TANVIR BASHIR ANSARI, J.-----This judgment shall also decide Criminal Appeals Nos.2-E of 2003, 3-E of 2003, 4-E of 2003 and Writ Petitions Nos.875 of 2003 and 981 of 2003 as all these matters arise out of a common judgment dated. 19-3-2003 passed by Accountability Court No.II, Rawalpindi in Reference No.45 of 2001.
2. The Chairman, N.A.B. Filed the aforesaid reference against Murid Ahmed Baloch, XEN, Khalid Mehmood Nasir, Sub-- Engineer, Rashid Mujeeb Siddiqui, Divisional Accounts Officer, Zabid Ullah SDO, Muhammad Aslam Shahid Accounts Clerk all employees of Pak P.W.D. And Muhammad Ibrahim, Proprietor Messrs I. S. Enterprises under section 18(g) read with section 24 of National Accountability Ordinance, 1999 on the allegation that all the accused in collusion and in connivance with each other obtained illegal pecuniary advantage of Rs.16,46,846 causing a loss to the State and thus committed corruption, corrupt practices and fraud as defined under section 9 read with section 10 of the N.A.B. Ordinance and the Schedule thereto.
3. Initially Muhammad Raiz Exh.D.G. Pak P.W.D. Got registered an F.I.R. No.7 of 1997 dated 24-5-1997 under sections 420/468/471/477-A/409, P.P.C. Read with section 5(2)47 of P.C.A., 1947 at P.S., FIA Crime Circle, Rawalpindi against the accused. However, upon promulgation of the N.A.B. Ordinance, 1999 the case was transferred to the Accountability Court, Rawalpindi under section 16-A of the N.A.B. Ordinance.
4. As per the allegations in the reference all the accused were employees of Pak P.W.D. In the respective capacities as mentioned against each. Murid Ahmed Baloch, XEN (P.O.) managed the publication of a fictitious notice inviting tender in a solitary copy of Daily Jurat on 9-4-1996 for award of work of construction of Holiday Home at Murree. Acting in pursuance of this fake advertisement and in active connivance with Rashid Mujeeb Siddiqui, D.A.O., Khalid Mehmood Nasir; Sub-Engineer, Zahid Ullah, SDO and Muhammad Aslam Shahid, Accounts Clerk, the accused succeeded in awarding the said contract fraudulently in favour of Ibrahim Baloch who represented himself as proprietor I.S. Enterprises. The contract was awarded at 118% and 79.82% above the Pak P.W.D. Rates. Substantial loss was thus caused to the National Exchequer to the tune of Rs.3,855 million. It was further alleged that fraudulent payments were received against the items of earth cutting and its disposal and that the payment was also obtained against secured advance of 50 metric tons of steel. During the course of proceedings Murid Ahmed Baloch, XEN did not join the proceedings, was declared P.O. And was sentenced under section 31-A of the N.A.B. Ordinance.
Charge was framed against all the remaining accused to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined Qamar-uz-Zaman Farooq Kiani, Editor in Daily Jurat P.W.1, Nazar Muhammad, Director Films and Publications P.W.2, Muhammad Riaz Ex-D.G. Pak P.W.D. (complainant of F.I.R. No.7 of 1997) as P.W.3, Touqeer-ul-Haq, A.E.E. Appeared as P.W.4, Mian Babar Qayyum, XEN, P.W.5, Muhammad Saeed Akhtar, Sub-Engineer P.W.6, Muhammad Anwar, L. D. C. P.W.7, Syed Hasnat Ahmed, S.W.O. P.W.8, Malik Muhammad Siddique, Survey of Pakistan, P.W.9, Abid Hussain Mirza, Officer Allied Bank Limited P.W.10 S.K. Azhar Rizvi, A.V.P., A.B.L. As P.W.11, Malik Abdul Lateef. Surveyor in Survey of Pakistan P.W.12, Muhammad Mushtaq, XEN, Pak P.W.D. P.W.13, Muhammad Akbar Abbas, Inspector I.O. P.W.14 and Sheikh Inayat Ali, Inspector FIA as P.W.15.
5. After the conclusion of the prosecution evidence the statements of all the accused were recorded under section 342, Cr.P.C. All the allegations were denied. It was contended that the case has been registered against the accused on account of the ulterior motive of Muhammad Riaz, Ex- --D.G. Who victimized all the accused. It was further averred that in the departmental, inquiry conducted against the accused all the accused were exonerated.
6. After perusing the oral and documentary evidence on the record the Accountability Court acquitted Muhammad Aslam Shahid while the appellants were convicted and sentenced as under: -- Muhammad Ibrahim Baloch Convicted under Article 5 of the Schedule of NAB Ordinance and sentenced to 5 years R.I. With a fine of Rs.5,00,000 and in default, the fine was to be recovered under section 386-B, Cr.P.C. He was disqualified to hold a public office and further disqualified for, a period of ten years for seeking or from being elected etc. As Member of a Representative or any public statutory or local authority. He was also debarred to be allowed any financial facility for a period of ten years.
Rashid Mujeeb Siddiqui Sentenced to 5 years R.I. With a fine of Rs.5,00,000 to be recovered in case of default under section 386-B, Cr.P.C. He was also disqualified and debarred in the manner specified in the case of Muhammad Ibrahim Baloch.
Zahid Ullah: Khalid Mehmood Nasir: Each sentenced to 2 years' R.I. With a fine of Rs.3,00,000 to be recovered in case of default under section 386-B, Cr.P.C. They were also similarly disqualified and debarred.
7. Criminal Appeals Nos. 1-E of 2003, 2-E of 2003, 3-E of 2003 and 4-E of 2003 have been filed by the afore-mentioned against their conviction and sentence. The Writ Petitions Nos.875 of 2003 and 981 of 2003 have also been filed for suspension of the sentence granted by the Accountability Court during the pendency of the appeal.
8. We have heard Mr. Zulfiqar Khalid Maluka, Advocate in Criminal Appeal No.1-E of 2003, Mr. Rizwan Akhtar Awan, Advocate in Criminal Appeal No.2-E of 2003, Syed Zulfiqar Abbas Naqvi, Advocate in Criminal Appeal No.3-E of 2003, Mr. Zafar Ullah Khan, Advocate in Criminal Appeal No.4-E of 2003 and Raja Muhammad Afzal, Special Prosecutor on behalf of N.A.B. And have extensively perused the record.
9. Muhammad Riaz, Director-General, Pak P.W.D., Islamabad got registered F.I.R. No.7 of 1997 under sections 420/468/471/477-A/409/109, P.P.C. Read with section 5(2)47, P.C.A. On 25-4-1997. The specific allegation made in the F.I.R. Is that the accused nominated therein were guilty of misappropriation, fraud and criminal breach of trust whereby a substantial loss was caused to the State Exchequer and illegal gains were made by the accused. As noticed hereinbefore after the promulgation of the N.A.B. Ordinance the case stood transferred to the Accountability Court, Rawalpindi under section 16-A of the N.A.B. Ordinance, 1999. The Accountability Court, on 2-2-2002 framed the following charge against the accused/appellants:-- "Charge-sheet I, Muhammad Mansoor Ali Khan, Judge, Accountability Court No.2, Rawalpindi do hereby charge you the above named accused persons as under:-- Firstly.---That during the year 1996 you accused Nos. 1, 2, 3 and 5 while posted as Divisional Accounts Officer, Sub-Engineer, SDO and Accounts Clerk, respectively in Pak P.W.D., Islamabad, being holders of Public Office in collusion and conspiracy with one another and absconding accused Murid Baloch, XEN fraudulently manoeuvred to get a fake tender notice printed in one copy of daily newspaper "Jurrat" dated 9-4-1996, dishonestly and illegally got the said contract awarded to your co --accused Muhammad Ibrahim contractor for the construction of Holiday Home, Murree and by misusing your authority gained undue benefit of Rs.16,46,846 for your co -- accused Muhammad Ibrahim and thereby committed the offence of corruption and corrupt practices under section 9 punishable under section 10 of the N.A.B. Ordinance, 1999 within the cognizance of this Court.
Secondly.---That during the same period and in the same capacity you accused Nos. 1, 2, 3, 4 and 5 in collusion and conspiracy with absconding accused Murid Baloch deceitfully, fraudulently and dishonestly caused a loss of Rs.16,46,846 to Pak P.W.D. In the Project of Holiday Home, Murree and thereby committed the offence of fraud as defined and punishable in the Schedule to N.A.B.
Ordinance, 1999 within the cognizance of this Court. And I hereby direct that you all, be tried by this Court on the aforesaid charges.
Judge, Accountability Court, Rawalpindi/Islamabad."
Muhammad Riaz, D.G., Pak P.W.D. (complainant of F.I.R. No.7 of 1997) appeared as P.W.3. According to the complainant, to avoid fair competition and obtaining competitive rates and with a view to confer unlawful benefits on the accused, wholly fraudulent procedure was adopted whereby a notice inviting tender was got published in only one copy of the Daily Jurrat dated 9-4-1996. Murid Ahmed Baloch, XEN (P.O.) issued a letter Exh.D.2 to the Press Information Department. This letter was accompanied by a tender notice Exh.P.23. Exh.D.2 and Exh.P.23 were handed over by Muhammad Anwar, L.D.C., PWA to Muhammad Aslam Shahid accused for publication in the press. Both Exh.D.2 and Eih.P.23 were duly signed by Murid Abmed, Baloch. Qamar-uz-Zaman Farooq Kiani, Editor in Daily Jurrat, Rawalpindi in 1996, appeared as P. W. 1 and produced the genuine edition of the said paper of 9-4-1996 as Exh.P.1. No notice inviting tender has been published in Exh.P.1. Exh.P.2 is another edition of the same date. The notice inviting tenders published only in Exh.P.2 was made fraudulently in order to avoid open competition to the prospective tenders. The case of the prosecution in this respect is supported by the statement of Nazar Muhammad, Director Films and Publication, Ministry of Information, Islamabad who appeared as P. W.2. According to this witness he did not issue any instruction for the publication of a tender notice in the Daily Jurrat of 9-4-1996 as the alleged tender Exh.P.W.2/A was never received in his office nor was it released to any newspaper.
10. We have ourselves examined the copy of the Daily Jurrat published on 9-4-1996 (Exh.P.1) and also the fake/disputed copy of Jurrat of the same day Exh.P.2 and find that in the last two columns of Exh.P.2 after the printed portion in Column No. 7 and after the printed portion The remaining news items (25 printed lines) have been deleted and in their place, the tender, notice was got inserted. The notice inviting tenders as published is in the name of Murid Ahmed Baloch, XEN.
11. The chronology of events that followed were that the alleged date of opening tender was shown as 11-4-1996. On 8-4-1996 Messrs I.S. Enterprises addressed an application to the Chief Engineer (N)
Pak P.W.D., Islamabad for upgradation of Enlistment as "A" Class (No limit) Contractors. The said application was made under the signatures of one Khalil Ahmed. The said application was accompanied amongst other documents by a certificate issued by Manager, A.B.L., wherein, it was certified that Messrs I.S. Enterprises was maintaining C.D. Account No.1419 since 1992 and that the said party enjoyed sound financial position. This certificate is dated 4-4-1996.
The application for upgradation was processed on 8-4-1996 with the endorsement from Murid Ahmed Baloch, XEN in the following words:-- "I strongly recommend the applicant."
12. On the same day, the Chief Engineer, North Pak P.W.D. Upgraded the said Firm from "B" Class to "A-1" Class. It was communicated to Messrs I.S. Enterprises the same day. On 11-4-1996 as is depicted from the record, as many as four tenders were submitted. These tenders were offered by Messrs Ishtiaq & Company, Messrs Saleem & Sons, Messrs S.S. Builders and Messrs I.S. Enterprises.
The tender of Messrs I.S. Enterprises was considered to be the lowest was recommended by Murid Ahmed Baloch, XEN, the Superintending Engineer and finally by the Chief Engineer North.
13. This shall bring us to the identity of M. Ibrahim son of Khalil Ahmed in respect of his relationship with Messrs I.S. Enterprises. According to Exh.P.26, this Muhammad Ibrahim had applied for opening an account with Allied Bank of Pakistan on 16-6-1993. This was accompanied by an application of even date (Exh.P.27) which is signed by Muhammad Ibrahim stating therein that he was the sole proprietor of Messrs I. S. Enterprises. The Account number of Messrs I.S. Enterprises with A.B.L. Is 1419-
2. Vide Exh.P.28 dated 6-8-1996, Exh.P.29 dated 17-6-1996, Exh.P.30 dated 30-6-1996 and Exh.P.31 dated 21-7-1996, the following amounts were credited in this account:-- (i)Rs.4,21,634 (ii)Rs.9,78,750 (i.e)Rs.8,48,224 (iv)Rs.31,971 Similarly, the following amounts were got encashed from the Account No. 1419-2 by Muhammad Ibrahim through the following cheques:-- (i)Exh.P.32 dated 18-6-1996 for Rs.2,00,000 (ii)Exh.P.33 dated 19-6-1996 for Rs.7,00,000 (i.e)Exh.P.34 dated 30-6-1996 for Rs.1,06,000 (iv)Exh.P.35 dated 30-6-1996 for Rs.3,50,000 (v)Exh.P.36 dated 23-7-1996 for Rs.31,000 (vi)Exh.P.37 dated 8-8-1996 for Rs.1,25,000 (vii)Exh.P.38 dated 11-8-1996 for Rs.1,90,000 (viii)Exh.P.39 dated 11-11-1996 for Rs.1,00,000.
The said transactions have been duly shown in the statement of accounts Exh.P.40. All the above documents were handed over by A.B.L. Vide Exh.P.41.
14. As noticed hereinbefore the accused/appellants were broadly charged under two heads. The first charge related to accused Murid Ahmed Baloch, Rashid Mujeeb Siddiqui, Khalid Mehmood Nasir and Zahid Ullah as holders of public office. All the said accused dishonestly and illegally got the contract awarded to Muhammad Ibrahim co-- accused/appellant.
We shall first deal with this charge qua the relevant appellants in the light of the evidence produced on the record, the findings of the learned Appellate Court and the grounds on which the said findings have been assailed before us.
15. Mr. Zulfiqar Khalid Maluka, Advocate for Khalid Mehmood Nasir (appellant in Criminal Appeal No.1-E of 2003) has contended that the said charge has no nexus with the said appellant who in the capacity of a Sub-Engineer had no effective role to perform in award of the contract. He submitted that there was established, rivalry and animosity between Muhammad Riaz, D.G. (P.W.3) and Murid Ahmed Baloch, XEN (P.O). According to him the case has been lodged upon the complaint of the said Muhammad Riaz who has involved the said Murid Ahmed Baloch and all his immediate subordinates including Khalid Mehmood Nasir appellant. He urged that the learned Accountability Court has erred in awarding the punishment to this appellant under the charge "Firstly" and as no case is made out against the appellant, he is entitled to be acquitted of the said charge.
16. Barrister Zafar Ullah Khan, represents Zahid Ullah, S.D.O. And he reiterated the same submissions as are hereinbefore mentioned in the case of Khalid Mehmood Nasir. He has also strongly contended that there is no evidence on the record whereby the appellant Zahid Ullah cane connected with the charge under which he has been convicted. He also assailed the findings of the learned Accountability Court as contained in para. 59 of the impugned judgment, wherein, Zahid Ullah alongwith Khalid Mehmood Nasir are held guilty under the first head of the charge and were awarded sentence.
17. Rizwan Awan, Advocate has appeared on behalf of Rashid Mujeeb Siddiqui (Criminal Appeal No.2-E of 2003) and contended that the appellant was employed as Divisional Accounts Officer and that in this capacity he had no role to play in causing the publication in the Press of notice inviting tenders or in awarding-the contract to the co-accused Muhammad Ibrahim. He elaborated that he had assumed the charge of Divisional Accounts Officer on 9-4-1996 and could not have played any role in the publication of notice inviting tenders. It was argued that this aspect of the case has been considered by the Accountability Court and the contention of the appellant was accepted. He further contended that as Divisional Accounts Officer, the appellant prepared the comparative statement of the different contractors on the basis of data provided to him: According to him the comparative statement was' forwarded to XEN which was then sent to the Superintending Engineer and it was the Chief Engineer who had accepted the offer made by I.S. Enterprises. The learned counsel concluded by submitting that there was no evidence before the learned Accountability Court to convict and sentence the appellant under the first head of the charge as no charge whatsoever was established against the appellant.
18. Conversely, Raja Muhammad Afzal, the learned Special Prosecutor submitted that Rashid Mujeeb Siddiqui, Divisional Account Officer, Khalid Mehmood Nasir, Sub-- Engineer and Zahid Ullah, SDO were fully involved in the illegal award of the contract to Muhammad Ibrahim co-accused at various stages of the process necessary for the finalization of the contract. As regards Rashid Mujeeb Siddiqui, it is contended that as Divisional Accounts Officer, he was fully involved in the processing of the tenders, making comparative statements of bidding which culminated in the award of the contract: Regarding the comparative statement, he urged that four different contractors are shown to have participated in the bidding. According to him, under para. 389 of the Central Public Works Account Code, it was necessary that each contractor had to deposit the necessary earnest money. He urged that there was nothing on the record to show that the earnest money, was paid and was returned to the unsuccessful bidders. It was urged with vehemence that as Divisional Accounts Officer, it was incumbent upon Rashid Mujeeb Siddiqui to have raised objections to the manner in which the tenders were opened. His inaction is criminal and fully involves him in the offence. The learned Special Prosecutor further argued that Messrs I.S. Enterprises was a contractor whose apparent dealings were not above board. The appellant (Rashid Mujeeb Siddiqui) also committed an offence in concealing the real status of Messrs, I.S. Enterprises. The dubious manner in which this Firm got itself upgraded only one day before the alleged publication in the press also speaks volumes regarding its complicity.
19. The learned Special Prosecutor raised the same objections against Khalid Mehmood Nasir, Sub- Engineer and Zahid Ullah, SDO and asserted that both of them were rightly involved in the grant of an illegal contract to Muhammad Ibrahim and were rightly convicted and sentenced.
20. After hearing the learned counsel for the parties, we are satisfied that upon the strength of evidence on the record, both Khalid Mehmood Nasir, Sub-Engineer and Zahid Ullah SDO could not have been convicted and sentenced under the head of the 1 charge. None of these appellants have been found guilty to have fraudulently manoeuvred either to get the fake tender notice printed in a copy of Daily Newspaper "Jurrat" of 9-4-1996 nor did anything else by using their official authority to facilitate the award of the contract to the co-accused Muhammad Ibrahim. We do not find legal justification for conviction and sentence awarded to these appellants under the first head of the charge. The findings of the learned Accountability Court to that extent and in respect of the aforestated appellants is approved.
21. As far as the case of Rashid Mujeeb Siddiqui is concerned, there, is substantial force in the submission made by the learned Special Prosecutor that as the Divisional Accounts Officer, the said appellant was guilty of acts of omission and commission whereby he used his official capacity in facilitating the award of contract to Muhammad Ibrahim accused, knowing full well that the contract was being awarded through non-transparent and underhand means. It was the duty of this appellant to have seen and reported if the three unsuccessful bidders at all deposited any call deposits or not. The available record does not show that any call deposits were made by the three unsuccessful bidders-contractors. Obviously there is no record of the return of the said call deposits. The learned counsel for Rashid Mujeeb Siddiqui has not been able to explain the cause for such omission. It is also noticed that the appellant as Divisional Accounts Officer did not also satisfy himself regarding the status of Messrs I.S. Enterprises i.e. Whether it was a limited Company or a partnership Firm or a trade name under a sale proprietor. It is also worthy of note that even the contract agreement was signed neither by Executive Engineer nor by the contractor.
21. In this view of the matter, the involvement of Rashid Mujeeb Siddiqui in the first head of the charge is fully made out.
22. This shall take us to the charge "Secondly" as framed by the learned Accountability Court. This charge pertains to all the five accused namely accused Nos. 1, 2, 3 and 5 (all accused under charge "Firstly" alongwith Muhammad Ibrahim accused No.4. In some way this charge overlaps the latter part of the charge "Firstly".
23. The essence of this charge can be summarized as under:-- (i)False measurements of excavation of earth/earth cutting.
(ii)The disposal of excavated earth and material.
(i.e)Securing of advance through the first running bill for 50 metric tons of steel at the rate of Rs.22,500 per metric ton.
24. Having found under the first charge that the contract was awarded to Muhammad Ibrahim appellant in an illegal manner, the quantum of the loss caused to the exchequer has to be examined. Muhammad Riaz Khan P.W.3 inspected the project and stated as P.W.3 that he conducted the measurement of excavation of soft soil and cutting of hard rock and found that the excavation measured 65,000 cubic feet. The amount payable upon actual measurement wasst Rs.6,05,000 while according to the false measurement recorded in the Measurement Book No.1446 Exh.P.9 and Measurement Book No.1447 Exh.P.10 on pages 2, 3, 4 7, 8, 9 and 11 came to 168882 cubic feet. This was recorded in the 5th running bill and accordingly a sum of Rs.9,87,662 was paid to the contractor. An attempt was made to rectify the said fraudulent payment in the 6th running bill and revised measurement was recorded in M.B. No. 1377 Exh.P.7 at pages 29 and 30 and the amount payable was worked out to be Rs.7,35,400. A total sum of Rs.3,52,738 was found to have been overpaid to the contractor on this count.
As regards the disposal of earth, a sum of Rs.9,80,509 was paid for the disposal of 140609 cubic feet of the earth as per measurement in M.B. Exh. P.10 at pages 5 and 12. This payment was made up to the 5th running bill. Rectification in the 6th running bill was made in the measurement of the disposal of earth which was re measured as 76441 cubic feet (reference Exh.P.7 page 31). The actual disposal as confirmed in evidence is 40,000 cubic feet in respect of which only a sum of Rs.2,78,812 is payable. The amount overpaid is Rs.2,54,007.
25. The loss caused on account of secured advance of steel was also elaborated in the prosecution evidence. The advance at the rate of Rs.22,500 per metric ton of 50 metric tons of steel was received in the sum of Rs.11,25,000. This is per measurement book Exh.P.8 and was released through the first running bill. There was no justification for the payment of advance in respect of 50 metric tons of steel when according to 6th running bill only 18 metric tons of steel valuing Rs.4,05,000 was accounted for. The department auctioned 14.517 metric tons of steel for a sum of Rs.3,26,632 thus leaving behind a recoverable amount on this count to be Rs.357,368. The statement of P.W.3 is fully supported by the statement of P.W.4. Touqeer-ul-Haq who produced the original record of the measurement books and files of cheques relating to the project of Holiday Home No.1 Murree. Mian Babar Qayyum P. W.5 who exhibited the relevant measurement books also supported the prosecution case. According to him the measurements were recorded by Sub-- Engineer Khalid Mehmood Nasir and were test checked by Zahid Ullah, A.E.E. He proved the signatures of Khalid Mehmood Nasir, Zahid Ullah, Rashid Mujeeb Siddiqui and Muhammad Aslam Shahid. He has also amplified the role of Murid Ahmed Baloch who approved the aforesaid measurement as well as the payments in respect thereof. P. W.6 Muhammad Saeed Akhtar, Sub-- Engineer deposed that according to the agreement, only 30 tons of steel was to be supplied to the contractor but to the contrary advance was paid to him in respect of 50 tons of steel. According to him only 18 metric tons was used in construction, 14.517 metric tons which were present at the site were auctioned.
26. P.Ws.10 and 11 are the Officers of A.B.L. Who affirmed the Account Opening Form Deposit Slips and the payment through original cheques to Muhammad Ibrahim from his account maintained with A.B.L. The extent of earth cutting/excavation/disposal was confirmed by Malik Abdul Lateef P.W.12 and Muhammad Mushtaq, XEN P.W.13. P.Ws.14 and 15 are the I.Os. Who deposed about the investigation conducted by them in detail in respect of the various aspects of the prosecution case.
27. In rebuttal the appellants produced Ishtiaq Ahmed as D.W.1 and Muhammad Saleem D.W.2.
They are stated to be two of the contractors who took part in the open bidding on 11-4-1986. D.W.3 Ghulam Rasul and D.W.4 M.B. Khattak produced the record Exh.D.27 to Exh.D.32 which relate to the 'departmental enquiry in connection with case F.I.R. No.7 of 1997 and as a result of which departmental inquiry Rashid Mujeeb Siddiqui and Zahid Ullah were awarded the minor penalty of censure. Murid Ahmed Baloch was however; removed from service.
Muhammad Zafar Baloch D.W.5 asserted that Messrs I.S. Enterprises originally belonged to one Muhammad Iqbal who gave a power of attorney to Khalil Ahmed who was the maternal uncle of this witness and who authorized Zafar Baloch to work for Messrs I.S. Enterprises. He stated that account was opened in the name of Ibrahim Baloch only as a custodian (Ameen) for the benefit of the real owners of Messrs I.S. Enterprises. D.Ws.6, 7 and 8 have been produced to support the actual work conducted for excavation etc.
28. The cumulative effect of the evidence on the record would make it manifest that Rashid Mujeeb Siddiqui appellant is found fully involved in both the charges namely 'firstly' and 'secondly' as contained in the charge-sheet framed on 2-2-2002 by the learned Accountability Court.
Muhammad Ibrahim Baloch appellant is S.-I. Of Police. Through cheques Exhs.12 to 16 and Deposit- in Slips Exhs.28 to 31 a sum of Rs.3,040,532 was directly deposited in his personal account. That this amount was in respect of the disputed contract is admitted by Muhammad Zafar Ullah Baloch D.W.5 although he stated that the same went into the personal account of Ibrahim only as an Ameen. For obvious reasons, this stand is not substantiated by anything on the record. Through its evidence the prosecution has fully established its case against Muhammad Ibrahim Baloch. All the amounts pertaining to the contract were deposited in his account and have been withdrawn by him.
29. As regards Khalid Mehmood Nasir Sub-Engineer and Zahid Ullah, A.E.E. Both of them ate proved to have recorded the entries in the measurement books and having them test checked respectively. These entries have been found to be incorrect. That the measurements were wrongly carried out is also borne out from the fact that the same were revised in the 6th running bill although still not completely rectified.
30. Although Khalid Mehmood Nasir and Zahid Ullah are not found involved in the first head of the charge, they are fully found guilty under the charge secondly and were rightly convicted and sentenced by the trial Court, although mentioning the charge. It has been contended by the learned counsel for the appellants that element of mens rea which is an essential ingredient of a crime is missing in the present case. It is submitted that even if a mistake is attributable to the appellants, it would not constitute an offence. Reliance was placed upon the case of Major (Retd.)
Tariq Javed Afridi v. The State PLD 2002 Lahore 233 M. Siddique-ul-Farooque v. The State PLD 2002 Karachi 24 and M. Anwar Saifullah Khan v. The State PLD 2002 Lahore 458. It is also submitted that if at all it was Murid Ahmed Baloch, XEN who was at the helm of affairs and that the appellants being his subordinates could not have been punished for the crime of XEN who is a P.O.
31. We are afraid that the rule laid down in the above cited cases does not apply to the case in hand. As per the material on the record the case stands fully proved against the appellants.
Resultantly, there is no merit in these appeals which are hereby dismissed and the impugned judgment of the learned Accountability Court is maintained. As the main appeals have been dismissed the Writ Petitions Nos.875 and 981 of 2003 have become infructuous and are also dismissed as such.