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Petitioner: GHULAM NABI VS Respondent: THE STATE
P L D 1963 (W
P L D 1963 (W. P.) Baghdad‑ul‑Jadid 14
Before Jamil Husain Rizvi, J
GHULAM NABI‑Appellant
versus
THE STATE‑Respondent
Criminal Appeal No. 64 of 1961, decided on 23rd Novem ber 1962.
(a) Criminal trial -----
---‑ Document not formally proved‑Cannot be overlooked in deciding guilt of accused.
Muhammad Is mail, Sh. Nisar Ahmad and A. A. Bhatti for Appellant.
P. Saleem Aslam for Respondent.
JUDGMENT
Ahmad Bukhsh and Ghulam Nabi, who were posted as S. D. O. and Overseer respectively, B & R, P. W. D., Bahawal nagar, have been convicted under section 167/218, P. P. C. and sentenced to one year's rigorous imprisonment and a fine of Rs. 700, in default of the payment of fine, they have to undergo rigorous imprisonment for a further period of three months by the Special Judge, Multan, by his order, dated the 19th of Decem ber 1961. They have filed two separate appeals which are Nos. 46 of 1962 and 64 of 1961: This judgment will dispose of both the appeals.
2. The charge against them was that between August and December 1958, while posted as S. D. O. and Overseer in collu sion with each other they incorrectly prepared the measurement books in discharge of their duties showing that silt and manure of the value of Rs. 700 had been used in the preparation of grassy plots of the Government Girls High School, Bahawalnagar. which work was done by Islamuddin, contractor (P. W. 1), although the contractor had not used the material, and they illegally tried to receive the amount of Rs. 700 from the said contractor. The prosecution in this case was started on an application Exh. P. A., which was sent by Islamuddin (P. W. 1) to the D. I. G., C. I. D. on the 4th of April 1959. The first information report Exh. P. A/1 was recorded on the basis of this application of the 13th of June 1959. Islamuddin com plained that he was given the contract to lay out grassy plots in the Government Girls High School, Bahawalnagar, and the bill for the work was prepared by Ghulam Nabi‑Overseer and Ahmad Bakhsh, S. D. O. They falsely included two items of silt and manure of the value of Rs. 700 as having been used in the preparation of the grassy lawns, which in fact had not been used. That when he demanded payment, both of them told him that he should pay them a thousand rupees, Rs. 700 for the fictitious items and Rs. 300 as commission and that he would then receive a cheque of about Rs. 3,300. Thereupon, he objected as to why a bogus entry was made in his name and that he would not pay the amount. Thereupon, both of them told him that they had to meet the expenses of the higher officers and that they have always been doing this. He however insisted that the bogus entry be struck off and he may be paid for what was actually due to him that as he did not pay them the amount he did not get his payment, thereupon, he complained to the XEN who orally directed the S. D. O. to make payment after deducting 25 percent. of the bill to be adjusted at the time of the preparation of the final bill. The running account bill Exh. P. E. and the final bill Exh. P. F. have been placed on record. In both of these it is shown that the manure of the value of Rs. 161‑15‑0 and silt of the value of Rs. 98‑7‑0 was used in the preparation of the grassy plots. The payment was to be made at 150 percent. above the schedule rates. Thus the total amount payable on account of these two items came to Rs. 650‑15‑0 which, according to the prosecution, was a fictitious entry and both the appellants made these entries in order to receive this amount illegally from the contractor and permitting him to receive this amount from the Government Treasury.
3. The case for Ghulam Nabi appellant is that the silt and manure was used and, therefore, the entry was properly made, while the case for Ahmad Bakhsh S. D. O. appellant is that he had not personally checked the plots, therefore he could not say if the silt and manure was used therein or not. He further stated that he got Islamuddin (P. W. 1) black‑listed and got his payment withheld, that Sh. Ghani Ahmad P. W. was a contractor and had built the degree college, his accounts were overhauld and he had pointed out that he had obtained fictitious payment. Abdul Hakim contractor, who was a partner of Sh. Ghani Ahmad, had also misappropriated a sum of Rs. 80,000 which was pointed out by him in his report and that he had pointed out a recovery of Rs. 2 lacs against Sh. Ghani Ahmad P. W. That all these persons had colluded to involve him in this case falsely.
4. In order to prove the above case of the prosecution, the following witnesses were examined. Islamuddin (P. W. 1), who supported the above allegations against the appellants. Sh. Ghani Ahmad (P. W. 2), who stated that Ghulam Nabi appellant had requested him to ask Islamuddin not to make a statement against him and that in case he did so he would cause loss to him in the department's work. Ahmad Bakhsh appellant did not see him in this connection. He was questioned if Exh. P. A. was written by his Munshi Fazal Din to which he gave an evasive reply that he could not say whether it was written by Fazal Din or not. The witness admitted that Fazal Din was his Munshi for the last 8 years and he used to do his writing work. This would show that the witness was not telling the truth. The second set of witnesses is Fazal‑ur‑Rehman Chaukidar (P. W. 3), Mst. Rajan peon (P. W. 4), Noor Ahmad (P. W. 5), water‑carrier and Rahmat Ali (P. W. 6), who was then the care‑taker, of the Government Girls High School, Bahawalnagar. The prosecu tion witnesses Nos. 3, 4 and 6 stated that no manure and silt was used by Islamuddin contractor in the preparation of the grassy lawns in the school, but P. W. 5 stated that he had seen heaps of manure lying near these plots. Muhammad Sadiq clerk, office of the S. D. O., Bahawalpur who was at the relevant time posted at Bahawalnagar, has appeared as (P. W. 7). His evidence is of a formal character as he produced the measurement books and the two pay bills. Similarly, the evidence of Sh. Abdul Khaliq, Accountant, is also of a formal character. The police had taken the measurement books Nos. 134 and 151 into possession vide Memo. Exh. P. H. in his presence. Abdul Qaddus (P. W. 9), Sub‑Inspector and Mian Abdul Aziz (P. W. 10), Inspector Police are the two investigating officers.
5. Muhammad Aslam Overseer has appeared as (P. W. 1). He has proved two reports Exh. D. R. and D. W., which relate to Islamuddin P. W. Muhammad Din (D. W. 2), Sub‑Divisional Clerk, and Ch. Abdus Sattar, Head Clerk (D. W. 3) appeared and produced the documents which were summoned from the office. Muhammad Yusuf clerk has appeared as D. W. 4. He stated that while he was posted as S. D. C. at Bahawalnagar Ahmad Bakhsh had told him that Islamuddin contractor had been placed on the black‑list and that no tenders should be invited from him in future, that he had conveyed this information to Islam uddin after two or three days. Islamuddin had told him that Ghulam Nabi was misbehaving with him and that he would see to that. Sh. Abdul Khaliq, Superintendent, W. A. D. II, office of the Director, Ordinary Accounts and Works (D. W. 5) stated that the application Exh. D. G. was brought to him by Islamuddin. Thereupon, he told him to put it up before the XEN. The XEN then marked the application to him and asked him to issue a letter to the Sub‑Divisional Officer, Bahawalpur, he consequently issued a letter to the said officer. These five defence witnesses were examined by Ghulam Nabi appellant. Ahmad Bakhsh examined Mr. Hamid Ali Safvi as (D. W. 6) and Mr. Bashir Ahmad XEN as (D. W. 7). Mr. Hamid Ali Safvi, stated that the relations of Ahmad Bakhsh appellant with Habib Ullah S. D. C. were not good. Ahmad Bakhsh had complained to him against Habib Ullah and had asked for his transfer, that he had not received any complaint against Ahmad Bakhsh as regards his honesty. Mr. Bashir Ahmad D. W. stated that Islamuddin had presented the application Exh. D. G. before him asking for his payment.
Thereupon, he ordered that running payment be made to the contractor after deducting 25 percent. of the entire bill. That Ahmad Bakhsh had told him that he had yet to check the work to satisfy himself. He asked for time and, therefore, he had ordered for the running payment. That in connection with another work relating to Degree College, Bahawalnagar he had directed that Islamuddin be placed on the black‑list by his order Exh. D. H. dated the 20th of December 1958. He had inspected the grassy plots after the completion of the work when the bill was put up before him for final payment, that when Islamuddin and the investigating officer came to him during the investigation of the case he had told Islamuddin as to why previously he had presented to him that he had put the silt and manure in the grassy plots and that he had asked him to get out of his room being a liar.
6. The learned Special Judge in para. 12 of his judgment, for various reasons, rejected the evidence of Islamuddin P. W. so far as he stated that the appellants had asked him to pay Rs. 700 allowed to him for supply of silt and manure which he had not actually put into the grassy plots, but while deciding the other question whether any silt or manure had actually been put in the preparation of the grassy plots, the learned Special Judge has relied on the evidence of Islamuddin as corroborated by the evidence of Fazal‑ur‑Rahman, Mst. Tajan and Rahmat Ali P. Ws. while he rejected the evidence of Noor Ahmad P. W. The learned Special Judge has further drawn an inference against the appellants as they did not produce the persons from whom Islamuddin had purchased silt or manure alleged to have been used. Consequently he came to the conclusion that no silt or manure had actually been put in or used in the prepara tion of the grassy plots. I am afraid this evidence is not enough to prove this fact. The evidence of Fazal‑ur‑Rahman, Mst. Rajan and Rahmat Ali P. Ws. is of a negative character. It was no part of their duty to watch whether any manure or silt had been used or not. Noor Ahmad (P. W. 5) was as good as servant in the school and he contradicted the evidence of P. Ws. 3, 4 and 6. Mian Abdul Aziz Inspector Police C. I. D. (P. W. 10) was asked to refer to his zimni while giving replies to certain questions but he refused to do so. I have gone through this zimni and find that there is a reference of the Head Mistress complaining that the manure and silt used in the preparation of the grassy lawns was of inferior quality and upon this there is a note made by Ghulam Nabi appellant saying that he had warned the contractor to be careful in future in this respect. It is no part of the duty of a police officer to obtain a conviction by fair or foul means. It was his duty to bring this fact to the notice of the Court when he was specifically questioned on his point. The evidence of Islamuddin had been disbelieved by the learned Special Judge partly and I do not see any reason to believe his evidence on this point. The bill Exh. P. E. bears the signatures of Islamuddin. In the application Exh. D. G. he did not mention that the two appellants had made a false entry relating to the use of silt and manure. After he had been black‑listed in December 1958, he made a complaint in April 1959. Ahmad Bakhsh appellant sent a letter No. 1260 on the 14th of November 1958 wherein he, in addition to other matters, mentioned about the bill in dispute as follows :‑
" The bill has been put up now on the 10th of November 1958. I have inspected the work which is entered in the measurement book. No doubt, as per site, but it is suspicious one and I am not prepared to order for C & B until and unless your good-self inspect the site and decide the matter."
This letter was duly produced by the D. Ws. It bears the signatures of Ahmad Bakhsh S. D. O. although it was not formally proved but I cannot overlook it while deciding the guilt of the accused. If Ahmad Bakhsh appellant was responsible in making the false entries in the measurement books he would not have objected to the passing of the bill of Islamuddin contractor. There is no evidence to the effect that Ahmad Bakhsh appellant ever verified the use of the silt and manure in the preparation of the lawns. He, therefore, cannot said to be a party to the entries contained in the measurement books. The learned Special Judge has relied on the following two facts for holding Ahmad Bakhsh appellant responsible for the false entries. Firstly, that he had signed the bills Exhs. P. E. and P. F. and secondly that there was a certificate under his signatures on the bill Exh. P. F. that "the work has been done according to the P. W. D. specification" and with a different ink it has been added to this certificate "and rate reduced for bad work". If these two circumstances were to be used against the appellant, he should have been questioned about these two facts. I asked him during arguments, as he argued the case himself to explain these facts, and he stated that he had inspected the work after completion and the XEN had also inspected it, that there were entries in the measurement books and in case these two items were refused to the contractor he could have successfully sued the department in a Civil Court, consequently he reduced the rate of item No. 5 which was turfing, including growing, watering and maintaining for two months from ‑/8/‑ to ‑/6/‑ that this was further reduced by the XEN from ‑/6/‑ to ‑/4/‑ thereby they had managed to reduce the bill to the extent of a much larger (sic) amount than the amount charged by the contractor for the use of silt and manure. In this manner they had made up for the non‑user of the silt and manure or the user of inferior quality of silt and manure. This explanation seems quite plausible. The bill Exh. P. E. was prepared on 23‑12‑1952 while the bill Exh. P. F. was prepared on the 28th of March 1959. Ahmad Bakhsh appellant had already reported to the XEN by means of his letter referred to above that the work was of a suspicious nature. No doubt, it was the duty of the S. D. O. to check the manure and silt when it lay in stocks before it was used which he failed to do. Ghulam Nabi appellant should not have made an entry in the measurement books of the use of manure and silt unless it had been checked at the site by the S. D. O. The complaint made by the Head Mistress that the manure of an inferior quality was used, would indicate that some manure was, in any case, used. Islamuddin received payment of an amount of Rs. 2,013 although finally he was found entitled to Rs. 1,856 only. There were orders to recover Rs. 857 from him. The final bill was Exh. P. F. was prepared on the 26th of March 1959 and it is after some days of that he decided to file the present complaint against the appellants.
7. On going through the entire evidence I am of the view that the appellants were not vigilent in the discharge of their duties but it is not proved that they made any false entries in the measurement books in order to cause loss to the Government. I would, therefore, accept their appeals and acquit them. The fine, if paid, shall be refunded.
K. B. A. Appeal accepted.