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Criminal Appeal No.93 of 1983, decided on 26th January, 1985.

---S.218‑‑Accused admitting to have made entries pertaining to work done by contractor co‑accused‑‑Work on site not done in accordance with entries made by accused in measurement book‑‑Magistrate on spot inspection finding that work at some places had not been carried out‑ Framing of incorrect record by accused, not only knowing same to be incorrect but also knowing same to be likely that he would thereby cause loss to Government, held, proved‑‑Conviction and sentences maintained in circumstances.

---S.218/109‑‑Direct evidence of abetment by contractor accused in preparation of incorrect record by co‑accused (Sub‑Engineer) not forthcoming‑‑Circumstances that accused was contractor and that money was to be paid to him, held, may create suspicion against him, but suspicions are not proof facts‑‑Accused given benefit of doubt and acquitted in circumstances.‑‑[Benefit of doubt].

Sh. Naveed Shahryar for Appellants.

M. Iqbal for the State.

Date of hearing: 23rd January, 1985.

This criminal appeal arises from the judgment of learned Special Judge Anti‑Corruption, Lahore whereby he on 8‑2‑1983 convicted Mumtaz Hussain Shah and Muhammad Rafique appellants under sections 218 and 218/109, P.P.C. respectively and sentenced them to six months' R.I. each.

2. Mumtaz Hussain appellant No.1 was a Sub‑Engineer whereas Muhammad Rafique appellant No.2 was a Contractor. They were tried on the charge that Mumtaz Hussain Shah prepared incorrect record in a manner which he knew to be incorrect with intent to cause or knowing it to be likely that he will thereby cause loss or injury to the Government and that Muhammad Rafique abetted him in the commission of the offence. They denied the charge and claimed to be tried.

3. To prove its case prosecution examined 17 witnesses. Abdul Wahid P.W.1 produced measurement book Exh. P.W.l/A, prepared by Mumtaz Hussain Shah petitioner and file of sub‑estimates of Mianwal section Exh. P.W.l/B/1‑6 before the Magistrate. He stated that since the requisite certificate was not given by the S.D.O., therefore, no bill for payment to the Contractor was prepared. Shana Mujahid P.W.2 stated that repairs of tube‑well No. BS‑16 were not carried out in the year, 1977. Khuda Bakhsh P.W.3, Abdul Karim P.W.4, Muhammad Inayat P.W.5, Muhammad Hussain P.W.6, Khushi Muhammad P.W.7, Muhammad Usman P.W.8, Ghulam Sarwar P.W.13 and Khushi Muhammad P.W.15 stated that repairs were actually carried out on their tube‑wells. They were declared hostile and cross‑examined by the prosecutor. Ghulam Nabi Magistrate, P.W.9 was deputed by the Assistant Commissioner for carrying out raid. He went to the office of XEN Tube‑wells Operation Division where Abdul Wahid P.W.1 produced measurement book P.W.1/A and Sub‑estimates file Exh. P.W.1/B/1‑6. He recorded statement Exh. P.W.1/B of Abdul Wahid. Muhammad Sharif, General Accountant produced before him tender quotation note Exh. P.W.9/H, tender quotation register Exh. P.W.9iD, tenders of different firms Exh. P.W.9/1‑3 and Exh. P.W.9/F. It may be noted that tender Exh. P.W.9/F was that of Muhammad Rafique, Contractor, appellant which had already been accepted. The witness associated Muhammad Tariq S.D.O. High Way and Muhammad Asghar Khan, Oversear Buildings with the raiding party and checked 40 tube‑wells in Mianwal Section. Thereafter, he prepared his raid report Exh. P.W.9/C. He found that although works at serial Nos. 4 and 6 to 12 had been shown to have been completed at pages Nos.28 to 60 of the measurement book yet the spot checking revealed that the works were not actually carried out. The witness further found that the works at items Nos.1. to 5 were not in accordance with the specification and that white‑washing and painting had been done in a coat instead of two coats. The witness further found that some of the roofs had not been mud‑plastered at all while plastering of the other roofs was of sub‑standard. Muhammad Tariq S.D.O. and Muhammad Ashgar Khan, Oversear prepared rough notes Exh. P.W.9/S/1 to 3 of the inspection of tube‑wells which were signed by the witness. Muhammad Tariq S.D.O., P.W.10 visited the spot alongwith Ghulam Nabi, Magistrate P.W.9. He inspected the tube‑wells and prepared rough notes Exh. P.W.9/S/1‑3. Subsequently, he prepared consolidated report and handed over the same to the Inspector Anti‑Corruption Establishment on 9‑6‑1977. The witness stated that on inspection of the tube‑wells he found that the work at the spot was not done in accordance with the specification. He admitted that no instrument was used for checking the works except that measurement of mud‑plaster was carried out with a tape. He admitted that scraping of white‑washing and painting cannot be seen after fresh white‑washing and painting had been done. He further stated that petty repairs cannot be checked after the work is done. He admitted that in his report he did not mention as to what should have been the proper specification of the works. Nazir Ahmad P.W.12 stated that only one coat of white‑washing was given to his tube‑well and that the roof was not mud‑plastered. Muhammad Sharif P.W.14 produced documents before the Magistrate. The rest of the evidence is more or less of formal nature.

4. When examined under section 342, Cr.P.C., the appellant denied the incriminating circumstances. Mumtaz Hussain Shah admitted the entries made by him in the measurement book pertaining to the work done by Muhammad Rafique, contractor, co‑appellant. He raised the plea of false implication on account of party‑fiction. Muhammad Rafique appellant claimed to have repaired the tube‑wells in accordance with the specification. The appellants did not produce any witness in defence.

5. It is remarkable that the original record of the trial Court as well as that of this Court having been lost, the same have been re‑constructed according to rules.

6. Learned counsel for the appellants submitted that the prosecution has failed to prove its case beyond reasonable doubts; that the conviction has been based on the statement of Muhammad Tariq, S.D.O., P.W.1C, who is not an absolutely dependable witness and that the Contractor having done the repairs in accordance with the specification, no case punishable under section 218 or 218/109, P.P.C. was made out against the appellants. Conversely, toe learned counsel for the State supported the judgment of the trial Court.

7. I have considered the arguments advanced by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellant to the extent of Muhammad Rafique appellant. As far Mumtaz Hussain Shah, I find that prosecution has proved its case against him beyond reasonable doubts. He admitted to have made entries pertaining to the work done on tube‑wells by Muhammad Rafique co‑appellant. From the statement of Muhammad Tariq S.D.O, rough notes Exh. P.W.9/S/1‑3 and the consolidated report Exh. P.W.8/T, it is very much proved that the work on the site was not done in accordance with the entries made by Mumtaz Hussain Shah appellant in the measurement book. Ghulam Nabi, Magistrate, P.W.9 on spot inspection found that the works at serial Nos. 4 and 6 to 12 had not been carried out. It is, thus, crystal clear that Mumtaz Hussain Shah, appellant had framed incorrect record not only knowing the same to be incorrect but also knowing it to be likely that he will thereby cause loss to the Government.

8. Coming to the case of Muhammad Rafique, Contractor, I find that there is no direct evidence of abettment by him in the preparation of incorrect record by co‑appellant Mumtaz Hussain Shah. The circum‑1 stances that he was the Contractor and that the money was to be paid to him, may create suspicion against him but the suspicions after all are suspicions and not proof of facts.

9. For what has been stated above, the appeal to the extent of Mumtaz Hussain Shah is dismissed, whereas giving him the benefit of doubt Muhammad Rafique is acquitted of the charge. Mumtaz Hussain shall immediately surrender himself before the trial Court. The trial Court shall also issue warrants for his arrest and detention to serve out the sentence.

M. A. K. Order accordingly.

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