Tassaduq Hussain Jilani, J.--Appellant Saleem Nazar, Ex-Food Grain Supervisor, Bahawalnagar was tried by the learned Judge Accountability Court No, 5, Lahore in Accountability Reference No, 29/2002 and vide the impugned judgment dated 10.7.2003 he was convicted under Section 10 of the National Accountability Bureau Ordinance, 1999, and sentenced to three years RI as also a fine of Rs, 50,00,000/- in default whereof he was further directed to undergo RI for one year. He was given benefit of Section 382-B Cr.P.C. Co-accused Akhtar Ali was declared Proclaimed Offender and convicted in terms of Section 31-A of the National Accountability Bureau Ordinance, 1999, and sentenced to three years RI including attachment of his property.
2. The prosecution case as given in the Reference and as reflected in the charge framed is that during the year 1997-98 the appellant, while posted as Food Grain Supervisor at PR Center Chabiyana, Food Department, Bahawalnagar, dishonestly and fraudulently misappropriated wheat and gunny bags in the manner as under:--
1. While posted as Food Grain Supervisor at PR Center Chabiyana, Tehsil & District Bahawalnagar in 1997-98 you stored wheat measuring 10,261.2 MT at PR Center Chabiyana as per entry in the Stock Register. At the time of clearance shortage of wheat 454.4 MT worth Rs, 41,82,152 was detected.
2. On 4.6.1998 while posted as Food Grain Supervisor PR Center Chabiyana District Bahawalnagar you despatched 84 MT of wheat from PR Centre Chabiyana to PR Centre No, 1 Gujranwala and in fact wheat weighing 66.43 MT was delivered at PR Centre No, 1 Gujranwala and in this way a shortage of 17.570 of wheat worth Rs, 1,61,708/- was found.
3. While posted as Food Grain Supervisor PR Center Chabiyana District Bahawalnagar in 1997-98 you were entrusted with 102616 "A-Class" gunny bags for storage of wheat and you declared 18157 bags as "D-class". According to inquiry report you were held responsible for loss of 10895 bags worth Rs, 2,72,375/-.
4. While posted as Food Grain Supervisor PR Center Chabiyana in 1997-98 during procurement you falsely declassified 8517 gunny bags worth Rs, 1,87,375/-.
5. You by committing corruption and corrupt practices misappropriated Rs, 48,03,610/- you are as a result thereof guilty of offences u/S. 9(1) (iii) and (iv) of NAB Ordinance 1999 punishable u/S. 10 of NAB Ordinance, 1999".
3. During trial, the prosecution examined Ahmad Khan, Senior Clerk (PW1), Shamshad Ahmad, Junior Clerk (PW2), Maqsood Ahmad, Junior Clerk (PW3), Muhammad Munir Chohan, Assistant Food Controller (PW4), Malik Zia Ahmad, then DFC (PW5), Muhammad Sarwar Saleem then AFC (PW6), Muhammad Hussain Khokhar, then DDFC (PW7), Nasir Javed Basra, then DDF (PW8), Muhammad Irfan Ellahi, then DDF (PW9), Amjad Bashir, Special Judicial Magistrate/Investigating Officer (PW10), Rana Zahid Sharif, then DFC (PW11) and Ch. Bashir Ahmad, Inspector ACE Lodhran/Investigating Officer (PW12). Documentary evidence, spreading over from Exh. PA to Exh.
PX/1-2, was also produced. The material documents, however, are i,e, Exh. PG/1-3 which is a recovery order of Authority regarding storage of wheat 454.400 tones, Exh. PH/1-5 is a repot by Inquiry Officer about shortage of wheat 454.400 Mt, Exh. PN/1-2 is an Inquiry Report by Inquiry Officer regarding 5200 "D-class" gunny bags scheme for the year 1997-98, Exh. P0/1-3 is also an Inquiry Report regarding 5200 "D-class" gunny bags at PR Centre Chabiyana in 1997-98, Exh. PP is yet another inquiry Report regarding 18157 wheat bags in 1997-98 PR Centre Chabiyana and Exh.
PQ/1-2 is another Inquiry Report regarding useless gunny bags 18157 in number PR Centre Chabiyana Scheme for the year 1987-88.
4. The accused/appellant when examined under Section 342 Cr.P.C. denied the prosecution story and stated that the wheat was not misappropriated; that the loss of wheat was attributable to long storage, non-lifting of the stock in time and the consequent heavy infestation. It was further submitted that the accused/appellant had been informing the District Food Controller through SI reports (36 in number) about the deteriorating conditions of the wheat stock at the Centre but despite that the same was not lifted. So far as the allegation with regard to the gunny bags was concerned, he submitted that "B-class" Bardana was purchased which deteriorated on account of flux of time. There was no allegation at any stage that those bags were either sold away by the appellant or they were substituted with the inferior quality bags. It was lastly submitted that there was no evidence of misappropriation; that the entire prosecution evidence including the inquiry Reports indicated that the appellant was guilty of negligence and not of criminal misappropriation for which he was awarded major penalty by the competent authority and even his pensionary benefits were forfeited. Besides relying on certain documents produce by the prosecution, the appellant produced more than 23 documents in defence.
4A. Learned counsel for the appellant in support of this appeal made following submissions:--
(i) That the presumption of guilt under Section 14(c) of the National Accountability Bureau Ordinance, 1999, arises only if the cases falls within the mischief of the said provision. The appellant having not been charged under the afore-referred provision, no presumption in law could be raised, the prosecution had to prove its case beyond reasonable doubt and the evidence against him has to be scrutinized in the light of the general principle relating to the appreciation of evidence as spelt out in the Qanun-e-Shahadat Order ;
(ii) That to prove Charge Nos, 3 and 4, the prosecution produced the Inquiry Report given by the Authorized Officer and the report of the authority which clearly show that there was no criminal intent on the part of the appellant; that it was a case of negligence and that even the Inquiry Officers had recommended remissions in the penalty;
(iii) That the Inquiry Officer appearing as PW4 not only in the Inquiry Report, held that the appellant was guilty of negligence but conceded so during the cross-examination. Negligence was neither an offence under the Pakistan Penal Code nor the National Accountability Bureau Ordinance, 1999, therefore, the appellant is guilty of no offence. Relied on Manzoor Ali vs. State (PLJ 1998 Crl. C.
Quetta 1463);
(iv) That the entrustment of the wheat and gunny bags is not denied but the loss occasioned on account of infestation and the depreciation of gunny bags could not be classified as misappropriation. The same was neither alleged nor any evidence was produced to prove it;
(v) That in his capacity as Centre Incharge, appellant had been sending SI reports to the District Food Controller to the effect that there was pest attack; that the prosecution itself produced 36 SI reports (Exh. PJ/1-36) which clearly indicated that the appellant had been consistently sending reports to the District Food Controller about the growing infestation but despite that no effort was made by the District Food Controller either to improve the storage conditions or to have the wheat lifted;
(vi) That having gone through the defence evidence, the learned trial Court itself in para 22 of the impugned judgment, while holding that the staff posted at the Food Grain Centre which included the appellant, was vigilant, observed that " the same may lead to an inference that concerned staff was vilgilent about their duty".
(vii) That in addition to SI reports (Exh. PJ/1-36) appellant had sent several letters to the District Food Controller, which were produced in Court as Exh. DG, DH, DC, DV, DJ, DR, DD, DL, DE and DX to show that the appellant had informed the District Food Controller about the state of affairs and the need for a prompt action;
(viii) That Exh. PC. is the report of the wheat in question after segregation and sieving process given by a team of the officials of the Food Department but there was no finding that any one had misappropriated the wheat. In the face of Exh. PC showing that the residue and the waste wheat was available, no presumption of misappropriation could be raised against the appellant. Reliance was placed on Muhammad Yaqoob vs. The State (1994 P.Cr.L.J. 1116);
(ix) That so far as prosecution case with regard to the gunny bags is concerned, in absence of any allegation that the original gunny bags were either removed, sold away or misappropriated, the appellant could not be held guilty merely because those had decreased in value on account of flux of time. As a matter of fact the bags which had been declassified were directed to be auctioned by the competent authority. The departmental authority, during inquiry imposed penalty upon him not for misappropriation but for negligence. The same inquiry report could not be used to hold the appellant criminally liable;
(x) That under the National Accountability Bureau Ordinance, 1999, only the willful failure to exercise authority is an offence but mere violation to exercise authority is not an offence in terms of Section 9(a) of the said Ordinance.
5. Mr. Waqar Hassan Mir, Deputy Prosecutor General NAB, while defending the impugned judgment, contended as under:--
(i) That the prosecution under the National Accountability Bureau Ordinance, 1999, has to prove its case to a reasonable extent and thereafter a presumption of guilt would arise against the accused in terms of Section 14(a) of the said Ordinance. According to him, the prosecution has successfully discharged the onus of initial burden and a presumption of guilt arises against the appellant which presumption the appellant has failed to rebut; (ii)That none of the documents produced by the prosecution in defence could be used by the appellant or read by this Court as the witnesses proving those documents had not been confronted with the documents in question. In support of the submission made, learned Law Officer referred to Article 140 of the Qanun-e-Shahadat Order; (iii)That PW 4 (Muhammad Munir Chohan) in his cross-examination has fully involved the appellant in the offence for which the stands convicted and it cannot be said that it is a case of no evidence;
(iv) That the appellant had purchased inferior quality of gunny bags and showed them as "A- Class" and thereby he is guilty of misappropriation;
(v) That the statement of the appellant was not recorded in his own language rather it was appellant's learned counsel who answered the questions on behalf of the appellant when his statement was being recorded under Section 342 Cr.P.C. In these circumstances he prayed that the case be remanded for recording the statement of the appellant.
6. We have heard learned counsel for the parties, have gone through the evidence and have given anxious consideration to the submissions made at the bar.
7. A presumption of guilt would arise against an accused being tried under the national Accountability Bureau Ordinance, 1999 only if the case falls within the mischief of Section 14 of the said law. The prosecution in the instant case had sought to build up a case against the appellant under Section 14(a) which provides as under:-- "14. Presumption against accused accepting illegal gratification.
(a) Wherein any trial of an offence under clauses (i), (ii), (iii) and (iv) of the sub-section (a) of Section (9), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person any gratification, other than legal remuneration, or any valuable thing, or any pecuniary advantage from a person or any agent of a person, for any favour shown or promised to be shown by the accused, it shall be presumed, unless the contrary is proved, that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing or pecuniary advantage for himself or some other person, as the case may be, as a motive or a reward such as is specified in Sections 161 to 163 of the Pakistan Penal Code, 1860 (Act XLV of 1860), or, as the case may be, without consideration, or for a consideration which he believed to be inadequate".
8. A bare reading of charge framed and the evidence led would indicate that the nature of allegations would not bring this case within the mischief of the afore-referred provision. Instead it was a case in which the prosecution had to prove its case beyond doubt to sustain conviction.
Broadly speaking, there were two sets of allegations against the appellant i,e, the shortage of wheat and the loss relatable to the gunny bags. The prosecution mainly relied on the evidence which consists of PW4 Muhammad Munir Chohan who was the Inquiry Officer and who found that there was loss of 454-40 tons for the scheme 1997-98. He recommended a remission of loss to the extent of 52 tons of wheat and 12% of 8517 gunny bags with regard to the importance of SI reports (Exh. PJ/1-36). This witness admitted that these reports were sent to the District Foods Controller apprising him of infestation of wheat stock and need for fumigation, which was got conducted. He further admitted about segregation and sieving process about the fact that he did not record statement of the concerned Chowkidar and that he did not give any finding that there was any loss or misappropriation. He added that:-- "..........The record consulted by me during the inquiry did not contain any letter censuring the accused or containing any warning to him or any other disciplinary action. Had the Food Department dispatched the wheat well in time the loss of wheat might have been loss to the minimum degree ..It is correct that inquiry was referred to me about 5200 gunny bags and nothing else........" PW5 is Malik Zia Ahmad, Ex-DFC, Bahawalnagar, who was Authorized Officer in the departmental proceedings against the appellant. In cross examination, he admitted as under:-- ".........There had not been given any show-cause notice to the accused about their negligence regarding the unnecessary storage of the wheat before the inquiry proceedings. In my opinion the loss under consideration took place due to the negligence of the accused and I had given my findings in my report accordingly I had seen the S- 01 for Scheme 1997-98 as the same had been submitted by the accused alongwith their explanations. The accused had stated in S-01 for the month of January 1999 that the stock was infested. According to the departmental rules S-01 should be submitted fortnightly. I do not remember whether DFC had forwarded the S-01 submitted by the accused to the Deputy Director Food. ..........During my findings I had gone through the inspection notes of different officers of Food Department and AC Minchanabad. All these inspection notes a mention of infestation of wheat had been made. I had seen the last copy of GP-05 while recording my findings. I do not remember the date of this GP-05. In GP-05 there is also a column of shortage. I had given 12% concession in this regard to the accused. I gave this concession keeping in view various factors such as open storage, rains etc. 12% concession is given on the basis of the last layer of wheat bags in the storage and it is well calculated and not presumptive........... PW6 is Muhammad Sarwar Saleem AFC, Fort Abbas who conducted the inquiry with regard to gunny bags. In the examination-in-chief he stated as under:-- "........According to my findings 12300 gunny bags could be declassified. The remaining 5857 were declassified due to the negligence. My report is Exh. PP/1-2 and it bears my signatures....... In cross-examination, he admitted as under:- "........During inquiry I had inspected these gunny bags. When I had seen these gunny bags these were deteriorated. The rebate percentage to the accused comes from 20 to 28%. The rebate was justified due to rains, damp and water logging etc. Due to the reasons given the remaining gunny bags can also be damaged. I do not know whether any show-cause notice had been given to the accused for their negligence previous to the charge sheet. The officers of the department already knew the condition of gunny bags........" PW7 is Muhammad Hussain Khokhar, Assistant Director, Food, Food Directorate Punjab, Lahore. He was the Authority who imposed the penalty pursuant to the inquiry report. In cross-exa ination, he admitted in the following words:-- "..........Mr. Manzoor Hussain Bajwa was Deputy Director Food at that time and had remarked that no damage to gunny bags and other commodities had been caused at the Centre being controlled by the accused. He observed in these words. The Centre Incharge declared 12MT damage wheat pertaining to Scheme Year 1997-98. No damaged wheat is available at the Centre. Mr. Manzoor Hussain Bajwa submitted his inspection report on 17.8.1999 to Additional Director Food. The survey report is prepared by the concerned Centre staff........
PW 11 is Rana Zahid Sharif, Deputy District Officer (Revenue), Narowal. He conducted inquiry with regard to 18157 gunny bags for the Scheme 1997-98 PR Centre Chabiyana. During cross- examination, he admitted as under:-- "........According to the record the 'B-Class' gunny bags had been shown as 'D-Class' after lapse of some time. According to record the justification on behalf of the accused for this change had been given. It indicated that class got changed due to rains and salinity of the soil. I did not verify myself the factum of change in the class of gunny bags. An officer of the rank of AFC is deputed usually to verify the reasons for change of class........"
8. The appellant, after the inquiry, was awarded major penalty of dismissal from service and forfeiture of his pensionary benefits with a view to recover the losses. The order passed, it is not denied, has attained finality as the appellant's appeal before the Services Tribunal stands dismissed. Admittedly, no Inquiry Officer recommended registration of a criminal case against the appellant and it was held to be a case of negligence. From an analysis of the prosecution evidence following inferences can be deduced:--
(i) That the wheat shortage came to light after the segregation and sieving process. This occurred on account of infestation;
(ii) Admittedly, the segregation and sieving of the wheat stocked was carried out by an official team and there was no finding that any Wheat was misappropriated by the appellant.
(iii) That the appellant had been sending SI reports to the District Food Controller about the deteriorating conditions of the wheat stock, about infestation, about the need for fumigation and about its early lifting. There are 36 SI reports;
(iv) That the appellant had no authority to have the wheat stock lifted. It is admitted that if the wheat had been lifted in time, the loss would have been minimum;
(v) That there is no evidence that the appellant purchased low quality of gunny bags and showed them as of higher quality;
(vi) That there is no allegation that the appellant had sold gunny bags in market or substituted better quality of bags with inferior quality. It is conceded by some prosecution witnesses that some gunny bags were damaged on account of the weather conditions;
(vii) That according to the remarks of the then Deputy Director Food Manzoor Hussain Bajwt there was no damage to the gunny bags and other commodities at the Centre being controlled by the appellant/accused; Besides the afore-referred inferences drawn up from the prosecution evidence, the evidence led by the appellant in defence has also an important bearing and are supportive of defence plea. The appellant placed on record Exh. DB which is a letter addressed to the District Food Controller requesting that the requisite tablets for fumigation be sanctioned. Exh. DC is the sanction order indicating that instead of 4260 tablets oily 2158 tablets were sanctioned for fumigation Exh. DD is a letter dated 22.10.1998 which was addressed to the District Food Controller requesting tor fumigation. This request was repeated through Exh. DE dated 8.11.1998. Exh. DG is a letter addressed to the District Food Controller that the wheat stock had been badly infested. Exh. DH is again a letter addressed to the District Food Controller to the same effect. Exh. DM is an order of the then Deputy District Food dated 15.4.1990 to the effect that "..The inquiry team recommended that the entire loss may be written off on the following grounds:-
(i) The Major portion of the wheat stocks remained in open storage in shape of ganjies and on account of torrential rains the wheat stocks were damaged.
(ii) Every effort was made by the accused official to protect the wheat stocks by arranging fumigation of malathien to the wheat stocks, but on account of prolong storage the infestation caught havoc to the wheat stocks.
Appellant had been writing to the District Food Controller for making arrangements to improve the storage condition and to lift the wheat but no action was taken. The wheat stock was not promptly lifted but despite that no other official, under the rules, responsible to ensure in time lifting, were associated with the probe. The entire burden fell on the poor appellant who lost his job and the pensionary benefits as well. He has already been punished in the departmental proceedings.
8. Mens rea is an essential element in an offence under consideration. There is neither any criminal intent alleged nor reflected in the evidence led. A critical examination of the evidence led by the prosecution and defence would show that the prosecution has failed to prove the case beyond reasonable doubt. In the afore-referred circumstances, Crl.
Appeal No, 1981/2003 (Saleem Nazar son of Nazar Muhammad vs. The State) is allowed, the impugned judgment dated 10.7.2003 passed by Sardar Ghulam Abbas Khan, Judge Accountability Court No, 5 Lahore (in AC Reference No, 29/2002) in so far as it convicts the appellant is set-aside, he is acquitted from the charge and shall be released if not detained in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.