Abdul Hameed Dogar, J.--By this judgment, we propose to dispose of Criminal Appeals Nos, 404 and 405 of 2003 as they arise out of a common judgment dated 18.8.2003 passed by a learned Division Bench of Balochistan High Court, Quetta, whereby Criminal Ehtesab Appeals Nos, 14 and 15 of 2002 filed by the appellants were dismissed and the conviction and sentence awarded by the Accountability Court No, 2, Balochistan, Quetta were maintained.
2. The facts leading to the filing of the instant appeals are that National Accountability Bureau filed Reference No, 8/02 before the Accountability Court No, 2 Balochistan, Queta against the appellants under Section 18(g) read with Section 24 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the Ordinance") alleging therein that during the year 1997-1998 both the appellants while posted as Director General and Director Finance, Social Action Programme Balochistan, Quetta, (hereinafter referred to as "SAP") respectively indulged in corruption and corrupt practices and misappropriated a sum of Rs, 1,98,53,682/-(rupees one crore ninety eight lacs fifty three thousand six hundred and eighty two only) by drawing the said amount on fake and forged bills and misusing their authority.
3. On receipt of reference, the Accountability Court framed the following charge against appellants:-- That they while posted as Director General and Director Finance, SAP respectively were entrusted with funds amounting to Rs, 3,28,15,000/- for different purchases under SAP during year 1997-1998.
On physical checking/verification of the documents it was found that available machinery and equipments were not according to the documents. Fake bills were prepared for drawl of the amount and it transpired that both of them dishonestly and fraudulently misappropriated a sum of Rs, 1,98,53,682/- which was entrusted and under their control, thus misused the authority and caused loss of Rs, 1,98,53,682/- to the Government held guilty of the offence of corruption and corrupt practices as defined u/S. 9 (iii) and (iv) punishable u/S. 10 read with Sections 11 and 12 of the Ordinance.
4. Prosecution in order to establish its case examined 38 witnesses in all.
5. Appellant Nahad Pervaiz in his statement under Section 342 Cr.P.C. admitted that he was Director General SAP during the period from 17.1.1998 to 6.7.1998 and 18.8.1998 to 18.9.1998, and that an amount of Rs, 3,28,15,000/- was entrusted to him and that appellant Ishrat Ali Khan was Director Finance. He also admitted that he was over all Incharge of the affairs of SAP with the powers of Drawing and Disbursing Officer. According to him, all cheques were prepared by Appellant Ishrat Ali Khan and he under bona fide belief used to sign the cheques and the documents according to the practice. According to him, the local shares was reduced from Rs, 300,000/- to Rs, 200,000/- but documents of reduction were not on record and he had no knowledge about the same and thus only charge against him was that of incompetency and negligency. He also examined himself on oath as required under Section 340(2) Cr.P.C. wherein he in unequivocal terms admitted that he was posted as Director General SAP and was Incharge of Public Health Engineering Department, Education Department and Health Department. He used to grant supply order of different equipments and for its payment Appellant Ishrat Ali Khan used to submit delivery challan, bills and filled up cheques. It was Appellant Isharat Ali Khan himself who handed over cheques to the different companies/suppliers. About 20 appointments on work charge basis, he admitted that he issued orders in respect of nine appointment letters only. However, he did not produce any witness in his defence.
6. Appellant Ishrat Ali Khan in his statement under Section 342 Cr.P.C. admitted that he was Director Finance SAP but denied the other allegations. He did not opt to give statement on oath but examined Syed Ikrar Hussain (DW.1), Muhammad Aziz (DW.2), Zahir Shah (DW.3), Tabassum Ahmed (DW.4) & Lal Shah (DW.5) in defence.
7. On conclusion of trial both of them were found guilty under Section 9(a) (iii) & (v) of the Ordinance and were convicted and sentenced as under:-- NAHAD PERVAIZ.
Under Section 10 read with 11 & 12 of the Ordinance, two years R.I and fine of Rs, 50,00,000/-, the assets/properties of appellant were forfeited as set off against the amount of fine. However, in case of non-recovery/non-payment of the amount/fine, appellant should under go further term of one year R.I.
ISHRAT ALI KHAN Under Section 10 read with 11 & 12 of the Ordinance five years R.I. and fine of Rs, 1,50,00,000/-, the assets/properties of appellant were forfeited as set off against the amount of fine, however, in case of non-recovery/non-payment of the amount/fine appellant should undergo further term of three years R.I.
However, benefit of Section 382-B Cr.P.C. was extended to them.
They were also disqualified for ten years to hold any public office or contest election and were also not allowed to apply for or allow any financial facility in term of loan or advance from any Bank or financial institution for a period of ten years.
8. Feeling aggrieved, the appellants filed the aforesaid appeals before the High Court of Balochistan, Quetta, which were dismissed vide judgment impugned.
9. The appellants feeling still dissatisfied assailed the impugned judgment in Criminal Petitions Nos, 383 and 393 of 2003 before this Court in which leave to appeal was granted on 9.12.2003 to re- consider the entire matter.
10.We have heard M/s. Wasim Sajjad, learned Sr. ASC, Muhammad Akram Sheikh, learned Sr. ASC on behalf of appellants and Syed Jaffar Hashmi, learned ASC for NAB and have gone through the record and proceedings of the case in minute particulars.
11.Mi Wasim Sajjad, learned Sr. ASC for appellant Nahad Pervaiz contended that appellant is not directly involved in the embezzlement because when he joined SAP as Director General, the project was already in progress. He actually performed his duties for six months only whereas PC-I was approved prior to his appointment on the basis of which tenders were invited, as such, he had nothing to do with the allegations. Through Appellant Nahad Pervaiz. Director General was overall Incharge of the department but he only signed the cheques on the basis of bills, Vouchers presented to him by co appellant Ishrat Ali Khan which fact has been confirmed by PW-33 Jalil Minhas in his statement before the trial Court that the main responsibility for maintaining account, preparing bills and checking stock Registers etc. was of Appellant Ishrat Ali Khan. Learned counsel further contended that not even a single prosecution witness has deposed about the direct involvement of appellant in the case and it has not been established on record that he made money in the project by exercising corrupt practices. It may be a case of negligence only against the appellant for which he has been sufficiently punished and his services have been terminated.
He vehemently urged that the NAB authorities during investigation have not been able to unearth anything on record about his personal gain or assets made by him from the misappropriation of the above said amount. So much so even the verification report, about the utilization/installation of the articles said to have been purchased out of the above-mentioned amount, was not done by NAB during investigation. According to him, the case against Appellant Nahad Pervaiz does not fall within the ambit of section 9 of the Ordinance, as such, his conviction and sentence is not sustainable in the eye of law and the Courts below were not justified in convicting and sentencing the appellant. In support of his contentions, he relied upon the cases of M. Anwar Saifullah Khan v.
The State (PLD 2002 Lahore 445), Maj. (Retd.) Tariq Javed Afridi v. The State (PLD 2002 Lahore 233) & Mir Munawar Ali Talpur v. State (PLD 2003 SC 46).
12.Mr. Muhammad Akram Sheikh, learned Sr. ASC while arguing on behalf of Appellant Ishrat Ali Khan, attempted to shift the entire burden upon the shoulders of Appellant Nahad Pervez as according to him, he being head of department was supposed to check all the accounts, stock Registers as well as to make purchases of equipments etc. According to him, Drawing and Disbursing powers were vested in him and Appellant Ishrat Ali Khan had nothing to do with such powers and was only responsible for maintaining accounts and making payments regarding the purchases after due approval of Appellant Nahad Pervaiz, Director General. He vehemently contended that Appellant Nahad Pervaiz has candidly admitted in his statements, recorded under Section 342 Cr.P.C. as well as under Section 340(2) Cr.P.C. on oath, that he had signed the cheques but did not check the stock Registers which was his responsibility, as such, deficiency if any, was found in the stock Register or any amount was misappropriated on the basis of cheques issued by him, Appellant Ishrat Ali Khan could not be held responsible for the same. He emphasized that in fact his client has been made 'escape goat' whereas the main culprits in the case have not been made accused. According to him, the prosecution in this case adopted the policy of pick and choose and has not conducted the investigation in transparent manner. He referred the example of PW-6 Ejaz Haider who while deposing stated before the trial Court, that the forged entries were made by him in cash books, stock registers and bills, though not employed in SAP but was in fact an employee of Directorate General Local Government Rural Area Development, Balochistan Quetta. Even PW-23 Dr. Akhtar Hameed, the owner of Friends and Company, Samungali Road, Quetta was involved in the matter as according to his own statement, he had business contacts with SAP. Learned counsel vehemently argued that a serious prejudice was caused to Appellant Ishrat Ali Khan as he was not allowed to engage counsel and was not afforded an opportunity to cross-examine the first five prosecution witnesses. Even the request for summoning the witnesses and appointment handwriting expert was also denied to him. Appellant Nahad Pervaiz had made the divergent statements before three different forums i,e, Investigating Agency, Disciplinary Committee and the Court which fact also goes in favour of Appellant Ishrat Ali Khan. He further contended that even his client has been discriminated in awarding the sentence though his case is at part with that of Appellant Nahad Pervaiz who is sentenced to lesser punishment, which is against the rule of consistency and norms of justice. He lastly contended that the material exonerating the appellant has been withheld deliberately. The prosecution has failed to prove the case by not producing the documentary evidence consisting of PC-1 during the trial. It has even failed to verify as to whether the material was utilized, and the equipments were installed or not by the Investigating Agency. In support of his contentions he referred judgment of this Court passed in the case of Government of Sindh and others u. Raeesa Farooq and others (1994 SCMR 1283).
13. On the other hand, Syed Jaffar Hashmi, learned ASC for NAB vehemently controverted the above contentions and argued that the case against appellants is not of a mere negligence in performing the duties, but is that of intentional, criminal and deliberate negligence. According to him, the prosecution has established on record that the appellants purchased Computers etc. made illegal employment, issued open cheques and prepared forged documents and caused a loss of Rs, 1,98,53,682/- to the Government exchequer. Since the bogus vouchers, bills and fake cheques were prepared and kept on record in proof of the purchase and installation of computers and other articles, as such its verification was not made. In the cases arising out of NAB Ordinance, though initial burden to prove the case lies upon the prosecution but once a prima facie case has been made out, then the same shifts upon the accused to prove innocence.
14. Admittedly, Appellant Nahad Pervaiz was Director General SAP and was Drawing and Disbursing Officer also. Thus in that capacity, he was the Principal Accounting Officer for disbursing of funds regarding approved PC-1. Appellant Ishrat Ali Khan being Director Finance, his role was of very vital importance. He acted as Secretary of Purchase Committee and was bound to maintain the Account Books with all particulars. From the very start of trial, both the appellants have been shifting their burden on each other. The admission made by Appellant Nahad Pervaiz in his statement recorded under Sections 342 and 340(2) Cr.P.C. before the trial Court, cannot be ignored and is sufficient to award conviction. According to him, he at the relevant time, was posted as Director General SAP and was overall Incharge of accounts of SAP as Drawing and Disbursing Officer and an amount of Rs, 3,28,15,000/- was entrusted to him. As Director General SAP, he was Incharge of Public Health Engineering Department, Education Department and Health Department.
He used to grant supply orders of different equipments and for its payment Appellant Ishrat Ali Khan used to submit delivery challans and filled up cheques which he used to sign under bona fide belief as per practice. About appointments, he admitted that he had made nine appointments only, whereas the others were made by co-.appellant Ishrat Ali Khan.
15.On the other side, the prosecution has adduced sufficient evidence regarding misappropriation of embezzlement of Rs, 3,28,15,0000/-allocated to SAP. On this aspect, the prosecution examined PW-18 Muhammad Naeem, Proprietor of Computer Link who stated that neither Computers nor any other equipment were supplied by his firm to SAP and also denied to have submitted bill Ex. P/1-A-8 to SAP, according to which different items worth of Rs, 14,70,000/- were supplied by his firm to SAP and said amount was drawn though open Cheque No, 089044.
According to PW-34 Farzand Ali, the report of hand writing expert was produced as Ex. P/2-G-2 to Ex. P/22-G-4. The specimen of handwriting of appellant Ishrat Ali Khan Ex. P/1-A-8 tallied with the report of handwriting expert. This shows that the bill was forged by Appellant Ishrat Ali Khan and on the basis of which an amount of Rs, 14,70,000/- was drawn and embezzled. Similarly, PW-20 Nazeer Durrani, General Manager of Megatouch, deposed that his firm had not supplied any article or equipment to SAP and also denied to have issued supply vouchers Ex. P/1-A-90, Ex. P.1-A-91, Ex. P/1- A-94, Ex. P/1-A-98, Ex. P/1-A-101, Ex. P/1-A-104, Ex. PR-A-105, Ex. PR-A-108 and Ex. P/1-A-109 on the basis of which an amount of Rs, 5,68,288/-was drawn and shown to have been disbursed.
According to PW-21 Ghulam Qamar, his firm M/s Qamar and Company was awarded work of paint for four rooms of SAP and in lieu thereof an amount of Rs, 2,10,000/- was received, however, he denied to have issued bills Ex. PR-A-157 to Ex. PR-A-176 or has received any amount on the basis of above mentioned bills. The record shows that an amount of Rs, 10,67,880/- was drawn for repair and furnishing of offices in the name of Qamar and company. An amount of Rs, 11,64,650/- was shown to have been paid to M/S Friends and Company on account of supply of furniture and fixtures supplied through vouchers Ex. PR-A-119 to Ex. P/1-A-135 and Ex. P/1-A-138 but PW-23 who is proprietor of the firm has denied to have issued the above said vouchers or has supplied any article to SAP and received amount thereof. The report of handwriting expert shows that these vouchers i,e, Ex. PR-A-119 to Ex. P/1-A-135 and Ex. P/1-A-138 were filled by Appellant Ishrat Ali Khan and completion certificate Ex. P/1-A-118 as also issued by him. Similarly a sum of Rs, 26,783/- was drawn in the name of Balochistan Paper and Stationery, M.A. Jinnah Road, Quetta, on the basis of vouchers Ex. P/1-A-187 and Ex. P/1-A188 but PW-24 Muhammad Irfan Khan Proprietor of the said shop, in his deposition denied, any supply to SAP or having received the above mentioned amount.
He also denied to have issued vouchers Ex. P/1-A-187 and Ex. P/1-A-188 in favour of SAP. PW-34 Farzand Ali found the writing of these vouchers in the handwriting of Appellant Ishrat Ali Khan.
Besides it has also come on record through the deposition of PW-19 Idrees Parekh, that his firm supplied 51 Computers along with accessories to SAP which were received by Appellant Ishrat Ali Khan. He in this regard produced copies of delivery challans Ex. P/2-F-1 and Ex. P/2-F-2 but the original of the same have not been found in the record of SAP instead it has been shown that the firm of PW-19 supplied four and six Philips Computers alongwith accessories through Ex. P/1-A-23 and Ex. P/1-A-24, the issuance of which is denied by PW-19. Again according to report of handwriting expert the contents of these vouchers were in the handwriting of Appellant Ishrat Ali Khan. He also issued completion certificate Ex. P/1-A-26 certifying that the firm of PW-19 had supplied six computers. Similarly 21 photo-copies were supplied by Unique Office Equipment, Quetta and according to its Manager PW-23 Tahir Muhammad these were handed over to Appellant Ishrat Ali Khan through delivery challans, copies whereof have been produced as Ex. P/2- A-1 and Ex. P/2-A-2. However, the witness has denied of having issued delivery challans Ex. P/1-A- 378 to Ex. P/1-A-382. Same is the position regarding supply of 29 Air-conditioners, which according to PW-26 Syed Shariq Raza were supplied by his firm, namely 'Quick Marketing Service' and handed over to Appellant Ishrat Ali Khan vide delivery challan Ex. P/1-A-373, original of which is not available in official record of SAP and instead it has been shown that the Air Conditioners have been supplied to different departments by the firm vide delivery challans Ex. P/1-A-362 to Ex. P/1-A-371, the issuance of which is denied by the witness.
19.It is noteworthy that according to practice and procedure of the department, the firms were required to deliver the equipments and articles directly to the concerned departments and then submit delivery challans to SAP for drawing the amount of supplied articles. As Computers, Photo Copiers and Air-Conditioners were directly received by Appellant Ishrat Ali Khan instead of directing the firms to deliver the same to the concerned departments, therefore, the original delivery challans were taken out of the record and forged and fake challans were placed on record to show that above mentioned articles were supplied to the concerned departments, most of which were, in fact, not supplied to the departments as is evident from the statement of PW-13 Ghulam Mohi-ud-Din, Chief Ecommist P&D department who was deputed for physical verification and checking of the different items stated to have been supplied to different departments through SAP. According to his statement only 21 Computers were supplied as against 51 shown to have been supplied, whereas only 11 Air Conditioners were found available instead of 29 Air Conditioners, which were supplied by the firm of PW-26. Likewise out of 21 photo-copiers only 14 were found available in the concerned departments. As it has come on record from the statements of PWs that 51 Computers, 29 Air Conditioners and 21 Photo Copier were handed over to Appellant Ishrat Ali Khan and on physical checking 30 Computers alongwith accessories, 7 photo copier and 18 Air Conditioners were found short, it was for Appellant Ishrat Ali Khan to have accounted for the shortage but he failed to give any reasonable explanation in this regard. It has also come on record that the forged bills, vouchers and delivery challans showing supply of above-mentioned equipments to different departments have been used for withdrawing the amount which brings us to irresistible conclusion that the above-mentioned computers, Air Conditioners and photo- copiers, have been misappropriated.
20.From the evidence of PW-6 Ejaz Haider, Assistant Directorate General Local Government Rural Development, Balochistan, Quetta, it is established that the entries in the relevant record were made by this witness on the basis of bills and other record provided to him by Appellant Ishrat Ali Khan and he also identified his handwriting on the stock registers, cash books etc. 21.On the aspect of fake employment, the prosecution examined PW-7 Muhammad Nawab Khan, PW-8 Zubair Ahmed, PW-9 Gul Hameed Khan, PW-10 Muhammad Naeem, PW-24 Muhammad Irfan Khan, PW-15 Muhammad Iqbal, PW-31 Zahid Pervez, PW-32 Sultan Muhammad and PW-35 Faizullah, who categorically stated that they were neither employed nor received any salary. Their statements were unchallenged and they were not cross-examined. As per Ex. P/1-A-189 to Exp/1-A- 211, a sum of 1 Rs, 4,16,575/- was drawn on account of salaries shown to have been paid to the above mentioned witnesses, the receipt whereof has been denied by them.
Both the appellants did not produce any documentary or ocular evidence to rebut the above assertions. Thus, it stood established on record that an amount of Rs, 4,16,575/- was drawn on the basis of payment made in lieu of the forged appointments of above said persons. Irrespective of what has been stated above, the fact that Appellant Nahad Pervaiz made fake and forged nine appointments against which sufficient amount of salaries was drawn, is sufficient to maintain the conviction and sentence recorded by Courts below against him.
22.Irrespective of the above discussion even DW-4 Tabassam Ahmed, Research Officer SAP produced by Appellant Ishrat Ali Khan in his statement before trial Court has said that Appellant Ishrat Ali Khan used to bring cheques from the office of Accountant General for encashment from State Bank. He after getting the same encashed, used to hand over the amount to Appellant Ishrat Ali Khan.
23.The case law referred above are on different facts and circumstances and has got no bearing with the case of the appellants.
24. From the above discussion, we are of the considered opinion that the prosecution has been able to prove that appellants in connivance with each other, have not only misappropriated/embezzled the amount of Rs, 1,98,53,682/- (Rupees one crore ninety eight lacs fifty three thousand six hundred and eighty two) but also made fictitious and fake appointments of 20 employees and embezzled their salaries. Thus were rightly convicted and sentenced.
25.Finding no exception with the impugned judgment, the same is maintained and both the appeals being devoid of force are dismissed.