' ABDUL HAMEED DOGAR, J.---By this common judgment, we propose to dispose of Criminal Petition No,242 of 2003 filed by petitioner Agha Wazir Abbas and Criminal Petitions Nos.56-K to 59-K of 2003 filed by State, as they arise out of judgment dated 29-5-2003 passed by a learned Division Bench of High Court of Sindh, Karachi in Accountability Appeals Nos. 52 to 57 of 2002 whereby appeal of petitioner Agha Wazir Abbas was dismissed whereas appeals of respondents, namely, Kaka Kishan Chand, Raj Kumar, Asher Jan and Isma il Rahu were allowed and were acquitted of the charges.
2. Relevant facts for the disposal of the instant petitions are that Chairman, National Accountability Bureau (hereinafter referred to as 'the NAB'), received information that in the year, 1997 and 1998 a huge evasion of excise duty and other levies in the import of wine from M/s Murree Brewery Limited, Rawalpindi took place in the Excise and Taxation Department, Government of Sindh, therefore, he entrusted the matter to FIA for probe. On receipt of the report Chairman NAB filed Reference No,10 of 2001 under sections 9/10 of the National Accountability Ordinance, 1999 (hereinafter referred to as 'the Ordinance') against Iqbal Solangi, DG Excise and Taxation Department, Majid Pathan, Director Excise and Taxation Department, Niaz Balouch, Excise and Taxation Officer, petitioner-Agha Wazir Abbas, Assistant Excise and Taxation Officer, respondent-Kaka Kishan Chand, Proprietor Kohistan Wine Merchant, Karachi, respondent-Raja Kumar, Manager, Kohistan Wine Merchant Shop, Karachi, Mehrumal Jagwani, Ex. MPA, Proprietor of United Wine Merchant, Karachi, Bhagwandas, Accountant/Attorney of United Wine Merchant, respondent-Asher Jan, Manager Murree Brewery Ltd., Rawalpindi and respondent-Ismail Rahu, Ex-Minister Excise and Taxation Department, Government of Sindh in the Accountability Court No,II, Karachi. Petitioner-Agha Wazir Abbas and respondents namely Kaka Kishan Chand, Raj Kumar, Asher Jan and Ismail Rahu were sent up to face trial whereas the remaining accused were declared proclaimed offenders under sections 87/88, Cr.P.C., and were proceeded against in absentia under section 512 Cr.P.0 and 31-A of the Ordinance. It was alleged in the Reference that petitioner-Agha Wazir Abbas, and proclaimed offenders namely Iqbal Solangi, Majeed Pathan and Niaz Baloch while posted in Excise and Taxation Department had developed direct or indirect control in dealing with the vend fee and other relevant matters of Excise Duty/Cess, which included, issuance of liquor (wine) licence and they with active abetment and assistance of all the remaining accused prepared 33 fake/forged import permits from M/s Murree Brewary Ltd. Rawalpindi and caused a loss of Rs,66 million to the public exchequer for their illegal motive. The allegation against acquitted accused Kaka Kishan Chand was that at the relevant time he was running business in the name of M/s Kohistan Wine Merchant in Karachi, whereas acquitted accused Raj Kumar was his Manager and was dealing in the illegal deals on his behalf in his absence. As regards respondent Asher Jan he was said to be Manager Sales in M/s. Murree Brewery, Rawalpindi where the fake licences and Import Permits were used to be deposited for export of wine. He also delivered liquor through 33 fake permits to absconding accused Mehrumal Jhagwani and Bhagwandas. Thus they all committed an offence of corruption and corrupt practices as contemplated under sections 9 and 10 of the Ordinance.
3. In order to establish its case, the prosecution examined (12) witnesses in all.
4. Petitioner and respondents in their respective statements recorded under section 342 Cr.P.0 denied the allegations of the prosecution and pleaded not guilty. However, they neither examined themselves on oath as required under section 340(2) Cr.P.0 nor led any evidence in defence.
5. On the conclusion of trial, petitioner and respondents w re found guilty of the offence and were convicted and sentenced is under: ' Petitioner Agha Wazir Abbas and respondents, namely, Raj Kumar, Ismail Rahu, Asher Jan and Kaka Kishan Chand were convicted under section 10 of the Ordinance, and sentenced to suffer R.I.
For 7 years each with fine of Rs,200,00,000 each or in default whereof to suffer S.I. For three years with benefit of section 382-B Cr.P.C. They were also disqualified for a period of ten years to be reckoned from the date of their release after serving their sentence, for seeking or from being elected, chosen, appointed or nominated as a Member or Representative of any public body or statutory or local authority of Pakistan or of any Province.
6. All of them filed appeals against their conviction and sentence which were decided vide impugned judgment as mentioned above.
7. We have heard Mr. Aitzaz Ahsan, learned Senior Advocate Supreme Court for petitioner Agha Wazir Abbas, respondents, namely, Raj Kumar and Kaka Kishan Chand, Mr. Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court for respondent Ismail Rahu and Mr. Kamal-ud-Din Azfar, learned Senior Advocate Supreme Court on behalf of respondent Asher Jan whereas Mr. Ahmad Raza Khasuri, learned Sr. Advocate Supreme Court on behalf of State at length and have gone through the record and the proceedings of the case in minute particulars.
8. Mr. Aitzaz Ahsan, learned Senior Advocate Supreme Court for petitioner Agha Wazir Abbas contended that the case of petitioner is at par with that of respondents Raja Kumar, Ismail Rahu, Kaka Kishan Chand and Asher Jan who have been acquitted on the same evidence. According to him alleged 33 fake/forged Import Permits were not issued by petitioner as blank forms of the Import Permits were available with the licensees who used to fill in the same and it was they who had forged the said documents. The report of Handwriting Expert has got no value in the eye of law as Handwriting Expert who is said to have issued the same, was not examined at trial, as such, the same cannot be brought on record under section 510 Cr.P.C. It is only Chemical Examiner, Serologist, Fingerprint Expert or Fire-arms Expert appointed by Government who figure in section 510 Cr.P.0 whereas there is no provision of Handwriting Expert therein. Learned counsel went on to argue that evidence of P.W.2 Abdul Rashid who is said to have identified the signature of petitioner too is not relevant as he is neither Handwriting Expert nor has shown any convincing reason for the same. He further contended that since the above incriminating piece of evidence was not put to petitioner in his statement under section 342 Cr.P.C, therefore, the same cannot be made basis for his conviction. He lastly contended that the case of prosecution that petitioner used to get bribe of Rs,500, 000 for each fake permit does not attract to be true to a prudent mind as the duty paid against each permit was Rs,400, 000.
9. As regards respondents Raja Kumar and Kaka Kishan Chand, Mr. Aitzaz Ahsan, learned Senior Advocate Supreme Court vehemently urged that the reasoning of acquittal advanced by learned High Court is unexceptional and do not warrant interference. He contended that no fake permit was issued in favor of Kohistan Wine Shop which was under proprietorship of respondent Kaka Kishan Chand. According to him, the allegation that respondent was the Agent of respondent Ismail Rahu through whom he received bribe has also not been established by prosecution.
Regarding respondent Raj Kumar, learned counsel contended that he was said to be Manager of respondent Kaka Kishan Chand and was involved in the case on the basis of five chits. Those alleged five chits were not produced by respondent but were produced by the Investigating Officer in evidence as Exhs.273 to 277. Even the said chits were not sent for comparison to the Handwriting Expert. According to him, in fact the chits were recovered from absconder accused Bhagwandas.
He urged that no reliance can be placed on the evidence of Investigating Officer as he had not worked with respondent, as such, was not conversant with his signature. According to him, the prosecution even failed to bring on record any evidence that respondent had ever acted as agent of respondent Ismail Rahu in the absence of respondent Kaka Kishan Chand, as such, the findings of acquittal recorded in his favor are unexceptional.
10. Mr. Abdul Hafeez Pirzada, learned counsel for respondent Ismail Rahu contended that main allegation against respondent was that he as a Minister had recommended the summary of petitioner Agha Wazir Abbas for re-employment. The said summary was in fact processed by Secretary concerned and it was the then Chief Minister who ordered for his reinstatement.
According to him, the prosecution has failed to bring on record the evidence to justify the allegation of giving fake Import Permits to absconder accused Mehrumal and obtained pecuniary gain against the same. He lastly contended that the letter said to have been written by absconding accused Mehrumal Jagwani to Chairman NAB is not admissible in evidence as it cannot either be equated with confession as contemplated under Article 43 of Qanun-eShahadat, 1984 (hereinafter referred to as 'the Order') or as a statement in terms of Article 46 of the Order.
11. Mr. Kamal-ud-Din Azfar, learned counsel for respondent Asher Jan vehemently urged that prosecution has not been able to prove that respondent as Manager Sales exported wine illegally on 33 fake/forged Import Permits. According to him, the verification of the Import Permits was the duty of Punjab Excise Department and it was by the said Department, the transport permits were issued to the company for the export of the wine. He further contended that prosecution has not been able to lead evidence to establish that the employees of M/s Murree Brewery, Rawalpindi had the knowledge that the import permits where fake and forged. Regarding conspiracy with other accused also no convincing evidence was adduced at trial to connect respondent with the commission of offence.
12. On the other hand Mr. Ahmed Raza Kasuri, learned Senior Advocate Supreme Court for the State contended that PW Abdul Rashid, Junior Clerk, Vend Fee, Excise and Taxation Department who used to work along with petitioner Agha Wazir Abbas has correctly identified signatures on those 33 fake permits to be his signatures. Even P.W. Abdul Ghani Soomro Private Secretary to absconding accused Mehrumal Jagwani, has said that fake permits were prepared by petitioner Agha Wazir Abbas for which huge amount was paid to him and to respondent Ismail Rahu. He also stated that respondent Raj Kumar also used to give fake permits to absconding accused Bhagwandas.
According to him, absconding accused Mehrumal Jagwani had written a letter to Chairman NAB wherein he has categorically confessed to have committed the guilt. He vehemently stressed that the letter written by absconding accused Mehrumal Jagwani is in fact a confessional statement in which he has not only implicated himself but other accused also. According to him, under the circumstances, the conviction could not be termed as illegal. He further contended that petitioner Agha Wazir Abbas in collaboration with respondents had dishonestly/fraudulently misappropriated the vend fee, excise duty charged on transport of fake import permits and caused a loss of Rs,66 million to the Government exchequer thus the findings of trial Court that the offence took place in collaboration with all the accused after hatching conspiracy does not warrant interference. He seriously attached the impugned judgment and contended that the reasons advanced about the acquittal of respondents are neither convincing nor arbitrary or capricious in nature, as such, are not sustainable in law.
13. We have given our anxious thought to the contentions made at bar and have gone through the judgments of the trial Court as well as that of Appellate Court. In our opinion the impugned judgment is based on proper appraisal of evidence. The reasons advanced for the acquittal of respondents Kaka Kishan Chand, Raj Kumar, Ismail Rahu and Asher Jan are cogent and convincing. It is settled principle of law that the findings of acquittal can only be upset if the same are found perverse, arbitrary, foolish or based on misreading or non-appraisal of evidence.
Learned counsel for the State has not been able to show that the judgment of acquittal suffers from anyone of the above legal infirmities. The above referred letter said to have been written by absconding accused Mehrumal Jagwani to the Chairman NAB is not admissible in evidence at all.
It cannot either be considered as a confessional statement as contemplated in Article 43 of the Order nor it would amount to a statement referred in Article 46 of the Order. Article 43 of the Order provides that when more persons than one are being tried jointly for the same offence and a confession is made by one of such persons and if it is proved against its maker, the same can be used as circumstantial piece of evidence against other accused. The letter said to have been sent by absconding accused Mehrumal Jagwani in any case would not be a confession in the terms of the Order as he is still absconder and was also not tried with the other accused. Even on plain reading of Article 46 of the Order, it is evident that it relates to the statement of a person who is dead or cannot be found. In this case, absconding accused Mehrumal Jagwani is alive and is available in India.
15. At this juncture it would be relevant to mention that a specific procedure has been laid down under sections 164 and 364, Cr.P.C. For recording the confessional statement of an accused which admittedly lacks in this case. The said letter cannot even be equated with a statement under section 161 or 162, Cr.P.C. Which even are to be reduced in writing by the Investigating Officer on the oral statement of accused which procedure too is missing in this case. The said letter is not admissible in evidence as it has been produced by a P.W. A.D. Khuwaja, Additional Director Investigation F.I.A., who was not competent to produce the same. The documents said to have been sent from India, as such, invoice and envelope might have been received by Fedex Office in Pakistan but no one from such office was examined to prove its delivery. Even address of A.D.
Khuwaja, Additional Director Investigation F.I.A. Has not been written over it. Moreover, a perusal of letter shows that it was attested by a Notary Public of Mumbai, India, whose signature was verified by Section Officer, Home Department, Government of Maharashta. Since it is not a judicial record of a foreign country, therefore, its genuineness and authenticity cannot be verified. Irrespective of above, it has neither been certified by any Officer of Embassy of Pakistan in India nor it has been routed through the Embassy of Pakistan, as such, it cannot be said to be a document worth admissible in evidence at all.
16. For what has been discussed above, we are of the considered opinion that the impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither, there is misreading, nor non-reading of material evidence, or misconstruction of facts and law.
17. Resultantly, all the petitions being devoid of force are dismissed and leave to appeal refused.