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Criminal Appeals Nos. 491 of 1964, 2, 3, 63 and 69 of 1965/ Criminal Reference No. 205 of 1945, decided on 24th November 1966.
S. 439-Sentence Enhancement-Conviction of accused taking place in 1964 Application for enhancement of sentence against only one of 4 accused made at end of 1966-Such application, held, without force.
Tufail Ali A. Rehman, M. A. Hameed and Azizullah K. Sheikh for Appellants.
Manzoor Hussain for the State.
Dates of hearing: 2nd and 3rd of November 1966.
Appellant Muslim Ali, former Executive Engineer, Stores Division, Karachi Development Authority at Karachi was tried for various offences in three separate cases along with three different contractors. In Special Case No. 30/64 which has given rise to Criminal Appeal No. 491/64, he was found guilty under section 5 (2) of the Prevention of Corruption Act, 1947 and was sentenced to undergo R.I for 6 months and also to pay a fine of Rs. 1,200 or in default to undergo R. I. for 6 months more. His co-accused M. Ahmed of Messrs friends Corporation Karachi was convicted under section 5 (2) of the Prevention of Corruption Act read with section 109, P. P. C. and was sentenced to till rising of the Court and also to a fine of Rs. 1,200 or in default to suffer R. I. for 6 months. No appeal has been filed by Ahmed. Criminal Appeals Nos. 3/65 and 63/65 arise out of Special Case No. 169 of 1963. Appellant Muslim Ali was found guilty under section 5 (2) of the Prevention of Corruption Act, 1947 and was sentenced to undergo R.I for 6 months and also to pay a line of Rs. 800 or in default to suffer R. I. for 6 months more. His accomplice Zabid Ali of Zahid & Co., Karachi was found guilty of abetment of this offence under section 5 (2) of the Prevention of Corruption Act and was sentenced to till rising of the Court and also to pay a fine of Rs. 800 or in default to suffer R. 1. for six months more. In the third case (Special Case No. 170/63) Muslim Ali was found guilty of the same offence under section 5 (2) of the Prevention of Corruption Act, 1947 and was sentenced to undergo R. 1. for 6 months and also to pay a fine of R.s. 2,500 or in default to undergo R. I. for one year more. His accomplice Basit Mohiuddin of Messrs Basit &, Co., Karachi was convicted for abetment of this offence and was sentenced to till rising of the Court and also to pay a fine of Rs. 2,500, or in default to undergo R.I. for one year. Appeals Nos. 2/65 and. 69/65 have been filed by them and are directed against their convictions and sentences, as stated above. Criminal Reference No. 205/65 hits been filed on behalf of the State for enhancement of sentence passed against Basit Mohiuddin. The trial Court (Mr. Imdadali Agha) had directed that all tae substantive sentences of imprisonment in respect of Muslim Ali in all the three cases to run concurrently. He had recommended R Class for him. This Judgment will dispose of these matters as common grounds of fact and law are involved in them.
2. Facts giving rise to this Criminal prosecution and relevant for our purpose are as follows: -
"Appellant Muslim Ali was working as Assistant Executive Engineer Stores Division K. D. A. till the end of February 1958, when he was promoted and appointed as Executive Engineer in the same Division. One of the duties of this Division was to receive orders from various branches or sub-divisions of the K. D. A. and supply the materials as required by them. P. W. Syed Nurullah Hussaini was working as Assistant Engineer Sub-Divisional No. 1 at the relevant time, and was working under the appellant Muslim Ali."
3. It is the case of the prosecution in Special Case 30/64 that on 3-3-58 Indent (Exh.10) for the supply of G. I. bends and G. I. Flanges both of various sizes and other materials mentioned therein was received in the office of the appellant Muslim Ali from the Assistant Engineer Workshop Division K. G. W. Board, Karachi. Thereafter 7 more indents were received in his office during the month of March 1958. Usual procedure was followed by the appellant Muslim Ali when he endorsed (vide Exh. 10/B) the indent Exh. 10 to P. W. Syed Nurullah Husssini who in turn, as per his orders, Exh. 1.0/C) directed his P. A. to invite quota tions. In pursuance of this order inquiries (Exh. 11) were issued to 7 approved suppliers including the three co-accused of appellant Muslim Ali. Out of these 7 approved suppliers only 3 of them viz. the three co-accused returned their quotations Exhs. 12 to 14. Besides them 3 more contractors bad submitted their quotations which are Exhs. 15 to 17. Thereafter usual procedure was followed again. The quotations or tenders were opened by the, appellant Muslim Ali and the comparative state ment Exh. 18 was prepared. Appellant Muslim Ali as per his order Exh. 18/A mentioned in columns 7 to 10 had approved the lowest rate. Similar procedure was followed by him in respect of other indents which were received in his office during the month of March 1958. In view of his orders the supply orders were placed with the three-accused who have been convicted and sentenced as stated above. Thereafter the material was supplied and the contractors were paid: Sometime later psendonymous applications Exhs. 51 and 52 were addressed to special Polic4_ who made inquiries in the matter and the report submitted by Muhammad Usman Khan Inspector is Exh. 54, dated 25-4-59, As a result of it, the first report was lodged and after usual sanctions for investigation and prosecution were obtained all these appellants were challaned and the cases have resulted as stated above.
4. It is admitted by Muslim Ali that he was an Executive Engineer K. D. A. at the relevant time. It is also admitted by him that the supply orders in question were placed by him with his co-accused as he had accepted their quotations because these were the lowest. He had denied that he had entered into con spiracy with them. With regard to higher prices it was pleaded by him that he had purchased these articles at the lowest rate, secondly that he did not know that these articles were controlled, and, lastly, that he had complained against P. W. 1 Nurul Hassan and thereafter he was implicated by him falsely in this case. His co-accused have also denied the conspiracy. They too had pleaded that they did not know that these articles were controlled. Further stand taken by them was that they had purchased these articles through brokers. No witness was examined by them in defence.
5. Admitted position, is that appellant Muslim Ali is a public servant within the meaning of section 21, P. P. C. Besides his admission there is sufficient ocular evidence to prove this fact.
6. It is also admitted that appellant Muslim Ali had received all these indents during the month of March 1958, secondly that quotations were invited from both approved and non-approved contractors thirdly his co-accused had filed tenders which were accepted by the appellant Muslim Ali because these were the lowest. Further admitted position is that appellant Muslim Ali in accepting these tenders had followed the usual procedure, i.e. he had not disregarded the practice or the pro cedure followed in his office: It is not disputed by all the appellants that even though the quotations offered by them were the lowest these rates were higher than the controlled rates in respect of all these articles. M. Ahmad of Friends Corporation Karachi, had received two orders Nos. 632 and 641 on 17-3-58 and the third order No. 727 on 21-3-58 for the supply of 12 G. I. bends (44) and 24 Flanges (6'') at the rates quoted by him at Rs.9O per G. I. bend though the control rate was Rs. 36-4-0 and Rs. 34 per flange against the control price of Rs. 17/10 per flange. In support of its case prosecution had examined P. W. 1 Sohrab of Universal Engineering Karachi,. P. W. Muhammad Walagohar (Deputy Director Investment and Trade Promotion and Supplies. Karachi) and P. W. 3 Syed Nurullah Hussaini, Assistant Executive Engineer K. D. A. Evidence of P. W. Sohrab shows that they are the largest importers of the galvanised iron pipe fittings and they supplied these articles to the Government till 1958. Accord ing to him they had sufficient stock of these materials including malleable bends and flanges (galvanised) in 1957-58, and further that such flanges and bends were not locally manufactured in that year. He had further added that imported bends and flanges were superior in all respects to those made locally. It would mean that at the relevant time the G. I. bends and flanges were not locally made and further, that all these articles were imported by Universal Engineering Company, Karachi who supplied the same to Government. Mr. Muhammad Walagohar has referred to control prices of these articles and had produced various notifications in support of the prosecution case to show that appellant Muslim Ali had paid exhorbitant prices in respect of these materials. The various notifications produced by him are Exhs. 6, 7 and 8. Another material witness is Syed Nurullah Hussaini. He has referred to the procedure followed before orders were placed with these three appellants by appellant Muslim Ali. His evidence shows that correct procedure bas been followed.
7. It is apparent from the facts stated above, the evidence led by the prosecution and the statements of the appellants that Muslim Ali (former Executive Engineer) had accepted the quotations from the three accused persons because these were the lowest and further that these quotations were higher than the control price of these articles. Evidence of P. W. shows that the material supplied by Friends Corporation was imported from outside Pakistan. The three pleas taken before the trial Court by these appellants have been discussed at great length in the judgment of the trial Court. In the first place appellant Muslim Ali had alleged that he had acted bona fide, as he was new to the job. Apparently this argument is without any merit. Evidence on record shows that prior to his promotion and appointment as Executive Engineer he was working in the Stores Division in the lower grade and as such he must be well conversant with the procedure. Even otherwise no officer of the Government is expected to pay prices for the materials more than the control rate. Admitted position is that he had accepted the lowest rate and even this fact would not absolve him because this rate was very much higher than the control rate. It was for this reason that there was a charge of criminal conspiracy but it could not be established due to insufficient evidence. Another point urged in this connection was that all these articles were required very urgently, and further that large numbers of orders or indents were placed with him during the month of March 1958. Even this argument has very little force in it. It is correct that some of these articles were urgently required but it would not mean that he should pay higher price for it. There is nothing on record to suggest that instructions were issued to appellant Muslim Ali to purchase all the articles at higher price. There may be urgency for the requirement of these articles but it would not mean that higher price would be justified for these articles. In this connection the learned advocates for the appellants had referred me to Exhs. 43, 45 and 46, at pages 63, 70 and 73 of the Paper Book. The perusal of these documents shows that departmental inquiries were held and the appellant Muslim Ali was exonerated. I agree with the learned Public Prosecutor that Court is not bound to accept the findings arrived at in the depart mental inquiry: I do not agree with the appellant that these findings show the state of mind of appellant Muslim Ali. Mr. Tufail Ali, the learned counsel for the appellant Muslim Ali, had urged before me that mens rea was absent in this particular case as he had acted in the interest of the work because all these materials were required urgently, as proved in' the departmental inquiries. He had further added that prosecution had failed to prove any overt act on the part of appellant to obtain pecuniary advantage by corrupt or illegal means or by abusing his position. He had taken the aid, in respect of this argument, of a case Shiekh Mujibur Rahman and another v. The State. P L D 1964 Dacca 330 where it was held :-
"The word obtain' implies and presupposes some amount of effort on the part of the person who means to obtain a thing; and an effort is never possible without a conscious state of mina. If any Person wants to obtain or obtains anything for himself 0r for others he must be presumed to have made some efforts so that in normal routing course without such effort the thing sought to be obtained might not be available. The word abuse' in this connection also presupposes that the position held by the public servant is used in a perverse manner and not in a normal way. It also indicates in essence that the public servant concerned moves in the matter unfairly in order to obtain either for himself or for others a pecuniary advantage or a valuable thing."
In this particular case, as it is clear from the evidence ' of P. W. Sohrab of Universal Engineering Karachi, that they were the importers of the galvanised iron pipe fittings and further that it was they who supplied all these articles to the Government till 1958. His evidence further shows that they had sufficient stock of these materials including bends and flanges required in this particular case in the year 1957-58. He had also deposed before the trial court that these articles were not locally manufactured in that year. It is thus evident that his accomplices were not importers of these articles and further that they did not supply these articles to the Government at the relevant time. Mere fact that they quoted the lowest rate would not absolve them because as already shown these rates are very much higher than the control price. He had no power nor instructions were issued to him to purchase all these articles at higher price. He had to exercise his discretion judicially. His plea that he was ignorant that all these articles were controlled will not help him. Last plea which is very material is whether prosecution has proved that these articles were controlled. I have already pointed out that the evidence of Walagohar proves the prosecution case on this point. The relevant notifications produced by him are Exhs. 6, 7 and 8. In this respect Mr. Tufail Ali the learned counsel for appellant Muslim Ali had urged before me that it had not been proved that all these articles were imported. I am unable to agree with him in this respect. Evidence of P. W. Syed Nurul Hussain clearly shows that the material supplied by Friends Corporation was imported. Though these articles viz. flanges and bends were controlled by items Nos. 42 and 54 (vide Exh. 7) it was urged before me that former i.e. item No. 42 refers to flanges (undrilled) galvanised malleable while flanges of other different kinds were controlled by items Nos. 43 to 51. With regard to bends in respect of which reliance was placed on item No. 54 it was urged before me that these bends refer to male and female galvanised malleable but it must also be noticed that other 'kinds of such bends were controlled by items Nos. 38, 39, 52, 53, 55 and 56, Learned counsel for the appellant Muslim Ali had urged that the words "malleable" in respect of flanges and the words "male and female malleable" In connection with bends are missing in supply orders. But he has failed to prove that articles mentioned at items Nos. 42 and 54 are different from the articles mentioned in supply orders. I may add here that this plea though available-to the appellant Muslim Ali was not raised by him before the trial Court. He had not cross-examined the two witnesses, namely, Messrs Sohrab and Muhammad Walagohar. Lastly I find that Mr. Tufailali has failed to make out a distinc tion between such articles, i.e. the articles mentioned in the notification and which are mentioned in the supply orders. All this discussion shows that there appears no merit in this argument also.
8. Facts of the remaining two cases are also similar. In Special Case No. 169/63 supply Orders Nos. 715, 733, 736, dated 21-3.58, No. 605, dated 20-3-58, and No. 724, dated 21-3-58 for the supply of these G. I. bends (6") at the rate of Rs. 245 each against the control rate of Rs. 112/5 were placed by appellant Muslim Ali with appellant Zahid Ali of Messrs Zahid & Co. and thereby he had obtained a pecuniary advantage of Rs. 1,194-3-0. He had admitted to have placed these orders but he had shown ignorance if these articles were controlled or what was the control price. In the last Case (No. 170/63) he had placed Supply Orders Nos. 620 to 622, dated 17-3-58, Nos. 623 to 625, dated 21-3-58 and Nos. 783 to 785, dated 23-3-58 for the supply of 6 G. I. bends (6") and 54 G. I. flanges (5") at the rate of Rs 195 per bend and Rs. 27 per flange against the control rates of Rs. 75 and Rs. 13-4-0 respectively and thereby obtained pecuniary advantage of Its. 1,462-2-0 from appellant Basit Mohiuddin of Messrs Basit & Co., Karachi. He bad admitted to have placed these orders but had pleaded ignorance about the control rate in respect of these articles.
9. With regard to t e application filed for the enhancement of sentence against Basit I find very little merit in it. In the first place it is not explained why Basit alone has been chosen for enhancement of sentence. The materials were supplied as early as 1958 and his conviction took place in 1964. We are now towards the end of 1966. For all these reasons there appears very little force in this application. Result is that all the appeals and this revision application are dismissed. Appellant Muslim Ali is on bail and his bail-bonds are cancelled. He should be arrested and remanded to custody to undergo the remaining of sentence. If amounts of fine are not paid by the two other appellants, namely, Basit Mohiuddin and Zabidali they should be arrested and remanded to custody to undergo the periods of sentences.
Appeals dismissed.
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