' This petition for leave to appeal is directed against the judgment of the High Court passed on 7-2- 2002 whereby, while allowing the appeals of the respondents, the order passed by Judge, Ehtesab Court, Muzaffarabad dated 22-1-2001, was set aside and the respondents were acquitted of the charges levelled against them.
2. Briefly stated the facts of the case are that a reference was filed against the accused- respondents before the Judge, Ehtesab Court, Muzaffarabad, under sections 406, 409, 109, A.P.C.
5(2), P.C.A. And section 4 of the Ehtesab Act, 1997 on 29-3-2000. After taking necessary proceedings in this case each one of the accused-respondents was convicted and sentenced to three years' R.I.
With Rs,3,00,000 fine, in default thereof to undergo further imprisonment of six months. The Ehtesab Court also ordered that misappropriated amount of Rs,2,75,000 shall be recovered from them. In the reference two allegations were levelled against respondent No,3 that as Contractor he had to supply and fix two hundred electricity poles alongwith tube lights on the walkway. For the erection of each pole he was entitled to receive Rs .2.995 whereas he received Rs,2,800 per pole and only Rs,195 were deducted for fixation of poles and fitting of tube lights which were not sufficient for this purpose. According to the prosecution an amount of Rs .800 per pole was required for its fixation alongwith the tube lights. Respondents Nos.1 and 2 were held responsible for this negligence and over payment of Rs,605 per pole to the contractor. According to the prosecution on account of this favor of Rs,1,21,000 were paid to, respondent No,3 in excess of his entitlement. The second charge was related to the supply and fixation of 200 poles at the rate of Rs,2,995 per pole. According to the Stock Register only 30 poles were supplied by the said contractor, however, it was admitted by the prosecution that 115 poles were found in the store and 30 poles were fixed on various places. The prosecution, thus admitted that 145 poles were supplied by the contractor-respondent No,3.
According to prosecution version he without supplying the remaining 55 poles received Rs,1,54,000 without entitlement. According to the prosecution the respondent-contractor on account of the negligence of respondents Nos.1 and 2 received Rs,2,75,000 in excess of his entitlement.
3. The High Court after discussing the evidence available on record came to the conclusion that in fact the prosecution case was based on third running bill. In fact as per evidence available on record Rs,195 were not deducted for the fixation of poles alongwith tube lights rather Rs,548 were deducted for this purpose. In the same way the Court came to the conclusion that the prosecution failed to prove that 200 poles were supplied by respondent No,3. It is further opined that on account of heavy flood in 1992, the walkway was badly damaged. On account of this reason the poles could not be erected on the walkway, therefore, these poles remained with the Municipal Corporation and on the demand were supplied to the State Subjects keeping in view their utilization in the best public interest. On account of this finding the learned Division Bench of the High Court recorded the order of acquittal in favor of the accused-respondents.
4. The learned Chief Prosecutor Ehtesab Bureau, while arguing the case once again repeated the allegations levelled against the accused-respondents in the reference. According to him only 145 poles were supplied by the contractor while payment of 200 poles was made to him. He further argued that the prosecution filed reference with clean hands which is apparent from this fact that even though in Stock Register the entry of only 30 poles was made, however, in the store 115 poles were available, therefore, the prosecution admitted the supply of 145 poles by the contractor. The remaining poles were not available in the store .But the contractor-respondent No,3, has received an amount of Rs,1,54,000 for the supply and erection of remaining 55 poles which should have not been received or paid to him. According to the learned Chief Prosecutor, respondents Nos.1 and 2 are responsible for this excessive payment to the contractor. He further argued that in the light of the contract deed dated 11-12-1990, the contractor was entitled to receive Rs,2,995 per pole for the supply and fixation of the poles alongwith tube lights on walkway. He in his third bill was paid Rs,2,800 per pole and only Rs,195 were deducted for the fitting of tube lights and fixation of poles which amount was insufficient for this purpose, therefore, an excessive payment of Rs,1,21,000 was received by him on account of negligence and connivance of respondents Nos.1 and 2.
5. On the other hand, Mr. Abdul Rashid Abbasi, the learned counsel for the respondents, supported the judgment of the High Court and challenged the maintainability of this petition for leave to appeal on the ground that it has been filed on behalf of State without proper sanction and delegation of authority by the Government. According to him Chief Prosecutor Ehtesab Bureau or for that matter Chairman of the Ehtesab Bureau are not competent to file petition for leave to appeal. Alternatively he argued that Chairman, Ehtesab Bureau has got no legal competence to authorize the Chief Prosecutor, Ehtesab Bureau to file leave to appeal against the order of the High Court. According to him under the provisions of the Ehtesab BureaL Act. 2001, Chief Prosecutor/Deputy Chief Prosecutor, Ehtesab Bureau, have been authorized to file an appeal before the High Court only. They had no jurisdictional competence to extend their authority and file petition for leave to appeal before this Court. This petition, in the wisdom of the learned counsel for the respondents, having been filed without legal sanction, is liable to be dismissed summarily on this short ground without entering into the merits of the case. He also argued the case on merits and defended the judgment of the High Court.
6. I have considered the respective arguments of the learned counsel for the parties and gone through the judgments of the Courts below. For my satisfaction I, summoned the relevant record of the case and perused the same carefully. In my view the learned High Court was justified in law in setting aside the findings of fact arrived at by the learned Ehtesab Court because the Ehtesab Court had picked up pieces of evidence rendering assistance to the case of the prosecution. The main allegation against Khalid Saraf, respondent No,3, was that he had to erect 200 poles alongwith tube lights on walkway @ Rs,2,995 per pole while he supplied only 145 poles and without erecting majority of poles he received Rs,2,800 per pole. The remaining two respondents on account of their negligence or connivance were responsible for this over payment to him. In the light of the evidence available on record the walkway was badly damaged in 1992 flood, therefore, it was not possible for the contractor Khalid Saraf to erect poles according to the terms of the contract upon the same. The learned Division Bench of the High Court has relied upon a letter dated 16-5-1993 written by the Administrative Officer of M.D.A. To contractor Khalid Saraf, respondent No,3, in which he was asked to supply remaining 30 poles which he had not supplied to the M.D.A., besides reeling 1050 RFT, and electric wire 7/36 gauge 1500 metres. Impliedly through this letter it was admitted by the Administrate Officer of M.D.A. That the said contractor had supplied 170 poles. From the language of this letter the claim of the prosecution that the contractor had supplied only 145 poles, is nullified. The contractor had also produced a receipt Exh.D.O. In his defence before the trial Court whereby after supplying 30 remaining poles and other demanded items, a receipt was issued to him by Zulfiqar Ali, a Junior Clerk of M.D.A. Who appeared as witness for the respondents and accepted the issuance of said receipt to him. The High Court has elaborately discussed his statement in the judgment under appeal that 30 poles were demanded from the contractor and after receiving the same from him he issued receipt of the said items to the contractor. The case of the prosecution even otherwise is doubtful because in Stock Register there was entry of only 30 electric poles whereas in the store 115 poles were lying. There is sufficient evidence that some poles were provided to the people on their demand within and outside the limits of M.D.A. Out of these poles. In the light of this evidence the learned Division Bench of the High Court was justified in law in rejecting the accusation levelled against the contractor, respondent No,3. The other allegation is related to the fixation of the poles. According to the prosecution version the respondent-contractor under the terms of the contract had to supply and fix 200 electricity poles alongwith tube lights @ Rs,2,995 per pole. In the third running bill which was tendered in evidence by the prosecution Rs,2,800 per pole were paid to him whereas Rs,195 were deducted for the fixation of the poles and tube lights. As said earlier these poles could not be erected, as walkway had been badly damaged by the flood in the year 1992. Thus according to the reference, respondent No,3, on account of negligence and with the connivance of remaining two respondents, received Rs,1,21,000 in excess of his entitlement. In support of this allegation the prosecution examined Muhammad Ashraf P.W.5 who deposed during the cross-examination that he utilized MB for the preparation of his report but this witness in his evidence has admitted that kir the supply and fixation of the poles alongwith tube lights only Rs,2,447 per pole were paid to the contractor.
The learned High Court at page 10 of its judgment has reproduced the relevant portion of his evidence because he was star-witness of the prosecution in support of this allegation. This witness has contradicted the prosecution case that Rs,2,800 per pole were paid to the contractor. For the fixation of each pole alongwith tube light Rs,548 per pole were deducted from the bill of the contractor, therefore, the case of the prosecution that only Rs,195 were deducted is not correct. The prosecution fell in error on account of this reason that it took into consideration 3rd running bill. It failed to take into consideration 4th and final bill of the contractor. The High Court in its judgment has relied upon fourth bill which stands entered in M.B. As Exh."P.N." and relevant bill is marked as Exh.D.M., contained the payment of Rs,2,447 per pole to the contractor and deduction of Rs,548 per pole from the bill. Mubashar-ul-Haq, another witness of the prosecution, has admitted that any excessive amount paid to the contractor entered in running bill of the contractor is treated as advance money and such money is adjusted at the preparation of final bill. The learned Division Bench of the High Court has reproduced the relevant portion of his statement in the judgment wherein this fact has been clearly stated by him. Now from the evidence of these witnesses it becomes clear that Rs,548 were deducted for the erection of electricity poles alongwith tube lights.
According to the prosecution Rs,800 should have been deducted but this amount has not been determined through any convincing evidence, therefore, such evidence cannot be relied upon.
From the prosecution evidence in the shape of fourth and final bill it is proved that respondent- contractor was entitled to Rs,7,85,010 which amount was paid to him up to the final bill. He had paid Rs,58,103 as security to the department. Out of this amount Rs,12,990 were deducted and remaining amount of Rs,45,113 was released to him from his security.
7. I for my satisfaction as said earlier summoned the record of this case. After going through the record I have noticed that this case was not properly investigated. In support of the accusations which were levelled against the respondents, there was no formal proof. The Supreme Court of Pakistan in a case titled Muhammad Luqman v. The State PLD 1970 SC 10. Held that findings of guilt against an accused cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The findings of guilt should be rested surely and firmly on the evidence produced in the case. Mere conjectures and probabilities cannot take the place of proof. Otherwise the golden rule of 'benefit of doubt' will be reduced to a naught. Life is most precious gift of Almighty Allah. On account of this reason safeguard to the honour and prestige of the citizens is provided in almost all the Constitutions of the civilized States. The people of the liberated part of the Azad Jammu and Kashmir State have also been given fundamental rights relating to their property, life and liberty through the provisions contained in the Interim Constitution Act, 1974. No person in this liberated part of the State should, therefore, be harshed or dishonoured in an arbitrary manner without any lawful justification.
8. On behalf of the respondents a preliminary objection was raised about the maintainability of this petition on the ground that it was not properly constituted on account of lack of sanction by the Government. This point shall be attended to and resolved in some other case where its decision would be felt necessary.
' In view of the above, finding no force in this petition for leave-to appeal, the same is hereby dismissed.