit of the contractor and that he must, therefore, have been party to it. It would be quite unreasonable to assume that any person in the Karachi Development Authority would be interested in committing forgeries of this kind which would result in financial advantage to a private party which was illegitimate without that person being a conspirator with him. It is equally futile to imagine that the official concerned would be doing this out of a misguided sense of benevolence clearly he would expect to receive his reward. Since the money would initially go to the contractor this reward he could expect only by means of the contractor paying him whatever share was agreed upon. The presumption, therefore, strongly is that the person who stood to gain by these forgeries is guilty.
This is, however, not exactly the same thing s saying that every member of the contractor firm must necessarily be held guilty for it must be clearly shown to whose advantage the crime was commit- -ted and who else was cognisant of and party thereto. Now the two non-official respondents in this case are Inayatullah and Muhammad Afzal. The other person who was an accused, namely, Bashir is dead and admittedly it was he who signed on behalf of the firm. There is on the record no evidence whatever as to the composition of the firm, if indeed it was a firm and not a sole proprietary concern. Although Inayatullah admits some part of the supervision work and it is also true that the account of the Bhatti Construction Company in the bank into which the cheques were paid was opened by Inayatullah it is by no means clear that he was really taking an active part in the business. Most of the letters that have been addressed to the K. D. A. On behalf of the contractors have been signed by Bashir Ahmad and, while there is of course an initial presumption, as I have already stated that the person who stood to gain by illegal manipulations would be a party to it, I cannot regard this as being more than a presumption and I can find no proof, nor has any been attempted to be shown to us, that Inayatullah was this man. It might well have been the deceased Bashir. Learned counsel for the appellant could not show the evidence upon which it could be safely held that the financial benefit has indeed gone to Inayatullah and that with his knowledge. He, however, stressed the fact that the account of the company into which the cheques were being deposited was closed on the 23rd June 1955 and wishes us to draw the inference from this that Inayatullah, satisfied that as much fraud as could be committed had been committed, wanted to withdraw the money so as to save it from possible attachment. I regret I am entirely unable to see how this follows. There is no evidence, whatever, as to what was done with this money nor is there any evidence that there were no other accounts of Inayatullah or the Bhatti Construction Company. It is admitted that their Head Offices are not in Karachi but in the Punjab and I cannot understand how the mere closure of an account which can be attributed to a variety of innocent explanations, can be pressed into service for an inference of this kind. Although, therefore, I entertain some suspicion in my mind that Inayatullah might well have been cognizant of any crime that was committed I am unable to say that there is evidence upon which I can come to that conclusion without reasonable doubt.
55. The case against the remaining respondent, namely, Muhammad Afzal, was even weaker. He is admittedly the son of the late Bashir Ahmad and he denied that he had anything to do, whatever, with the construction company. Now, even giving the full effect to the kind of presumption that I have spoken of, surely not every member of the family of the proprietor of the contractor firm can, therefore, be held liable. The only allegation against him was that he signed the bills Exhs.47-B and 48-B and he explains that at that time though he was normally living at Lahore he came to see his ailing father at Karachi and that the latter sent him to the K. D. A. Office with instructions to sign on his behalf and obtain the cheque. This he did but I cannot see that this conduct of his is incompatible with his innocence. If a person by reason of fraud having been committed expects to obtain a cheque and sends another to receive it who does in fact receive it, it must be shown that the other was cognizant of the fraud before any conviction can be recorded against him. In any view of the matter, therefore, I do not think there was any case, whatever, against the respondent Afzal Bhatti.
56. I have, therefore, come to the conclusion that this acquittal appeal must be dismissed. On behalf of the non-official respondents a great deal was sought to be said. For showing that there was broach of contract on the part of the K. D. A. And proof was given in the course of the trial that there was civil litigation pending but I cannot see the relevance of this to the question for determination in this case, which is one of criminal liability and, in any case, in the view that I have taken of the merits of the prosecution case, I see no purpose in discussing this contention of these respondents.
57. Two other contentions were raised on behalf of the respondents before us and the first of these related to the maintainability of the appeal before us and the second as to the validity of the prosecution itself. I must confess to a sense of surprise that it should be the respondents who should wish to raise questions as to the validity of the prosecution though of course their desire to argue against the maintainability of the appeal is understand--able. The offence took place in 1958 and judgment was announced in this case on the 20th of November 1965; an appeal was presented to this Court on the 13th of May, 1966 and, although it was during these years taken up once, it is not until late October 1973 that it has been fully hoard on account of the heavy arrears in this Court. In these circumstances I should have thought that the very last thing that the respondents would desire would be a finding that the trial itself was invalid; since, however, they have chosen to do so I am reluctantly compelled to deal with these contentions,
58. For the purpose of the argument against the maintainability of the appeal the respondents rely upon the admitted position that when they were put up for trial they were persons serving in connection with the affairs of the Centre and admittedly, their trial started before a Special Judge appointed by the "appropriate Government" which means the Central Government. Admittedly, however, the trial was concluded by a Judge appointed by the Provincial Government and how this change came about is a matter which I will deal with in considering the question of the maintainability of the trial itself. For the moment let it suffice to say that, arguing upon this basis respondents claim that an appeal filed by the Assistant Advocate-General of the Government of West Pakistan, as the present appeal admittedly was, under the instructions of the Governor of West Pakistan, was incompetent. Now an appeal lies under section 10(1) of the Pakistan Criminal Law Amendment Act, 1958 and that it lies to this Court is undisputed. Sub--section (2) of the same section, however, reads as follows: "10(2).-Notwithstanding the provisions of section 417 of the Code of Criminal Procedure, 1898, in any case tried by a Special Judge appointed fey the Central Government under section 3, in which such Special Judge has passed an order of acquittal, the Central Govern--ment may direct the Public Prosecutor to present an appeal to such Court as aforesaid."
It is argued first that the direction to file the appeal must be by the Central Government and admittedly that is not so in the present case. Upon that ground alone, If I were convinced that subsection (2) is applicable of course the appeal is not maintainable. The right to file an appeal, however, arises from a judgment and admittedly the Special Judge who recorded the judgment in this case was not a Special Judge appointed by the Central Government but by the Provincial Government and, whatever might be said as to the validity of the trial, the maintainability of the appeal, I think, must be judged by that criterion. The point, therefore, that the appeal should have been sanctioned by the Central Government is, in my view, without substance.
59. It is really, therefore, unnecessary to consider the further point that the Assistant Advocate- General who has signed the memorandum of appeal is not "the Public Prosecutor" within the meaning of subsection (2). Now under the Criminal Procedure Code itself, of course, a Public Prosecutor is a person who is appointed as such under section 492 of that Code and admittedly the Assistant Advocate-General has been appointed, ex-officio, a Public Prosecutor. The argument, however, is that the term has not been defined in the Criminal Law Amendment Act and section 417 of the Code which ordinarily provides for appeals against acquittals specifically excluded, we must fall back upon section 6 of the Act of 1958, subsections (1) and (6) of which are relevant: "6(1).-The provisions of the Code of Criminal Procedure, 1898, except those of Chapter XXXVIII of that Code, shall, in so far as they are not inconsistent with this Act, apply to the proceedings of the Court of a Special Judge and for the purposes of the said provisions, the Court of a Special Judge shall be deemed to be a Court of Session trying cases without the aid of assessors or jury, and a person conducting prosecution before the Court of Special Judge shall be deemed to be a Public Prosecutor.
6(1).---The Central Government in cases sent up by the Pakistan Special Police Establishment for trial, and in all other cases, the Provincial Government, or an officer authorised in this behalf by the Central or the Provincial Government, as the case may be, shall, by general or special order, appoint one or more persons to conduct prosecution before any Special Judge."
This would mean that the person appointed by the Central Government to conduct the prosecution before the Special Judge would be the Public Prosecutor. The point is interesting and awaits decision in some other cases also in which it has been raised but since I have come to the conclusion that subsection (2) of section 10 does not apply at all, I think no useful purpose will be served by attempting to decide the question In the present case.
60. It was then argued that the order of the Government directed the Additional Advocate- General, West Pakistan, Karachi, that an appeal be filed and, therefore, the appeal had to be filed by that officer or not at all. As a consequence, the present appeal, which is undoubtedly signed by the Assistant Advocate-General, is incompetent. Now both the Additional Advocate-General and the Assistant Advocate-General are Public Pro--secutors ex officio and I should be reluctant indeed to rule against the maintainability of the appeal upon so highly technical a ground unless the language compelled me to do so. I do not think that it does. In the first place subsection (2) of section 10 that I have quoted applies only in the case of appeals against the judgments of Special Judges appointed by the Central Government, the question of construing the words "the Central Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid" does not arise. The appeal itself is provided for by subsection (1) and although that subsection applies as such to judgments of the Special Judge appointed by the Central Government as it does not others, the limitations imposed by subsection (2) do not arise in the other cases. Even section 417 of the Criminal Procedure Code is not, in express terms, made applicable. Wherever it has been thought necessary to make any specific provisions of the Code applicable the Act of 1958 it expressly says so. Nevertheless, regard being had to the fact that under section 5 of the Code itself, the Code would apply unless excluded, and in various sections of the Act of 1958 specific provisions of the Code are excluded, as for example is section 526 in subsection (3) of section 10, I think it would be right to hold that section 417 of the Criminal Procedure Code applies. That section is in these words:--- "The (Provincial) Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court."
The order of the Governor in the present cases also states that he "is pleased to direct the Additional Advocate-General, West Pakistan, Karachi that an appeal be filed in the High Court of West Pakistan etc." I can read neither the language in section 417 nor the words of this order to mean that the Additional Advocate-General must himself file the appeal; the direction only is that an appeal be filed. It suffices that he took steps, as I think, we must assume that he took steps, that an appeal be filed and that the appeal itself is signed by a Public Prosecutor within the meaning of section 417. Criminal Procedure Code. This contention also fails, therefore, and in my view the appeal was competent.
61. In order to understand the point raised against the validity of the trial, it is necessary to state that at the time when these offences are alleged to have taken place and indeed even at the time when the accused persons were put up for trial the Karachi Development Authority was controlled by the Central Government and that, therefore, the respondent officials were persons in respect of whom the expression "appropriate Government" would mean the Central Government. During the course of the trial tile position changed and the Karachi Development Authority came to be con-- trolled by the Provincial Government. Indeed, in the course of this trial itself and some others which were then pending, objection was taken to the continuance of the trials and was upheld by the learned trial Judge. This he did by one order in all the cases and the State filed an application for revision in this Court not in all the cases but only in four of them which do not include the present case. Part indeed of the delay in the hearing of this case in the trial Court was due to the pendency of these revision applications, judgement in which was awaited by the trial Court. We asked counsel on both sides in vain what the objection was based on, what the order of the trial Court was and how this Court finally decided the question but, beyond admitting that this Court decided that the Special Judge appointed by the Central Government had ceased to have jurisdiction in the matter and that he was, therefore quite right in sending the cases to the Court of Sessions Judge as Senior Special Judge appointed by the Provincial Government counsel was unable to help us. The office of this Court has, however, been able to trace the cases and the main judgment is in Criminal Revision No. 409/1962 Additional Advocate-General, Karachi v. Muslim Aft and another) decided on the .2nd March 1963. Not being an order passed in this particular case the judgment does not, of its own force, apply but, as deciding a question of law, and being the judgment of a Division Bench of a predecessor Court it is of course entitled to the very highest respect and is probably binding on us, in the sense at least that unless we refer the question to a Full Bench, we would not, ourselves, dissent from it. I am in such entire agreement with the judgment itself which brings out also the various instruments by which the control of the Karachi Develop--ment Authority passed to the Provincial Government that I think cannot do better than to quote the judgment, which is not very long, in its entirety: "Faruqui, J.-All these nine criminal revisions are directed against the order dated 17-5-62 passed by Mr. Ghulam Hyder K. S. Pir, Special Judge (Central), Karachi, in nine cases under the Criminal Law Amendment Act, in all of which the accused were the servants of the Karachi Development Authority. By an identical order passed in all these nine cases the learned Special Judge, before whom these cases were pending, held that he had no jurisdiction to try them and sent them over to the Court of the Sessions Judge (Senior Special Judge), Karachi and directed the accused to appear before him. The circumstances in which the learned Special Judge passed these orders are stated below:
2. By a notification of the Central Government dated 29th Juiy 1961, under subsection (1) of section 3 of the Criminal Law Amendment Act, 1958 Mr. Ghulam Hyder Pir was appointed as Special Judge (Central), Karachi vice Mr. Kamber A.I Beg Mirza who had been transferred as District & Sessions Judge, Sukkur. Mr. Ghulam Hyder Pir accordingly took charge and assumed jurisdiction in all these nine cases amongst others. However, on 30th April 1962, an application was made on behalf of the accused in one of these cases stating that the learned Judge had no jurisdiction to try the accused 'who had turned to be an employee of the Provincial Government on or after 27-3-62.' When this application was received the learned Judge issued notices to the Advocates in these cases and also to the Public Prosecutor, Special Police and after hearing them came to the con--clusion that he had ceased to have jurisdiction in these cases and, therefore, sent them to the Senior Special Judge who by virtue of his being the Sessions Judge, Karachi also became the Provincial Special Judge for Karachi Sessions Division by means of a notification of the Provincial Government. The reasons upon which Mr. Ghulam Hyder Pir reached this conclusion may be set out in his own words:--- `The point is simple. When the trials were commenced in this Court, the accused were servants of the Central Government. Pending trials, they have been made servants of the Provincial Government. This Court has been appointed by the Central Government. The question is if it can continue to try all these Central Government servants, who, pending trial, have become Provincial Government servants. My answer is in the negative'.
Against this order the State filed 9 separate revision applications which first came before Feroze Nana, J. Who, after hearing the parties on 19-12-62, considered that this was a fit matter to be heard by a Division Bench and made a reference accordingly. As a result of this reference these cases came up before us.
"3. In order to understand the reasoning of the Special Judge it would be necessary to refer to certain provisions of the relevant statutes. The Karachi Development Authority was established by the K. D. A. Order (Order V of 1957). This order made provisions for the develop--ment and improvement of certain areas in the Federal Capital and for providing public amenities etc. By subsection (2) of section 4 of this order, the Governing Body of the K. D. A. Was to be guided on questions of policy by such directions as the Central Government might from time to time give. 13y section 6 the Central Government was given power to appoint one of the members of the Governing Body to be its Chairman. The Central Government also reserved the power of sanctioning or refusing to sanction: any scheme prepared by the K. D. A. These and similar other powers were vested m the Central Government by this Order: By section 120 of this Order the Karachi Joint Water Board Ordinance of 1949 was to stand repealed upon the coming into force of this Order (Order V of 1957). By another section, viz., section 149 of this Order the Karachi Improve-- ment Trust Act of 1950 was repealed and the functions of these two bodies devolved upon the Karachi Development Authority. By President's Order No. 9 of 1961 dated 29th June 1961, the Federal Territory of Karachi was merged into West Pakistan. The merger actually took effect on 1st July 1961, as a result of a notification. Subsection (1) of section 8 of this Order provides that all persons serving immediately before the appointed date under the Central Government in connection with such affairs of the Federal Territory as would have been the affairs of the Province had this territory been a Governor's Province shall from the appointed date be deemed to be persons serving under the Government of West Pakistan. The next relevant enactment is the President's Order No. C of 1962, viz., the Karachi Development Authority (Amendment) Order, 1962. By this legislation certain consequential amendments were made in the K. D. A. Order No. V of 1957 in view of the merger of Karachi with West Pakistan and the words "Provincial Government" were substitut--ed for the words "Central Government" except in the articles men--tioned in section 2(ii). It was because of this amendment in the K. D. A. Order that the learned Special Judge took the view that the accused persons who were formerly Central Government servants had become servants of the Provincial Government during the pendency of these cases and therefore he could not continue to try them.
4. We may now refer to the relevant provisions of the Criminal Law Amendment Act. Section 3 of this provides for appointment of Special Judge by the "appropriate Government" and subsection
(5) of section 6 provides for the previous sanction of the Appropriate Government as a condition for the prosecution of a public servant for an offence under this Act. "Appropriate Government" has been defined by section 2(a) which reads as follows :- 'appropriate Government' means in relation to a person serving in connection with the affairs of the Federation, a Railway employee and any other person employed by the Central Government or by an organisation or body corporate notified by the Central Government, in pursuance of the next proceeding clause, the Central Government, and in other bases, the Provincial Government concerned:
5. The position eventually adopted by Mr. Khalid Ishaq, the learned Additional Advocate-General, at the hearing was that fn so far as the Karachi Development Authority is a `body corporate' the `appropriate Government' for the purposes of !He Criminal Law Amendment Act in the case of their employees would be the Central Government regard--less of the changes brought about by the merger of Karachi into, Pakistan. He relied upon two notifications issued in pursuance of clause (6) of section 2 of the Pakistan Criminal Law (Amendment) Act, 1948 (XIX of 1948). The first of these notifications is dated 28th October 1954, bearing No. 1/23/54-Police (II). It says that the Central Government is pleased to notify the Karachi Joint Water Board, a body corporate constituted under the Karachi Joint Water Board Ordinance, 1949 to be a body corporate the employees whereof shall be public servants for the purposes of the said Act. A similar noti--fucation dated 27th January 1955, bearing No. 1/23/54-Police (II), was made in respect of the employees of the Karachi Improvement Trust. Mr. Khalid Ishaq argued that by virtue of these two notifications issued by the Central Government the 'appropriate Government' for the purposes of the appointment of the Special Judge as well as for granting sanction would be the Central Government as provided in the definition of the expression 'appropriate Government'. But that definition requires a notification in respect of the persons employed by a body corporate. Mr. Khalid Ishaq contended that the two notifica--tions referred to above in relation to the employees of the Karachi Joint Water Board and of the Karachi Improvement Trust would apply to the employees of the Karachi Development Authority inas--much as it is the successor of the aforesaid two corporate bodies. However, we pointed out to him that these two notifications were expressly in respect of the employees of the Karachi Joint Water Board and of the Karachi Improvement Trust and in view of the repeal of these two Acts and the merger of these two bodies into the Karachi Development Authority, which became a new and an inde--pendent corporate body, a separate notification, in respect of their employees, by the Central Government for the purpose mentioned above would be required. Mr. Khalid Ishaq took time to ascertain if there was such a notification, but he was not able to find any and informed us accordingly. In the absence of such a notification it is plain that the concluding part of the definition of 'appropriate Govern--ment' i.e., 'and in other cases the Provincial Government concerned' would apply. Mr. Khalid Ishaq then contended that as regards the Federal Territory the Central Government was the Provincial Govern--ment, but when we pointed out that the Federal Territory lost its character as from 1st July 1961, in consequence of the President's Order No. 9 of 1961 and under Article 3 thereof became a Division of West Pakistan, he relied upon Article 5 of that Order which reads as follows :-
5. Except as otherwise provided in this Order, all laws, including Acts, Ordinances, Orders, bye-laws, rules, regulations and notifications, in force in the Specified Territory or any part thereof immediately before the appointed day, shall, so far as applicable, and with the necessary adaptations, continue in force, until altered, repealed or amended, by competent authority'."
The argument was that this article gave continuity to all laws in force in the Specified Territory immediately before the appointed day and, therefore, by legal fiction the Central Government would still be the Provincial Government for the purposes of the definition of 'appropriate Government' in the Criminal Law Amendment Act. This argument cannot too formally be rejected.
The legal fiction to which the learned A. A: G. Referred perished by the coming into force of the President's Order No. 9' of 1961 whereby the Federal Territory of Karachi merged into West Pakistan.
Article 5 of that Order merely gives continuity to the laws in force with necessary adaptations but from it, it cannot be argued that as from the appointed day, the Central Government would still be a Provincial Government for the purposes of section 3 of the Criminal Amendment Act.
"6. Mr. Ghulam Hyder Pir was appointed as Special Judge (Central), Karachi by a notification dated 29th July 1961, after the merger of Karachi into West Pakistan, and we are unable to see how he could exercise jurisdiction in respect of the employees of the Karachi Development Authority. There was thus initial lack of jurisdiction in Mr. Pir as far as these cases are concerned and that being so, it is not necessary for us to consider the other argument of Mr. Khalid Ishaq which was advanced at the earlier stage of the bearing that once Mr. Pir had assumed jurisdiction properly he could not be divested of that jurisdiction by any subsequent event.
7. For the reasons given above we dismiss all these nine revision applications. These cases will go back to the Court of the Senior Special Judge who has also jurisdiction as a Special Judge (Provincial)."
62. It is, however, claimed that even though the Special Judge who now tried the case might have had jurisdiction to do so there would then be no valid sanction inasmuch as the sanction in the case admittedly was granted by the Central Government. The necessity of a sanction arises by reason of section 6(5) of the Act of 1958 which reads as follows :- "6(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act."
63. In essence the question, therefore, really is what is the material time in relation to which the validity of a sanction must be judged and an aspect of the same question is that time in relation to which the status of the person prosecuted is to be judged, I shall presently refer to a number of cases which I have studied for the purpose, though none was cited, but I think it right to say that in my view, as yet un-influenced by authority, in the absence of language which could have that effect, a trial once begun validly cannot be held invalid upon such a point as the sanction ceasing to be valid by reason of supervening events. A sanction is needed for the pro--secution of a public servant and that I think means the commencement of the trial. In many similar provisions such expressions as "no Court shall take cognizance" are used; the fact that the language is somewhat different in this Act does not, I think, make any real difference. Validity of the trial upon a question like this must depend upon its valid initiation and that & I think is not liable to change by reason of changed circumstances. The jurisdiction of the Court as such is a different matter.
64. The first case to which reference might usefully be made is that of Muhammad Sharif v. The Crown (PLD 1955 Lah. 650). It is true that this was a case under the 1948 Act which has been replaced by the 1958 Act for this purpose but that the question as to what is the material time was involved in this case also can be gathered by the following extract from the judgment which appears at page 654: "The learned counsel argues that when the trial was in progress in the Court of Khan Muhammad Shafi Khan, sub-section (5) of section 5 of Act XJX of 1948, which required sanction of the Central Government for the prosecution of public servants, had already been enacted and, therefore, the case could not be tried by him without fresh sanction by the Central Government, the previous sanction under section 6 of Act 11 of 1947 having lapsed and become of no legal consequence.
The contention was repelled and the decision upheld in PLD 1956 FC 34.
65. In the case of Hamid Ghulam Sadiq v Pakistan (PLD 1959 Kar. 447) also a case under the 1948 Act, the facts were somewhat peculiar. The accused was originally in the service of the Punjab Government but was transferred on deputation as Deputy Secretary in the Government of Pakistan and, while serving there, he was charge-sheeted and the charge-sheet expressly stated that he had committed offences under Act II of 1947 cognizable by the Special Judge., Karachi. He took leave and was eventually informed that he was allowed try retire but nevertheless he was prosecuted under a sanction accorded by the Central Government and the question raised in the High Court on his behalf was that, when sanction for his prosecution was granted he was no longer in the service of the Central Government and that Government, therefore had no power to grant sanction (that is because upon being permitted to retire he became a pensioner of the Provincial Government). The argument was not successful in the High Court and was repelled in this language: "Mr. Brohi's contention is that the words 'serving in connection with the affairs of the Federation' must be interpreted as relating to the date on which the sanction is given, and not to the date of the offence but I cannot agree. It would appear that when framing the Act the Legislature overlooked the possibility that the alleged offender might be serving one Government at the time of the commission of the offence and another at the time of the granting of the sanction, but the plain meaning of the section in question appears to me to be that the Government by which the sanction is to be granted is that under which the person concerned was serving at the time the alleged offence was committed. Any other construction would lead to the absurd conclusion that the Government under which the alleged offender was subsequently serving would have to enquire into the circumstances surrounding the commission of an offence with which it had no concern, I have accordingly no hesitation in holding that, con--sidered from the point of view of which Government is competent to grant it, the sanction given in the present case is valid. It has not been contended before us that the sanction is invalid on any other ground."
66. The decision was reversed by the Supreme Court in PLD 1960 SC 351 and the passage of the Judgment a which has some bearing upon the question before us just now reads thus: "On the other hand, it would seem to follow upon a true construction of the relevant provisions in the special law that the intention of the special Act is to assert in relation to public servants, the authority of administrative law, conferring upon the Government under whom an officer is serving, the power to decide whether any error of which he had been guilty, even should it amount to a crime of one of the specified classes, should not be visited by the exercise of departmental discipline within the discretion of the employing Government. It has been said in a number of cases decided upon the terms of section 197 of the Criminal Procedure Code, which also makes the previous sanction of the employing Government a requisite for the prosecution of a public servant for an offence "alleged to have been committed by hire while acting or purporting to act in the discharge of his official duty" that its main purpose is to protect public servants from vexatious prosecutions. It may have been the case at some time in the past that public servants in the sub- continent in the discharge of their official duty were generally free from blame of every kind, but were yet liable to vexatious prosecutions by members of the public with whom they had to deal, owing to some evil tendency or perversion of outlook in such members of the public, but that can hardly be said with truth in the state of affairs which at present prevails. Even in the period when Judges found it necessary, for the understanding of section 197, Criminal Procedure Code, to assume that public servants require to be protected against vexatious prosecution by members of the public, the more logical interpretation of section 197 in my opinion was that with reference to actions of a public servant, performed in the discharge of his official functions, which might be regarded as exaggerations or excesses or behaviour amounting in certain cases to a crime, the law preserved in favour of the employing Government an option to deal with the offender under its plenary powers of discipline, subject to a decision by the Court that the alleged offence had been committed "while acting or purporting to act in the discharge of official duty." Thus, the definition of the limits within which administrative law could be allowed in individual cases by the Courts to prevail, at the option of the Government, was reserved to the Courts. It would stern to follow that in a case where a Government purports to act so as to prevent an alleged misdeed by one of its officers from being investigated by the Courts, it should possess at the time when it exercises its option, a tower to visit the offence with its disciplinary Jurisdiction over its officers. Otherwise, the power given by the law, would be a naked power to stifle a prosecution at will, irrespective of the truth or otherwise of the allegation.
Viewing the matter in that light, it seems to me to be plain that in the case of a retired officer who is in receipt of a pension the incident of his being amenable to departmental discipline for actions performed in the course of his service is altogether missing. Consequently, the requisite of sanction for prosecution becomes inept, since redress or requital by administrative process is not available, and this furnishes a basis in reason to support the construction I have arrived at above, via., that for an officer who has retired, there is, within the contemplation of the Criminal Law Amendment Act, no appropriate Government which can validly sanction his prosecution for an offence allegedly committed during the period of his service. The restriction would be out of pace, for there could be no valid reason for imposing the requirement of sanction."
67. Admittedly the case in not on all fours with the present one but it does seem to me that the view expressed by their Lordships not only implies but even clearly states that the material time for the purpose, of considering the validity of the sanction is the time at which it is accorded.
68. In the case of Nazar Hussain Shah v. The State (PLD 1962 Lah. 689) the question arose whether a sanction was necessary in the case of a person who was a public servant when the offence took place but not when the prosecution was initiated. This was a case under the 1958 Act and the difference in language between that Act (by which we are at present governed) and the 1948 Act is material inasmuch as it was possible to hold under the other Act that a sanction was necessary in the case of all persons tried, whether public servants or not. Referring to Hamid Ghulam Sadiq's case (PLD 1960 SC 351) the learned Judge said at p. 692:--- "I am clear in my mind that no sanction was required in the case of Nazar Hussain Shah for his prosecution, because he was no longer a public servant when the case was put in Court against him, though the offence under section 409 is exclusively triable by a Special Judge."
69. The decision was upheld by the Supreme Court but in the meantime that Court decided the case of A.I Ahmad v. The State (PLD 1962 SC 102). In this case the appellant, although a public servant at the time of the commission of the offence, had ceased to be such when sanction was granted. Reliance was, therefore, placed upon the earlier Supreme Court case of Hamid Ghulam Sadiq and it was argued that the sanction of the Provincial Government of East Pakistan was not valid but the argument did not find favour with the Supreme Court, his Lordship the present Chief Justice observing: "This decision is, however, distinguishable for, in the case of Hamid Ghulam Sadiq the impugned sanction was granted under the Criminal Law Amendment Act of 1948 and under subsection (5) of section 5 of that Act no prosecution for any offence exclusively triable by a Special Judge could be commenced without a sanction from the appropriate Government. The appropriate Government was also differently defined therein. The Criminal Law Amendment Act of 1948 has, however, now been repealed and replaced by the Pakistan Criminal Law (Amendment) Act of 1958. Under clause
(b) of the Schedule appended to this Act an offence under section 409 when committed by any public servant in his capacity as such public servant is still by virtue of subsection (1) of section 5 triable exclusively by a Special Judge but under subsection (5) of section 6 thereof sanction of the appropriate Government is required only for the prosecution of a public servant for an offence under the said Act. The pro--secution in this case was on the basis of a formal complaint lodged by the assistant Inspector of the District Anti-Corruption Branch, Comilla, on the 5th of March 1958, but the sanction was actually granted on the 16th of April 1959. At the time, therefore, that the sanction was granted he had ceased to be a public servant. Thus under the provisions of the Act of 1958, no sanction for his prosecution was at all necessary. In any event, under the explanation given under subsection (5) of section 6 of the Act of 1958, an appropriate Government for the purposes of the said subsection means the Government which at the time of the commission of the offence was the appropriate Government. Thus, if sanction was necessary for the prosecution of the appellant, the only Government that could grant such sanction under the Act of 1958, was the Government under which the appellant was a public servant at the time of the commission of the offence. At that time there can be no doubt that the appropriate Government was the Provincial Government of East Pakistan which had, in fact, granted the sanction in the present case.
A sentence in the passage that I have quoted, reads "in any event, under the explanation given under subsection (5) of section 6 of the Act of "(XL of 1958) "an appropriate Government for the purposes of the 1958, said sub-section means the Government which at the time of the commission of the offence was the appropriate Government". Applying this test there can be no question but that in the present case it would be the sanction of the Central Government and not the Provincial Government that would be requisite.
70. The appeal from the Lahore case of Nazar Hussain Shah was dismissed by a judgment of the Supreme Court reported in Y L D 1965 SC 139. Their Lordships, after considering the case of Hamid Ghulam Sadiq as also that of A.I Ahmed and another Supreme Court case to which I have made no reference, namely, that reported in PLD 1962 SC 277 re-affirmed their view in Eli Ahmad's case. It suffices for my present purpose to quote only one sentence from this judgment at page 145 which is as follows:-- "lf this background of the enactment is borne in mind there is no room for doubt that the intention of the Legislature was that no sanction would be necessary for prosecution of a public servant who had ceased to be a public servant when the Court was taking cognizance of an offence which had been committed by him when he was a public servant and this was also made clear by adding an Explanation to section 6(5)."
It seems to me that their Lordships considered the material time to be the time at which the prosecution started.
71. Finally I would refer to the case of Rashid Ahmad v. The State (PLD 1972. SC 271). The precise question in that case was not the one which is before us just now but in a sense its converse. What happened in that case was that the sanction was accorded by a person who was not empowered, upon the date when the cognizance of the case was taken, to grant such a sanction. Subsequently there was a notification conferring the power of granting a sanction. On behalf of the State it was argued that this was sufficient compliance of the requirements of the law but the Supreme Court rejected the contention in the following language: "The contention of the learned counsel has not impressed me. The Court took cognizance of the case on the 29th September 1961, when the appellant was summoned. On this date, the notification dated the 10th November 1961, did not exist, therefore, the sanction relied upon could be of no avail to the respondent. It was not a valid sanction and the trial of the appellant on this basis was illegal and without jurisdiction."
With great respect, I do not think that this is direct authority for the question which is before us just now but it supports the general principle, I think, with respect, that the material time at which the validity of the sanction must be examined is at the time when the prosecution commence and not at any time thereafter. In the present case there can be no doubt that there was a valid sanction at the time when the prosecution commenced and the fact that at some subsequent stage the status of the respondents so changed that if they had then been prosecuted the sanction of a different Government would have been necessary, does not in my opinion, make any difference. I have, therefore, come to the conclusion that the trial was perfectly competent and that no exception can be taken to its validity.
72. I am aware that there are decisions which hold that questions as to the validity of the trial or jurisdiction of the trial Court are to be taken in the trial Court itself but I have deliberately refrained from referring to these because there are also weighty and binding pronouncements to the effect that objections as to the validity of the trial can be taken at any stage. Nevertheless I cannot help regretting that, if counsel for the respondents thought it really necessary to take up these two questions as to the maintainability of the appeal and the validity of the trial they did not do so at the commencement of the arguments but left it towards the conclusion of their own arrangements. If I had come to a different conclusion as to the merits of these two questions it is possible that the time that was spent in examining the merits of this case might well have been entirely wasted.
73. In view of all that I have said above I would dismiss this appeal.
AGHA ALI HYDER, J.----I agree.