' This judgment will dispose of Criminal Appeal No,261 of 1999 filed by Allah Ditta, Sub-Engineer, Shahzada Riazul Qadeer and Muhammad Iqbal who were convicted and sentenced by learned Special Judge, Anti-Corruption, Sargodha vide his judgment dated 1-4-1999 to undergo R.I. For 5 years with a fine of Rs,10,000 and in default of payment of fine to undergo R.I. For one year, under section 409, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947.
2. Brief facts of the case were that one Ghulam Abbass, resident of Town Committee, Dulaywala District Bhakkar complained that work which is being done by Contractor and Sub-Engineer is not up to the mark and work should be inspected. It was further stated that there was partnership of contractor and Sub-Engineer. On this complaint, F.I.R. Exh.P.A. Was registered on 26-5-1991.
Prosecution in order to prove its case produced Muhammad Ramzan, Sub-Engineer (P.W.1), Zahoorul Hassan (P.W.2) Shamsher Ali, Secretary Town Committee, (P.W.3) and Abdur Rehman, Investigating Officer (P.W.4).
3. Learned counsel for appellants has read before me prosecution evidence, charge framed against appellants, statements of appellants under section 342, Cr.P.C. And report of the Analyst.
He submits that according to charge framed on 8-7-1997 it was stated/charged that although appellant No,1 had to release Rs,15,537 for the above said work but he released Rs,43,500 and thus, caused monetary loss to Government. Further submits that in statement under section 342, Cr.P.C., it was asked that appellant No,1 had paid Rs,45,500 and that Muhammad Ramzan, Sub-Engineer (P.W.1) stated during the course of trial that he did not sign any document before the Raiding Magistrate. Learned counsel adds that the Raiding Magistrate was not produced although he has died but no secondary evidence was produced and that measurement book on the basis of which assessm ent report was prepared was not produced. Further submits that no charge for using substandard material was levelled against appellants, that Sheikh Abdullah and Shamsher Ali who were Chairman and Secretary of Town Committee admittedly accused persons were not cited as accused but one of them, namely, Shamsher was produced as P.W., Shahzada Riaz-ulQadeer appellant was never arrested by. Police and there is no evidence on record that there was partnership between Iqbal and Allah Ditta. Learned counsel further submits that there were two accused namely Sharif and Muhammad Khan but they were not cited as accused persons and that the analysis report tendered in evidence cannot read as it was not a complete report.
Moreover, it is also not admissible in evidence under section 509, Cr.P.C. Learned counsel lastly submits that no case is made out against appellants and they are entitled to acquittal.
4. Learned counsel for State opposes the submissions made by learned counsel for appellants and supports judgment of learned trial Court.
5. I have heard learned counsel for parties and have gone through the evidence recorded by learned trial Court. In the instant case, charge was framed against someone else while evidence was otherwise. Questions under section 342, Cr.P.C. Were in different nature, no evidence was produced to identify signature and handwriting of the Raiding Magistrate because he had died, Abdullah, Chairman of Town Committee who was admittedly an accused was neither cited as accused nor as a witness, Shamsher Secretary, Town Committee too was accused but he was cited as a witness, Sharif and Muhammad Khan accused were not challaned and that report of the analyst is incomplete which is reproduced hereunder:-- CEMENT SAND MORTER ANALYSIS OF TEST ' Name of work. Sample of Cement morter of Dullaywala.
' Type of Sample Cement Sand Morter Weight of sample tested 200 grams ' Sample No, Two Sample tested by M.S. M.N.I.A.
' Sample checked by M. H. Taahir Ali dated 1 MOISTURE CONTENTS
(i) Wet Weight of sample =
(ii) Dry Weight of sample =
(iii) Weight of water =
(iv) M.C. % w.r.t. Wet weight = MORTAR ANALYSIS
(i) Total weight of sample = 100 grams
(ii) Weight of dry sand = 89.75 "
(iii) Weight of dry cement = 10.25 "
(iv) Ratio by weight = 10.25 10.25 89.75 ' Result 10.25 1 :8.76 NOTE: This analytical/test report is based solely on the particular sample(s) supplied by the party, and should not be reproduced in part. Sampling has not been performed by the F.D.A. Laboratory and the F.D.A. Does not accept the responsibility that the sample(s) supplied is/are truly representative sample(s) of any batch or stock or entire production. While the F.D.A. Lab. Agrees to take every reasonable precaution to ensure validity of its test result, it assumes no liability for the accuracy thereof beyond the amount of the fee charged for the analysis/test. The party shall assume full responsibility for the ethical use of the results in the analysis/test report and the Lab.
Shall be held free from any and all claims which may result from the use of such date by the party or others. The clients have also not supplied the original sample of cement and sand used in the mixture. Therefore, the results are approximate."
' It may also be observed that there was no evidence that there was any partnership between Muhammad Iqbal and Allah Ditta, the contractor, Shahzada Riazul Qadeer appellant was never arrested in this case but was cited as accused. It may further be noted that measurement book on the basis of which assessm ent report was prepared was also not produced either during the investigation or before the trial Court. Muhammad Ramzan (P.W.1) had admitted during cross- examination that he did not sign any statement before the Raiding Magistrate.
' After considering all facts of the case, I think there are many doubts in prosecution case, so benefit of doubt is extended in favour of the appellants. Appeal is accepted, conviction and sentence awarded to appellants is set aside and they shall be released forthwith, if not required to be detained in any other case.