1. ' GHULAM MUSTAFA MUGHAL, J.---The above captioned appeals are directed against the even dated judgments of the Ehtesab Court Mirpur recorded in References Nos. 5, 6,7,8 and 9 on 5-1- 2002.
2. ' All the convict-appellants have challenged their conviction by filing the aforesaid appeals whereas feeling aggrieved and dissatisfied with the quantum of sentence awarded by the trial Court, the Azad Jammu and Kashmir Ehtesab Bureau has also challenged the same with a further prayer for recalling the acquittal order recorded under section 5(2) of Prevention of Corruption Act, 1950. As the allegations levelled against the accused-convicts are of similar nature and the main question that needs determinations is the same, therefore, all the appeals can be conveniently disposed of together through this single judgment. However, for proper perception of the facts, the case of the Ehtesab Bureau as unfolded in all the references is summarized hereinafter respectively. All the references against the convict-appellants were filed on 17-2-2001. In all the references, it is alleged that Chairman, Azad Jammu and Kashmir Ehtesab Bureau, received a complaint to the effect that the Chairman, Mayor, Administrator, Municipil Corporation Mirpur in their respective tenure have made the allotments of plots in the name of the persons separately incorporated in the above mentioned references. It is stated that the allotments have been made in violation of the rules and criteria provided by Mirpur Municipal Committee and regulations for development and disposal of the plots and estates, Regulations, 1985 (which is hereinafter to be referred as Regulations). On receiving the complaint, the Chairman Ehtesab Bureau deputed Sardar Muhammad Kabir Khan, D.S.P Investigation Ehtesab Bureau, for -facts finding inquiry who after doing needful, reported the matter and endorsed the complaint earlier received by the Chairman. On being satisfied about the violation as alleged in the complaint, the Chairman ordered the Investigation. All the convict-appellants were apprehended. The references contained that the accused-appellants in their capacity as. a. Chairman, in their respective tenure have either made the allotments of plots or regularised the same in violation of Regulation 9(2) of the said Regulations. It is also pointed out that Regulation 8 and 16 of the said Regulations have not been complied with while making or regularizing the allotments. According to the prosecution, in this view of the matter, the accused-appellants have committed the offences listed in the references. The prosecution filed all the references on 17-2-2001. After leading the evidence, the trial Court convicted the appellants under section 4 of Azad Jammu and Kashmir Official Misdemeanour Act, 1948 as well as under section 6(5) of Public Office (Misconduct) Ordinance, 1965. The learned Judge, however, acquitted all .The accused in the offence under section 5(2) of the P.C.A It is the aforesaid judgments of conviction which are now under challenge.
3. ' At trial, the prosecution examined four witnesses in all the references i,e, Muhammad Ramzan Record Keeper, Shabir Ahmed Junior Clerk, Muhammad Farid Junior Clerk, Muhammad Mushtaq Constable and Muhammad Kabir Khan, D.S.P. Beside the aforesaid evidence, the prosecution also relied upon the allotment files which were taken into possession from the office of the Municipal Corporation Mirpur. All the files are relied upon by the prosecution as a documentary evidence of the cases. These files have been produced as P-1 to P-20 in each reference and it is worthwhile to mention here that only 20 allotments in each of the references have been picked up to have been made in violation of the rules referred hereinabove.
4. ' The learned Advocates appearing for the appellants have contended that for proving the charge against the accused-appellants, it was enjoined upon the prosecution to prove by the cogent evidence:-
(i) That the disputed allotments have been made in violation of Regulations 16, 9(2) and 8 of the Estates Disposal Regulation, 1985. To ascertain the legality and correctness of the allotments, the prosecution was bound to prove the contents of the files recovered from the office of the Municipal Corporation. The files have not been exhibited and their contents have not been proved as per requirement of law; therefore, it is not established as to who has made the allotments and the manner of alleged violation remained shrouded in mystery..
(ii) That not only proof of violation of the aforesaid rules was condition precedent for proving the charge but it was equally essential to prove that the allotments were made by misusing the authority by the convict-appellants and such misuse fell within the mischief of `misconduct' as envisaged by section 2(d) of the Public Office (Misconduct) Ordinance, 1965 and section 4 of Azad Jammu and Kashmir Official Misdemeanour Act, 1948.
(iii) That the prosecution has failed to comply with the mandatory provisions of section 342 of the Cr.P.C, therefore, the documents referred to and relied upon by the prosecution could not be read against the appellants and the same were liable to be ruled out of consideration; thus, the judgment of the trial Court is against the settled principles of the Criminal Jurisprudence. The learned Judge has not properly appreciated the record and the legal position, therefore, fell in error in convicting the appellants. All the cases were the cases of no evidence; neither the criminal intention nor the mens rea was proved, therefore, conviction is unsustainable.
(iv) That the mandatory provisions of section 234, Cr.P.0 have been violated and thus the trial stands vitiated.
(v) That the trial has been conducted in total violation of the rules as the documents relied upon by the prosecution were not supplied to the accused-appellants.
(vi) That the conviction recorded is also violative of section 26 of the General Clauses Act, 1877 as adapted in Azad Jammu and Kashmir.
5. ' The learned Advocates for the convict-appellants in support of the appeals referred to and relied upon 1969 PCr.LJ 8, 1977 SCMR 109, PLD 2000 Kar. 24, 2000 PCr.LJ 1105; PLD 1973 Azad J&K 11, 2001 YLR 2936; 1999 PCr.LJ 1339; PLD 1987 Azad J&K 133; PLD 1977 SC (AJ&K) 1, 1981 PCr.LJ 661; PLD 1959 Kar. 56 and PLD 1961 Lah.
6. 269.
7. ' The arguments raised on behalf of the learned Advocates for the appellants have u.:en controverted by the learned Chief Prosecutor Ehtesab Bureau. The learned Chief Prosecutor vehemently contended that there was documentary evidence in support of the charge against the convict-appellants. The trial Court has properly appreciated the evidence and has rightly convicted them, after finding them guilty, in the offences under which they were charged. The learned Chief Prosecutor further argued that the manner of proof of files has never been objected to by the appellants, therefore, in appeal they are precluded from raising such objections. The learned Advocate maintained that keeping in view the corruption in the society, the technicality of law should not be allowed to frustrate the very object of Ehtesab. The convict-appellants were alive of the proposed evidence, hence, they were bound to rebut the same. The learned Advocate also repelled the contention of the learned Advocates for the appellants that the trial stands vitiated in view of section 234 of Cr.P.C. The learned Chief Prosecutor is of the view that the trial could only be vitiated in .View of sections 529 and 530 of the Cr.P.C. The learned Advocate also objected to the judgment on the ground that in case where charge is proved by the documentary as well as by oral evidence, then it is enjoined upon the trial Court to pass the maximum sentence provided by the Penal Law. There was no justification for leniency in the sentence nor the trial Court has given any reason in support of the lesser punishments. The learned Chief Prosecutor also argued that acquittal under section 5(2), P.C.A, is also violative of law liable to be recalled and appeals filed by the Ehtesab Bureau have to be accepted and the accused-convicts be punished under section 5(2) of the P.C.A.
8. ' We have heard the learned Advocates for the parties and have perused the record as well as the evidence in the cases. Before discussing the prosecution evidence led in support of the charge, it is useful to reproduce the relevant provision of law under which the convict-appellants have been convicted. The learned Ehtesab Judge through the impugned judgment held that accused- appellants have violated the Regulations 8, 9(2) and 16 of the Estate Disposal Regulations, 1985 and, thus have committed the offence under section 4 of Misdemeanour Act, 1948 as well as the offence of misconduct as visualized by section 6(5) of the Public Office Misconduct Ordinance, 1965. Sections 3 and 4 of the Misdemeanour Act, 1948 are reproduced as under:- "3. What is misdemeanour.--Any person holding office under the Azad Jammu and Kashmir Government, shall be deemed to be guilty of misdemeanour if:---
(a) he oppresses any citizen of Jammu and Kashmir State within his jurisdiction, under the colour of his office or authority: or
(b) he wilfully disobeys or omits, forbears or neglects to execute any lawful order or instructions of the Ministry of the Government or his superior officers: or . (c) he is guilty of wilful breach of trust or neglect of the duties of his office; or
(d) being a Minister, Head of Department or being a person employed or concerned in the collection of revenue or administration of justice, he is concerned or has any dealings or transactions by way of trade or business in any part of Azad Jammu and Kashmir State for the benefit either of himself or of ,any other Person otherwise than as shareholders in any joint stock company or trading corporation, having been specially permitted to do so; or
(e) demand, accepts or obtains, or agrees to accept or attempts to obtain from any person, for himself or for any other person any gratification, gift, gratuity or rewards other than legal remuneration, as a motive or reward for doing or for forbearing to do any official act, for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or with any person, as such except in accordance with such rules as may be made by the Government as to the receipt of presents.
9. 4 Punishment for misdemeanour.---Any person who commits misdemeanour shall on conviction by a Magistrate of the First Class, be punished with imprisonment of either description for a term which may extend to three years or with fine or both and shall in addition be liable to be dismissed from his 'office or appointment.'
10. ' Similarly it will be useful to reproduce section 2(d) and subsection (5) of section. 6 of the Public Office (Misconduct) Ordinance, 1965.
11. "2(d). 'Misconduct' means any subversive activity, the preaching of any doctrine or the doing of any act which contributes to political instability, . Bribery, corruption, jobbery, favouritism, nepotism, wilful mal administration, wilful misapplication or diversion of public money or moneys collected whether by public subscription or otherwise or any other abuse of whatsoever kind of power or position and any attempt at, or abetment of, such misconduct; ' Sections 62...................
12. ' Subsection (5). Where after the conclusion of the trial the Special Court finds the Accused person guilty of misconduct it may pass a sentence of fine or of imprisonment for a term not exceeding three years or of both."
13. ' Section 3 of Misdemeanour Act, 1948 reproduced above postulate that a holder of public office shall be deemed guilty of misdemeanour if he commits any act enumerated in clauses (a), (b), (c), (d) and (e) of section 3 and if the charge is proved, the accused is liable to be punished with the imprisonment of either description for term which may extent to three years. Section 2(d) of Public Office (Misconduct) Ordinance, 1965 covers all the acts mentioned in clause 2(d) as misconduct and on proving the aforesaid misconduct, the person is liable to be punished under section 6(5) to a sentence of fine or of imprisonment for a term not exceeding three years or both.
14. The case of the prosecution is that by violating the Regulations 16, 9(2) and 8 of the Estate Disposal Regulation, 1985, the accused-appellants have committed the offence mentioned hereinabove. It is, therefore, equally essential to reproduce the relevant Regulations for proper appreciation of the case, hence, Regulations 8, 9 and 16 are respectively reproduced as under:- "8. Procedure for Allotment:-
(1) (a) On receipt of applications a list shall be prepared and affixed on notice board.
(b) The committee shall cause scrutiny of these applications to eliminate non-deserving applications and to determining the priority wise category to which a particular applicant belongs.
15. Lists of these applications, category-wise will be prepared and placed on notice board.
16. ' The list of non-deserving applications, with reasons for rejection shall be notified;
(c) After scrutinising, the eligible applicants shall be given plots by drawing of lots in proportion approved vide Regulation 9(2).
(d) Eligibility for applying for allotment of plots;
(i) applicant must belong to any one of the categories given in Regulation 9(2) of these Regulations.
(ii) Applicant must be major/ independent;
(iii) applicant or head of his family have not been allotted any residential or commercial plot of more than 5 Marlas as the case may be, in Mirpur Town or Hamlets including those disposed off;
(iv) for residential plots the applicant or head of the family or any of his dependents have not been allotted any residential Wapda Quarter/ Bungalow.
17. (2). The procedure laid down in rule 8 sub-rule (1) clauses (a) to (d) (i-to iv) shall not be applicable in case of allotment/regularization of the Awkward land and the Chairman of the Committee shall be empowered for the disposal of such case on its merits.
9. Policy directive for allotment---(1) The Committee may and when so directed by the Government shall issue from time to time, policy directive indicating the order of preference for making allotments to different applicants and other guide lines for ensuring homogenous, social, cultural and civic environment while making allotments.
2. Without prejudice to the generality of clause (1) the order of preference for applicants and the share of plots of different categories of applicants in Mirpur Town shall be as under:-
(i) Mangla Dam affected person and their sons 60%: ' Provided that the affected persons defined in the Regulations may be given priority in allotment and the balance of the plots, if any, will be allotted to their deserving sons who are heads of their independent factms: ' Provided further that for the purpose of price, the sons of the affected persons shall be deemed to be non-affected.
(ii) residents (Domicile) of ' Mirpur District 5% and
(iii) other than categories (i) and (ii) above including professional groups like lawyers, doctors, journalists and Engineers etc... 5%
(iv) Jammu and Kashmir Nationals... 5%
(v) Special quota reserved for Prime - Minister. 25%
16. Regularization of encroachments etc.---The Chairman may regularise the encroachments subject to the provision of Master Plan and Local Government Ordinance on any piece of Government land/rejected area in a prescribed manner; provided that:-
(i) The person who has encroached upon the Government land or rejected area, fall in criteria under clause 9(2) above.
(ii) The encroachment does not affect the Master Plan/Original planning;
(iii) The Encroachment may not affect any road, plot, or Or areas reserved for Government buildings, like Hospitals, schools, Dispensaries, or any other public institution or areas reserved for disposal works sewers of water supply lines, etc.
(iv) The encroachment which has been effected prior to 30-6-1981 and the same is sufficiently approved by the 'official records;
(v) The encroachment is by no means against the approved housing scheme and more than one Kanal."
18. ' Regulation 8 reproduced above enjoins upon the authorities that whenever applications are received for allotment, then notice of those shall be affixed on the board. The Committee constituted under the aforesaid Regulation is required to cause scrutiny of these applications for excluding the non-deserving applicants and to determine the categories-wise priority to which a particular applicant belongs. After scrutiny, the plots are to be allotted by drawing of lots in proportion approved vide Regulation 9(2). Regulation 8(d) also postulates the eligibility for applying for the allotment with reference to Regulation 9(2) of these Regulations. It also incorporates that the applicant must be major/independent. It is also the requirement that such applicant or head of his family had not previously been allotted residential or commercial plot of more than 5 marlas. Similarly for residential plots, the applicant or, head of the family or any of his dependents must not have been allotted any residential WAPDA Quarter/Bungalow. Regulation 8(2) creates an exception for the allotment procedure by commanding that criteria mentioned in clauses (a) to (d) of rule 8 shall not be applicable to the cases of allotment/regularizing of awkward land and the Chairman of the Committee is empowered for disposal of any such case on its merits. Regulation 9 provides the policy directive for the allotment. A perusal of the same, as referred hereinabove, reveals that the Government has reserved the power to frame the policy and issue the directives from time, to time. It is further postulated that 60% of the total plots, shall be allotted to Mangla Dam affectees. The quota for the residents of Mirpur is fixed as 5% and other than the categories mentioned in sub-clauses (i) And (ii) are also provided 5% quota. 5% quota is reserved for Jammu and Kashmir Nationals whereas 25% quota has been reserved for Prime Minister. Regulation 16 deals with the special situation i,e, for regularisation of encroachments etc. The regularization could only be made if the person seeking regularization fell in the criteria provided by Regulation 9(2), referred above. Another condition is that the encroachment should not affect the master plan/original planning. Similarly the regularization is prohibited where any plot or area is reserved for Government buildings like Hospitals, Dispensaries or for any other public institution. Another condition precedent is that only those encroachment shall be regularized which have been affected prior to 30-6-1981. Keeping view of above directive mentioned in the Regulations, case of the prosecution is to be judged in the light of the evidence led in support of the charge. The prosecution has examined witnesses, namely, Muhammad Ramzan, Shabir Ahmed, Muhammad Farid, Muhammad Mushtaq who are recovery witnesses of the record i,e, the files recovered or taken into possession by Muhammad .Kabir Khan, D.S.P(Investigating Officer in all the references). The learned Advocates appearing for the convict-appellants are right in contending that in order to succeed and to prove the charge, the prosecution was bound to prove that the alleged allotments have been made by the accused-appellants in their capacity as Chairman, Mayor, Administrator etc, as the case may be. It was also to be proved that while making the allotments, the procedure for allotment provided in Regulation 8(2) had been violated. Similarly, violation of the - policy directive for allotment as enshrined in Regulation 9 was also to be proved.
19. Lastly, the learned Advocates maintained that the violation of Regulation 16 was also to be proved before recording the conviction of the appellants. The learned Advocates have vehemently contended that not only violation of the rules referred hereinabove was to be proved but it was to be further proved that such violation of rules and regulation was wilful and had been committed for the pecuniary advantage of the accused or undue favour to the allottees. The learned Advocates contended that these violations could be ascertained by proving the record which are the files of allotment marked by the prosecution as P.1 to P.20 attached with each reference. The contents of the files have not been proved and even not put to the convict-appellants, therefore, the basic requirement has not been proved. The crucial point for determination in all the appeals is as to whether the documents P.1 to P.20 incorporated in all the references in respect of allotments made in favour of the persons mentioned in the references could be considered as a legal evidence against the accused-appellants or not. As indicated in the references, the prosecution case rests upon the documentary evidence, therefore, we are of the considered view that contents of the files are to be proved as required by the Law of Evidence, whereby if a document is not proved, the same cannot be used as a legal evidence against the accused person. Chapter 5 Article 72 of Qanun-e-Shahadat, 1984 lays down the mode of proving the contents of the documents. The scheme of proof is further laid down up to section 100. Section 78 requires that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting on so much of the document as is alleged to be in that person's handwriting, must be proved to be in his handwriting. The superior Courts have laid down the following criteria for proving the contents and signature of a person:-
(i) By calling the person who signed or wrote the documents.
(ii) By calling a person in whose presence the 'document was 'signed or written.
(iii) By calling a handwriting expert.
(iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written.
(v) By comparing in Court the disputed signature or writing with some admitted signature or writing.
(vi) By proof of an admission by the person who is alleged to have signed or written the document that he signals or wrote it.
20. ' Viewing the prosecution's case in light of the aforesaid criteria, it becomes crystal clear that none of the above reproduced requirement is fulfilled, therefore, the contents of the alleged files, relating to allotments and regularization of the plots, remain unproved. Such proposition has also received the attention of the superior Courts of Pakistan in various cases. The consensus I that in case of documentary evidence not on the document itself should be produced I evidence but its contents and signature of the person who allegedly, prepared the document should also be proved. A reference may made to P.LD 1969 SC 477 "Messrs Bengal Friends and Co, Dacca v. Messrs Gour Benode Saha and Co. Calcutta," wherein the learned Judges opined as under.
21. "In the absence of such a provision in the Evidence Act regarding entries in books of account kept in regular course of business the mere production of the account books does not constitute evidence of the transaction and accounts therein recorded. Mr. Israrul Hussain further pointed out that the account Books containing Exh.G.B. 3 series were not even exhibited by the Deputy Registrar.
22. In the affidavit of the respondent sworn on the 25th August, 1958, in paragraph the genuineness of the records, Exh.G.B. 1 to G.B. 10, is affirmed, but this bald statement did not constitute proof of the entries in these series unless they were in his handwriting and he swore to the correctness of the transactions mentioned therein. The documents Exh.G.B. 3 series relied upon by the respondent No, 1 in support of his claim that since 1937 he had been selling on large scale in Bengal and Assam including the reverine districts now constituting East Pakistan coaltar bearing trade mark "Jahaj Marka Al-Katra" with a device of a ship were in this view wrongly treated as evidence by the Courts below.
23. ' The above criticism of Exh.G.B. 3 series and the supporting account books apply to the remaining series of documents produced by the respondent. Exh.G.B. (1) is copy of a judgment in Criminal Revision Case No, 886 of 1941 of the Calcutta High Court; Exh.G.B.2 is copy of the complaint filed in that case by respondent No, 1 in the Court of the Additional Chief Presidency Magistrate, Calcutta, under sections 482,483,485 and 486, I.P.C., against Sitaram and others for infringement of trade mark. Exh.G.B. 2(2) is an extract from the Registrar of Miscellaneous Cases maintained in the Court of the Third Presidency Magistrate, Calcutta, pertaining to the said criminal complaint. These copies, however, do not bear certificate of genuineness and accuracy by a representative of the Government of Pakistan in India as required by section 86 of the Evidence Act. Consequently they were inadmissible as evidence of the facts recited therein. Copies of the application for export of coaltar to East Pakistan in 1948 and licences for export purporting to have been granted by the Government of India as well as two telegrams received by respondent No, 1 from some customers in East Pakistan, Exh.G.B (6), Exh.G.B. (7) and Exh.G.B.(9) series stand at a still lower footing as they are not copies of any judicial record and could not be received in evidence without proof of signature and handwriting of persons alleged to have signed or written them as required by section 67 of the Evidence Act."
24. ' Similarly the same principle was approved by the Supreme Court of Pakistan in a case titled Islamic Republic of Pakistan v. Abdul Wali Khan, M.N.A. PLD 1976 SC 57. The apex Court of Pakistan at page 110 of the report observed as under:- "The material contained in such source or Intelligence Reports may well be of great value so far as executive decisions are concerned, but for the purposes of a judicial enquiry, they cannot be of any assistance at all unless the authorities concerned are prepared to produce the sources themselves for giving evidence before the Court. This the authorities have not done in the present case on the ground that to do so would expose the source to grave personal dangers and destroy the entire intelligence collecting system of the Government. The learned Attorney-General has, therefore, suggested that so far as information collected from foreign countries is concerned, the source material may be accepted by relaxing, if necessary, the rules of evidence, as indicated in our order of the 12th, April, 1975, for otherwise, it would amount to asking him to discharge an almost impossible onus. We are not unconscious of his difficulties and, therefore, will allow him to draw upon the source report only to the extent that it has received corroboration from the happening of the events mentioned in the report, if those events have been established aliened by reliable evidence. Thus, if the source report discloses that a certain line of action is planned or proposed to be taken by certain persons and such actions do in fact take place, then to the extent that the actions take place, the source report may be relied upon as confirmation of the fact that the action was taken 'in pursuance of a plan as ascribed in the report.
25. ' The documentary evidence in this case consist, inter alia, of such intelligence reports furnished either by the Intelligence branch of the Government or by the Army's Inter-Services Intelligence Directorate. They stand on the same footing as source reports and we need say nothing further about them. The other documents consist of official Government records, noting and 'summaries, extracts from books/pamphlets, judgments and newspaper reports both foreign and domestic. So far as official records are concerned, they are, no doubt, useful compilations of information received from various sources but we regret that we cannot accept that the facts stated therein are automatically proved merely` by reason of the fact that they are incorporated in an official record. The learned Attorney-General has contended that the presumption of regularity under illustration (e) of section 114 of the Evidence Act attaches to official acts. This presumption is limited, however, only to the regularity of the act done, that is to say, that.
(a) the person who is proved to have acted in an official capacity possessed the necessary and proper authority for so acting and (b) that the officers concerned acted as the law and their duty required them to act. Thus, if a notification is issued under certain powers given by law, there is a presumption that it was regularly published and promulgated in the manner to which it was required by law to be done but there is no presumption that what has been done has been rightly done nor is there any presumption that whatever is stated in the official record is correct except in certain kinds of official records to which a presumption of correctness is attached by a special law.
26. Such presumption of correctness is not by reason of anything contained in the Evidence Act but the special law which empowers or, requires a particular authority to maintain a particular record or make an entry in a particular manner. There also the only presumption is that the entry so made represents the correct state of affairs on the date it was made. This presumption does not, however, attach to every official act or every entry in an official document, particularly where the entry is not made as a result of an investigation or inquiry made by the officer himself as in the case of land or Revenue Records or entries in registers required to be maintained under a statute.
27. None of the official records, filed in this case, are documents of this nature. They are mainly minutes made by officials. Concerned consolidating materials collected from source reports and other Intelligence Reports for the use of either the President, the Prime Minister or the Minister of Government of an appropriate department, or for conveying certain direction to relevant authorities for taking a certain course of action.
28. ' So far as newspaper reports are concerned, the learned Attorney-General has sought to rely upon them on the ground that they being contemporaneous reports of events and/or speeches which if not controverted or denied more or less at the same time must be treated as correct. He has, in this connection, referred us to Volume 29 of the American Jurisprudence (2'd Edn.), page 989, where the learned commentators have stated that where "proof is made that one usually reads a newspaper and that it has probably been brought to his attention, the newspaper may' be offered in evidence for the purpose of showing that such person had notice of its contents, especially when better proof cannot be produced. Also, when it is shown that a person is author of, or otherwise responsible for, statements or articles in newspapers, they may of course be used against him."
29. ' Same view was adopted by the Supreme Court of Pakistan in a judgment reported as 1968 S.CM.R 392, A Division Bench of this Court, in a case titled The State v. Muhammad Hafiz Chughtai reported as 1991 M.L.D 2082 also followed the view taken in the aforesaid authorities. Paras. 14 and 15 of the judgment are reproduced below:- "14. As noticed earlier, it has not been proved by the prosecution that the accused-respondent was entrusted with stock amounting to Rs,1,42,000 as no witness was produced to this effect. In the light of the evidence of Mahboob Ellahi driver the receipts which were taken by him from the accused- respondent after delivering the goods to him were lying with the department. But these receipts were not produced or even shown to him, at the time when his statement was recorded. It is also the case of the prosecution that audit of this Store was conducted by some audit party.
30. ' Neither audit reports nor any member of the audit party was produced in support of this assertion.
31. According to the statement of Muhammad Sharif (P.W. 7), at the time of taking over of the charge of the Store, he was given stock worth Rs,42,512.80 to his custody. He further states that:-
15. No doubt the prosecution was not bound to produce all the witnesses, however, if material witnesses were not cited or produced and the audit reports were withheld without any satisfactory explanation, no alternative was left with the trial Court but to presume that such documentary or oral evidence would not have supported the case of the prosecution."
32. ' The proposition also came up for consideration in the case titled "Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and two others." (PLD 1973.SC 160). In -the aforesaid case, similar proposition was under consideration, the questions falling for determination were as to whether the documents which were got exhibited but not formally proved could be considered as evidence for the purpose of disqualification under National and Provincial Assemblies (Election) Ordinance, 1970.
33. Justice Hamoodur-Rahman, C.J (as he then was) opined that if a document is exhibited_ without objection then the same is admissible in evidence. Failure of a party to raise the objection, according to the learned Judge, would debar him from questioning the authenticity of the documents. The learned Chief Justice further opined that if a party was alive to the fact that certain documents are on the record and the same were proposed evidence against him but kept mum, thereafter cannot raise any objection. It will be useful to reproduce the relevant observation of the learned Chief Justice which is as follows:- "There is no dispute as to the principles enunciated in these cases; but the learned counsel for the respondent contends that, where nobody disputes the signature or the writing in the document nor raises any objection to the admissibility of the document into evidence, no e question of proof arises. One is called upon to prove only those facts on which issue is joined. In the present case, the appellant knew or should have known after receiving his client's list of witnesses and documents that the respondent proposed to rely on this particular document, namely, Form 'E' said to have been filed on behalf of the Company with the Registrar of Joint Stock Companies. He could not have filed this document along with his petition, because, it was not a document in his possession.
34. He, however, did file a Photostat Copy of the last and relevant page wherein the- certificate under the signature of the appellant appeared along with the list filed on the 30th of October, 1971. On the basis of this notice, the document was produced in original by the Registration Assistant on the 10th of December, 1971, but even then, neither the appellant nor his counsel raised any objection to the admissibility of this document, and the document, as pointed out in the order of the Tribunal, "was admitted without objection." In the circumstances, mere non-compliance with the technicalities of Order XIII, rule 4 of the Civil Procedure Code will not make the document inadmissible. It has been repeatedly held by the Privy Council as also by this Court, that where the objection is only to the mode of proof of a document, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record.
35. ' The Privy Council, in the case of Gopal Das v. Sri Thakurji (AIR 1943 PC 83) pointed out that "Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial.
36. ' To the same effect are the observations of this Court in the cases of Abdullah v. Abdul Karim (PLD 1968 SC 140) and Malik Din v. Muhammad Aslam (PLD1969 SC 136).
37. ' In the present case, I cannot help feeling that the appellant had abundant notice that this particular document would be used against him, but, in spite of it, he negligently did not either deny his signature on the document or take any objection to its admission without formal proof. In the circumstances, the Tribunal, in my view, cannot be said to have acted contrary to law in relying upon that document and holding that the appellant did, in fact, continue to act as a Director up to the 31st December, 1970.
38. ' The other two learned Judges differed with the Honourable Chief Justice on the point and opined that the requirement of proving the contents of the documents could not be dispensed with despite the fact that the documents were got exhibited without any objection of the other party. His lordship Sajjad Ahmed Jan, Judge, in his dissenting judgment opined as under:- "The original of Exh.P.E. Was not kept on record of the case by the Tribunal, and there is no indication that the Tribunal had examined it before allowing its copy (Exh.P.E) to go on the record. The perfunctory manner in which this copy was exhibited, not being in strict conformity with the provisions of Order XIII, rule 4 of the Civil Procedure Code, assumes significance and calls to mind the warning administered by Lord Atkinson in the case of Sadik Hussaun Khan v. Hashim Ali Khan and others to the effect that 'a duty is cast upon the Courts to observe the wholesome provisions of rule 4 of Order XIII while exhibiting the documents and that their disregard in future will not be excused'. Sub-rule (2) of rule 4 of Order XIII provides that 'where a copy of the document has been substituted for the original and admitted into the evidence, the endorsement by the Court shall inter alia include a statement of its having been so admitted to be signed by the Judge.' This was not done by the learned Election Tribunal in the present case, which confirms the impression that he had not inspected the original for its comparison with the copy. However, the strongest objection to Exh.P.E. Is that it is not at all a proved document. The mere fact that it was exhibited by the Tribunal without any object by the appellant's counsel does prove that the original was written or signed by the appellant. It may be noted that according to the order of the learned Tribunal dated the 10th of December 1971, when the statement of P.W. Aziz Bukhsh was recorded, and the document Exh. P. E. Was exhibited, the appellant himself was not present before the Election Tribunal, although he was represented by his Counsel, Mr. Abdul Latif Khan.
39. ' When I say that the document Exh.P.E. Is unproved, I have in mind the mandatory provisions of section 67 of the Evidences Act, which lay down that "if a document is alleged to be signed or written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."
40. If the case of the respondent was that the appellant had signed the original of Exh.P.E. Or the certificate appended to it, it .Must have been proved that it was in the appellant's handwriting, for which no effort whatsoever was .Made. In the case of Bengal Friends andCo. v. Gour Benode Saha and Co., this Court had expressed itself on this point as follows:- "Documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them."
41. ' I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as 'exhibits' and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act. If instead of the copy Exh.P.E., the original form 'E' which formed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signature of the appellant without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it."
42. ' The view taken by the learned Judge is also concurred with by Mr. Justice Anwar-ul-Haq Judge.
43. His lordship also gave separate reasoning for the judgment. The view of Mr. Justice Anwar-ul-Haq
(late) is also reproduced for the proper appreciation of the matter which is as follows:- "As regards the contention that the document was not proved in accordance with law, I find that there is merit in the submission that the provisions of section 67 and 47 of the Evidence Act were not complied with, as there is no evidence on the record regarding the identity of the handwriting and the signatures of the appellant as appearing on the certificate appended at the end of Exh.P.E.
44. It is true that the document was produced before the Tribunal by an official of the Registrar, Joint Stock Companies, Peshawar, and it was exhibited thereafter, without any question having been put to the witness in cross examination about the genuineness and the authorship of the document, but the fact remains that this official did not say a word about his familiarity with the handwriting and signatures of the appellant. On the date of the production of this document, the appellant himself was not present in Court, although his counsel was present. However, after the close of arguments on the 19th of February, 1972, an application was moved on the appellant's behalf on the 28th of February, 1972, requesting the Election Tribunal to remove Exh.P.E. From the record on the ground that it had not been duly proved, and there was no compliance with the provisions of rule 4 of Order XIII of the C.P.C. And section 145 of the Evidence Act. The application was refused by the Tribunal, observing that to the best of his recollection the learned counsel for the appellant had, during the course of arguments, admitted the document saying - that the appellant must have signed it erroneously or illegally. The Tribunal also added that the document was not being used as a previous admission of the appellant and, therefore, the provisions of section 145 of the Evidence Act were not attracted.
45. ' While it is true, as observed by the Privy Council in Gopal Das v. Sri Thakurji and by this Court in Abdullah v. Abdul Karim and Malik Din v. Muhammad Aslam, that an objection as to the mode of proof should be taken at the trial before the document is marked as an exhibit and admitted to the record and a party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof, it will be seen that in this case an objection as to the admissibility and the proof of this document was taken, before the Election Tribunal itself. A cursory glance at the original of this document, which was summoned by this Court, shows that there is an overwriting on the signatures of the appellant. It is recorded by the Election Tribunal that the original, as produced by the Registration Assistant, was seen and returned. I cannot help feeling that the Tribunal clearly failed to perform its duty if it did not see the overwriting on the original of Exh.P.E. Even in the attested copy obtained by the respondent there appears a note to the following effect:- ' Attested to be true copy. However, the signatures of Muhammad Yusuf Khattak appear to be over- written.'
46. ' In these circumstances, it was obviously necessary for the Election Tribunal to have the signatures and the handwriting of the appellant proved in accordance with the mandatory provisions of section 67 of the Evidence Act but this was not done. The onus of proving this document lay on the respondent, and the fact that the appellant or his counsel did not take any specific objection at the time of the production of this document does not mean that the same stands duly proved, in view of the patent overwriting existing in the original and noted in the attested copy.
47. ' It was contended by the learned counsel for the respondent that the document Exh.P.E. Was actually a public document under subsection (2) of section 74 of the Evidence Act, and therefore, in accordance with the view taken in Katikineni Venkata Gopala Narasimha Rama Rao v. Chitluri Venkataramayya, it stood proved by the mere production of the original from the public records of the Registrar, Joint Stock Companies. The learned counsel appears to me to be right, as form E is in the nature of a return compulsorily required to be filed by a public company under section 32 of the Companies Act, it is, therefore, a public record of a private document under subsection (2) of section 74 of the Evidence Act. But, as held in Bengal Friends and. Co. v. Gour Benode Saha and Co., documents which are not copies of judicial records could not be received in evidence without proof of signature and hand writing of a person alleged to have signed or written them as required by section 67 of the Evidence Act. It seems to me, therefore, that in the circumstances of the case, namely, the application made by, the appellant to the Election Tribunal and the over writing appearing on the original and reflected in the attested copy, the Exh.P.E. Could not be said to have been duly proved without compliance with the mandatory provision of section 67 of the Evidence Act."
48. ' The apex Court of Azad Jammu and Kashmir also approved the same view in the case of Chief Secretary, Azad Jammu and Kashmir Government v. Col. (Reul.) Muhammad Mansha Khan 1982 CLC 2505. At page 2507, in para. 9 of the judgment, in the similar circumstances apex Court followed the ratio laid down in the case referred herein. Para. 9 is reproduced as follows:- "9. The learned Tribunal rejected the testimony for being inconclusive and acquitted the respondent. We have perused the evidence and finding of the Tribunal. The relevant evidence is also reproduced above. We do not feel persuaded to disagree with the conclusion of the Tribunal.
49. Our reasons are:-
(i) Evidence on Charge No, 1(c)consists of oral 'testimony of Kala Khan, driver, and log-book Exh.P.B.
50. ' It is settled rule of evidence that in oral evidence, relating to a fact, there must be a declaration by the witness that he perceived by his own' senses the fact to which he deposed. The oral testimony of Kala Khan when tested on this rule of evidence finds no relevancy to the allegation. The charge against the respondent is that he used the vehicle for political purpose; and the alleged political purpose was that respondent undertook journey to Pakistan to canvass the voters in support of Pakistan Peoples Party's candidates. Kala Khan does not connect the visits of the respondent to Pakistan with election campaign. He only deposed that respondent participated in meetings and addressed them but such meetings, as he says, were organised by the State refugees and the same were normal and in routine as respondent also made similar visits in 1976, when he addressed the refugees.
51. ' It is an admitted fact that State refugees settled in Pakistan shared proportionate representation in Azad Jammu and Kashmir Assembly. Respondent as Speaker of the Assembly represented all State Subjects, whether they were in Azad Kashmir or in Pakistan. Major part of visits, as. Shown, related to visits to Rawalpindi, Rawalpindi/ Islamabad is not only the Capital of Pakistan but it is the Headquarter of Azad Jammu and Kashmir Council as well. Therefore, visits to Rawalpindi/Islamabad do not suggest unusual or abnormal conduct leading to an inference in support of this charge.
(ii) Log-book, Exh.P.B, pertains to the, concerned Wagner, Kala Khan deposed that he was illiterate and entries, Exh.P.B/1, P. B/2 and P B/3 were made in the log-book by the Deputy Secretary Assembly. The entries are sought to be admitted in evidence under section 35 of the Evidence Act.
52. Section 35 provides that an entry in any public or other official book, register or record, stating a fact, and made by a Public Servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law, is itself a relevant fact'. In view of this rule of evidence, the entries made in the log book were relevant and as such admissible in evidence; provided they were made by Kala Khan, driver who was supposed to make them in the discharge of his official duty, but it was not so done. We adopt a liberal approach and accept that even Deputy Secretary could record the entries. But in that case the entries were to be proved by him. Mr. T.H. Tariq agrees with us that entries are not signed by the Deputy Secretary or any other person.
53. Apart from showing that the Deputy Secretary was enjoined upon to record the entries, it was imperative to prove that entries were recorded by Deputy Secretary and that they were recorded correctly on the basis of information furnished by the driver; no such evidence was produced. Thus, entries recorded in the log-book are not proved under law.
(iii) The object or purpose of visits to Pakistan is not entered in the logbook. The relevant column is left blank. The import of the allegation is that respondent travelled to Pakistan to assist and canvass for the Pakistan Peoples Party's candidates. Whereas log-book does not disclose any journey in that context. Entries recorded in the log-book have no bearing on the charge. Likewise, they do not corroborate Kala Khan. Thus evidence is rightly discarded by the Tribunal.
(iv) It is in evidence that the respondent received advance in the sum of Rs,10,000 TA/DA in relation to his proposed journey to Pakistan. The amount was partly adjusted against T.A. And D.A. Bills, relating to journey to Pakistan during March, 1977, and the balance was deposited. The T.A. And D.A.
54. Bills submitted by the respondent obviously contained entries relating to journey and the purpose of journey to various cities of Pakistan. The bills were in possession of the referring authority. In one view that was the primary evidence on the point at issue. As to why that primary evidence was withheld is not brought to our notice? Mr. T.H. Tariq is unable to enlighten us on this aspect. This obviously raises a presumption against the appellant. The other aspect of the point is that T.A. And D.A. Bills were honoured by the Government. In case the journey was undertaken for the purpose other than official one, why allowances were paid to the respondent. As alleged by the referring authority if respondent undertook his journey to various cities of Pakistan to render aid to Pakistan Peoples Party's candidates; he was not entitled to charge T.A. And D.A. And the amount received in advance was liable to be refunded. The appellant has failed to challenge the propriety of the receipt of the allowances. This is another factor which knocks at the root of the allegation. We notice that Mr. Karam Sher Bhatti, Deputy Accountant-General, appeared as witness. He was the right person to give evidence on this point. Failure to give evidence leaves us with no choice except to believe that appellant withheld the primary evidence; and in case it was brought-forth, it would have gone against the appellant."
55. ' Mr. Abdul Rashid Abbasi, the learned counsel for the convict-appellants also referred to and relied upon 1977 SCMR 109 and PLD 1973 Azad J&K-11. The rule of law laid down in the aforesaid authorities has also been followed in these judgments, therefore, need not to be discussed.
56. After considering the arguments of the learned counsel for parties in the light of the above precedents and the rule of law laid down therein, we are clear in our mind that the allotment files have not been proved be the prosecution in the required manner. The files have been only marked as P.1 to P.20. The prosecution witnesses in whose presence the recovery has been made are also ignorant about the contents of the documents, rather they have stated that they did not know what type documents were in these files. The learned Ehtesab Court while treating these files as a legal evidence in recording conviction of the convict-appellants has violated the rule of law laid down in above precedents. These files have not been made part of the record in the prescribed manner, therefore, was not a legal evidence against the convict-appellants. The same is ruled out of consideration.
57. ' The learned Advocates for the appellants contended that for misconduct, criminal intention is condition precedent for burdening a person with criminal liability. The learned Advocates placed reliance upon 2000 PCr.LJ 1105. In the aforesaid authority the single Judge of this Court opined that a criminal liability stems from the criminal intention not by presumption or analogise to be drawn from the circumstances unless the case wholly rests on the circumstantial evidence. The apex Court of Azad Jammu and Kashmir in a case titled 'Chief Secretary/Referring Authority v. Sardar Muhammad Abdul Qayyum Khan', PLD 1983 SC (AJ&K) 95, also approved the same view. The honourable Court while dealing the case of misconduct under Azad Jmmu and Kashmir Holders of Representatives Office (Disqualification) Ordinance, 1978, at pages 143 and 145 of the report observed that where a holder of a public office is alleged guilty of mal-administration or misapplication or diversion of the public money, it is necessary to prove that such act was wilful. At page 145, the apex Court observed that a mere irregularity or omission cannot be construed as misconduct until and unless the same is done with wilful intention. Dealing with the aforesaid situation, a Division Bench of Lahore High Court in a recent judgment also adopted the same view.
58. Reference may be made to a case titled Hakim Ali Zardari v. The State, reported as PLD 2002 Lah.
369. The learned Judges opined as under:- "22. So far as the argument of dispensing with requirement of mens rea in the class of cases like the one in which appellant was tried is concerned, we may observe that in criminal law the existence of mens rea is a sine qua none. However, there could be statutory exception. For instance in offences where certain acts are forbidden by law and entail a penalty, imprisonment or fine and if such acts are committed then the offender would be punished irrespective of the fact whether there was any mens rea. Or not. These kinds of offences can be classified as offences of strict liability. The question of mens rea whether it can be dispensed with and if so in what form was considered by UNITED STATES SUPREME COURT REPORTS (Oct Term 1977, Lawyer's Edition, Second Series, Volume 57) in the case of United States v. United States Gypsum Company, (438 US 422, 57 L.Ed 2nd 854, 98 S.Ct.2864). At page 869, it was observed as under:- "[5] We start with the familiar proposition that it] the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo American Criminal Jurisprudence". Dennis v. United States 341 US 494,500, 95 L.Ed. 1137, 71 S.Ct. 857 (1951). See also United States v. Fareed 401 US 601, 613, 28 L.Ed. 2nd 356, 91 S.Ct. 1112 (1971) (Brennan. J, concurring in judgment); United States v. Balint 258 US 250,251-253, 66 L. Ed. 604, 42 S.Ct. 301 (1922). In a much cited passage in Morisette v. United States (supra), at 250-251, 96 L.Ed. 288, 72 S.Ct. 240, Mr. Justice Jackson speaking for the Court observed: "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculgatory 'But I didn't mean to', and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English Common [438 US 437] Law in the eighteenth century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a 'vicious Although Blackstone's requisite `vicious will' has been replaced by more sophisticated and less colourful characterizations of the mental state required to support criminality, see ALI, Model Penal Code 2.02 (Prop of Draft 1962), intent generally remains an indispensable element of a criminal offence. This is as true in a sophisticated criminal anti trust case as in one involving any other criminal offence.
59. ' This Court, in keeping with the common-law tradition and with the general, injunction that 'ambiguity concerning the ambit of criminal statutes should be resolved in favour of lenity', `Rewis v.
60. United States, 401. US 808, 812, 28 L.Ed. 2nd 493, 91 S.Ct. 1056 (1971), has on a number of occasions read a state of mind component into an offence even when the statutory definition did not in terms so provide. See, e.g., Morisette v. United States, (supra). Cf. Lambert v. California, 335 US 225, 2 L.Ed.
61. 2nd 228, 78 S.Ct. 240 (1957). Indeed the holding in Morissette can be fairly read as establishing, at least with regard to crimes having their origin in the common law, an interpretative presumption that mens rea is required. `[M]ere omission of intent [in the statute] will not be construed as eliminating that element from the crimes denounced.' Instead Congress will, be presumed to have legislated against the background of our traditional legal concepts, which render intent a critical factor, and `absence of contrary direction [will] be taken as satisfaction with widely accepted definitions, not as a departure from them.' 342 US, at 263, 96 L. Ed. 288, 72 S. Ct.
62. 240.
6. While strict liability offences are not unknown to the criminal, law and do aot invariably offend Constitutional -requirements, see Shevlin Carpenter 'Co. v. Minnesota, 218 US 57, 54 L.Ed 930, 30 S: Ct. 663 (1910), the limited circumstances in which Congress has created and this Court has recognized such offences, see e.g. [438 US 438] United States v. Agint, (supra); United States v.
63. Behrman 258 US 280, 66 L.Ed 619, 42 S. Ct 303(1922); United States v. Dotterweich, 320 US 277, 88 L.Ed 48, 64 S. Ct. 134 (1943); United States v. Freed, (supra), attest to their generally disfavoured status.
64. See generally ALI, Model renal Code, Comment on 2.05, p 140 (Tent Draft No, 4, 1955); W. Lafave and A. Scott, Criminal Law 222-223 (1972). Certainly fax more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement."
23. The ratio laid down in the afore-cited judgment would indicate that even in countries where the concept of `white collar crime' originated, the requirement of mens rea in Criminal Law has not been dispensed with. Coming to the specific provision of the law under consideration we are of the view that a bare reading of section 3(1)(d) of the- Ehtesab Ordinance, 1997 would show even that the law maker did not want to dispense with the element of mens rea. The expressions `seeks for himself or for any other person, property, valuable thing, a pecuniary advantage or undue favour are qualified' and preceded by the expressions 'by corrupt, dishonest, improper or illegal means.' All these acts and modes of behaviour would require an effort, or in jurisprudential terminology mens rea and actus reus on the part of a person to constitute an offence unless it is an offence of strict liability".
65. The learned Advocates further contended that until and unless it is proved that violation has been made for some pecuniary advantage, mere irregularity on the part of accused does not constitute the offence. In such a circumstance, the consensus is that an irregularity by public servant may attract disciplinary action under the concerned rules but in order to establish the offence of misconduct, the prosecution is not only bound to prove the misuse of the authority but equally bound to prove that such a misuse is committed with the intention to gain any benefit or favour for himself or for any other person. The overall reading of the prosecution evidence leads to the irresistible conclusion that even the Investigating Officer failed to point out any misuse of authority or violation of the rules by referring to the various allotments. The Investigating Officer also admitted that he has not visited the spot. The master plan has also not been made the part of the record to substantiate the allegations that in fact while making the E allotments of the plots, the conditions of the master plan as well as Regulation 16 have been violated. The allottees have not been proceeded against, they have also not been cited as a witnesses. It will be useful to reproduce relevant portion of the statement of Investigating Officer who is stated to be the star witness. {{URDU TEXT}} After a perusal of the above said statement which is common in all the references, we are of the considered opinion that the prosecution has miserably, failed to prove these cases beyond doubt.
66. The law requires that each and every ingredient of the offence, should be proved and no one can b punished for mere irregular use of the authority unless and until accompanied by the intention to gain any benefit or favour for himself or for any other person. It is also to be established that while doing so, the Government treasury has been burdened with the wrongful loss. The same view is opined by the Division Bench Of karachi High Court in a case titled 'Saddique-ul- Farooque v. The State,' reported as PLD 2002 Karachi 24. The learned Judges opined as under:- " It is also to be kept in view that a head of the department or an Institution, may sometimes exceed his normal administrative powers in the interest of Institution and under some wrong impression about his authority on the basis of a practice in vogue or on account of a policy framed by the predecessors and continuance thereof without any objection more particularly when it is in the interest of smooth working of the Institution. Every such irregularity is not to be treated as misuse of authority and more particularly is not to be treated as criminal offence. It is established principle Of the criminal administration of justice that before convicting any person the prosecution is required to establish beyond any reasonable doubt, all the ingredients constituting an offence and if there is any lacuna, infirmity or doubt it has always to be resolved in favour of an accused person.
67. ' Coming to the facts of the present case we find that the prosecution has at the most established some irregularity in making appointments by not taking prior approval of the Finance Division.
68. However, the offence under section 9(2)(a)(iv) shall be made out if a holder of a public office, misuses his authority, so as to again any benefit or favour for himself or any other person. Mere irregular use of authority may attract disciplinary action under the Service Rules, but in order to establish the offence of corruption and corrupt practices, mere irregularity on the part of holder of a public office or any other person is not sufficient. The prosecution must establish misuse of authority coupled with the intention to gain any benefit or favour for himself or any other person or to render or attempt to do so. Here, we are not dilating on the latter part of the definition given in section 9(2)(a)(iv) of the N.A.B. Ordinance, because the first part only is relevant for the purpose of the matter before us. It is also established principle of the criminal administration of justice that if there are more than one ingredient for constituting a criminal offence, all of them are to be established and if any one or more ingredients are not established then an accused person cannot be convicted for the commission of offence merely on committing one part of the act which in itself does not constitute the totality of act amounting to an offence.
69. ' For the foregoing reason, we are of the considered opinion that the prosecution has failed to establish the commission of offence as defined under section 9(2) (a)(iv) of the N.A.B. Ordinance, by the appellant and consequently it is held that the trial Court was not justified in convicting the appellant on account of making appointments on contract/daily wages basis and therefore, the conviction and sentence on this count is hereby set aside."
70. ' Raja Hussan Akhtar, one of the learned counsel for the appellants has seriously objected to the recording of the conviction in view of section 27 of General Clauses Act, 1877. The provision of law referred to and relied upon by the learned Advocate supports his contention and in support of the arguments, the authorities referred to and relied upon as PLD 1959 Karachi 56 and PLD 1961 Lahore 69' also support the arguments of the learned counsel for the appellants, however, no deliberation is required because we have made up our mind for acceptance of the appeals on the other grounds.
71. ' Mr. Abdul Rashid Abbasi, the learned Advocate for the appellants contended that the trial has been conducted in violation of the rules known as 'Rules of Procedure' in criminal case, adopted by Resolution No, 638. He relied upon the case titled The State v. Khaliq-ur-Rehman and three others 2001 SCR 362, wherein similar preposition was raised and the apex Court after considering the rules has opined that rules are still holding the field and are mandatory in nature. The rules referred above enjoin upon the prosecution that at the time of submitting the challan,- the accused should also be supplied the copies of the statement of witnesses or documentary evidence on which the charge is based. The learned Advocate has rightly argued that the prosecution was duty bound to provide the copies of the documents to the accused which were proposed to be put to them in evidence. The learned Chief Prosecutor has controverted the arguments by saying that at the relevant time, no objection was raised, therefore, at this stage the appellants are debarred from raising any such objection. In our considered view, the argument of the Chief Prosecutor is not tenable.
72. ' As we have otherwise observed that these documents have not been proved by the prosecution, therefore, the same cannot be read against the accused, no further deliberation is required on this point. The contention of the learned counsel for the appellants that the case titled Ch. Khalid Hussain and others v. The State and another, section 247 of the Cr.P.0 which is mandatory in nature has been violated by the respondents, this argument is also controverted by the learned Chief Prosecutor by referring Section 529 and 530 of the Cr.P.0 ' After careful perusal of the aforesaid provisions of law, we are of the view that arguments of the learned Advocate for the appellants are of worth consideration. The perusal of the record reveals that the learned Advocate is right in saying that a person accused of more offences than one of the same kind committed with a space of 12 months from the first to the last of such offences, the accused is charged, he may be tried at one trial, otherwise, the trial would be in violation of the mandatory provision of Section 234 of Cr.P.C. The contention of the learned Counsel lends support from the rule of law laid down in a case titled Muhammad Ayyub Qureshi v. The State TED 1987 Azad J&K 131'. On the other hand the contention of the learned Chief Prosecutor that a trial could only be vitiated in view of section 529 and 530, Cr.P.0 is devoid of force sections 529 and 530 deal with a separate situation which is not relevant to the present case. The submission of the learned Advocates for the appellant's that mandatory provisions of section 7342, Cr.P.0 are violated is also worth consideration. The provisions of section 342, Cr.P.0 are mandatory in nature and non-comp lattice of the same has always been retarded as fatal for the case of prosecution. The authority reported as PLD 1977 SC Azad J&K 1, supports the contention of the learned Advocates for the appellants. The perusal of the record reveals that even the documentary evidence adduced by the prosecution is not put to the accused, therefore, the accused could not be convicted even on that score. I am supported by PLJ 1998 SC (AJ&K) 84, wherein the apex Court while observing on the violation of section 342, Cr.P.0 held as under:- "The section is based on the principle involved in the maxim audi alteram partem, namely, that no one should be condemned unheard. Where a person is to be charged with any penal liability he should be made aware of all the facts and circumstances existing against him in order to enable him to give explanation in respect of those charges and evidence produced against him.
73. Departure from such procedure could be fatal to prosecution as a very important step in the trial would thus be by-passed making the entire trial completely vitiated. The accused should be heard, not merely on what is prima facie proved against him but also on every circumstances appearing in evidence against him.
10. In derogation of the aforesaid provision of law, the two bottles of whisky which were allegedly recovered from the accused and sent to Chemical Examiner for his report and his .Report being positive was admitted into evidence as Exh.`P/C' during the evidence of Raja Muhammad Tariq, Station House Officer, but the same was not put to the accused under section 342, Cr.P.0 for seeking his explanation on this incriminating piece of evidence. This lapse on the part of trial Court has resulted into an illegality. The normal course for us would have been to set aside the conviction and then to, remand the case to the trial Court for putting the incriminating evidence to the appellant under section 342, Cr.P.C. However, there is a peculiar feature of the case that sentence of one year with a fine of Rs,1,000 was awarded to the appellant under section 4 in respect of 23 bottles while we have held that conviction if at all can be recorded only in respect of two bottles which were sent to the Chemical Examiner. In this view of the matter we are of the considered view that ends of justice will be met if we reduce the sentence to the sentence already undergone under the situation. It is ordered accordingly."
74. The learned Chief Prosecutor is right in saying that people who have become multi-millionaires without any source of income and thus having a life style incompatible with their known means could not be left unpunished on the ground of technicality of law but keeping in view the universal accepted principle of / criminal jurisprudence, the accused persons cannot be convicted without legal evidence and proper trial.
75. ' As a sequel to our above discussion, all the criminal appeals are accepted. Convictions recorded and the sentences imposed by the learned Ehtesab Court No, 2 Mirpur vide its judgment dated 5-1- 2002 are hereby set aside and the. Convict-appellants are acquitted. Consequently the appeals filed by Ehtesab Bureau are hereby dismissed.