SYED MANZOOR HUSSAIN GILANI, C.J.--This acquittal appeal is filed against the order passed by Ehtisab Court No,2 Mirpur dated 30-6-2001, whereby the accused-respondents are acquitted of the offences under sections 3 and 4 Ehtisab Act, 1997, sections 406, 409, 467, 468, 471 and 109, A.P.C. and 5(2), P.C.A. The reference against the accused-respondents was first filed before the Ehtisab Bench of the High Court on 13-12-1999, which was then transferred to Ehtisab Bench. The reference under the above provisions of law as filed against the accused- respondents under the following circumstances.
2. That during the flood of 1992 several hundred thousand cft timber was swept away, for extraction of which the work was first allotted to the Forest Department at the rate of Rs,11.30/cft who extracted 81912 cft. from Mangla Dam Mirpur, but the work was then divided into two parts without any report or complaint of the Forest Department in consequence of which the extraction of timber from the Dam and its damping at Qila Ramkot was allotted to Haji Muhammad Yunus accused-respondent No,5 at the rate of Rs,7,23/cft and two days thereafter the rate was increased to Rs,13/cft without the concurrence of the finance department. A cost of Re1/cft was also allowed for miscellaneous charges. It is alleged by the referring authority that work was allotted to the Forest Department at the rate of Rs,11.30/cft which included all the charges, but was given to accused-respondent No,5 at the rate of Rs,13/cft so as to obtain illegal gain from him and it was done with the connivance of official accused-respondents 1 to 4, hereby causing loss of Rs,139,250 to the Government exchequer. Accused-respondent No,5 was thereafter allotted the work of collecting the timber at Qila Ramkot without any justification against law with the intention to obtain illegal gain, first at the rate of Rs,7.23/cft but the rates were increased just after two days to Rs,13/cft, thereby causing loss of Rs,2,35,75,400 to the Government exchequer. Respondent No,5 was also given the iron rope costing Rs,203,320 by the Forest Department, which he did not return and finally it was got written off. It is also alleged that respondent No,5 was given a tuck boat on rent who did not pay the remaining amount of its rent i,e, Rs,78,120 and it was also got written off.
The accused-respondents were charged for obtaining illegal gain for themselves with the connivance of each other by causing loss of Rs,2,78,56,840 to the Government exchequer. it is also alleged against accused-respondent No,4 Sultan Sikoxtar, that he by misusing his authority so as to obtain illegal gain for himself hired a launch in the name of Chaudliry Qurban All for transportation and custody of timber and showed payment of Rs,98,56,300 being made to him, while he was paid only Rs,300,000 and rest of the amount of Rs,95,56,300 was misappropriated by him. It is also alleged against respondent No,4 that so as to obtain illegal gain, the without lawful authority alleged the export of 2000 maunds of firewood to Pakistan and issued Permit No,25 without any lawful authority by misusing his powers. It is alleged against accused-respondent No,1 Raja Abdul Qayyum Khan appointed 26 persons from Muzaffarabad and deputed them to Mirpur, though these ointments should have been made from Mirpur.
3. The Ehtisab Court after trial of the case acquitted the accused from all the charges.
4. The learned Deputy Chief Prosecutor, Mr. laved Naz arguing the case contended that the case against the accused-respondents was based on the inquiry conducted by three Ministers i,e, Chacha Ali Muhammad; Akhtar Rabbani and Chaudhry Latif Akbar. According to him, the Ehtisab Court did not appreciate or discuss the evidence placed before it, nor has gone through the record produced against the accused-respondents. He referring to the Government files contended that rates of the work were changed over night by the accused-respondents in connivance with each other so as to obtain illegal gain, which caused loss of crores of rupees to the Government exchequer. He further contended that Ehtisab Court has failed to take notice of the fact that Chaudhry Muhammad Sadiq and Chaudhry Niaz Ahmad have unequivocally stated that iron rope was given to Haji Muhammad Yunus accused-respondent No,5 who did not return it and thereafter got issued Government notification by using undue influence. It is also contended by him that extraction of timber work was allotted to Haji Muhammad Yunus who was not a contractor of Forest Department and that appointments for extraction of timber from Mangla Dam were made from Muzaffarabad while these should have been made from Mirpur. According to him, all the official respondents by misusing their powers and authority have caused loss of crores of rupees to the Government and gain for themselves. He also contended that Government notifications issued in this behalf are obtained by the accused-respondents with the connivance of each other.
5. Raja Muhammad Hanif Khan the learned counsel appearing on behalf of the accused- respondents contended that three-member committee Was constituted on 19-8-1996 for inquiry into the alleged irregularities in collecting the timber swept away in the flood of 1992. According to him though no formal Government notification was issued, but assuming the same having any authority, the inquiry was conducted by Chacha Ali Muhammad, Chairman of the Committee alone and he obtained the signatures of other members who did not participate in the inquiry.
According to him, proceedings initiated against the respondents on the basis of this inquiry report, are without lawful authority and no criminal proceedings can be launched against the respondents on the basis of this inquiry report are without lawful authority and no criminal proceedings can be launched against the respondents on the basis of this illegal report. He further contended that Government was constrained to increase the rates in view of the emergency and urgency involved in the matter as water was overflowing the Mangla Dam which hit the Dam and missiles and ammunition were also flooded causing danger to the Dam on account of which urgent and emergent measures were taken. According to him, notwithstanding this, the Government of Azad Kashmir allowed the rates, which were at par with the Punjab Government, and had the rates not been increased, the. timber could not be collected and extracted, as the expert labour would have slipped to other side. He further contended that Chaudhry Ali Muhmamad Chacha, Chairman of the Committee directed vide Exh.DB that Muhammad Yunus Awan and Khawaja Muhammad Usma n are not guilty of any offence except minor irregularities not amounting to offence, reference td their extent may be withdrawn, while it was directed through the same order i,e, 28-81998 that fresh inquiry against Raja Abdul Qayyum and. Contractor Muhammad. Yunus be conduced. Referring to the order of Chief Ehtisab Commissioner dated 28- 8-1998, he contended that the Chairman also directed to drop the reference against Muhammad Yunus Awan. and Khawaja Muhammad Usman in spite of that the reference was filed on 13-12-1998 without any further inquiry and without any order of the Chairman of the Committee and Chief Ehtisab Commissioner. Referring to prosecution evidence, he contended that no connivance of the official respondents with Haji Yunus contractor is proved. He referred to the statement of Raja Munawar, D.S.P. who conducted the investigation stating that he did not find any evidence of connivance of Raja Abdul Qayyum with Muhammad Yunus, contractor for increase in the rates. He also contended that Committee was constituted consisting of the persons who were political rivals of Raja Abdul Qayyum and Haji Muhammad Yunus accused persons. Referring to the statements of witnesses he contended that all the rates have been increased in accordance with rules. He also contended that all the actions have been taken in accordance with law and Government notifications have been issued to that effect. He placed reliance upon (1995 PCr.LJ 391); (PLJ 1996 SC AJ&K 23); (1985 PCr.LI 495) and (1992 SCR 366) in this behalf. Raja Hassan Akhtar, Advocate appearing on behalf of the accused-respondents also owned the arguments addressed by Raja Muhammad Hanif Khan, Advocate.
6. We have examined the record of the case in the light of the arguments of the learned counsel for the parties. The perusal of the reference discloses the following allegations against accused- respondents:- that the rate for extraction and collection of timber was increased without any justification cause from Rs,11.30 and Rs, 7.23 to Rs,13; that the iron rope worth two lacs rupees has not been returned and it was illegally got written off; that the labour required for extraction of timber was employed from Muzaffarabad instead of Mirpur: that accused-respondent No,5 did not pay the rent of tuck boat used for extraction of timber and that the work was allotted to him though he was not the registered contractor of the Forest Department; and that a total loss of Rs,2,78,56,840 is alleged to have been caused to the Government by the accused-respondents.
Given the background of the case, we at the very outset take judicial notice of the historical fact that a devastating flood caused immense damage throughout Pakistan in 1992 particularly in Azad Kashmir and most of villages, jungles, cultivable lands, houses and precious human and animal lives and timber were destroyed and swept away. Besides floodwater, immense damage was caused to buildings and bridges by the floating timber and firewood. The Government through all its Agencies including the Forest Department in Azad Kashmir started immediate relief work by resorting to all means at its disposal. The accused-respondents who, (alongwith many others not charged), were responsible of the Forest Department and connected with it were charged for having committed the embezzlement and misappropriation in handling the swept away timber and other connected matters.
7. The proceedings against respondents commenced on the basis of report of the inquiry conducted by the Cabinet Committee consisting of Law Minister (Chairman), Minister for Works, Minister for Education and Secretary Forests. The occupants of the offices were Chaudhry Ali Muhmmad Chacha; Sardar Qamar Zaman; Chaudhry Latif Akbar and Chaudhry Muhmamad Sadiq respectively. Secretary of Forests Chaudhry Muhammad Sadiq was the Secretary of the Committee as well. The report of the Committee finds place at Exh.PA on the file Exh.P/1. The perusal of record reveals that the Chairman alone conducted inquiry. Chaudhry Muhammad Sadiq who was Secretary of the Committee has stated in the cross-examination that the Chairman alone has conducted the inquiry. Sardar Qamar Zaman, member of the Committee in his statement has deposed that he attended; only one meeting in the office of Chairman of the Committee in connection with the inquiry. Chaudhry Latif Akbar, member of the Committee has not appeared as a witness. However, all the members of the Committee has signed the report. The accused- respondents are not associated in the inquiry that is made basis of the reference. This on the face of it makes clear that inquiry was not conducted as directed and in accordance with the rules of natural justice, hence no reliance could be placed on this inquiry report. It is held in (PLD 1984 Peshawar 273) that if an accused is not associated with an inquiry before trial, conviction cannot be based on that inquiry. Similarly acquittal could be set aside when the case rests on that inquiry.
Moreso, the perusal of statements of Raja Abdul Qayyum Khan and Haji Muhammd Yunus accused under section 342, Cr.P.C. reveals that Chacha Ali Muhammad who was Chairman, and Chaudhry Latif Akbar who was member of the Committee were political opponents of the accused persons in their respective constituencies. According to their statements, Raja Abdul Qayyum contested three elections against Chaudhry Latif Akbar, while Haji Muhammad Yunus was supporting the rival candidate of Chacha Ali Muhammad. The contention of the learned counsel for the accused thus carries weight that report of the Committee is outcome of the political rivalry and animosity. The Court particularly in the criminal matters cannot believe a statement or report which has an impression of being tainted or outcome of some malice. We cannot lose sight of the fact that in an instable political society rival political workers do not differ democratically on issues, but report to revengefulness, hence reports to be made the basis of prosecution have to be seen in that perspective. In this case when two members of the Cabinet Committee are specifically alleged to be opponents of the accused persons, their report, irrespective of its validity and uprightness of members of the Committee does not inspire confidence to make it the basis to initiate a case against the accused-respondents. Moreso, the Chief Ehtisab Commissioner on the basis of the report submitted by the Chairman of the Committee dated 28-1-1998, directed that irregularities of very minor nature are attributed against Khawaja Muhammad Usman and Muhammad Yunus Awan respondents on account of which their names were directed to be deleted from the reference. It is surprising that in spite of this order the persons are challaned as accused. Keeping these observations of the Chief Ehtisab Commissibner in view, the reference and the allegations levelled therein become doubtful, and all the proceedings conducted on the basis of this report are equally unsustainable. In the criminal cases if any illegality, irregularity or doubtful activity is found during the inquiry investigation or while submitting the report, the varasity of prosecution case becomes doubtful benefit of which goes to accused persons. Thus the proceedings before the Chief Ehtisab Commissioner or Trial Court could not be initiated on the basis pf this report. It is also surprising to note that Chairman of the Committee had proposed a fresh inquiry to be conducted in the matter and the Prime Minister agreed with it as per Annexure-DB placed on the file of the Trial Court, but no fresh inquiry appears to have been conducted in the matter which implies that reference filed against the accused-respondents did not carry weight even in the estimation of the Inquiry Committee, irrespective of the fact that the allegations levelled against the accused- respondents were not proved even during trial.
8. As far as the allegation that loss was caused to the Government for the personal gain of the accused-respondents by raising the rates from Rs,7.23/cft or 11.30/cft to Rs,13/cft is concerned, it is borne out from the perusal of record and the statements of the witnesses under section 342, Cr.P.C. that in view of the emergency involved, the work was allotted to Haji Muhmmad Yunus, a local person of the area who had the local influence for his Tribe (Bradery) living around the Dam and river wherefrom the timber was to be extracted. It is also borne out from the files of the Government placed before the Court that besides imminent danger of damage' to Dam the pressure of the wind which floated the timber to the right bank of the Dam, which was surrendered by thick population and it was also apprehended that timber may be stolen, and being adjacent to two forest divisions of Punjab, whose workers were also extracting the timber, there was great apprehension of loss on account of which the work was allotted to Haji Muhammad Yunus and it was decided at high level of the Government on the basis of which the notification was issued. The work which was allotted to' the Forest Department at the rate of Rs,11.30/cft was also increased to Rs,13/cft under the authority of Government notification dated 15-10-1992. Thus the rates, as per statement of prosecution witnesses particularly the statement of Chaudhry Niaz Ahmad and Chaudhry Muhammad Sadiq, appear to have been increased to ensure and expedite the work, and on account of pressure of the Army, which had informed the Forest Department that, missiles from the Indian side are swept away by water, 24 of which were recovered by them was no way out except that adopted by the Government. Notwithstanding that, the department in view of the statement of the witnesses was constrained to increase the rates, as the rates given to the special labour used for extraction of drift timber in the southern and northern forest divisions of Rawalpindi were 19.40/cft and 17.50/cft which is borne out from letters of the DFOs of those divisions to Manager Forest Operation AKLASC dated 22-7-1993 and 11-4-1993 respectively, which find place in file No,3 of the Forest Department exhibited as Annexure P/6, while the timber to be extracted by them was within an area of 100 meters only from the dumping ground which is also on record. Had the Department not increased the rates, the labour would have shifted to other side and it would have caused great financial loss to the Government besides immense danger to the Dam. Under these circumstances, the Government decided to allow Rs,13/cft through the Notification dated 26- 10-1992 and in the presence of the notification the accused cannot be charged for the offences.
9. As far the iron rope is concerned, it was given to Haji Muhammad Yunus accused-respondent No,5 for extraction of timber from the Dam, but was drowned in the Dam and became impossible to extract it from the Dam. Though, there is no evidence on record to suggest that the rope was ever given to accused-respondent, but he admits that he has taken the rope but was drowned in the Dam and the prosecution witnesses also admit. The competent Authority through Government notification has written it off. It is held in 1992 SCM R 372 that when the Government issues a notification, it is to be persumed that the opinion was formed on the basis of some material, unless otherwise proved. When an act becomes impossible due to natural calamity none can be charged for its omission or commission and the things will have to be rearranged accordingly.
10.In connection with the fare of truck boat belonging to AKLASC used by the accused- respondent, the respondent claims that he took the boat to the dam on his own expenses and bore its wear and tear expenses, hence the fare worked out by the AKLASC is not fair. A meeting of the forest officers was held under the Chairmanship of Prime Minister whereby the contractor was directed to pay an amount of Rs,78,210 as the fare of the boat which he infact deposited in the Government treasury. The matter was thereafter written off in view of the circumstances of the case through the Government Notification dated 30-5-1996 after obtaining the approval of the Finance Department on 8-4-1996. Notwithstanding that, it is a civil liability, which can, be realized at any time through the process of law, which cannot form the basis of a criminal charge against the respondent.
11.As far the allegation that accused-respondent employed the labour from Muzaffarabad in Mirpur is concerned, the perusal of record reveals that work charge labour was employed temporarily for three months. The Court takes judicial notice of the fact that expert labour drifting the timber from river are mostly found in Muzaffarabad area of Azad Kashmir wherefrom more than 90 per cent. of the timber is exported to other parts of the country. In view of the emergency involved it has become inevitable to employ the skilled labour that was taken to Mirpur. When natural calamity befalls the normal courses gave way to abnormal actions for general good. There could be no time to advertise the posts; moreover, the employment was also for a temporary period.
12.It is surprising to note that the files culminating in the Government Notifications dated 15-10- 1992. and 26-10-1992, whereby the rates were increased, were processed at different levels right from clerk to Prime Minister, but none of them is charged neither is any explanation given as to why they had been exonerated or as to why Khawaja Muhammad Usman and Yunus Awan who were first implicated in the case and then ordered that the reference be withdrawn against them and again charge-sheeted. It speaks of indefinite and unsatisfactory mind of the investigating, inquiring and referring authority, which was also constrained to put off the action against two on the interference of the Prime Minister, which is borne out from record, but again put the action in motion. No conviction can be based in such a case.
13.As far the charge against Sultan Sikandar accused-respondent No,4 that he did not pay the amount charged from Government to Chaudhry Qurban is concerned, Chaudhry Qurban himself belies it when appeared as a witness by, stating that he received entire amount from him.
14.No iota of prosecution evidence is on record to establish that the rates were increased by the official respondents in connivance with Haji Muhammad Yunus so as to give undue benefit or illegal gain to him, which caused loss to the Government. Raja Muhammad, D.S.P. who has investigated the case, states that nothing is found about the connivance of Raja Abdul Qayyum accused with the contractor for increase of the rates and he did not find any evidence to that effect.
15.The allegation of export of firewood is not proved at all, neither has this allegation been put to Sultan Sikandar in the statement under section 342 of Cr.P.C. No witness from the Forest Department or anybody else is brought to prove this allegation.
16. The perusal of record reveals that Government has earned Rs,12,32,31,207 at the cost of Rs,4,95,57,485, which suggests that no wrongful loss is caused to the Government. No misappropriation or breach of trust as visualized by sections 406 and 409, A.P.C. is proved to have been committed by the accused-respondents, neither are the accused found to have committed any forgery for the purpose of cheating or misused their powers.
17. The Court below -has; therefore, rightly acquitted the accused-respondents. Finding no force in this appeal it is hereby dismissed.