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Petitioner: THE STATE VS Respondent: A. G. SHEIKH AND OTHERS
P L D 1966 (W
P L D 1966 (W. P.) Karachi 183
Before Illahi Bakhsh Khamisani and H. T. Raymond, JJ
THE STATE‑Appellant
Versus
A. G. SHEIKH AND OTHERS‑Respondents
Criminal Acquittal Appeal No. 188 of 1962, decided on 2nd February 1965.
(a) Penal Code (XLV of 1860)-Ss. 120‑B & 420‑Conspiracy to cheat‑One Conspirator cannot deceive or cheat another co‑conspirator in same conspiracy.
One conspirator cannot deceive or cheat a co‑conspirator in the matter of the same conspiracy. Where, therefore, the prosecution relied upon a letter, written by alleged conspirator A, as containing gross misrepresentation of fact, addressed to another alleged conspirator B, it was held that B, cannot in circumstances of case be held to be in conspiracy with A.
(b) Pakistan Criminal Law (Amendment) Act (XLV of 1958)-----S. 6(4)‑Conviction of accused of offences other than that with which charged‑Domain of Special Judge‑High Court, in appeal against acquittal, cannot exercise powers under S. (64)‑Criminal Procedure Code (V of 1898), S. 417‑Pakistan Criminal Law {Amendment) Act (XLV of 1958), S. 10.
Muhammad Haleem A. A.‑G. assisted by Wajihuddin Ahmed for the State.
Muhammad Hayat Junejo for Respondents Nos. 1 to 5.
Fakhruddin Bar‑at‑Law for Respondent No. 6.
Dates of hearing : 6th, 7th, 8th, 12th, 13th, 14th, 15th, 19th, 20th, 21st and 22nd January 1965.
JUDGMENT
H. T. RAYMOND, J.‑----The six respondents to this Acquittal Appeal along with co‑accused Asgharali, son of Dr. Faizullah and one Dr. Bruckner, a German National (shown as absconder) were challaned in the Court of ‑the Special Judge (Anti‑Corruption), Hyderabad for offences under sections 420, 409, 109, P. P. C. and section 5(2) of Act 11 of 1947 read with section 120‑B, P. P. C. After a protracted trial extending over several months in the course of which no less than 20 witnesses were examined and scores of documents running into thousands of pages exhibited, they were all acquitted by the Special Judge on 31‑10‑61. On behalf of the State the present Acquittal Appeal was then filed in this High Court against the present six respondents. We have heard Mr. Haleem the Assistant Advocate‑General on behalf of the State for almost three weeks. Mr. Hayat Junejo on behalf of respondents Nos. 1 to 5 and Mr. Fakhruddin, Bar‑at‑Law on behalf of respondent No. 6 also addressed us for a day and a half.
2. Respondents Nos. 1 to 5 are engineers by profession and are all in the service of the Public Works Department, Govern ment of West Pakistan. Respondent No. 1 Mr. A. G. Sheikh was serving as Chief Engineer and Secretary to the then Govern ment of Sind from 6‑4‑53 to 13‑10‑55. From 14‑10‑55 to 30‑9‑58 he was the Additional Chief Engineer, Southern Zone at Hyderabad and after two months' leave he was again the Additional Chief Engineer, Southern Zone from 1‑12‑58 to 13‑4‑59. Respondent No. 2 Mr. Muhammad Sulleman Abdullah Larik was Superin tending Engineer, Buildings and Roads Division, Government of Sind, from April 1951 to 19‑2‑55 and again from 6‑6‑58 to 3‑12‑59. It may be mentioned here that in July 1952, the Buildings and Roads Division of the former Government of Sind was altered to lower and Upper Sind Communications Circles and Mr. Larik was then designated as S. E. Lower Sind Communication Circle. Respondent No. 3 Mr. Ummaidali Walidino Qureshi was Superintending Engineer, Lower Sind Communication Circle from 11‑3‑55 to 31‑7‑56. Respondent No. 4 Taj Muhammad, son of Wali Muhammad Sheikh was Superintending Engineer,‑Lower Sind Communication Circle from 8‑11‑57 to 6‑6‑58. Respondent No. 5 Ghulam Hussain Pir Bux Sheikh was Executive Engineer, Thatta Roads Division from 15‑10‑55 to 30‑3‑58. Respondent No. 6 Mr. Nooruddin Moosaji Tapal was the Managing Director of the Firm of Messrs Ameeji Valeejee & Sons which Firm had entered into partnership with the German Firm of Philip Holzman, A. G. and was t7iereafter known as Phillip Holzman A. G. Ameeji Valeejee & Sons,
3. Now, the case for the prosecution is that in the year 1952, Sra it was decided by the then Government of Sind to re‑service and improve the Karachi‑Peshawar Road from Mile No. 20 to A. Mile 110 and for that purpose to construct new bridges and Ra, culverts thereon. The Government of Pakistan had undertaken to bear fifty per cent. of the cost of these repairs. Mr. Larik as the then Superintending Engineer of the Buildings and Roads Division in Sind invited tenders for the execution of this work. These tenders were invited from approved contractors on the 18th April 1952 and they were to be submitted within a month, i.e. by 18th May 1952. Four firms by name Messrs Umerjan Muhammad, Akhlaque Hussain, Khudadad Sahib Jan and U. K. Construction Co. duly submitted their tenders within the specified period. No tender was received during this period from the firm of the Respondent No. 6 but on 15‑5‑52 a letter Was addressed by this firm to Mr. Larik asking for a month's extension on the ground that this firm was then engaged in negotiations with the Government of Sind for the construction of a Super passage for Baran Nai across the Kalri Baghar Feeder. A second letter dated 22‑5‑52 was also sent by this firm to Mr. Larik mentioning that they would file their tender by 25‑6‑52. Further extensions of time were asked for and obtained by this firm and ultimately, the prosecution alleges, that Mr. Larik unauthorisedly rejected the tenders of the first' four Pakistani firms and induced Government to accept the tender of the firm of respondent No. 6 for the sum of Rs. 28,50,550 for the construction of 63 bridges and 20 culverts on this particular stretch of the Karachi‑Peshawar Road. The prosecu tion further alleges that no plans, no designs and no estimates were submitted to Government by the accused firm: but, despite these deficiencies, the respondent Government Engineers in collusion with the accused firm secured for them permission from Government to commence their work on this particular contract. From the total number of 63 bridges and 20 culverts that were to be constructed on this stretch of the Karachi‑Peshawar Road only 6 bridges and 5 culverts were so constructed in accordance with the schedules approved of by Government and attached to the agreement that was entered into by Government with the accused firm. Seventeen bridges and one culvert were constructed without complying with the specifications and terms stipulated in this contract. Whereas according to the agreement the accused firm were to construct 63 bridges and 20 culverts at a total cost of Rs. 28,50,550, in actual fact, they constructed only 23 bridges and 6 culverts at a total cost of Rs. 23,19,191 the prosecution further alleges that undue favours were shown by the respondent Government Engineers to the firm of respondent No. 6 both in the matter of the execution by this firm of the work under taken by them and also in the matter of unauthorised charges made by them in their running bills and, finally, in the payment of these bills. It was, therefore, urged that the respondent engineers have conspired with accused firm of contractors to defraud Government of vast sums of money resulting in heavy losses sustained by Government.
4. The respondent engineers have all denied the charges preferred against them adding that this entire prosecution has been inspired and entertained with the sole object of ruining the career of respondent No. 1 Mr. A. G. Sheikh so that it would become impossible for him to attain the post of Chief Engineer to the Government of West Pakistan. Mr. A. G. Sheikh in his written statement has explained how soon after integration and the establishment of One Unit, the question of his seniority and his claims to the post of Chief Engineer and Secretary to the Government of West Pakistan arose. The tussle at first was as between Mr. A. G. Sheikh and Mian Abdul Aziz: but on the latter being taken up as Director‑General in construction of the Capital, Mr.. M. A. Malik became the next rival of Mr. Sheikh to the coveted post of Chief Engineer. in. Malik was then anxious to besmear and tarnish the record of Mr. A. G. Sheikh and towards this end he started carrying on a propaganda and using all sorts of means to damage the name and the record of Mr. Sheikh. He fomented trouble amongst the staff arid sub ordinates of Mr. Sheikh and awailing himself of the fact that at that time his brother Mr. A. K, Malik C. S. P. happened to be the Director‑General of the Anti‑Corruption Department to this Province he manoeuvred so as to get this present case started against Mr. A. G. Sheikh. The respondent engineers have in their statements referred to their years of hard and honest work in the Public Works Department in return for which-----
"they have been sacrificed on the altar of tug of war for seniority between Additional Chief Engineer Mr. A. 6. Sheikh and Mr. M. A. Malik; May peace of God be upon him"
Respondent No. 6. Mr. Nooruddin Tapal has also denied having entered into any conspiracy with tile respondent engineers to defraud Government and when asked as to why he been implicated in this case, he replied that‑
"this case is the result of the departmental jealousy and rivalry as stated by the engineers. I am involved by the polic e because the case against the engineers without my firm could not be put up."
5. Now, although the case against these respondents in the trial Court assumed vast proportions resulting in the examination of a large number of witnesses and in bringing on record documents running into thousands upon thousands of pages: yet, for purposes of the present appeal the points that arise for consideration fall within a very narrow compass because of the very frank admissions made by the learned Assistant Advocate General at the conclusion of his elaborate arguments extending over well‑nigh three weeks. Mr: Haleem conceded that there was no case against any of these six respondents in respect of the charge under sections 409/120‑B, P. P. C. With regard to the charge of conspiracy and of cheating he said that he could press these charges only as against respondent No. 1. Mr. A. G. Sheikh, respondent No. 2 Mr. Larik and respondent. No. 6 Mr. Nooruddin Tapal. Mr. Haleem further submitted that if the charge for conspiracy fails then he would press a substantive charge under section 420, P. P. C. only as against respondents A. G. Sheikh and Larik. With regard to respondent No. 6 Mr. Nooruddin Tapal Mr. Haleem stated that if the charge for conspiracy should fail then he would press against this respondent a substantive charge under section 409, .P.P.C. or, in the alternative, under section.420, P. P. C.
6. Now, dealing with the case as finally laid before us by the learned Assistant Advocate‑General, we would take up for consideration, firstly, the charge under section 420 read with section 120‑B, P. P. C. against respondents A. G. Sheikh, Larik and Tapal, Mr. Haleem pressed this charge on the basis of the following documents:‑
Exh. 14‑P dated 15‑5‑52, Exh. 14‑Q dated 22‑5‑1952, Exh. 14‑A, Exh. 15‑E, dated 22‑7‑1952, Exh. 14‑T dated 17‑9‑1952, Exh. 15‑G‑I, dated 11‑11‑1953, Exh.15‑H, dated 3‑4‑1952, Exh. 15‑J‑1, dated 24‑11‑1952, Exh. 10‑A, dated 12‑6‑1952, Exh. 15‑D‑1, dated 15‑7‑1952, Exh. 15‑E‑1, dated 29‑1‑1953, Exh. 15‑F‑1, dated 20‑10‑1953, Exh. 25‑R, dated 9‑2‑1954, Exh. 25‑T, dated 20‑5‑1954, Exh. 15‑J, dated 18‑4‑1954, Exh. 15‑A‑4, dated 23‑9‑1958, Exh. 15‑V, dated 24‑7‑1954, Exh. 8‑E, dated 31‑7‑1954, Exh. 8‑F dated 18‑8‑1954, Exh. 8‑G dated 12‑8‑1954, Exh. 8‑H; dated 20‑8‑1954, Exh. 8‑I, dated 27‑7‑1954, Exh. 8‑P, dated 23‑11‑1959, Exh. 8‑.U, dated 23‑11‑1959, Exh. 15‑C‑4, dated 30‑9‑1958, Exh. 15‑T‑4, dated 31‑12‑1957.
It becomes necessary for us in this judgment to examine each of these exhibits.
7. Exh. 14‑P is the letter dated 15‑5‑1952, from Messrs Ameejee Valeejee & Sons to the Superintending Engineer, Communication Circle, P. W. D., Karachi, (Mr. Larik) mention ing that their German Principals Messrs Phillip Holzman A. G., Civil Engineers of Germany were then in regular conference with the Chief Engineer, Lower Sind Barrage Scheme, to enter into an agreement for the construction of the super passage for Baran Nai across the Kalri Baghar Feeder and hence they were requiring sometime for submitting their tender for the work to be done on the Karachi‑Peshawar Road from Mile 20 to Mile 110 and requesting that the period for receiving these tenders may be extended by one month. Exh. 14‑Q is a second letter dated 22‑5‑1952 from the same firm to Mr. Larik stating that they would be submitting their tenders by the 25th June 1952. Exh. 14‑A is a tote on the P.W.D. file in the handwriting of Mr. Larik addressed to his tender clerk Ali Muhammad, P. W. 14, instructing him to forward to Government the tender filed by Messrs Umerjan Muhammad as it was the lowest tender received by him. Exh. 15‑E, dated 22‑7‑1952 is the letter from Mr. Larik canceling the tender of Messrs Umerjan Muhammad, contractor and stating that the work the construction of bridges along the Karachi‑Peshawar Road from Mile 20 to Mile 110 is proposed to be given to an expert firm. Exh. 14‑T is a letter from Mr. Larik to Major‑General Latif Khan, Defence Ministry, Government of Pakistan, dated 17‑9‑1952 mentioning the various firms with which he had fixed up contracts for repairing successive stretches of the Karachi Peshawar Road through the then Province of Sind and soliciting an assurance from the Defence Ministry of the Government of Pakistan that the Central Government would bear fifty per cent. of the cost of these contracts which decision was taken, at a conference of the then Chief Ministers. Mr. Larik added that Without such an assurance the work could not be commenced.
8. It would be useful to remark here that the original tender notice issued by Mr. Larik as per Exh. 11‑A dated 18‑4‑1952 called for sealed tenders from only approved A & B Class con tractors. The tender notice further stipulated that the work to be carried out consisted, firstly, of improving and surfacing the Karachi‑Peshawar Road from Mile 20 to Mile 110 and, secondly, of constructing new bridges or additions or alterations to existing bridges to suit present day requirements on this stretch of road. It was also mentioned that preference for the work of constructing bridges and altering existing bridges would be given to firms that can put up their own designs and have their own machinery. It is plain from the evidence on record and in particular, the statement of Mr. Aftab Kazi P. W. 15 then Finance Secretary to the former Government of Sind that neither the firm of Umerjan Muhammad or any of the other three Pakistani firms that had submitted their tenders for this contract were on the list of approved contractors. This witness admitted that ----
"as these contractors were not approved they would not have been ordinarily sanctioned by me‑."
Further, referring in his evidence to the agreement Exh. 25‑B6 entered into by the Government with the accused firm concerning the road work to be done on this stretch, Mr. Kazi said that by reason of clause (2) of this Agreement the Government stood committed to giving the contract for the construction of bridges to the accused firm. This firm had by then (July 1952) secured the contract from Government for constructing the Nai Baran super passage and they were thus already known to the Sind Government.
9. Exh. 15‑G ‑I is a letter from Mr. Larik to the Secretary to Government, Buildings & Roads Division, dated 11‑11‑1953, informing him that the file relating to this contract had been transferred to the Superintending Engineer, Upper Sind Com munication Circle, and hence he should be addressed in the matter. This Exh. 15‑G‑I in order to tie fully appreciated should be considered in its proper context that is to say with reference to Exh. 10‑A and Exhs. 15‑D‑I, 15‑E‑I and 15‑F‑I. Exh. 10‑A was a representation dated 12‑6‑1952 made by the firm of Messrs Umer Jan Muhammad to the then Chief Engineer, Sind P. W. D., Karachi, referring to the tender submitted by them, to their own qualifications and efficiency and regretting that till then no decision had been taken on their tender. A copy of this representation was by Exh. 15‑D‑I dated 15‑7‑1952 forwarded to Mr. Larik for his early remarks and Exhs. 15‑E‑I of 29‑1‑1953 and 15‑F‑1 of 20‑10‑1953 are two reminders sent by the Chief Engineer and Secretary to Government to Mr. Larik. Exh. 15‑G‑I is Mr. Larik's belated reply dated 1 I‑11‑1953 stating:----
"the above‑mentioned case has since been transferred to the Superintending Engineer, Upper Sind Communication Circle. He should be addressed in future‑"
A copy of this reply as appears from the original was forwarded with compliments by Mr. Larik to, tile S. E. Upper Sind Communication Circle for information and, it seems to, us, that this action on the part of Mr. Larik indicates that it was then his impression that this file had by mistake gone to the S. E. Upper Sind Communication Circle instead of to the S. E. Lower Sind Communication Circle. We have already pointed out above that in July 1952, the Buildings & Roads Department of Sind was split up into Lower Sind and Upper Sind Communica tions Circles; Mr. Larik being S. E. for the Lower Sind Communication Circle: Moreover, we are precluded from drawing any adverse inference against Mr. Larik for this belated reply sent by him in November 1953, by reason of the fact that no such question has been put to him by the prosecution in the course of his lengthy examination under section 342, Cr. P. C. Besides, it is a matter of record‑ that the then Secretary to the Government of Sind, Public Works Department, to whom this letter Exh. 15‑G‑I was addressed was none other than Mr. A. G. Sheikh who had taken over, as Chief Engineer and ex officio Secretary to the Government of Sind on 6‑4‑1953. If, therefore, the purport of this letter, according to the prosecution, was to put off and deceive Government, this objective could hardly be achieved by addressing such a letter to a co‑conspirator as Mr. A. G. Sheikh according to the prosecution then was.
10. Exh. 15‑H‑dated 3‑4‑1954 is a letter from Mr. Larik to the Chief Engineer, Sind Government, recommending the tender of the accused firm and stating‑that‑
"formalities of calling tenders were completed vide Notifica tion issued under this Office No. TC‑G‑55‑51 dated the 18th April 1952. As nobody filed the tender for the reach from Mile 20 to Mile 110, this time I have entered into negotiations for this section with Messrs Ameejee Valeejee & Sons and Phillip Holzman whose tender for the work of surfacing in this reach amounting to Rs. 17,96,617 has already been sent to Government for sanction."
Exh. 15‑I‑1 is a note over the, signature of Mr. A. G. Sheikh (Exh. 15‑J‑1) referring to this particular tender and requesting that a reminder be sent to the S. E:, LSCC expediting the return of the file in question. Great reliance was placed by Mr. Haleem on this letter of Mr. Larik, Exh. 15‑H, as well as on the nothings of Mr. Sheikh, Exh. 15‑I‑1. The argument was that Mr. Larik had in this letter made a deliberate misrepresentation by stating that no tenders had been filed in response to his tender notice Exh. 11‑A and, therefore, he was compelled to enter into negotia tions with the accused firm. The argument further went on to suggest that Mr. A. G. Sheikh, who by then must have known to the contrary being aware of the rejection of the tender of Umerjan, yet acquiesced in this misrepresentation and failed to place the correct facts on record.
11. We find it, difficult to appreciate the effectiveness of this argument. So far as Mr. Sheikh is concerned his notings Exhs. 15‑I‑1 and 15‑J‑1 appear behind a letter dated 24‑11‑1953 from, himself as Secretary to Government to Mr. Larik as S. E., LSCC. But this letter refers to the tender for improvements to the surface of Karachi‑Peshawar Road from Mile 20 to Mile 110 and not to the tender which is the subject‑matter of this case and which relates to the construction of bridges and culverts on this stretch of road. Further we can find no evidence on record to indicate that Mr. Sheikh knew that four tenders had been received from the four Pakistani Firms and had been rejected by Mr. Larik. Besides, even if we were to assume that Mr. Sheikh was possessed of this knowledge, and as alleged by the prosecution, was in conspiracy with Mr. Larik then the letter Exh. 15‑H containing the misrepresentation that no tenders had been received could have had no effect upon him because, according to the prosecution, he (Mr. Sheikh) must have known to the contrary. Therefore, the great weight that was attached by the prosecution to this letter Exh. 15‑H and their reliance upon it as being the main pillar in the case for cheating against Mr. Larik must necessarily collapse for the simple reason that one conspirator cannot deceive or cheat a co‑conspirator in the matter of the same conspiracy. In other words, if the prosecution wished to rely upon this letter as containing a gross misrepresenta tion of fact then they must admit that Mr. Sheikh was not then in this conspiracy with Mr. Larik.
12. The next set of Exhs. relied upon by Mr. Haleem consists of Exh. 25‑R dated 9‑2‑1954, Exh. 25‑T dated 20‑5‑1954, Exh. 15‑J dated 18‑4‑1954, Exh. 15‑A‑4 dated 23‑9‑1958 and Exh. 15‑V dated 24‑7‑1954. The first two of this batch of Exhs. namely 25‑R and 25‑T are two letters the first from Messrs Phillip Holzman A. G. to Messrs Ameejee Valeejee & Sons and second a reply from the latter to the former. Reliance has been placed by the prosecution on these two letters to show conspiracy between Mr. Larik and the accused firm because in the second letter Mr. Nooruddin Tapal mentions that he had interviewed Mr. Larik in Karachi and‑ had made it clear to him in the course of conversation that the road tender would be considered by them only if their bridge tender was also accepted by Government. Mr. Larik is said to have assured Mr. Nooruddin Tapal that there is no difficulty so far as the bridge tender is concerned. Exh. 15‑J dated 18‑4‑1954 is an office note stating that the tender case was handed over by Mr. Larik to the Secretary, Finance Department. Exh. 15‑A‑4 is a letter dated 23‑9‑1958 from Mr. Larik to the Additional Chief Engineer, Buildings and Roads, Southern Zone, stating that‑--
"the tender was sanctioned by‑ the Sind Government after very close scrutiny for a period of over two years in which each point was examined by the Finance Department before they gave concurrence to the sanction of this tender."
Exh. 15‑V is a note by Mr. A. G. Sheikh mentioning:
"F. D. has agreed to the sanction of tender. The case may now be submitted to HM, PWD and HM, FD."
These Exhs. taken at their face value merely serve to show that there was contract between respondents A. G. Sheikh, Larik and Nooruddin Tapal over the tender for bridge work on this particular stretch of the Karachi‑Peshawar Road submitted by the accused firm. There is nothing secretive or clandestine concerning these letters and notings which could suggest that a conspiracy, such as is envisaged by the prosecution, was then brewing between these three respondents.
13. Mr. Haleem then relied upon Exhs. 8‑E dated 31‑7‑1954, 8‑F dated 18‑8‑1954; 8‑G dated 12‑8‑1954, 8‑H dated 20‑8‑1954, 8‑I dated 27‑7‑1954, 8‑P dated 23‑11‑1959 and Exh. 8‑U which is a duplicate copy of Exh. 8‑P but with this difference that it contains the second paragraph of' this letter which has been struck off and obliterated in the original Exh. 8‑P. Now four of these seven Exhs. namely Exhs. 8‑E to H are letters from Mr. A. G. Sheikh while in Europe in the summer of 1954, to Mr.‑Sani his sub ordinate at Karachi and the remaining three between Messrs Ameejee Valeejee and their Principals in Germany, Messrs Phillip Holzman‑ A. CT. The contention that Mr. A. G: Sheikh while in Germany attempted to secure and did, in fact, obtain undue favours from the representatives of the German Firm Messrs Phillip Holzman is clearly not borne out by these letters. Messrs Phillip Holzman in their letter Exh. 8‑P of 23‑11‑1959 make it plain that the total amount of money spent by them there on Mr. Sheikh and two other persons who were accompanying him but had nothing to do with this case was DM. 141‑43. But what has particularly struck us in connection with this letter Exh. 8‑P is the scoring off from it of its paragraph 2. In this paragraph it is said:
"Mr. Sheikh may have received one of our small presents like a four‑colour pencil or a small slide rule as we often give to our clients, but we are positive that no bills for his purchases were paid by us. Mr. Bruckner remembers very distinctly that he accompanied Mr. Sheikh to a department store where Mr. Sheikh bought some textiles for his family and which ht paid for from his own…
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