' MUHAMMAD REAZ AKHTAR CHAUDHRY, J.---This appeal is directed against the judgment of the learned Judge, Ehtesab Court, Muzaffarabad, dated March 10, 2001, whereby the sentence of three years' rigorous imprisonment alongwith fine of rupees four lacs to each appellant, was awarded and in case of default of payment of fine, each has to undergo further imprisonment of one year.
Apart from this, it was ordered that an amount of Rs .5,74,791 shall be recovered from the pfsors and properties of the appellants.
2. The relevant and necessary facts for the disposal of the instant appeal are that a reference under section 4 of the AJ&K Ehstesab Act, 1'498, sections 409, 467, 468, 204 and 109, A.P.C. And section 5(2) of Prevention or Corruption Act was filed against the appellants
3. Briefly stated the prosecution case as unfolded in the reference is, that Muhammad Nazir Tabassum, Lecturer, Government Degree College, Mirpur moved an application before the Chief Ehtes the Commissioner stating therein, that Prof. Muhammad Sarwar Chaudhry and Abilur Rasheed Chohan, Principals, Government Degree College, Kotli; have misappropriated lacs of rupees with the assistance of Muhammad Sharif, Assistant Professor, during their respective tenures, through forged entries of record, forged vouchers and bills, from the College Funds. It was further stated that during the internal checking Gulzar Hussain Bukhari, Assistant Professor found such misappropriation and reported as such. He appended the report of Gulzar Bukhari alnogwith the application.
4. On the report of Mr. Tabassum, the matter was investigated. After the investigation, it was found that Professor Muhammad Sarwar Chaudhry remained the Principal/DDO during the period of 26- 9-1988 to June 1994. He was promoted as Director Colleges on 7-6-1993 but despite this, he exercised the powers of DDO up to 31-9-1994 from July, 1993 to December, 1995, Mr. Abdul Rashid Chohan "emained the Principal of the College. The DDO powers were entrusted to him on 26-9- 1994.
5. Professor Dr. Muhammad Sarwar Chaudhry during his tenure of Principal prepared various fictitious record and withdrew an amount of Rs,38,86,621 through fictitious, forged vouchers and bills. While Abdul Rashid Chohan during his tenure misappropriated an amount of Rs,12,91,572.
6. Mr. Gulzar Hussain Bukhari, conducted the internal checking and prepared a detailed report. He also found that both the principals kept the entire record of the accounts in the custody of Shari'.
Ahmed, Assistant Professor, whereas regular accountant was appointed in the College. He, on the abatement of both the Principals, prepared fictitious, forged vouchers and bills. The Director of Education on 1-9-1997, constituted a Committee consisting of Ghulam Ahmed, Assistant Director Administration and Mr. Javed, Stenographer. The said Committee prepared a vague report pertaining to the period of 26-9-1988 to June 1994 and reported that only Rs,4,45,638 were found as misappropriated, after which the record was destroyed with some chemicals. On 9-5-1997, the Government constituted another committee consisting of Chaudhry Bashir Ahmed, Secretary and Farid Awan, Dy.A.-G., Accounts Department, for further inquiry. This Committee submitted its report on 5-8-1997. It only inquired up to the period. Of Professor Dr. Muhammad Sarwar Chaudhry and verified that Rs,30,407 were misappropriated by him and also recommended that this amount may be recovered from him. While the Committee could not probe into, regarding the remaining misappropriation, as the record was destroyed with some chemicals. It was further stated that Professor Dr. Muhammad Sarwar Chaudhry and Abdul Rashid Chohan were found involved in corruption and misappropriation. They misappropriated the College Funds. Professor Muhammad Sharif. Was also found involved in the said misappropriation. It was also attributed to Professor Dr. Muhammad Sarwar Chaudhry that he, while being the Principal of Government Degree College, Kotli, paid the bill of telephone of the residence of Principal amounting to Rs,98,371, without the prior approval. He also misappropriated an amount of Rs,7,736 from the Bus Funds. He spent Rs,20,985 on the printing of prospectus. He sold those prospectuses, but no record was maintained. In this way, this amount was misappropriated. It was further stated that he misappropriated the amount of Rs,1,50,938 through fictitious and forged vouchers. He misappropriated Rs,1,75,344 from the fee of the students. The total amount of Rs,4,53,374 was misappropriated by him during his tenure of Principal.
7. It was attributed to Mr. Abdul Rashid Chohan that he, from July, 1994 to September, 1995, remained the Principal of Government Degree College, Kotli. The powers of DDO were entrusted to him on 26-9-1994. He, during his tenure, isappropriated an amount of Rs,5,18,660 with the abatement of Mr. Sharif Ahmed, Assistant Professor.
8. This reference was filed before the learned Ehtesab Bench of the High Court. It was subsequently, transferred to Ehtesab Judge, after promulgation of Ehtesab Act. After the trial of the reference, the learned Judge, Ehtesab Court, found the appellants guilty of misappropriation and awarded them the aforesaid sentence. This judgment of the said Court has now been challenged through the instant appeal.
9. Mr. Abdul Rashid Abbasi, the learned counsel for the appellants argued that the lower Court has awarded the sentences to the appellants, while assuming, that during their tenures, they were also retaining the powers of DDOs and while exercising these powers they withdrew the amounts from the Bank. He submitted that this finding of the lower Court, is based on no evidence. There is nothing on the record, on the basis of which, it could be said that the appellants were also retaining the powers of DDOs. While emphasizing on this point, he argued that there is no law according to which, the Principal of College was also DDO. He submitted that DDO can only be appointed through a special order by the Government, while no such order is on the file. There is nothing, on the basis ,of which, it could be said that the appellants were retaining the powers of DDOs. He submitted that it was the fundamental duty of the prosecution to prove that the appellants were retaining and exercising the powers of DDOs during their tenures. The leaned Judge, Ehtesab Court, has relied upon the report of Gulzar Hussain Bukhari, who was stated in the report that the appellants were retaining and exercising the powers of DDOs.
10. It was next contended by the learned counsel for the appellants that it was the duty of the prosecution to prove the case beyond any reasonable doubt. He submitted that no direct evidence was produced against the appellants. The prosecution has based its case on the indirect evidence, consisting of the opinion of various persons. A report is an opinion of a person. Conviction could not be based simply on the opinion of some person. Conviction could not be the conviction could only be recorded on the basis of strong and cogent evidence. It was next maintained by him that no direct evidence was produced by the prosecution. He maintained that no cheque, bill or voucher signed by the present appellants was produced in the evidence. He submitted that the report of Gulzar Bukhari Exh. P.C., report of Ghulam Ahmed Ganai and Javed Iqbal Exh. P.G. And P.W. And that of Chaudhry Muhammad Bashir and Muhammad Khalil Exh.P.X. Were produced. The learned counsel further submitted that the lower Court has , wrongly convicted the appellants, while placing reliance on the aforesaid reports. He submitted that if the appellants had issued the cheques, which had been encashed from the Bank, then why those cheques were not produced, which were the best piece of evidence against the appellants. As no such evidence was produced by the prosecution and the prosecution has simply based its case on the aforesaid reports, which are, the opinions'of persons who prepared the reports. In presence of the direct evidence, why the prosecution relied upon the reports and withheld the best evidence. So, it can be presumed that the prosecution was unable to prove its case on the basis of direct evidence.
' It has been intentionally withheld by the prosecution. It was next contended by him that the judgment of the lower Court is based on no evidence. The said Court simply placed reliance on the report of Gulzar Hussain Bukhari, while he was an interested witness and inimical towards the appellants. He was not a witness but a party. In this respect he referred various recovery memos.
And submitted that Gulzar Bukhari is witness of all the recovery memos. Which were prepared by the police at Kotli. He submitted that Gulzar Hussain Bukhari was posted at Muzaffarabad. He specially went to Kotli for witnessing the recovery memos. This shows his interest, therefore, no reliance could be placed on his report. Even his report has been negated and controverted by Ghulam Ahmed Ganai and Chaudhry Muhammad Bashir, but the lower Court has not considered this important aspect of the case. It was further contended by him that Gulzar Hussain Bukhari was appointed for internal checking by Muhammad Akbar, while there was a dispute between Muhammad Sarwar and him. It was next contended by him that the judgment of the lower Court is based on no evidence. He submitted that the lower Court found the appellants guilty for not keeping the accounts of the sale of prospectus. He submitted that there is nothing on the record, that prospectus were printed and sold, if, at all, these were sold, what was the price of same.
Neither any student, nor any copy of the prospectus was tendered in evidence. Simply the reliance was placed on the report of Gulzar Hussain Bukhari, while no conviction could be awarded to any person on the basis of the report of some person. It was next submitted by him that the allegation, regarding the payment of telephone bills is also not substantiated by any evidence. There is nothing on the record on the basis of which it could be said that the telephone bills have illegally paid from the College Funds. He submitted that the lower Court has held that there were no rules for utilization of College Funds. The funds were to be utilized by the Principal in his discretion, but the Court below, at the same time, has also held that the bills of the telephone at the residence of the Principal were illegally paid from College Funds. Thus, its finding is not based on any evidence.
It was next contended by him that even the other allegations regarding misappropriation of fund were not based on any evidence. He submitted that there is no concordance among the report of Gulzar Bukhari, Ghulam Ahmed Ganai and Muhammad Bashir. The entire evidence of the prosecution is amalgamation of contradictions, the whole case of the prosecution is based on scant, desultory and meager evidence. The learned Court has wrongly awarded the sentences to the appellants, without any justification. He referred the following authorities in support of his contentions:-
1. 2000 M LD 1522, 2. 1998 PCr.LJ 1865, 3. 1998 PCr.LJ 2042, 4. 1994 PCr.LJ 1114,
5. PLD 1977 SC (AJ&K) 1 and
6. 1977 SCM R 109.
11. While controverting the arguments of the learned counsel for the appellants, Sheikh Masood Iqbal, the learned Deputy Chief Prosecutor contended that the Principal of the College was the DDO. He referred that it contained that the appellants were the DDOs. He was confronted to explain whether there is any law under which the Principal of the Government College, Kotli was DDO? If under any law, the Principal was the DDO then he should cite any such law, but he could not cite any such law. When he could not cite such law, then he was confronted to explain, whether there was any Government Order by which the appellants were empowered to exercise the powers of DDOs, but no such order was produced in evidence. He could not cite any such order. It was next contended by him that Gulzar Bukhari appeared as a witness. He was not cross-examined on the vital points. The portions of his statement implicating the appellants were not challenged in cross- examination, therefore, the lower Court has rightly awarded the sentences to the appellants. He referred 1968 SCR 244. It was next submitted by him that Dr. Muhammad Sarwar Chaudhry wrongly made the payment of Rs,98,37-1 for the telephone bills of his residence. He was confronted to explain as to whether these bills pertained to one month or one year. He could not point out as such. He submitted that the judgment of the lower Court is based on sound, cogent and sagacious reasoning and it does require any interference.-
12. We have heard the learned counsel for the parties and have also gone through the record carefully.
13. The perusal of the judgment of the lower Court shows that the learned Judge, Ehtesab Court also reached the conclusion that there was no direct evidence against the appellants by which they were found involved in the offence of misappropriation. But despite this, he awarded the sentence to the appellants on the ground of their being the Drawing and Disbursing Officers and they did not perform their duties accordingly. So, they were liable for the offence under section 409, A.P.C. It is well-settled principle of law that no one can be convicted under section 409, unless it is found that he misappropriated the amount. According to the aforesaid finding of the lower Court, there was no direct evidence against the appellants on the basis of which they were found involved in the commission of offence of misappropriation, but it was held by the Court that they had failed to perform their duties, regarding the keeping of watch and supervision. But one cannot be convicted for inefficiency rather he can be proceeded under the Efficiency and Discipline Rules.
It is well-settled principle of law that no one can be liable for misappropriation, unless he has committed the misappropriation or deliberately allowed some other person to commit the misappropriation. The lower Court has not arrived at any such conclusion but despite that, the lower Court awarded the sentences to the appellants. As such was held by the lower Court in its judgment on page 41 Which reads as under:7-- {{URDU TEXT}} ' prosecution to pro that both the appellants were also retaining and exercising the powers of DDOs. But it has miserably failed to prove as such.
14. The lower Court has also held that both the appellants were also retaining the powers of DDOs, therefore, .They were responsible for misappropriation. Now the question arises whether there was any such evidence on the record, on the basis of which, it could be said that appellants were also retaining the powers of DDOs. The learned Deputy Chief Prosecutor was confronted to explain whether there is any Government order through which the powers of DDOs were entrusted to the appellants, but he could not cite any such order. We ourselves have gone through the entire evidence. There is no such order on the file, whereby the powers of DDOs were conferred on the appellants. The learned Deputy Chief Prosecutor was also confronted to explain whether there is any law under which the head of an institution is also empowered to exercise the powers of DDO, but he could not cite any such law. He placed reliance on the report of Gulzar Hussain Bukhari and submitted that the appellants were retaining the powers of DDO. Now the question arises, that how Mr. Bukhari stated that the appellants were retaining the powers of DDOs. There is nothing as such in the report. Mr. Bukhari also appeared as a witness. He nowhere explained that how the appellants were retaining the powers of DDOs. Simply on the basis of this opinion, it could not be said that these powers were also available to the appellants. It was the basic duty of the prosecution to prove that both the appellants were also retaining and exercising the powers of DDOs. But it has miserably failed to prove as such.
15. Although various other allegations were attributed to the appellants, out of which some were not proved against them and few were found to have been proved. The lower Court found that it was proved against the appellant Dr. Muhammad Sarwar Chaudhry, that he paid the bills of telephone installed at the residence of the Principal amounting to Rs,23,407 from College Funds. It was not paid in the interest of the College. The telephone was not used according to the regulations. This finding of the lower Court is not based on any evidence or cogent reasoning, rather it is vague and self-contradictory. For having proper perception. I would like to reproduce the finding of the lower Court which is as under:- {{URDU TEXT}}
16. According to the afore-quoted finding, the allegation against the appellant was that he paid Rs,98,371 without any approval and jurisdiction. The appellant, although denied this allegation in his statement recorded under section 342, Cr.P.C. But his version was that a notice of Rs,23,000 was given to him. He also paid this bill in the interest of College. It is quite astonishing that in the finding it was nowhere held, that the sanction for the payment of bill of telephone was necessary and he has paid the bill without the sanction. It stultifies us that on one hand in the aforesaid finding, it was held by the lower Court that the Principal has the discretion to use the College Funds and no Rules and Regulations have been frarlied for regulating the College Funds, but these Funds can only be used for the benefit of the College. The telephone installed on the residence of the Principal can be used according to the Government instructions. Its use beyond such instructions, amounts to misusing of the telephone. It was also observed by the lower Court that according to the Government instructions, categories of different officers have been determined and the officers, who were not included in these categories, were entitled to found hundred calls per months, and if they exceed this limit, then it shall amount to misuse of the telephone, despite the fact that these calls were of official nature. Now the question which perturbs our mind is that the lower Court has nowhere held that how the appellant has misused the telephone. The judgment also did not contain that the bill of Rs,23,407 was pertaining to one month, one year or two years. The judgment nowhere contained that this amount was paid for how much period and the telephone was misused. It also did not contain that how much entitlement, the appellant was retaining, and how he exceeded his entitlement. The finding of the lower Court, as reproduced above, on the aforesaid allegation, is not based on any evidence. There is no evidence on the record that how the telephone at the residence of the Principal was misused. The judgment of the lower Court is vague, self-contradictory and desultory. It is also pertinent to note that there is nothing in the judgment that how this amount was paid by Chaudhry Muhammad Sarwar from the College Funds. Whether any cheque v as issued by him through which he withdrew the amount or how he withdrew such amount? There is nothing as such on the record. If he has withdrawn the said amount from the College Funds, under his signatures, then the cheque should have been produced or tendered in evidence, but there is nothing as such on the record. The lower Court has not based its funds on any evidence. It also flabbergasts us that the lower Court has not mentioned in its judgment that on the basis of which evidence, it reached the conclusion, that the telephone of the residence of the Principal was misused and the bill of Rs,23,407 was paid from the development funds of the College. We ourselves have gone through the entire evidence and found that there is on such direct evidence on the record. Thus, the finding of the lower .Court is based on no evidence.
17. The second allegation against the appellant, Chaudhry Muhammad Sarwar was pertaining to the misappropriation of bus funds of the College. It was not found proved against the appellant.
However, the third allegation found proved against him, was that the appellant spent Rs,20,958 on the printing of the prospectus. He sold these prpectuses but neither the account of the income was maintained, nor it was entered in the cash book. The finding of the lower Court is as under:--- {{URDU TEXT}}
18. The lower Court found the appellant guilty of the aforesaid allegation on the report of Mr. Gulzar Hussain Bukhari (Exhs.P.W. And P.C.). It was further stated that this report was proved by Mr. Javed lqbal, therefore, it is reliable despite the fact that the original record has been destroyed. When this report was prepared, at that time, the record was available. It is quite amazing that the finding of the lower Court is based on the simple report of Mr. Bukhari. As the report is concerned, it is the opinion of the report-maker. No conviction can be recorded simply on the basis of the opinion of some person. The conviction can only be recorded on the basis of strong, cogent and conclusive evidence, beyond the reasonable doubt. When there was no record in support of the report, then how the conviction could be recorded on the basis of such report, which even otherwise has no evidentiary value, about which it shall be discussed in the later part of judgment. In the present case, there is no direct evidence that the appellant Chaudhry Muhammad Sarwar utilized the amount of Rs,20,958 on the printing of the prospectus. There is no evidence that he withdrew the aforesaid amount from the Bank for the printing of the prospectus. If at all, he has withdrawn the said amount, from the bank for the aforesaid purpose, then the original cheques would have been lying in the bank. Why those have not been tendered in evidence? That was the best piece of evidence. It is quite surprising that the prosecution has not produced the direct evidence and has placed reliance on the indirect evidence. The report can be at the most a corroborative piece of evidence if there would have been direct evidence and the reports would have been produced in evidence, then it could have been a corroborative piece of evidence. It is well-settled principle of law that a corroborative piece of evidence cannot be used for the corroboration of another corroborative piece of evidence. It was also held by the lower Court that the appellant did not maintain the cash book, but it flabbergasts us that how the Principal of College is responsible for the maintaining of the cash books; whether it was his duty to make the entries in the cash books.
19. It is pertinent to note that there is nothing on the record, on the basis of which, it could be said that the appellant spent the amount of Rs,20,958 on the printing of the prospectus. There is also nothing on the record that the prospectuses were sold. If at all, these were sold, then what was their price and how much money was earned by the appellant. It is also pertinent to note that no student was produced as witness, who had purchased the prospectus from the College. There is no evidence that any price of the prospectus was fixed. When there was no evidence, regarding the printing and sale of the prospectus, then how the conviction could be recorded to the appellant. It is also to be noted that whether the appellant Chaudhry Muhammad Sarwar was responsible for the printing and sale of the prospectus? Whether it was his duty to keep the accounts of the same.
There is nothing on the record, on the basis of which, it could be said that it was his duty. Therefore, the lower Court has wrongly held the allegation proved against the appellant.
20. The fourth allegation against the appellant was that he misappropriated an amount of Rs,1,50,938 on the basis of forged and fictitious bills but this allegation was not proved against him.
21. The fifth allegation against him was that he misappropriated an amount of Rs,1,75,344 with the abatement of Mr. Sharif Ahmed, Assistant Professor from the income of Fee and Funds of the.
College Students. The lower Court, placed reliance on the reports Exhs.P.G. And P.X. It is also stated in the judgment of the lower Court that although .The record, on the basis of which, the aforesaid report Exh.P.G. Was prepared was destroyed, but during the course of investigation, under the Ehtesab Act, Muhammad Khalil, Deputy Director Local Audit Funds, Member of Ehtesab Team, also prepared a report Exh.P.X. He also reported that misappropriation was committed. He appeared as a witness and the lower Court while placing reliance on his report, found the allegation proved against the appellant. The finding of the lower Court is as under:--- {{URDU TEXT}}
22. The aforesaid finding of lower Court is based on the report Exh. P.X. Which was prepared by Muhammad Khalil, who also appeared as witness. The report is an opinion. He is also a human being. His opinion could not take place of conclusive and cogent evidence. His opinion might be wrong. The value and validity of his report shall also be discussed in the later part of the judgment, in detail. The punishment could not be awarded to a person merely on the basis of an opinion of some person. An opinion is always considered as secondary and corroborative piece of evidence.
It can be used for the confirmation of direct evidence. It cannot be a substitute of direct evidence. It is also pertinent to note that there is nothing in the judgment of the lower Court that how tlie appellant was concerned with the deposit of Tuition Fee and Funds, and how he misappropriated the same. If, at all, he withdrew any amount from fee or funds, then, he might have withdrawn the same from the bank through cheques but no such evidence was produced.
23. The question arises whether it was the duty of the Principal of the College to collect the fee and funds from the College Students? Was he responsible to keep the accounts thereof? There is nothing on the record, on the basis of which it could be said that the Principal was, in any way, responsible for collection of fee and funds from the students. The allegations found proved against appellant Muhammad Sarwar are not based on any direct evidence rather the direct evidence was withheld and not produced. The reliance was placed on the reports which have no evidentiary value.
24. The entire findings of the lower Court regarding the aforesaid allegations are based on the reports and opinions of the report-makers. The question as to what is the evidentiary value of the opinion? It shall be discussed in the later part of this judgment.
25. The Allegation No,1 against Abdul Rashid Chohan was that he was transferred from Kotli on 12th of December, 1995 and Muhammad Zaman was appointed as Principal. He handed over the charge on 23rd of December, 1995. During this period, he withdrew an amount of Rs,50,000 through Cheque No,897776 and amount of Rs,2,44,466 through Cheque No,897787 on 21-12-1995 from the account of the College. This finding of the lower Court is also based on the report of Muhammad Khalil, Deputy Director, Local Audit Funds. We would like to reproduce these findings which are on page 50 and the same are as under- {{URDU TEXT}}
26. The aforesaid finding is based on the report of Muhammad Khalil, but the perusal of the judgment under appeal shows that Muhammad Khalil also based his report on counter-foils of the clieque books. He stated as such while placing reliance on the counterfoils which is no proof that the cheques were ever encashed from the bank. Moreover, it was also presumed that the appellant was the DDO, therefore, the cheques might have been issued by him. No cheque issued by the appellant and enchased from the Bank was recovered and tendered in evidence. While, it was the best evidence for proving the allegation. The report of Muhammad Khalil also did not contain that he confirmed from the bank that the cheques were cashed.
27. The Allegations Nos.2 and 3 against Abdul Rashid Chohan were that in 1995, 87 students obtained admission in Second year and a sum of Rs,37,914 was received, but it was not incorporated in the Master Funds Register. The other allegation was that in 1995; 9007 prospectuses were sold to the students of First Year. The price of which was Rs,22,675 but it was not entered in the Cash Book. The lower Court has clearly held in the aforesaid finding, that there is no direct evidence against this appellant, on the basis of which, it could be said that it was proved that the appellant, Chaudhry Muhammad Sarwar and Abdul Rashid Chohan were involved in misappropriation but they were DDOs, therefore, it was their duty to ensure whether the amount has been withdrawn according to the rules and regulations and the same has been, spent according to the said rules and regulations. The lower Court found them guilty on the ground that they have failed to perform the said responsibilities. ' It is well-settled principle of law that failure to discharge the responsibility for the safe custody of the property would not per se amount to establishment of offence of criminal misappropriation within the meaning of section 409, A.P.C. Mere. Entrustment of property to the accused and its shortage is not enough to establish guilt of dishonest misappropriation. This view finds support from 1968 PCr.LJ 358 relevant page 362, which reads as under:---- "Obviously, therefore, the appellant could not be held guilty of criminal misconduct merely for suffering the loss to be incurred unless he either himself dishonestly misappropriated the wheat or deliberately allowed someone else to do so. As stated earlier, in spite of the fact that the appellant was responsible for the safe custody and delivery of the consignment, his failure to discharge that responsibility would not per se amount to the establishment of the offence of criminal misappropriation within the mischief of section 409, P.P.C. Nor can be held guilty of the offence of criminal misconduct under section 5 of the Prevention of Corruption Act."
' The same view also finds support from 1994 PCr.LJ 1116 (1119) which reads as under:-- "Failure to discharge the responsibility for safe custody of property would not per se amount to establish guilt of dishonest misappropriation and mere existence of adverse presumption cannot be equated with the establishment of guilt."
In the light of the aforesaid judgment, no one can be held liable for the offences of misappropriation and under section 5(2) of the Prevention of Corruption Act, unless he himself has dishonestly misappropriated or deliberately allowed someone else to do so. It is to be noted that in the instant case, the lower Court has held that there is no direct evidence on the basis of which it was found that they have committed the misappropriation but they have failed to perform the duty of keeping the watch on the affairs.;Now when the lower Court has held as such then how the punishment could be awarded to the appellants.
28. The next allegation against the appellant was regarding the payment of telephone bill amounting to Rs,60,009 from development funds of college but it was also not proved against him.
29. Another allegation against the appellants, was that they destroyed the record. It was also not proved against them, therefore, they were exonerated from this charge.
30. As stated above, that the findings of the lower Court are based on the reports of Gulzar Hussain Bukhari and Muhammad Khalil. We ourselves have gone through the entire evidence for our own satisfaction. In our opinion, there was no other connecting evidence. The perusal of the entire evidence shows that there was no direct evidence against the appellants. The entire case of the prosecution is based on these reports which are opinion of Messrs Bukhari and Muhammad Khalil.
As a general rule, the opinion of a witness on a question of facts and law, is irrelevant. A witness has to state the facts which he has seen, heard or perceived and not the conclusion, which he has formed on observing or perceiving them. The function of drawing inference from facts is a judicial function and must be performed by the Court. If a witness is permitted to state, not only the facts which he has perceived but also the opinion which he has formed on perceiving them, it would amount to delegation of judicial functions to him. To this general rule, however, there are some important exceptions which are provided in section 59 of Law of Evidence. Section 59 deals with the opinion of expert. I would like to reproduce Article 59 of the Qanun-eShahadat which is as under:-- - "59 Opinion of experts.---When the Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such law, science or art, or in question as to identity of handwriting or finger impressions are relevant facts."
' The main object of section 59 of the aforesaid Act is that when the question in dispute is of such a technical nature, that it could not be proved by an ordinary person and it can only be proved by the evidence of some special expert of the field, who has special knowledge or experience in the field. For instance, where the Court has to form the opinion about the handwriting or finger impression, then the opinion of the person, especially skilled in such field shall be considered and such persons are called the experts. It conveys that opinion of an expert is relevant, when subject- matter of the inquiry is such that inexperienced persons are unable to prove or are not capable of forming the correct opinion than the opinion of a person having special knowledge on the subject- matter of the inquiry. It contains that the opinion of only some expert person can be relevant. In section 59 of the Law of Evidence, the words "science or art" have also been used. Liberal construction of the term "science or art" includes all subjects on which a course of special study or experience is necessary for formation of an opinion.
31. Now the question arises whether in the instant case, Mr. Gulzar Hussain Bukhari and Muhammad Khalil were experts. There is nothing on the record, on the basis of which, it could be said that they were experts of accounts. There is no proof of the facts that they have obtained any special qualification in accounts. Whether they were Chartered Accountants or they have obtained some other degree of special accounts. When there is nothing like such on the record, then how they can be considered as experts, as provided in the aforesaid provision of law.
32. We have gone through the reports prepared by them, The report of Muhammad Khalil Exh. P.X.
Contained that he went to Degree College, Kotli alongwith the Ehtesab Team and during checking, he found that the record was destroyed with some chemicals. Now the question arises that when the record was not available then how he prepared the report? On page 2 of his report Exh.P.X., he has mentioned about 19 cheques through which the amounts were drawn from the bank. It is quite astonishing that the report did not contain that from which bank these amounts were drawn. It also did not contain the account number from which the cheques were withdrawn. The cheques from Serial numbers 1 to 5 and 17 to 19, mentioned in the report, did not contain any account number. It also did not contain that who has withdrawn these amounts. Paragraph 3 of his report contained that he apprehends that the following cheques were encashed. It also did not contain the account number and the name of the person who had withdrawn this amount. His entire report is based on presumptions, surmises and conjectures. We would like to reproduce paragraphs 2 and 3 of his report which are as under:--- {{URDU TEXT}} ' The report maker was not sure whether the amounts were withdrawn from the bank. The bank also did not verify it as stated in para. 3 of the report. It is most unfortunate that the lower Court has based the conviction on such ludicrous report, which has no evidentiary value. It is also not stated in the report that who has withdrawn those amounts. It bewilders us that second portion of the report also did not contain, as to how much amount was withdrawn from the bank through these cheques. The report also did not contain the dates as to when these cheques were encashed. The wording of the report is ' It means that the report maker himself was not sure about the withdrawal of the amount. If the report maker would have inquired from the bank, then the situation would have been clear, but he did not make any effort for confirmation about his findings and simply reported on the basis of counterfoils. It shows the carelessness of the report maker. But despite this, the lower Court placed reliance on such vague and frivolous report. Mostly the part of the report is based on the counter-foils of the cheque books. Simply on the basis of cheque books, it could not be said that the cheques were presented to the bank and encashed. The best evidence available in the case was the cheque lying the bank. It was the duty of the prosecution to recover the cheques, if any amount was drawn through the cheques and produce the Officer of the bank as a witness, who should have stated that these cheques were issued by such and such persons and encashed by him. It is pertinent to note that if any amount was drawn through the cheques from the bank, then, the cheques are in the safe custody of the bank, but it is most unfortunate that the prosecution instead of producing direct evidence, placed reliance on the reports of Mr. Bukhari and Muhammad Khalil who did not prepare the report after inquiry and confirmation from the bank.
They based their reports on the counter-foils which are no proof of the encashment of the cheques from the bank.
33. It is pertinent to note that in the present case, the direct evidence has been withheld by the prosecution and the reliance was placed on indirect evidence. ' It is well-settled principle of law that if a party has failed to produce the best evidence in his possession it will be presumed that if such evidence would have been produced it would have gone against the case of tne party concerned. This view finds support from PLD 1958 Kar. 359, which reads as under:- "Under section 114 of the Evidence Act, if a party has failed to produce the best evidence in his possession, it will be presumed that if such evidence were produced, it would have gone against the case of the party concerned."
34. It is well celebrated principle of law, that even the evidence of an expert is considered as confirmatory or explanatory of direct evidence, rather it can be a corroborative piece of evidence. It cannot take place of direct evidence. ' This view finds support from PLD 1974 SC 53.
35. We have also gone through the reports and the allegations found proved by the lower Court, against Chaudhry Muhammad Sarwar that he paid the amount of Rs,23,407 on account of telephone bill installed at his residence. But neither any such bill or receipt thereof was tendered in evidence nor there is any such evidence on the record, on the basis of which, it could be said that it was the bill for one month, one year, two years or three years. When there is nothing like such on the record, then how it could be said that the telephone was misused by him. It is also quite interesting that report contained that the limit of telephonic facility is provided to different categories of the officers and the officers whose categories have not been described, were entitled to four hundred calls per month. The report did not contain that in which category the appellant was and what was hi entitlement? How he has misused the telephone? It would not be out of place to mention here that the lower Court has held that there were no rules and regulations for the utilization of College Funds. The funds were at the discretion of the Principal. On the other hand, it is also held that the appellant has committed violation of rules, while spending the College funds. If there were no rules, then how this violation was committed? The report also contained that Chaudhry Muhammad Sarwar spent the amount on the printing of prospectus and then sold the same, but did not keep the accounts thereof. There is no explanation that how he spent this amount; whether he withdrew the same from the bank. If he has withdrawn any amount from the bank for the printing of the prospectus, then from which account he has withdrawn such amount?
Whether any cheque issued by the appellant (Ch. Muhammad Sarwar) was tendered in evidence?
Any Officer of the hank appeared as a witness, but no such evidence was produced and reliance was placed on the reports prepared by Gulzar Bukhari and Muhammad Khalil. There is nothing on the record on the basis of which, it could be said that Mr. Bukhari and Muhammad Khalil ever inquired from the bank. Their reports did not contain that they also confirmed from the bank. The entire allegations against the appellants have been levelled on the basis of presumptions, that they were Principals and were also retaining the powers of DDOs, therefore, they would have drawn the amounts from the bank. Neither the record of the bank was tendered in evidence. If they have drawn the amounts from the bank then naturally it could have been proved from the record of the bank which is in the safe custody of the bank, but no effort was made by the prosecution for producing the record of the bank in evidence. The reliance was placed on the reports which have been prepared by a human being. The reports have not been prepared on the basis of the record.
The reports are also based on the presumptions.
36. It would also not be out of place to mention here that according to the judgment of the lower Court, it was not proved that the record was destroyed by the appellants. Now the question arises that when the record was destroyed and there was no record available, then the report submitted by Muhammad Khalil is not based on any record and even the report, submitted by Khalil also did not reveal that it is based on some evidence. Nowhere in this report, it is stated that he inquired from the bank and examined the cheques through which the amounts were withdrawn by Ch. Muhammad Sarwar and Abdul Rashid Chohan. As stated earlier, that if any amount was withdrawn by the appellants, then the record should have been produced and it was the best evidence, while it was not produced and the reports are also not based on any record of the bank. Mostly it was presumed from the counter-foils of the cheque books that the cheques were issued by the appellants and then were enchased. ' The best evidence in the shape of the record of the bank was available which has not been produced in evidence. The entire case of the prosecution is based on presumptions, suspicions and conjectures. It is well-settled principle of law that suspicions and conjectures cannot take place of legal evidence. This view finds support from PLD 1958 Lah.
242.
37. It would also not be of place to mention here that the reports are always considered for the corroboration or confirmation of the direct evidence. In this case, the direct evidence of the bank record was not produced and in case it had been produced, then the reports should have been considered in corroboration of the such direct evidence. When in this case, there is no direct evidence, then no sentence could be awarded simply on the basis of corroborative piece of evidence. It is also settled principle of law that a corroborative piece of evidence cannot be substitute of direct evidence. There is nothing on the record, on the basis of which, it could be said that direct evidence was not available, so the reliance may be placed on indirect evidence. As stated earlier that the reports on which the reliance was placed, were vague and self- contradictory. In this case, when the best evidence was withheld by the prosecution, then it is presumed that if that would have been produced then it would have gone against the version of the prosecution, therefore, it was withheld and the reliance was placed on vague and self- contradictory reports.
38. We have also examined the report for our own satisfaction. Four reports were prepared; one by Gulzar Hussain Bukhari, other by Muhammad Khalil; third by Ch. Muhammad Bashir and fourth by Ghulam Ahmed. There is no unison among these reports. These are self-contradictory. The report made by Mr. Bukhari, has not been corroborated by the reports of Ghulam Ahmed and Ch. Muhammad Bashir. How conviction can be recorded on the basis of such reports. The report makers prepared these reports carelessly and in such an irresponsible manner that they presumed that the appellants were retaining the powers of DDOs and they also presumed that being the DDOs, they might have withdrawn the amount from the bank. They did not care to ascertain or verify from the bank, whether any cheque issued under the signatures of the appellants was encashed. The reports are based on surmises and conjectures. Thus, the lower Court has wrongly placed reliance on the reports.
39. Assuming for the sake of arguments that the reports would have been made accordingly, even then the conviction could not be recorded, simply on the basis of these reports, because there is nothing on the record that the persons who made the reports, were experts in the relevant field and they have any experience of accounts. They did not prepare the reports from the record and the bank. Their reports are also based on no evidence. These are self-contradictory and these cannot take place of proof.
The upshot of the above discussion is that, this appeal is accepted and the sentence awarded by the lower Court to the appellants, is hereby set aside. The appellants shall be set at liberty forthwith, if they are not required or involved in any other case.