This reference under section 3/4 of Ehtisab Act, 1997, sections 408/ 409/467/468/471, A.P.C. And 5(2) of Anti-Corruption Act is made by the Chief Ehtisab Commissioner, whereby it is alleged that accused Nos.1 to 5 who are Accused and accused Nos.6 to 9, who are A.S.Ps. Have by deceitful means received double pay from Civil Service Academy, Lahore during their training at Lahore, and from their parent departments in Azad Kashmir for the same period, to which they were not entitled on account of which they are accused of being guilty and referred for trial under the above referred offences. It is alleged that the accused have . Refunded the amount received from the academy, while the amount received from Azad Kashmir should have been refunded and the accused are wilfully retaining an amount of Rs,228,763 which is recoverable form them.
2. In their statements under section 242, Cr.P.C recorded on 25- t-2000, all the accused have pleaded not guilty, but admitted the fact of receipt of attributed amount from both the places with the explanation that item No,VI of the order of their appointments contained the condition that they shall be entitled to the pay and allowances during the period of probation, while the order of their deputation for training at Lahore did not contain any condition otherwise. It is further stated that they have been receiving the amount from the academy considering it to be honorarium/ training allowance but when the Services Department on 12-4-1998 ordered them to refund the excess amount, the same was refunded.
3. As the facts on the basis of which the accused are challaned were admitted by all the accused, there remained nothing for the prosecution to prove or lead the evidence. The Special Prosecutor for the Ehtisab Commission contended that as the accused have admitted the commission of offence by admitting the receipt of double pay, they are liable to be convicted under section 243, Cr.P.0 forthwith, while the defence counsel contended that the explanation furnished by the accused shown sufficient cause for not convicting them and that no offence is made out against them.
4. Though the accused pleaded not guilty in statement, but they have admitted the facts in their statement under section 242, Cr.P.C on the basis of which the offences are attributed against them.
Their statement has to be read as a whole and their pleading as not guilty would not absolve them of the liability they have voluntarily admitted in stating the facts. In view of their explanation, they could not be convicted on the qualified admission, however, the onus to show sufficient cause as to why should not be convicted as visualized by section 243, Cr.P.C. Shifted upon the accused on account of which they were allowed to lead the evidence in defence or appear themselves as witnesses in view of section 25 of the Ehtisab Act, 1997 on 24-2-2000.
5. Accused Zahir Ahmed, Atta Ullah Atta and Ghulam Bashir Mughal appeared witnesses in defence.
6. Atta Ullah Atta, A.C. Appearing as defence witness stated that besides him, Zahir-ud-Din Qureshi and Muhammad Muzaffar were appointed vide Exh.D.A., while Nabeel Qureshi was appointed on 15- 11-1995 and Ghulam Bashir Mughal on 26-3-1996 whose notifications are placed on record as Exhs.D.B. And D.B./1. According to condition 2(vi) of their order of appointment, they were entitled to pay of Rs,3.880 per month with allowances. He further stated that he alongwith Zahirud Din, Muhammad Muzaffar Khan and Nabeel Ahmed Qureshi were deputed for training to Lahore Academy vide Notification, dated 16-11-1995 (Exh.D.C.) and it did not contain anything about pay.
He was recalled from training after five months on account of cancellation of his domicile certificate, while others remained under training. He was again deputed for training on 18-7-1998 vide order Exh.D.D. And it was mentioned in this order that he will draw his pay from Lahore Academy and the L.P.C. Was also sent to Lahore, copy of which is placed on record as Exh.D.D./1.
According to him as the earlier order of their deputation for training did not mention as to from where the pay will be drawn, it was, therefore, drawn from Azad Kashmir and nobody objected to this payment. They were getting more than fifty four hundred rupees from Azad Kashmir, while about four thousand only were credited to their account by Lahore Academy. According to him, they did never claim nor did ever they submit any bill for the purpose to the academy. A fax message Exh.D.D./3 is placed on record, original of the same is also delivered in my chamber on 29-2-2000. He further stated that the Government on 12-4-1998 vide Exh.D.E. Directed them to refund the excess amount of pay received by them on account of which the amount was refunded through receipts placed on record as Exhs.D.F. To D.F./8. The Advocate-General's Office thereafter, issued N.O.C. In their favour. During the training period they visited different places and the amount of T.A./D.A. Was also credited to their account. He further stated that they had been receiving the amount from Lahore in a bona fide belief considering it as training allowance and T.A./D.A., while pay was received from Azad Kashmir A.-G.'s Office through bills which were never objected; and when they were ordered to refund the amount, they acted forthwith. He also stated that all of them had refunded the excess amount before the notice of Ehtisab Cell.
7. Zahirud Din (A.S.P.) posted as S.P. Bagh stated that he and three others were appointed as A.S.Ps.
On 22-11-1995. Clause 2(VI) of the order of their appointment, dated 22-11-1995 Exh.D.G., contained that they shall be entitled to pay an allowance of B-17 per month. They were deputed for training to Lahore Academy on 28-11-1995 and remained there for eight months and thereafter, remained at National Police Academy, Islamabad for further eight months. They had been receiving pay from Azad Kashmir as per order of their appointment without any objection and allowance/ honorarioum, T.A /D.A. Etc. From Lahore Academy which was credited to their account. This amount was refunded when they were ordered to do so.
8. Ghulam Bashir Mughal stated that he was a lecturer in the service of Government before his selection as A.C. Vide order, dated 11-6-1996, when he was deputed for training to Lahore Academy.
He was refused L.P.C. From A:-G.'s Office and told that he shall get pay from Azad Kashmir and training allowance from Lahore Academy. His pay protection order Exh.D.M. Issued on 17-6-1998. He informed the academy of the position through application Exh.D.M./1 but the academy in spite of that kept crediting the amount to his account at Lahore, which was necessarily to be opened by every trainee for his mess, tour, T.A./D.A. Etc. And other Purposes. When this came in newspapers, he informed the Lahore Academy and Azad Kashmir Government through Exhs.D.M./2 and D.M./3. He was ordered to draw the amount from Lahore and deposit in Azad Kashmir treasury; and he accordingly did so.
9. I have heard the learned Special Prosecutor as well as the learned counsel for the accused.
10. The learned Special Prosecutor contended that the accused were entitled to receive the pay from Lahore Academy and the fends were transmitted by the Azad Kashmir Government to Lahore Academy for the purpose. According to him the accused fraudulently obtained the pay from both the places and thereby brought in their use. The learned prosecutors argued that being appointed against the responsible posts, they are guilty of gross misconduct and criminal breach of trust for which they are liable to exemplary punishment. He further contended that the explanation furnished by them is not sufficient and it does not absolve them of the criminal responsibility. He contended that the ignorance of law is no excuse. He also contended that all of them were liable to refund the pay received from Azad . Kashmir while they have refunded the pay received from Lahore which is less in amount as against the pay received from Azad Kashmir and they are liable to refund the remaining amount of Rs,2,28,763. The learned prosecutor also contended that accused are liable to conviction for having admitted the liability and paying the same on the order of Ehtisab Cell/ Commission, in view of section 18 of the Ehtisab Act. He also contended that it was their duty to obtain L.P.C. Form A.-G's. Office when they were deputed for training.
11. Mr. Ghulam Mustafa Mughal, the learned counsel for the accused contended that the accused in view of condition No,VI of the appointment order claimed and received, the pay from Azad Kashmir Government through their parent departments without any objection from the Board of Revenue, Services Department or the Accountant-General Office on any ground whatsoever. According to him, the accused never claimed pay from the academy nor did they submit any bill for it. However, according to the learned counsel, they did use the amount credited to their accounts by the academy under a bona fide belief that the amount so credited is the training allowance or honorarium: He contended that when the Government of Azad Kashmir directed them to refund the amount received from the academy, they refunded the same and the receipts are placed on record. The refund of the amount is admitted by the prosecution as well. The learned counsel also contended that accused are not liable to offences for the reason that it was a bona fide mistake rectified when ordered; secondly that order of deputation did not contain any such stipulation; thirdly that none of the Government offices of Azad Kashmir through whom pay bill of the accused was processed objected to it; fourthly that if at all it was a wrong action, it, at the most warranted a departmental action not a criminal prosecution. He on, the basis of above, contended that action of the accused was not wilful receipt of ouble pay with the intention to commit fraud. He relied upon the cases reported as Chief Secretrary/Referring Authority v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 (Azad J&K) 95 and Sardar Khan Bhadur Khan v. Chief Secretary and others PLD 1983 (Azad J&K) 199, in support of his contentions.
12. After hearing the learned counsel for the prosecution and defence, I have gone through the record of the case and files of the Government produced by the prosecution in support of its case.
13. No explanation is acceptable to the argument and allegation that the accused were entitled to pay from one place only i,e, either from Azad Kashmir or from the academy when the funds were transmitted by the Government to the academy for payments to the trainees. The file No,3 of 1994 of the Services Department perused by me bears testimony to the fact that funds were transmitted to academy through different orders issued from time to time. However, the accused were never informed of it, nor did the order of their deputation contain this condition. Even the copy'of the orders was not endorsed to them while it was endorsed to Accountant-General and others. They were fresh recruits, beginners in the administrative services and deputed for training immediately after their selection. It was duty of the lending departments to apprise them of their legal duties and rights as far as the emoluments etc. Were concerned, unequivocally. The only condition in this respect was a stipulation in the order.Of A.S.Ps. Appointment/selection as follows:-- "VI. During probation, you will receive starting pay in BPS-17 plus allowances as admissible under the rules. Your first increment in pay will become due after satisfactory completion of training prescribed by the Government; and in the appointment order of A.Cs., figures Rs,3,880 was incorporated."
14. In the absence of any other stipulation, they were justified by every stretch of imagination that they are entitled to pay from the parent Department in Azad Kashmir. The Departments, through which they submitted their pay bills and the A.-G's. Office which passed the bill being manned by senior and concerned officers should have objected to the bills and it was their duty to inform them of the legal, financial and factual aspects of their rights to emoluments. It cannot be assumed that those concerned with the processing of their pay bills in Azad Kashmir did not know that the amount of pay and allowances admissible to trainees is transmitted to the academy. Their silence and no objection on pay bills was sufficient for the accused to believe that whatever is done is proper, legal -and in order. The latter order of deputation of Mr. Atta Ullah Atta and Khurshidul Hassan, dated 18-7-1998 Exh.D.D. Clearly stated that they will get their pay from the academy. They did not receive any amount from Azad Kashmir after this order L.P.C. Was also issued in favour of Atta Ullah Atta on 19-7-1998 Exh.D.D./1. Similarly Ghulam Bashir Mughal did not draw the amount credited to his account at Lahore on account of his pay protection order, dated 17-6-1998 Exh.D.M.
The argument of the learned prosecutor that it was the duty of the accused to obtain L.P.C. From the Office under Rule 45 of the Financial Code is misconceived for the reason that the order of the deputation of the accused except Atta Ullah Atta and Khurshidul Hassan did not contain this condition that they shall get pay from academy. They were, thus, not obliged. It was the duty of the A.-G's. Office as well, to issue the same or object to the pay bill submitted by the accused. The suggestion of the prosecutor to the witnesses in the cross-examination that they did not reveal this fact in their pay bill is also misconceived as the. Pay bill did not contain any such column nor did it require any declaration to the effect. The orders of the Government through which the amount was transmitted to Lahore Academy was endorsed to A.G's. Office not to any of the accused on the basis of which any adverse presentation if any, could be drawn against the accused. If it is an offence all those who facilitated, instigated or abated it are equally responsible, but none of them is indicated.
15. All the accused in their statements under section 242, Cr.P.0 and those appearing as defence witnesses for themselves and others have admitted the receipt of the amount from Lahore as well as from Azad Kashmir. Their explanation or defence is that the amount received from Lahore was credited to their account by the academy without any claim or bill submitted by them and they all along honestly and in a bona fide manner treated it as honorarium/training allowance during the course of training at Lahore. The prosecution has not placed on record nor relied upon any bill', voucher or anything of the sort to prove that accused voluntarily claimed the amount from academy as pay, so as to prove their intention of wilfully claimming the double pay and thereby being guilty of misconduct, misappropriation, breach of trust or corruption. The criminal liability stems from criminal intention not by presumptions or analogies to be drawn from circumstances unless the case wholly rests on the circumstantial evidence. The case in hand is based on record and facts admitted by the accused. It was the duty of the Ehtisab Cell/Commision to place before the Court the relevant record from Lahore Academy to prove that the accused knowing well that the amount received from Lahore was claimed by way of bills by the accused or they knew it to be pay credited to their accounts, to which they were not entitled under the rules as they were receiving the pay from Azad Kashmir, and that they did all that with the criminal intention. Criminal intention is the basis for criminal implication. The criminal intention is to be proved by the prosecution by placing on record the evidence that the accused knowing that what they are doing is illegal or that it was done with dishonesty and deceitful manner.
16. The basic ingredient of offences attributed against the accused under section 3/4 of the Ehtisab Act, sections 406, 409, 467, 468, 471, A.P.C. And section 5(2) of Anti-Corruption Act is wilful dishonesty and fraudulent intention.
17. Dishonesty is defined in section 24 of the Penal Code as:-- "24 Dishonesty.--- Whoever does anything with the intention of causing wrongful gain to one person or wrongly loss to another person, is said to do that thing ' dishonestly'. "
Fraud is defined in section 25 of the Penal Code as; .
"25 Fraudulently.--- A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
18. Putting all the definitions stated above in juxtaposition to each other and judging the offences attributed against the accused in the light of definitions and statement of the accused under section 242, Cr.P.0 and the evidence in defence, no element of their intention is found in having received the amount from Lahore Academy wilfully, knowing that it is pay and they are not entitled thereto. In the case reported as Chief Secretary/Referring Authority v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 (Azad J&K) 95, it is held that "an act or omission will be wilful when it is done purposely or deliberately and in violation of the law to which intention and , will of the person concerned is a party". The accused appear to have reasonably believed that amount being credited to their account is scholarship or training allowance and amount drawn from Azad Kashmir is their pay. What is reasonable belief is defined in section 26 of the Penal Code as:-- "26. Reason to believe.--- A person is said to have 'reason to believe' a thing if he has sufficient cause to believe that thing but not otherwise. "
19. The following instances are sufficient to presume that belief--
(i) stipulation in the order of their appointment that they shall be entitled to pay and allowances from Azad Kashmir;
(ii) absence of any prohibition or condition in their deputation order that no amount shall be received from the academy;
(iii) processing of their pay bills at different level in Azad Kashmir without any objection from the relevant authorities, knowing as alleged by prosecution that amount of their pay is transmitted to Lahore Academy;
(iv) Crediting of amount by the academy to their accounts without any claim by them;
(v) disparity in the amount received from Azad Kashmir and Lahore, the latter being less than the pay received from Azad Kashmir i,e, Rs,5,400 = 3,800;
(vi) L.P.C. Was not issued in their favour by A.G's. Office even though it was issued to Atta Ullah Atta in the next turn of his deputation who did not receive pay from Azad Kashmir thereafter; Besides above, had they .Any doubt, belief or impression that what they are doing is illegal or that they are not entitled to it, they would have never put their career at stake for the petty amount of Rs,228,763 which comes approximately to Rs,2,54,188 per head in the very first year of their service, when they had about thirty, long years to service in various highly placed . Positions in the service of the Government with millions of rupees and vast powers at their disposal.
20. Besides above, the case of the prosecution suffers for its own inherent fallacies and contradictions and, in fact no criminal case for reference under the Ehtisab Act was made out for the reasons stated below:-- That the Departmental authority of the accused did not treat their action as illegal, and ordered, them to refund the excess amount. They refunded the same before the reference was filed and their pay which was stopped till refund of amount vide order, dated 12-4-1998. It was released and N.O.C. Issued in their favour, before filing of reference. That the prosecution holds there fund of amount received from training course by accused Muhammad Zafar Khan as a valid discharge, while it holds otherwise in the case of other accused persons all of whom have refunded the training amount. The prosecution holds Ghulam Bashir Mughal accused after admitting that amount credited to his account by academy was not drawn or used by him and was refunded in Azad Kashmir Government treasury when ordered to refund.
21. All the accused persons had refunded the entire amount received from the training academy before the commencement of trial and rectified the mistake committed in misunderstanding or misconception of facts. That was the proper course in the case of the accused whose deputation ordered did not contain the condition that they will receive pay from training academy while their appointment order did contain it, and same is accepted by the departmental authority and A.G's. Office while ordering release of their pay through separate letters addressed to accounts officers.
The argument of the learned prosecution that the provisions of section 18 of the Ehtisab Act are attracted, is misconceived, as the refund was completed before the commencement of trial. Had the matter been considered dispassionately, it would not have resulted in these proceedings where young officers in the beginning of their career on account of a contributory mistake or irregularity by the accused and the various departments of the Government in misperceiving facts or service rules committed an error, for which the accused alone have been stigmatized.
22. It will be most appropriate to reproduce here the case reported as Ghulam Nabi Salim Chishti v.
The State and others 1997 M LD 2041, where the order of the High Court to register a case against the clerk of a Session Judge under section 219, P.C., who remanded an under trial prisoner to jail without order of the Court, was quashed by the Supreme Court stating that:-- "It is a common and usual practice throughout Azad Kashmir that in the absence of judicial officers or Magistrate, the under trail prisoners are sent to judicial lock-up by the clerks of the Court."
The Honourable Supreme Court in the circumstances of the case was pleased to observe: "It goes without saying that the High Court is manned by the Judges of vast experience and of great integrity having a great deal of patience at their command but the order seems to have been passed with impulsion to firmly deal with the illegality committed by the appellant. We may not be understood to have approved the acts of the appellant and it is indeed correct that an order of remand under subsection (2) of section 344 is to be given by a Court in writing other than a High Court signed by the presiding Judge or Magistrate but we cannot ignore the prevalent and normal practice in Azad Jammu and Kashmir that in absence of judicial officers, the accused are sent to judicial custody by the clerks and this practice is virtually applied like a rule of law."
23. The case of the accused is fully covered by the above illuminative observations of the Honourable Supreme Court. As proverbially said that "Do not allow the sheep to die for the lack of a trifling amount of tar", the accused in view of above misconception of facts cannot be condemned as guilty for a trifling amount when the act was not dishonestly or corruptly committed. To me it appears a case of over or excess payment credited by the academy to the accounts of the accused and used by them in a bona fide mistaken belief treating it as training allowance/expenses and this belief stems out from clause (4) of their appointment order, which is as follows:-- "4. The course fee expenditure on training of these appointees shall be debitable to the Services and General Administration Department, budgetary grant under heading. 'Expenditure on training of Government servants' ."
24. The voluntarily admission of facts constituting the offences is not sufficient to convict them for the offences charged for. The admission or the confession has to be read as a whole in the light of connected 'facts and circumstances of the case. In the case reported as Sardar Khan Bhadur Khan v. Chief Secretary and others PLD 1983 Azad J&K 199, where the accused appellant admitted the charging him-for wrongfully receiving an amount of Rs,10,000 as T:A./D.A and petrol expenses from the Government on the ground of State tours, while he was accused for being on election tour, the special tribunal convicted him on this admission but the Supreme Court held after discussing the case law as under:-- "It would, thus, appear that it is now well-settled principle of law that an admission made by a person, whether it amounted to a confession or not, cannot be spilt up and part of it used against him. An admission must be used either as a whole or not at all. If any authority from Pakistan jurisdiction is needed in support of this view we would not go beyond the decision of the Federal Court in Rahim Bakhsh v. Crown (1) and extract the f011owing terse observation of Abdul Rashid, C.J.
At page 7-- If the conviction of the petitioner is to be based solely on his statement in Court, dated the 11th May, 1944, it is obvious that this statement should be taken into consideration in its entirety':
25. In view of above, the accused have shown sufficient cause for not convicting them for the offences for which they are charged. They are, therefore, acquitted of all the charges leveled against them.
26. Before parting with the case it may be placed on record that swiftness shown by Ehtisab Cell in taking cognizance of the matter on 25-4-1998 on the basis of a news items appearing in press on 23-4-1998 is appreciable. The nation wants similar immediate and prompt action on other press reports as well-appearing in press since the establishment of the set-up, with same zeal and enthusiasm against defaulters and big guns who have become multi millionaries without any known source of income; those having a life style incompatible with their means; those who have fleeced the nation, plundered and looted the national wealth and brought the State and Nation to a level of bankruptcy, instead of hounding after the tadpoles in the ocean of corruption.