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2017 DIGILAW 1095 (JK)

Ghulam Ahmad Dar v. State of J&K

2017-12-28

ALI MOHD.MAGREY

body2017
JUDGMENT : Ali Mohd. Magrey, J. 1. This criminal appeal has been filed by the appellant against the judgment and order of sentence dated 30.05.2015, for short impugned judgment, passed by the court of learned Special Judge, Anticorruption, Kashmir, Srinagar, for short trial court, in case FIR No. 13/2002 of Police Station Vigilance Organization Kashmir, for short VOK, for the commission of offences punishable under section 5(1)(d) read with 5 (2) of the Prevention of Corruption Act, (for short P.C. Act), titled State v. Ghulam Ahmad Dar, whereby the appellant, Ghulam Ahmad Dar, came to be convicted and sentenced to imprisonment. 2. The narration of the events are briefly put on record, thus: 3. A preliminary inquiry conducted by the Vigilance Organization, Kashmir, on the basis of a Press Note, that certain persons have been appointed as Class-IV employees, led to the registration of two FIR's being FIR Nos. 13/2002 and 14/2002. FIR No. 13/2002 was registered against the appellant, while as FIR No. 14/2002 was registered against the successor of the appellant namely Sh. Kuka Wazir, for having appointed many persons on class-iv posts without following the due procedure, like advertisement of the posts or conducting of interview, in his capacity as the Director, Horticulture Department, Kashmir. The same allegation was levelled against the successor of the appellant, Sh. Kuka Wazir. The appellant is stated to have abused his official position by having illegally appointed the above said persons, therefore, Challan was filed before the court of learned Special Judge, Anti-Corruption, Kashmir, Srinagar, against him for the commission of offences punishable in terms of Section 5(1)(d) of the P.C. Act on 28th September, 2005. The respondent, VOK, filed the Challan separately in case FIR No. 14/2002, against the successor of the appellant Kuka Wazir, for the same offences on 20th September, 2005, who was discharged by the trial court in terms of its order dated 28.03.2009, while as the appellant was charged and trial initiated against him which ultimately culminated into the conviction of the appellant recorded by the trial court in terms of judgment dated 30th May, 2013, in case titled State v. Ghulam Ahmad Dar, impugned herein. 4. 4. During the course of trial, the prosecution examined 30 out of 32 listed witnesses before the trial court and the trial court came to the conclusion that the prosecution has been, on the basis of evidence on record, able to establish and prove the charge against him, therefore, convicted and sentenced him to undergo a simple imprisonment for five years and to pay a fine of Rs. 50,000/-. In case of failure to pay the amount of fine, the accused/appellant had been directed to undergo a further period of six months simple imprisonment. 5. Aggrieved of the impugned judgment, the appellant has questioned the same by the present appeal seeking its reversal inter alia on the grounds that the appellant has not committed any illegality but has followed the directions of the concerned Minister of the time; that the appellant had the competence to make appointments against the posts in question and the only thing that can be attributed to the appellant is that he did not follow the procedure for making such appointments which can be a procedural irregularity only and not the criminal misconduct; that the alleged appointments were made pursuant to the policy framed by the Government to absorb those who participated in the 1996 Elections and the act of the appellant, as such, does not involve any pecuniary gain which was the principle ingredient for making out a case against him to be proceeded against for the commission of offences punishable in terms of Section 5(1)(d) of the P.C. Act; that as a matter of fact there were two FIRs filed against similar facts and of the same department pertaining to appellant and his successor where the later was discharged while as the former was convicted and imprisoned which ex-facie makes the impugned judgment bad in law; etcetera. 6. Heard learned counsel for the parties, minutely went through the evidence and considered the matter. 7. Learned senior counsel for the appellant submits that the allegation, forming basis for appellant's conviction, that he, in his capacity as Director, Horticulture Department, Kashmir, illegally appointed 121 persons without following any recognized mode of recruitment is itself quite sufficient to explain that the appellant has done a procedural irregularity by non-fulfillment of procedural formalities which can be said to be the 'official misconduct' and not the criminal misconduct. He further submits that the next charge against the appellant that he has abused his official position by appointing these 121 persons is also not proved as none of the prosecution witnesses has deposed that appellant has appointed the said 121 persons for extraneous considerations or that any of his relations were among the beneficiaries. He submits that there is no such allegation also in the prosecution case against the appellant that he appointed these 121 persons for extraneous considerations or that he bestowed any benefit upon his relations through such irregular process of appointment. He would, therefore, submit that in absence of such allegation of extraneous consideration the appellant cannot be said to have abused his official position and the findings returned by the trial court are bad in law. 8. The learned senior counsel further submits that the preliminary enquiry conducted in the matter that led to the registration of two FIRs by the respondent, vigilance organization, arraigned two persons as accused and sought their trial through two different challans. The challan pertaining to appellant resulted in conviction while as the one filed against another accused, the successor of appellant, Sh. Kuka wazir, was dismissed and he was discharged. The learned senior counsel submits that how can the appointments, made by the appellant, be termed as bad in law, while as those made by his successor be termed as illegal when the both are made in similar fashion? He further submits that the beneficiaries of the appointments are continuing in the department and have been constantly receiving all the service benefits which again strike the prosecution case built against the appellant, as the illegal appointments should not have been continued. 9. The learned senior counsel further submits that the finding returned by the trial court, vis-à-vis the similar case FIR No. 14/2002 against the successor of appellant, that each case has different facts and circumstances is a blatant error as both the cases originate from one preliminary enquiry and there is absolutely nothing, in the said case, different than the case in hand except the name of the accused. He further submits that the alleged irregularity committed by the appellant could have been ratified by regularizing such appointments as the said beneficiaries are, otherwise also, continuing and have been promoted also over the period of time. 10. He further submits that the alleged irregularity committed by the appellant could have been ratified by regularizing such appointments as the said beneficiaries are, otherwise also, continuing and have been promoted also over the period of time. 10. The learned senior counsel further submits that the competence of the appellant to appoint people on the post of Orderly, Chowidar, or Gardener, is not denied, nor is it being projected that the appellant has made the appointments against the non-existent posts, therefore, except for the irregularity of having not advertised the posts, there is nothing bad about the alleged action of the appellant to qualify for the criminal misconduct. He further submits that the trial court has not returned any finding as regards the source of the CSR which has been followed to lead to this conclusion. The learned senior counsel submits that the trial court ought to have differentiated between a 'mere wrong' and the 'criminal wrong'. He further submits that misconduct per se is not defined in the Rules. 11. He further submits that the alleged appointments were made by the appellant pursuant to a policy of the Government referred to by the appellant, in his examination under section 342 of the Cr.P.C., as having been notified in terms of SRO 1786 of GAD of 1997 whereby the Government authorized head of the department to make appointments in accordance with the rules, and the beneficiaries in the instant case are appointed by the Minister concerned of that time while as the appellant had only to sign the orders on the instruction of the said Minister. 12. The learned senior counsel, in his effort to show that, the impugned judgment is bad in law, referred to the lacunaes' in the evidence produced by the prosecution against the appellant before the trial court on the basis of which the conviction has been ordered, e.g., the learned senior counsel referred to the statements of PWs 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, and 26 who are the beneficiaries, to indicate that none of them has accused appellant of either having promised any appointment or having accepted any money from them in lieu of said appointment. 13. 13. The learned senior counsel in support of his contentions referred to and relied upon the case law reported as 1963 AIR, SC 1116 : 1992 SCC (4) 54 : 1979 (2) SCC, 286 : SCC 1998 (5) 749; and 2006 SLJ (1) 274. The learned senior counsel tried to demonstrate that the allegations leveled against the appellant, are the bundle of lies and the impugned judgment is bad in law as it suffers from many legal infirmities besides being based on no evidence. Therefore, the learned senior counsel prayed for reversal of the impugned judgment and setting free of the appellant of the charges leveled against him. 14. Mr. M.A. Rathore, learned Additional Advocate General, on the other hand submits that the points raised in defence by the appellant's counsel does not prove the innocence of the appellant. He submits that the appellant cannot ask for the benefit extended to another accused of somewhat similar case as every case has its facts and circumstances. 15. The learned Additional Advocate General, submits further that the pecuniary advantage as is required to be proved in the alleged case of corruption does not only limit to the pecuniary gain of the accused himself but it extends to other persons for whom he intend to have such pecuniary gain and in the instant case the appellant has obtained such pecuniary gain for the beneficiaries of the appointment. 16. The learned State Counsel further submits that conferring such pecuniary gain, therefore, constitutes a dishonest intention and thus comes within the ambit of Section 5(1)(d) of the P.C. Act. Learned State Counsel further submits that the court has to see as to what was the mental element involved by benefiting the MLA/Minister also, whose instructions are stated to have been followed by him. 17. He further submits that there can hardly be any evidence to prove the mental intention and such things are required to be gathered through actions of the accused. He further submits that the appellant has made the appointments illegally without following the due process of selection depriving the aspiring candidates of the right to compete for the posts, therefore, is involved in criminal misconduct and has rightly been convicted by the trial court. He further submits that the appellant has made the appointments illegally without following the due process of selection depriving the aspiring candidates of the right to compete for the posts, therefore, is involved in criminal misconduct and has rightly been convicted by the trial court. In reply to the query raised by the court that the appellant has taken the defence of having followed the orders of concerned Minister, the learned State Counsel, submits that the appellant could have easily refused the dictate as it was not mandatory for him to follow such instructions without following the procedure. In support of his submissions learned State Counsel referred to and relief upon the case law reported as 2016 (3) ULR, 2013, Gauhati High Court; 2006 SLJ (2) 756 and 2006 SLJ (1) 274. 18. The learned senior counsel for the appellant in rebuttal submits that the State has not challenged the discharge order recorded by the trial court in another but similar case. He submits that the State cannot go for selective prosecution as State cannot be hostile to one and against another, as that would amount to persecution. The learned senior counsel sought observations against the trial judge for having convicted the appellant in gross violation of the rules and the law applicable. He, in this connection, submits that the trial judge has recorded in the impugned judgment on presumption that beneficiaries have paid the appellant the money in lieu of the alleged appointments, which is a gross error on his part as he cannot convict the accused mechanically based on his presumptions in absence of any evidence on record. 19. I have considered the submissions made by the learned counsel for the parties and went through the entire evidence placed on record by the prosecution. 20. The respondent-State has launched the criminal prosecution against the appellant for having failed to follow the procedure while making the 121 appointments against the posts of Orderlies, Chowkidars and Gardeners etc. 21. The Trial court after considering the overall matrix of the case has convicted the appellant and sentenced him to undergo the simple imprisonment of five years and pay a fine of Rs. 50,000/- in default whereof he had to undergo a simple imprisonment for six months. 21. The Trial court after considering the overall matrix of the case has convicted the appellant and sentenced him to undergo the simple imprisonment of five years and pay a fine of Rs. 50,000/- in default whereof he had to undergo a simple imprisonment for six months. The conviction and sentence is awarded to the appellant on the basis of presumption that appellant has conferred an undue benefit upon the beneficiaries and they are in collaboration with the appellant, while as the evidence brought on record by the prosecution nowhere brings to light such kind of theory. 22. The evidence brought on record by the respondents in the shape of statements of as many as 30 witnesses does not prove even an iota of the charge against the appellant. None of the witnesses, in my opinion, has spoken a single word against him to the effect that he has indulged in corrupt practice by appointing 121 candidates. Out of 121 alleged beneficiaries only 16 have been produced before the court to support the case of the prosecution, however, none of them has even admitted that appellant is known to him not to speak of having demanded or accepted the bribe in lieu of alleged appointment. 23. Except for the beneficiaries the witnesses who deposed before the court are either the VOK people or the FSL expert who could only prove the investigation of the case and the signatures of the appellant on the appointment orders which is otherwise not denied by the appellant. Therefore, the evidence in such form is a mere formality and nothing else. 24. It is pertinent to give a brief resume of the evidence tendered by the prosecution witnesses before the trial court. PW-1 Mohd Maqbool ltoo (Gardener in Horticulture Department) deposed before the trial court that he was unemployed and presented an application to his MLA Abdul Rahim Rather, and in the War 1998, an appointment orders was issued in his favour. He further deposed that he had passed PUC. He did not appeared in any interview, but was appointed as Gardener. He received appointment order at his home. In those days, Shri Ghulam Ahmad Dar, was Director. He has shown the appointment order bears signature of the then Director. He identifies the signature of the Director for the reason that he has worked with him. He did not appeared in any interview, but was appointed as Gardener. He received appointment order at his home. In those days, Shri Ghulam Ahmad Dar, was Director. He has shown the appointment order bears signature of the then Director. He identifies the signature of the Director for the reason that he has worked with him. In cross-examination, he deposes, that he joined training at Zainapora. He got employment on the application which he had presented to his MLA Rather sahib. Rather sahib in those days was Minister-in-Charge of his Department. He did not give any bribe to anyone for securing the job. Before his employment he did not knew the Director Dar sahib. PW-2 Akhtar Hussain Lone s/o Haji Mohd Yousuf r/o Shalimar Srinagar deposed, that in the year 2002, he was posted as Subject Matter Specialist in Horticulture Department Rajbagh, Srinagar. He went in vigilance office and produced some papers to them which were seized. The witness further deposed that he has seen the seized record which is the same as seized by the vigilance squad. He cannot say whether Mark-F contains the signature of accused. Seizure memo dated 29.10.2002 annexed with the file is true and correct, and it bears his signature. Order-in-question was not produced by him, however in his presence one Javaid Ahmad in charge Deputy Director produced it. He has seen the seized record/papers in the court today. Seizure memo which were prepared by the vigilance, and the seizure memo is marked as Ext. P2. In cross-examinations deposes, that he had no written instructions to produce the record/papers in vigilance, however, there were verbal directions of his officers. His statement was not recorded by the vigilance. In those days he had no concern with the appointments of daily wagers. PW-3 Ghulam Nabi Pandoo deposed that he is serving in Horticulture Department for the last 33 years on different posts viz; receipt, dispatch, establishment and section officer etc. He has worked as subordinate of the accused who had remained Director in the department in the year 1997-98, as per his understanding some appointments were made, however he has no personal knowledge regarding this, because he was not associated in those appointments. Vigilance people came in his office obtained some appointments order same were seized. He has seen the seized record in the court which is the same as seized by the vigilance in his presence. Vigilance people came in his office obtained some appointments order same were seized. He has seen the seized record in the court which is the same as seized by the vigilance in his presence. On the seized orders, there are signature of the accused and he identifies them for the reason that he has remained as subordinate of the accused. In cross-examination deposed, that accused had not appended his signature in his presence and these orders pertain to the promotions. He did not give any statement before vigilance organization. PW-4, Syed, Mohd Tahir, S.O. Horticulture Department deposed, that he was posted as SO in the office of Director Horticulture. In VOK he produced some papers which were seized by the I/O and seizure memo was prepared which bear his signature. Grant of promotion papers contains signature of present accused Dar sahib who in those days was posted as Director Horticulture. PW-5, Abdul Rashid Wani, Head Assistant Horticulture Department deposed that he has gone through the contents of the seizure memo Ext. P1 which is true and contains his signatures. It is true that the four items in regard to which Section Officer produced the record to VOK, that record was produced in his presence. In those days he was posted as Head Assistant. When G.A. Dar was Director Horticulture, in/those days he was working in Direction Office. He is well versed with the signatures of Dar sahib. In cross-examinations deposes, that he worked in the Construction Section of the Director Office for the two years, and in those days, he use to work as Typist, and thereafter, he got promoted. He did not give any statement to VOK people. PW-6, Constable Showkat Ahmad Yatoo deposed that on 30.10.2003, he was posted as Selection Grade Constable in vigilance organization. In his presence, an employee of Horticulture Department presented some record to the I/O, which were seized and seizure memo was prepared, on which he identifies his signature, it's contents are true. In cross-examinational deposes, that the record whose mention is made in the seizure memo, has not been verified by him, and he has no knowledge about the contents of the record. PW-7, Javaid Ahmad Bhat deposed that he was posted in the office of Director Horticulture as incharge Deputy Director Central. In cross-examinational deposes, that the record whose mention is made in the seizure memo, has not been verified by him, and he has no knowledge about the contents of the record. PW-7, Javaid Ahmad Bhat deposed that he was posted in the office of Director Horticulture as incharge Deputy Director Central. The witness deposed before the trial court that a letter from VOK was received in his office vide which he was instructed that the appointments made by the accused be handed over to vigilance, and in this way, he presented order regarding 121 appointments to VOK. On letter No. PS/96 Dated. 29.10.2002, he identifies his signatures, it's contents are true. He has seen the appointment order list presented by him to VOK in the court which contains his signature. All orders bear the signature of the accused. In cross-examination deposes, that on seizure memo Ext. P2 he has not put date below his signature. In the year 2002 he was posted in the Director Office, and during that time, accused was posted as Director in the department. This thing is correct that in the year 1997-98 there was militancy in Kashmir. The orders which were presented before VOK were not issued in his presence, therefore, he cannot say under what circumstances these orders were issued. These orders which were produced before VOK were pertaining to personal section of his office, but were not in his custody. He does not know whether those employees after their appointments, were sent for training. PW-8 Mst. Babyjan P.A. to Director Horticulture deposed that in the year 1993, she was posted as Senior Stenographer cum PA to Director Horticulture, in those days, Shri G.A. Dar accused was Director. The accused made 121 appointments. The list which was given to her for typing the appointment orders by the Director, was containing only the names and addresses of the employees, and on the instructions of accused, she used to type the appointment orders of only those candidates, and use to return the same to the Director sahib. On all these appointment orders, the then SO Mohd Shafi, Kadla had put his initials. She remembers that perhaps on the margin of some of the orders, name of C/O. Minister use to be inserted, and that is why she can say that the list use to be come from Minister. On all these appointment orders, the then SO Mohd Shafi, Kadla had put his initials. She remembers that perhaps on the margin of some of the orders, name of C/O. Minister use to be inserted, and that is why she can say that the list use to be come from Minister. PW-9 Mohd Shabaan wagay deposed, that in the end of year 1997, he was appointed as Gardener. In Horticulture Office, and in February 1998, he joined his duty. He is an educated youth and had presented an application to one Shabir Ahmad PRO of Abdul Rahim Rather. He belongs to Backward area. Shabir Ahmad PRO of the Minister gave order to him, where after, he joined before Farm Manager in Zainapora. For his appointment, he neither gave any application to the then Director Horticulture, nor he gave any interview. Accused in those days was Director Horticulture and he knows him. Regarding the appointment order he has seen the record today in the court which is the same. In regard to his appointment, orders were issued by the then Director Dar sahib. In cross-examination, deposes, that he belongs to the constituency of Abdul Rahim Rather. This thing is correct that, he for securing job presented an application before the Minister as he was becoming over age. Minister sahib wrote something on the application and handed over the same to his PRO who asked him to present the application in Horticulture Office. Sometimes thereafter, Minister sahib through some person sent the order at his home. He use to work in Horticulture Department and at present he has been promoted. After his appointment, he got training in Zainapora. He has no knowledge whether fire incident took place in Zainapora, because at that time, he was transferred. For his appointment, he did not spent any money. After joining, he saw the accused who had come there on tour. PW-10 Nazir Ahmad Dar deposed, that in the year 1998, Rather sahib was Minister and he went at his home, and asked for help, who told him that he should bring an application in the name of Director Horticulture. Rather sahib gave the application to his PRO Shabir Ahmad who gave him appointment order in the month of February and asked him to join before Director Horticulture, where after, he went in Rajbagh in Horticulture Office and submitted his joining report before one Mr. Basharat. Rather sahib gave the application to his PRO Shabir Ahmad who gave him appointment order in the month of February and asked him to join before Director Horticulture, where after, he went in Rajbagh in Horticulture Office and submitted his joining report before one Mr. Basharat. In regard to his appointment, order was issued by G.A. Dar Director Horticulture. Order No. 348-49 Horti. /Estt./NG Dated: 24.12.1997 is same, which he saw in the court. In cross-examination deposes, that he was posted as Orderly in the office of Horticulture Department and now he has been confirmed as Cleaner. His service record has been prepared and he received increments. At that time, he did not knew the Director, but after joining he came to know that Dar sahib was Director Horticulture. PW-11, Ghulam Mohd Wani deposed that he was unemployed, however, in the year 1998 he was appointed as Gardener in Horticulture Department. He is TDC pass, and for securing job, he presented an application before the then MLA Abdul Rahim Rather. After this, for securing appointment he did not appeared in any interview, and MLA sahib handed over order to him at his residence. He did not gave any bribe to anyone. In cross-examination deposes, that from the year 1998, he is performing his duty, and at present he is permanent employee and gets yearly increment. After receiving the order, he had undergone an advance course training in Zainapora. He has no knowledge whether his record has been sent to the centre. Till, he got the employment, he did not met Director Horticulture. PW-12 Abdul Hameed Ganie deposed, that till January 1998, he was unemployed, but got employment in February 1998 as Gardener in Horticulture Department. He is Matric pass and on the instruction of the then Minister Rather sahib, he gave application before him for employment. He has seen his appointment order in the court today which bear the signature of the then Director Dar sahib. He was not well versed with the signature of Director sahib., however, on perusing of files, he identified the signature of Director. He did not pay any bribe for employment. In cross-examination deposes, that on the order, Director did not appended his signature in his presence. He was not well versed with the signature of Director sahib., however, on perusing of files, he identified the signature of Director. He did not pay any bribe for employment. In cross-examination deposes, that on the order, Director did not appended his signature in his presence. PW-13 Mohd Shafi Sheikh Constable J. & K. Police posted in PCR has tendered evidence on 15.10.2009, that in the year 1998, he was in Madu Band Haryana for police training. In the year 1997, he was selected in Police Department. In the year 1998, he received appointment order at his home from Horticulture Department. When he received the order, he did not join because he was earlier selected in Police Department. In cross-examinations deposes, that the order which he received was from Horticulture Department, and in lieu of that order he had not spent any money. PW-14 Ali Mohd Itoo deposed that he was unemployed. The then MLA Shri Abdul Rahim Rather came in the village and promised that if people will participate in the election, they will be provided employment. He along with others fully participated. In the election, and except he, all were provided Government employments in Horticulture 'Department and Corporate Banks etc, however, he was not given any job. In this regard, he went to Rather sahib for 2/3 times, who asked him as why appointment order have not been issued in his favour. At that time Director Horticulture was accused G.A. Dar. Dar sahib and PRO told him that appointment order have not been yet issued. After which, he went in the office of MLA but got the same reply, he found G.A. Dar there, who told him as why he is not understanding, and if he has given order to other peoples, then why he has not received the order. As per his understanding, he judged that without payment of money they will not issued his appointment order. After this, the government changed and PDP Government came and VOK people started raids in the offices. The people who were on posts use to be issued notices from the VOK, and he too received notice. in response to the notice, he went in a VOK office in old Secretariat before Inspector Farhat, who told him that he is receiving salary while sitting at his home. The people who were on posts use to be issued notices from the VOK, and he too received notice. in response to the notice, he went in a VOK office in old Secretariat before Inspector Farhat, who told him that he is receiving salary while sitting at his home. He has seen dispatch register of Horticulture Department which at serial No./dispatch No. 529-531 bear his name in regard to appointment order which later on appears to have been cut. He was never provided this appointment order, that is why he is unemployed today. In cross-examination deposes, that he has read upto 8th standard, and till date, has not worked in a Government Department. He has seen Rather sahib and Director Shri G.A. Dar and has not worked with PRO and Rather sahib. PW-15 Mohd Ashraf Paul deposed that in the year 1997-98, he was in his house situated at Hardoocheti Checkpora Chadoora Budgam, and was busy in homely affairs. In those days, he was unemployed, and therefore presented an application for procuring employment to his MLA Rather sahib. He is Matriculate. Further deposed that he was appointed as Gardener in Horticulture department, and received appointment order at his home by post. In those days, G.A. Dar was Director Horticulture. He has seen his appointment order No. Horti./Estt./NG/373.75 Dated: 24.12.1997, which is same, and bear the signature of Shri Dar sahib the then Director Horticulture which he identifies. He identifies the signature for this reason that for the two years he had worked under subordination of the then Director. In cross-examination deposes, that from the year 1998 he is performing his duty and use to receive annual increment, and has also got one promotion. Before receiving the order, he did not know the then Director. He did not provide any money to the then MLA or Director Horticulture for securing the employment. PW-16 Mohd I-bal an SO after Ali an R.O. Chinkral Mohalla Habba Kadal Srinaar Gardener in Horticulture Department on 25.11.2009, deposed, that he is 9th pass and from the year 1998, he has been appointed as Gardener in Horticulture Department. He gave application for securing employment to the General Secretary of National Conference Mr. Nazir Ahmad who handed over appointment order to him. In this regard, he had not given any interview. For securing this employment, he did not give any money as bribe to any person. He gave application for securing employment to the General Secretary of National Conference Mr. Nazir Ahmad who handed over appointment order to him. In this regard, he had not given any interview. For securing this employment, he did not give any money as bribe to any person. In cross-examination deposes, that from that date he is performing his duty and is receiving the promotions. PW-17 Mohd Amin Bhat deposed that in the year 1998, he was appointed as Gardener in Horticulture Department. He gave application to his MLA Khawaja Ghulam Mohiddin Shah for employment, who appointed him and gave the employment. He is Matric pass and for securing employment he did not give any bribe money to anyone. In cross-examination, deposes, that Khawaja Ghulam Mohiddin Shah sahib he got the appointment order. From the year 1998, he is continuously performing his duty and use to receive annual increment. In these days, he is GCO and has got promotion. His service book has been prepared. PW-18 Abdul Hameed Mir deposed that in the year 1998, he has appointed as Gardener in Horticulture Department. He presented an application for employment to his concerned MLA Mr. Ghulam Mohiddin Shah. He is 12th pass. Thereafter, he received appointment from the Minister. He is not related to the Minister nor he gave any bribe money to him. In cross-examination deposes, that from the date of his appointment he is performing his duty and is getting promotions. PW-19 Abdul Majeed Rather deposed that in the year 1998 he was appointed as Gardener in Horticulture Department. He gave application for appointment to his Mohalla Committee and thereafter through Sheikh Nazir sahib General Secretary National Conference, he got appointment. For this employment he did not give any interview. In cross-examination deposes, that from that date he is performing his duty and his service record has been prepared. PW-20 Bashir Ahmad Mir deposed that in the year 1998, he was unemployed, and presented an application to his concerned MLA Shri Abdul Rahim Rather for employment. He was Matric pass, but had not filled any form for employment. Thereafter, Rather sahib gave him the appointment order. For this appointment, he neither gave any interview nor gave any written test. He did not give any bribe money to anyone. He was Matric pass, but had not filled any form for employment. Thereafter, Rather sahib gave him the appointment order. For this appointment, he neither gave any interview nor gave any written test. He did not give any bribe money to anyone. In cross-examination deposes, that 3/4 months after presenting the application before the concerned Minister, he got the appointment order which was handed over to him by Rather sahib at his residence. He is permanent employee and at present receives salary under rules. After his appointment, he had received the training. He is Class lV employee. PW. 21 Shabir Ahmad Shera deposed that in the year 1998, he was unemployed, and presented an application before his concerned MLA Mubarak Gul. He has received education upto 12th class. He received the appointment order thereafter from Sheikh Nazir Ahmad General Secretary (National Conference). He was appointed on the post of Gardener. For securing employment, he did not give any bribe money to anyone. Appointment order pertaining to him, which he saw in the court, bear the signature of Shri G.A. Dar, because in those days, Shri G.A. Dar was director, and from the huge official record, he identifies his signature. In cross-examination deposes, that he has received one promotion, and is performing his duty as Horticulture Technician. He continuously receives annual increment. PW-22 Mohd Amin Sheikh deposed that he is government employee and at present is working as Technician-iv in Lal Mandi Srinagar. In the year 1998, he was unemployed and through his Block President Ghulam Mohd Shah he presented an application. After sometime, Sheikh Nazir General Secretary (National Conference) gave him the appointment order as Gardener. He is Matric pass. He did not filled any form nor appeared in any interview for securing employment. In those days, Shri Dar sahib was Director. In lieu of this employment, he did not give bribe money to anyone. In cross-examination deposes, that order was handed over to him 'by Sheikh Nazir General Secretary National Conference. One year before this order, he had presented application. PW-23 Ali Mohd Hakeem deposed, that in the year 1998, he was unemployed and presented an application to his concerned MLA Mohd Syed Akhoon for employment. After sometime, MLA called him and handed over the appointment order, whereby, he was appointed as Gardener in Horticulture Department. One year before this order, he had presented application. PW-23 Ali Mohd Hakeem deposed, that in the year 1998, he was unemployed and presented an application to his concerned MLA Mohd Syed Akhoon for employment. After sometime, MLA called him and handed over the appointment order, whereby, he was appointed as Gardener in Horticulture Department. I For securing Government employment he did not fill any form for securing the present employment he did not give bribe money to anyone. In cross-examination. deposes, that after receiving the appointment order, he submitted his joining report in Chief Office Lal Mandi Srinagar, from where, he went for training in Zainapora and after receiving complete training, he again came in the office of Naqash sahib who at present is Chief Horticulture Officer. After this, he got his postings at different places. in Horticulture Department, he has not worked at any centre. He has no knowledge regarding the fire incident in Zainapora. regard to the present case, he has knowledge only to the extent that he had gone to Syed Akhoon sahib for employment, and after sometime, he was handed over the appointment order. PW-24 Bashir Ahmad Rather, deposed, that in the year 1998 he was unemployed. He went to MLA Rather sahib with an application. He is TDC pass. He did not appeared in any interview nor he filled any form. At that time, he did not know who was the director, however, later on he came to know that Director was G.A. Dar. In cross-examination deposes, that the application which he gave to MLA did not saw him in the court. This thing is true that appointment order was handed over to him by peon of Rather sahib at his home, and that order is lying at his home. He had joined in the office of Chief Horticulture Office and not before the accused. He has not worked with the accused. PW-25 Sucha Singh Gardener in Horticulture Department deposed that in the year 1997, he was unemployed and went to his concerned MLA Shri Khaleem alongwith an application for securing the job. He is Matric pass. He did not filled any form, and even did not gave any interview, however, through his MLA, he got appointment order by virtue of which he was appointed as Gardener in Horticulture Department. For securing this employment, he did not give any bribe money to anyone. He is Matric pass. He did not filled any form, and even did not gave any interview, however, through his MLA, he got appointment order by virtue of which he was appointed as Gardener in Horticulture Department. For securing this employment, he did not give any bribe money to anyone. PW-26 Ghulam Mohd Wani deposed, that he is posted as Gardener in Horticulture Department. In the year 1998, he was unemployed and presented an application to his MLA Shri Abdul Rahim Rather for securing Government job. He has received education upto 9th standard. For obtaining the job, he neither filled any form nor appeared in any interview. He did not give any bribe anyone. In cross-examination deposes, that he is permanent employee and annual increment use to be released in his favour. Appointment order was handed over to him by Rather sahib. PW-27 Altaf Ahmad IC Scientific Officer Document Division FSL Srinagar in examination-in-chief, deposes that he was posted as Incharge Scientific Officer FSL Srinagar. The documents pertaining to the case FIR No. 13/02 P/S VOK, were referred for examination by SSP VOK (SLK) vide his letter No. 6119/SSP/SLK/FJ dated: 10.10.2003. He was asked to conduct the examination of the admitted, and questioned signatures which were referred by the concerned investigating agency. These questioned and admitted documents were examined by him at FSL Srinagar with the help of scientific aids and after comparison of the questioned and the admitted documents he arrived at the conclusion that the person who wrote the admitted signatures marked AS-1 to AS-4. Three persons can give evidence regarding proof of these documents viz: the person in his presence the document has been executed, the author of a document or the qualified expert. The opinion of two experts will never differ, if the same set of questioned and the admitted documents will be sent to other expert. His opinion is not subject to change, if the same set of questioned and admitted documents are examined by other qualified experts. The signature executed is in the form of strokes. However, the strokes formed are being defined by him in his opinion. PW-28 Ghulam Hassan Bhat SSP SLK VOK deposed, that challan in regard to FIR No. 13/2002 P/S VOK, annexed with the file is under his handwriting. Challan along with the list of witnesses comprises of 6 leaves and on each leaf he has appended his signatures. However, the strokes formed are being defined by him in his opinion. PW-28 Ghulam Hassan Bhat SSP SLK VOK deposed, that challan in regard to FIR No. 13/2002 P/S VOK, annexed with the file is under his handwriting. Challan along with the list of witnesses comprises of 6 leaves and on each leaf he has appended his signatures. As per the charge sheet offences U/Ss 5 (1) 5 (d) r/w 5 (2) PC Act, against the accused as prima-facie found. Because, accused has retired from his service, therefore, government sanction for his prosecution was not needed. After final investigation, he put his signature on charge sheet. In cross-examination deposes, that he personally has not conducted the investigation of the case, and FIR was registered before he was SSP vigilance. Final investigation report was produced by the investigating officer before him. He did not see the final investigation report because that is not part of the challan. The final report which was prepared by the HO was thoroughly examined by him, where after challan was prepared. He has no knowledge that in the instant case whether the illegal appointments were made on the instructions/directions of concerned MLA or Ministers. He personally did not seize any application which could have contained the instructions/directions of Minister or MLA. During verification, he did not see any application, and in regard to the appointments, he did not see the personally files of the people who were illegally appointed. During verification of the investigation nothing came to his knowledge from which it could be inferred that accused was monetarily benefited. As the accused was class one officer, he does not know whether accused as class one officer was competent to appoint Class IV employees. He cannot sight any rule of CSR in this regard whereby accused has committed it's violation. PW-29 Qazi Parvaiz Ahmad inspector VOK now retired D.SP deposed that in the year 2002, he was posted as an Inspector in vigilance. On 17.04.2002, he was also posted in vigilance department. Initial and part investigation of FIR No. 13/2002 was conducted by him. This investigation was entrusted to the then SSP vigilance. As per the contents of FIR a complaint was received against Director Horticulture to the effect that in the ear 1997-98 Director Horticulture made illegal appointments in his Department. On 17.04.2002, he was also posted in vigilance department. Initial and part investigation of FIR No. 13/2002 was conducted by him. This investigation was entrusted to the then SSP vigilance. As per the contents of FIR a complaint was received against Director Horticulture to the effect that in the ear 1997-98 Director Horticulture made illegal appointments in his Department. During investigation he in presence of witnesses seized 121 appointment orders from Horticulture Department and prepared seizure memo to this effect on which he appended his signature its contents are true and correct and the seizure memo consist of 6 leaves which is already marked as Ext. P2. On the last page of this seizure memo, he has put his signature and identifies the same. Thereafter, he was transferred from vigilance department and investigation was entrusted to another officer Mr. Farhat. In cross-examination deposes, that he does not remember whether any separate order was issued to him for investigation. In addition to him, there were other inspectors posted in the vigilance department, however, he does not remember their names. He does not remember the date on which he was transferred from the vigilance department. During those days, Mr. Farhat was posted as inspector in vigilance department. In the case diaries, there is mention of this fact that the investigation of cased was handed over to Inspector Farhat by the verbal orders of SSP, however, the case diaries does not contain this fact that SSP vigilance had given written orders for handing over the investigation to Inspector Farhat. In vigilance department, he has conducted investigation of many cases. This thing is correct that appointments have been made on different dates in favour of different persons. He does not know whether for one illegal order one challan can be presented. At present, he cannot define Sections 5(1)(d) & 5(1)(c) of PC Act. 25. The cumulative effect of the evidence brought on record by the prosecution, therefore, does not prove any nexus between the appellant and the beneficiaries direct or otherwise. None of them is neither alleged nor proved to be of his relation, therefore, the charge against the appellant for having obtained pecuniary advantage for himself or for somebody else is just a feeble allegation which cannot stand the test of law. 26. None of them is neither alleged nor proved to be of his relation, therefore, the charge against the appellant for having obtained pecuniary advantage for himself or for somebody else is just a feeble allegation which cannot stand the test of law. 26. Since the prosecution did not allege of appellant being incompetent to make the alleged appointments or that the said appointments were made against the non-existing vacancies, therefore, the court feels it unnecessary to go into those aspects. However, it would be apt to mention that since neither the competence of the appellant is challenged nor the vacancies are stated to have been filled up against non-existing posts, therefore, the appellant could have, at the most been held to be involved in procedural irregularity which could have been ratified by regularizing the services of the beneficiaries who are otherwise also on rolls, getting all the service benefits. 27. None of the requirements envisaged for fixing a criminal liability against the appellant are fulfilled in this case and still the conviction is recorded against him. The trial court, very apparently, has landed in error while dealing with this case by fixing a criminal liability against the appellant when, as a matter of fact, there is not an iota of evidence to make appellant liable for such liability. 28. The overall scenario of the case manifestly makes it clear that the appellant has been wrongly proceeded against, implicated and convicted on wrong assumptions. In my considered view the procedural irregularity has mistakenly been taken as criminal misconduct which is not coming forth from anywhere. The appellant appears to have miserably been prejudiced firstly by the wrong prosecution launched against him and subsequently by the impugned judgment. 29. One does not understand as to how the trial court has come to the conclusion that criminal misconduct, in the present case, is made out against the appellant and how he distinguished the judgments cited by the defence counsel in support of their case. 30. There is no disagreement on the point that corruption has eaten the very vitals of our society and it needs to be dealt with iron hands; however, the courts of law need to take extra care while fastening the criminal liability to avoid wrong implication of an innocent. 31. 30. There is no disagreement on the point that corruption has eaten the very vitals of our society and it needs to be dealt with iron hands; however, the courts of law need to take extra care while fastening the criminal liability to avoid wrong implication of an innocent. 31. The whole prosecution case is shrouded in mystery confusion worst confounded, chain of links totally broken, therefore, on such type of evidence, I am not persuaded to hold that the accused is guilty. Learned trial court has wrongly drawn the conclusion de hors the available evidence. In my view, evidence has been totally mis-appreciated. Total doubtful position of the prosecution case, as narrated hereinabove, inspires confidence that the guilt against the accused is not proved. Thus, the judgment passed by the trial court is unsustainable. For the above stated doubtful situation, to hold the accused guilty is not warranted. 32. Appeal succeeds, judgment impugned is set aside. Accused-appellant is entitled to acquittal, so acquitted. Accused-appellant who is at large on bail is discharged of his bail bounds and surety bounds. 33. The trial court record along with the copy of the judgment be sent back to the trial court. 34. Vide order passed on 6.6.2013, this Court has suspended the sentence, however, the sentence of fine to the tune of rupees fifty thousand (Rs. 50,000/-) was not suspended. Accordingly, the accused-appellant was directed to deposit Rs. 50,000/- before Registrar Judicial of this Wing. As per the report of the Registry amount has been deposited on 10.06.2013. Receipt issued by the Nazir of this Court also placed on file. Registrar Judicial to release the amount of Rs. 50,000/- in favour of the accused-appellant on his identification by his learned counsel. 35. Disposed of.