Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Prof. Dr. MUHAMMAD SARWAR CHAUDHRY and anothers VS Respondent: THE STATE and 2 JUDGMENT
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Muhammad Riaz Akhtar Chaudhry, Chaudhary Muhammad Taj Title:Prof. Dr. MUHAMMAD SARWAR CHAUDHRY and anothers vs THE STATE and 2
JUDGMENT
Reported As: 2001 YLR 2478 Result: Appeal accepted Judgment JUDGMENT ' MUHAMMAD REAZ AKHTAR CHAUDHRY, J.---This appeal is directed against the judgment of the learned Judge, Ehtesab Court, Muzaffarabad, dated March 10, 2001, whereby the sentence of three years' rigorous imprisonment alongwith fine of rupees four lacs to each appellant, was awarded and in case of default of payment of fine, each has to undergo further imprisonment of one year. Apart from this, it was ordered that an amount of Rs .5,74,791 shall be recovered from the pfsors and properties of the appellants. 2. The relevant and necessary facts for the disposal of the instant appeal are that a reference under section 4 of the AJ&K Ehstesab Act, 1'498, sections 409, 467, 468, 204 and 109, A.P.C. And section 5(2) of Prevention or Corruption Act was filed against the appellants 3. Briefly stated the prosecution case as unfolded in the reference is, that Muhammad Nazir Tabassum, Lecturer, Government Degree College, Mirpur moved an application before the Chief Ehtes the Commissioner stating therein, that Prof. Muhammad Sarwar Chaudhry and Abilur Rasheed Chohan, Principals, Government Degree College, Kotli; have misappropriated lacs of rupees with the assistance of Muhammad Sharif, Assistant Professor, during their respective tenures, through forged entries of record, forged vouchers and bills, from the College Funds. It was further stated that during the internal checking Gulzar Hussain Bukhari, Assistant Professor found such misappropriation and reported as such. He appended the report of Gulzar Bukhari alnogwith the application. 4. On the report of Mr. Tabassum, the matter was investigated. After the investigation, it was found that Professor Muhammad Sarwar Chaudhry remained the Principal/DDO during the period of 26-
---
## Page 2
9-1988 to June 1994. He was promoted as Director Colleges on 7-6-1993 but despite this, he exercised the powers of DDO up to 31-9-1994 from July, 1993 to December, 1995, Mr. Abdul Rashid Chohan "emained the Principal of the College. The DDO powers were entrusted to him on 26-9- 1994. 5. Professor Dr. Muhammad Sarwar Chaudhry during his tenure of Principal prepared various fictitious record and withdrew an amount of Rs,38,86,621 through fictitious, forged vouchers and bills. While Abdul Rashid Chohan during his tenure misappropriated an amount of Rs,12,91,572. 6. Mr. Gulzar Hussain Bukhari, conducted the internal checking and prepared a detailed report. He also found that both the principals kept the entire record of the accounts in the custody of Shari'. Ahmed, Assistant Professor, whereas regular accountant was appointed in the College. He, on the abatement of both the Principals, prepared fictitious, forged vouchers and bills. The Director of Education on 1-9-1997, constituted a Committee consisting of Ghulam Ahmed, Assistant Director Administration and Mr. Javed, Stenographer. The said Committee prepared a vague report pertaining to the period of 26-9-1988 to June 1994 and reported that only Rs,4,45,638 were found as misappropriated, after which the record was destroyed with some chemicals. On 9-5-1997, the Government constituted another committee consisting of Chaudhry Bashir Ahmed, Secretary and Farid Awan, Dy.A.-G., Accounts Department, for further inquiry. This Committee submitted its report on 5-8-1997. It only inquired up to the period. Of Professor Dr. Muhammad Sarwar Chaudhry and verified that Rs,30,407 were misappropriated by him and also recommended that this amount may be recovered from him. While the Committee could not probe into, regarding the remaining misappropriation, as the record was destroyed with some chemicals. It was further stated that Professor Dr. Muhammad Sarwar Chaudhry and Abdul Rashid Chohan were found involved in corruption and misappropriation. They misappropriated the College Funds. Professor Muhammad Sharif. Was also found involved in the said misappropriation. It was also attributed to Professor Dr. Muhammad Sarwar Chaudhry that he, while being the Principal of Government Degree College, Kotli, paid the bill of telephone of the residence of Principal amounting to Rs,98,371, without the prior approval. He also misappropriated an amount of Rs,7,736 from the Bus Funds. He spent Rs,20,985 on the printing of prospectus. He sold those prospectuses, but no record was maintained. In this way, this amount was misappropriated. It was further stated that he misappropriated the amount of Rs,1,50,938 through fictitious and forged vouchers. He misappropriated Rs,1,75,344 from the fee of the students. The total amount of Rs,4,53,374 was misappropriated by him during his tenure of Principal. 7. It was attributed to Mr. Abdul Rashid Chohan that he, from July, 1994 to September, 1995, remained the Principal of Government Degree College, Kotli. The powers of DDO were entrusted to him on 26-9-1994. He, during his tenure, isappropriated an amount of Rs,5,18,660 with the abatement of Mr. Sharif Ahmed, Assistant Professor. 8. This reference was filed before the learned Ehtesab Bench of the High Court. It was subsequently, transferred to Ehtesab Judge, after promulgation of Ehtesab Act. After the trial of the reference, the learned Judge, Ehtesab Court, found the appellants guilty of misappropriation and awarded them the aforesaid sentence. This judgment of the said Court has now been challenged through the instant appeal. 9. Mr. Abdul Rashid Abbasi, the learned counsel for the appellants argued that the lower Court has awarded the sentences to the appellants, while assuming, that during their tenures, they were also retaining the powers of DDOs and while exercising these powers they withdrew the amounts from the Bank. He submitted that this finding of the lower Court, is based on no evidence. There is nothing on the record, on the basis of which, it could be said that the appellants were also retaining the powers of DDOs. While emphasizing on this point, he argued that there is no law according to which, the Principal of College was also DDO. He submitted that DDO can only be appointed
---
## Page 3
through a special order by the Government, while no such order is on the file. There is nothing, on the basis ,of which, it could be said that the appellants were retaining the powers of DDOs. He submitted that it was the fundamental duty of the prosecution to prove that the appellants were retaining and exercising the powers of DDOs during their tenures. The leaned Judge, Ehtesab Court, has relied upon the report of Gulzar Hussain Bukhari, who was stated in the report that the appellants were retaining and exercising the powers of DDOs. 10. It was next contended by the learned counsel for the appellants that it was the duty of the prosecution to prove the case beyond any reasonable doubt. He submitted that no direct evidence was produced against the appellants. The prosecution has based its case on the indirect evidence, consisting of the opinion of various persons. A report is an opinion of a person. Conviction could not be based simply on the opinion of some person. Conviction could not be the conviction could only be recorded on the basis of strong and cogent evidence. It was next maintained by him that no direct evidence was produced by the prosecution. He maintained that no cheque, bill or voucher signed by the present appellants was produced in the evidence. He submitted that the report of Gulzar Bukhari Exh. P.C., report of Ghulam Ahmed Ganai and Javed Iqbal Exh. P.G. And P.W. And that of Chaudhry Muhammad Bashir and Muhammad Khalil Exh.P.X. Were produced. The learned counsel further submitted that the lower Court has , wrongly convicted the appellants, while placing reliance on the aforesaid reports. He submitted that if the appellants had issued the cheques, which had been encashed from the Bank, then why those cheques were not produced, which were the best piece of evidence against the appellants. As no such evidence was produced by the prosecution and the prosecution has simply based its case on the aforesaid reports, which are, the opinions'of persons who prepared the reports. In presence of the direct evidence, why the prosecution relied upon the reports and withheld the best evidence. So, it can be presumed that the prosecution was unable to prove its case on the basis of direct evidence. ' It has been intentionally withheld by the prosecution. It was next contended by him that the judgment of the lower Court is based on no evidence. The said Court simply placed reliance on the report of Gulzar Hussain Bukhari, while he was an interested witness and inimical towards the appellants. He was not a witness but a party. In this respect he referred various recovery memos. And submitted that Gulzar Bukhari is witness of all the recovery memos. Which were prepared by the police at Kotli. He submitted that Gulzar Hussain Bukhari was posted at Muzaffarabad. He specially went to Kotli for witnessing the recovery memos. This shows his interest, therefore, no reliance could be placed on his report. Even his report has been negated and controverted by Ghulam Ahmed Ganai and Chaudhry Muhammad Bashir, but the lower Court has not considered this important aspect of the case. It was further contended by him that Gulzar Hussain Bukhari was appointed for internal checking by Muhammad Akbar, while there was a dispute between Muhammad Sarwar and him. It was next contended by him that the judgment of the lower Court is based on no evidence. He submitted that the lower Court found the appellants guilty for not keeping the accounts of the sale of prospectus. He submitted that there is nothing on the record, that prospectus were printed and sold, if, at all, these were sold, what was the price of same. Neither any student, nor any copy of the prospectus was tendered in evidence. Simply the reliance was placed on the report of Gulzar Hussain Bukhari, while no conviction could be awarded to any person on the basis of the report of some person. It was next submitted by him that the allegation, regarding the payment of telephone bills is also not substantiated by any evidence. There is nothing on the record on the basis of which it could be said that the telephone bills have illegally paid from the College Funds. He submitted that the lower Court has held that there were no rules for utilization of College Funds. The funds were to be utilized by the Principal in his discretion, but the Court below, at the same time, has also held that the bills of the telephone at the residence of the Principal were illegally paid from College Funds. Thus, its finding is not based on any evidence.
---
## Page 4
It was next contended by him that even the other allegations regarding misappropriation of fund were not based on any evidence. He submitted that there is no concordance among the report of Gulzar Bukhari, Ghulam Ahmed Ganai and Muhammad Bashir. The entire evidence of the prosecution is amalgamation of contradictions, the whole case of the prosecution is based on scant, desultory and meager evidence. The learned Court has wrongly awarded the sentences to the appellants, without any justification. He referred the following authorities in support of his contentions:- 1. 2000 M LD 1522, 2. 1998 PCr.LJ 1865, 3. 1998 PCr.LJ 2042, 4. 1994 PCr.LJ 1114, 5. PLD 1977 SC (AJ&K) 1 and 6. 1977 SCM R 109. 11. While controverting the arguments of the learned counsel for the appellants, Sheikh Masood Iqbal, the learned Deputy Chief Prosecutor contended that the Principal of the College was the DDO. He referred that it contained that the appellants were the DDOs. He was confronted to explain whether there is any law under which the Principal of the Government College, Kotli was DDO? If under any law, the Principal was the DDO then he should cite any such law, but he could not cite any such law. When he could not cite such law, then he was confronted to explain, whether there was any Government Order by which the appellants were empowered to exercise the powers of DDOs, but no such order was produced in evidence. He could not cite any such order. It was next contended by him that Gulzar Bukhari appeared as a witness. He was not cross-examined on the vital points. The portions of his statement implicating the appellants were not challenged in cross- examination, therefore, the lower Court has rightly awarded the sentences to the appellants. He referred 1968 SCR 244. It was next submitted by him that Dr. Muhammad Sarwar Chaudhry wrongly made the payment of Rs,98,37-1 for the telephone bills of his residence. He was confronted to explain as to whether these bills pertained to one month or one year. He could not point out as such. He submitted that the judgment of the lower Court is based on sound, cogent and sagacious reasoning and it does require any interference.- 12. We have heard the learned counsel for the parties and have also gone through the record carefully. 13. The perusal of the judgment of the lower Court shows that the learned Judge, Ehtesab Court also reached the conclusion that there was no direct evidence against the appellants by which they were found involved in the offence of misappropriation. But despite this, he awarded the sentence to the appellants on the ground of their being the Drawing and Disbursing Officers and they did not perform their duties accordingly. So, they were liable for the offence under section 409, A.P.C. It is well-settled principle of law that no one can be convicted under section 409, unless it is found that he misappropriated the amount. According to the aforesaid finding of the lower Court, there was no direct evidence against the appellants on the basis of which they were found involved in the commission of offence of misappropriation, but it was held by the Court that they had failed to perform their duties, regarding the keeping of watch and supervision. But one cannot be convicted for inefficiency rather he can be proceeded under the Efficiency and Discipline Rules. It is well-settled principle of law that no one can be liable for misappropriation, unless he has committed the misappropriation or deliberately allowed some other person to commit the misappropriation. The lower Court has not arrived at any such conclusion but despite that, the lower Court awarded the sentences to the appellants. As such was held by the lower Court in its judgment on page 41 Which reads as under:7-- {{URDU TEXT}} ' prosecution to pro that both the appellants were also retaining and exercising the powers of DDOs. But it has miserably failed to prove as such. 14. The lower Court has also held that both the appellants were also retaining the powers of DDOs, therefore, .They were responsible for misappropriation. Now the question arises whether there was
---
## Page 5
any such evidence on the record, on the basis of which, it could be said that appellants were also retaining the powers of DDOs. The learned Deputy Chief Prosecutor was confronted to explain whether there is any Government order through which the powers of DDOs were entrusted to the appellants, but he could not cite any such order. We ourselves have gone through the entire evidence. There is no such order on the file, whereby the powers of DDOs were conferred on the appellants. The learned Deputy Chief Prosecutor was also confronted to explain whether there is any law under which the head of an institution is also empowered to exercise the powers of DDO, but he could not cite any such law. He placed reliance on the report of Gulzar Hussain Bukhari and submitted that the appellants were retaining the powers of DDO. Now the question arises, that how Mr. Bukhari stated that the appellants were retaining the powers of DDOs. There is nothing as such in the report. Mr. Bukhari also appeared as a witness. He nowhere explained that how the appellants were retaining the powers of DDOs. Simply on the basis of this opinion, it could not be said that these powers were also available to the appellants. It was the basic duty of the prosecution to prove that both the appellants were also retaining and exercising the powers of DDOs. But it has miserably failed to prove as such. 15. Although various other allegations were attributed to the appellants, out of which some were not proved against them and few were found to have been proved. The lower Court found that it was proved against the appellant Dr. Muhammad Sarwar Chaudhry, that he paid the bills of telephone installed at the residence of the Principal amounting to Rs,23,407 from College Funds. It was not paid in the interest of the College. The telephone was not used according to the regulations. This finding of the lower Court is not based on any evidence or cogent reasoning, rather it is vague and self-contradictory. For having proper perception. I would like to reproduce the finding of the lower Court which is as under:- {{URDU TEXT}} 16. According to the afore-quoted finding, the allegation against the appellant was that he paid Rs,98,371 without any approval and jurisdiction. The appellant, although denied this allegation in his statement recorded under section 342, Cr.P.C. But his version was that a notice of Rs,23,000 was given to him. He also paid this bill in the interest of College. It is quite astonishing that in the finding it was nowhere held, that the sanction for the payment of bill of telephone was necessary and he has paid the bill without the sanction. It stultifies us that on one hand in the aforesaid finding, it was held by the lower Court that the Principal has the discretion to use the College Funds and no Rules and Regulations have been frarlied for regulating the College Funds, but these Funds can only be used for the benefit of the College. The telephone installed on the residence of the Principal can be used according to the Government instructions. Its use beyond such instructions, amounts to misusing of the telephone. It was also observed by the lower Court that according to the Government instructions, categories of different officers have been determined and the officers, who were not included in these categories, were entitled to found hundred calls per months, and if they exceed this limit, then it shall amount to misuse of the telephone, despite the fact that these calls were of official nature. Now the question which perturbs our mind is that the lower Court has nowhere held that how the appellant has misused the telephone. The judgment also did not contain that the bill of Rs,23,407 was pertaining to one month, one year or two years. The judgment nowhere contained that this amount was paid for how much period and the telephone was misused. It also did not contain that how much entitlement, the appellant was retaining, and how he exceeded his entitlement. The finding of the lower Court, as reproduced above, on the aforesaid allegation, is not based on any evidence. There is no evidence on the record that how the telephone at the residence of the Principal was misused. The judgment of the lower Court is vague, self-contradictory and desultory. It is also pertinent to note that there is nothing in the judgment that how this amount was paid by Chaudhry Muhammad Sarwar from the College Funds. Whether
---
## Page 6
any cheque v as issued by him through which he withdrew the amount or how he withdrew such amount? There is nothing as such on the record. If he has withdrawn the said amount from the College Funds, under his signatures, then the cheque should have been produced or tendered in evidence, but there is nothing as such on the record. The lower Court has not based its funds on any evidence. It also flabbergasts us that the lower Court has not mentioned in its judgment that on the basis of which evidence, it reached the conclusion, that the telephone of the residence of the Principal was misused and the bill of Rs,23,407 was paid from the development funds of the College. We ourselves have gone through the entire evidence and found that there is on such direct evidence on the record. Thus, the finding of the lower .Court is based on no evidence. 17. The second allegation against the appellant, Chaudhry Muhammad Sarwar was pertaining to the misappropriation of bus funds of the College. It was not found proved against the appellant. However, the third allegation found proved against him, was that the appellant spent Rs,20,958 on the printing of the prospectus. He sold these prpectuses but neither the account of the income was maintained, nor it was entered in the cash book. The finding of the lower Court is as under:--- {{URDU TEXT}} 18. The lower Court found the appellant guilty of the aforesaid allegation on the report of Mr. Gulzar Hussain Bukhari (Exhs.P.W. And P.C.). It was further stated that this report was proved by Mr. Javed lqbal, therefore, it is reliable despite the fact that the original record has been destroyed. When this report was prepared, at that time, the record was available. It is quite amazing that the finding of the lower Court is based on the simple report of Mr. Bukhari. As the report is concerned, it is the opinion of the report-maker. No conviction can be recorded simply on the basis of the opinion of some person. The conviction can only be recorded on the basis of strong, cogent and conclusive evidence, beyond the reasonable doubt. When there was no record in support of the report, then how the conviction could be recorded on the basis of such report, which even otherwise has no evidentiary value, about which it shall be discussed in the later part of judgment. In the present case, there is no direct evidence that the appellant Chaudhry Muhammad Sarwar utilized the amount of Rs,20,958 on the printing of the prospectus. There is no evidence that he withdrew the aforesaid amount from the Bank for the printing of the prospectus. If at all, he has withdrawn the said amount, from the bank for the aforesaid purpose, then the original cheques would have been lying in the bank. Why those have not been tendered in evidence? That was the best piece of evidence. It is quite surprising that the prosecution has not produced the direct evidence and has placed reliance on the indirect evidence. The report can be at the most a corroborative piece of evidence if there would have been direct evidence and the reports would have been produced in evidence, then it could have been a corroborative piece of evidence. It is well-settled principle of law that a corroborative piece of evidence cannot be used for the corroboration of another corroborative piece of evidence. It was also held by the lower Court that the appellant did not maintain the cash book, but it flabbergasts us that how the Principal of College is responsible for the maintaining of the cash books; whether it was his duty to make the entries in the cash books. 19. It is pertinent to note that there is nothing on the record, on the basis of which, it could be said that the appellant spent the amount of Rs,20,958 on the printing of the prospectus. There is also nothing on the record that the prospectuses were sold. If at all, these were sold, then what was their price and how much money was earned by the appellant. It is also pertinent to note that no student was produced as witness, who had purchased the prospectus from the College. There is no evidence that any price of the prospectus was fixed. When there was no evidence, regarding the printing and sale of the prospectus, then how the conviction could be recorded to the appellant. It is also to be noted that whether the appellant Chaudhry Muhammad Sarwar was responsible for the printing and sale of the prospectus? Whether it was his duty to keep the accounts of the same.
---
## Page 7
There is nothing on the record, on the basis of which, it could be said that it was his duty. Therefore, the lower Court has wrongly held the allegation proved against the appellant. 20. The fourth allegation against the appellant was that he misappropriated an amount of Rs,1,50,938 on the basis of forged and fictitious bills but this allegation was not proved against him. 21. The fifth allegation against him was that he misappropriated an amount of Rs,1,75,344 with the abatement of Mr. Sharif Ahmed, Assistant Professor from the income of Fee and Funds of the. College Students. The lower Court, placed reliance on the reports Exhs.P.G. And P.X. It is also stated in the judgment of the lower Court that although .The record, on the basis of which, the aforesaid report Exh.P.G. Was prepared was destroyed, but during the course of investigation, under the Ehtesab Act, Muhammad Khalil, Deputy Director Local Audit Funds, Member of Ehtesab Team, also prepared a report Exh.P.X. He also reported that…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.