' FAZAL-UR-REHMAN, J.--- This appeal under section 32 of the National Accountability Ordinance, 1999 (hereinafter called as Ordinance) by the appellant Shamrez Khan is directed against the judgment of learned Judge, Accountability Court-I, Quetta dated 25-10-2001, whereby, he convicted the appellant under section 10(a) of the said Ordinance and sentenced to undergo 14 years' R.I. And to pay fine of Rs,990,000,000 (Rupees Ninty-nine Crore). The Court has also ordered that the amount deposited in the NAB account is to be treated as assests of NAB with forfeiture of the moveable/immoveable properties to be traced out as set off against the remaining amount of fine and in case of non-recovery of fine to further undergo for a period of 4-1/2 years' R.I. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant. The appellant has further been disqualified to hold public office, contest elections and obtaining of loan from any financial institution for a period of 10 years.
2. Briefly stated the facts of the case are that the F.I.R. Being Crime No,5/Q of 1999, Anti-Corruption Establishment, Quetta under sections 409, 420, 467, 471, 477-A, 109, P.P.C. Read with section 5(2) Act II of 1947 (Exh.P/22-A) was registered against the appellant and others on the allegation that shortages of Government wheat had been detected by the Food Directorate against the Contractors. The details of shortages given in the aforesaid F.I.R. Are to the following extent:- S. No, Name of ContractorsQuantity of wheat in bagsQuantity of wheat in Kgs.
1 Shamrez Khan 164, 460 16,446,00 2 Haji Khan Muhammad388,539 38,872,267 3 Munawar Hussain 37,742 3,778,873 4 Tariq Khan 61,185 6,199,665 Total 651,926 65,296,805
3. The investigation of the case was carried out by Muhammad Farooq Qureshi, Mansoor Shuja and Muhammad Arif, Inspectors Anti-Corruption Police, Quetta. It is stated that during investigation certain records were taken into possession and statements of witnesses were recorded under section 161, Cr.P.C. It is also stated that the sons of appellant namely Javed Khan, Amjad Khan and Shahid Khan were arrested on 17-11-1999. It is stated that the challans of the case were periodically submitted in the Court of Special Judge, Anti-Corruption Quetta and the trial was conducted by the said Court from 6-12-1999 to 22-7-2000. The appellant is stated to have been arrested on 30-3-2000. It is stated that during pendency of the inquiry before the NAB Authorities, the appellant had submitted plea of bargaining, which was accepted subject to payment of Rs,160,000,000 (Rupees sixteen crore). It is stated that an amount of Rs,8,54,80,000 (Rupees eight crore fifty-four lacs Eighty thousand) was paid and the remaining amount was to be secured to be paid against the mortgaged of property belonging to the appellant. It is stated that on failure to arrange the bank guarantee a reference was filed before the Court. The learned Accountability Court is stated to have taken cognizance on 22-7-2000. It is stated that for want of evidence, aforesaid persons namely Javed Khan, Amjad Khan and Shahid Khan, whose names were shown in Column No,2 of the challan were not put on trial as per order of the trial Court, dated 11-9-2000.
4. The learned trial Court on 11-9-2000 framed altered charge against the appellant, convict Gulzar Khan Marri and acquitted accused persons namely Raja Gul Nawaz, Muhammad Younas Durrani, Abdul Ghafar, Muhammad Akram Chughtai and Haji Ghaibi Khan to which, they pleaded not guilty and claimed trial. The allegation against the appellant Shamrez Khan was that he being "A" Class Contractor Food Department, Government of Balochistan did not bring 146,640 bags of wheat from PASCO, Punjab and Port Qasim, Karachi Minfal to the godowns of Food Department Balochistan during September, 1997 to October, 1999 and thereby, embezzled wheat as well as transportation charges and subsidy with the collusion of his co-accused persons namely Raja Gul Nawaz, Gulzar Khan Marri, Muhammad Akram Chughtai, Haji Ghaibi Khan, Captain (R) Muhammad Younas Durrani and Abdul Ghafar. It is maintained that accused Khan Muhammad Mengal, Munawar Hussain and Tariq Khan who are absconding accused were proceeded under section 512, Cr.P.C.
And convicted by the trial Court under section 31 of the NAB Ordinance and sentenced for (3) three years' R.I. Vide order, dated 2-10-2000.
5. The prosecution in support of its case examined as many as 27 witnesses in Reference No,10 of 2000.
6. In his statement recorded under section 342, Cr.P.C. Appellant Shamrez Khan denied the allegations and pleaded his innocence. According to him the case against him has been registered with mala fide intention by the Department. He has added that he had never been dealing with contract of Khan Muhammad Mengal nor he got any concern or connection with him.
He has also stated that his signatures are not available on the power of attorney nor he was his agent. It is stated that the power of attorney is fake and the bank transaction attributed to him on account of transit money of Khan Muhammad was also illegal and entry made without adopting the bank procedure. According to him he had not received the amount. The appellant has also made his statement on oath. According to him in challan 146,640 bags of wheat have been shown against him and he has dispatched this wheat and has builties but for the sake of business reputation he is ready to deposit amount of this wheat. According to him he paid Rs,85, 480,917.20 by way of bargain in this case and is ready to deposit the remaining amount of Rs,16,727,163. He has reiterated that Khan Muhammad Mengal did not give him any power of attorney nor had any business link with him According to him the power of attorney is a fake document. He has stated that he had private dealing with Khan Muhammad Mengal and the later when got indebted he used to deposit amount in his account. It is stated that the other accused persons who were facing trial did not make their statements on oath and no defence was led by any of the accused persons.
7. The learned trial Court formulated the following points for determination in respect of the appellant:--
(a) Whether A Class Food Contractors Government of Balochistan accused Shamrez Khan and absconding accused Khan Muhammad' Mengal made shortages of 146,640 and 544,285 bags of wheat respectively as they in spite of receiving this wheat from PASCO. And MINFAL did not deliver to the Feeding Centres of Balochistan from July, 1997 till September, 1999?
(b) Whether accused Shamrez Khan used to carry out the contract of handling and transportation on behalf of accused Khan Muhammad Mengal as his lawful attorney without the knowledge of Food Department and is liable to return 544.285 bags of wheat in this regard as he was the person doing his job.
8. The learned trial Court did not believe defence version and came to the conclusion that the prosecution established case under section 9(a-III) of NAB Ordinance, 1999 against the appellant and accordingly convicted the appellant in the manner hereinabove mentioned. The learned trial Judge also did not accord approval of plea bargaining by expressing himself in the following words:-- "Here it also worth while to mention that he had shown willingness for the return of Rs,16 Crore in the term of bargain at pre-trial stage. An amount of Rs,85, 480,917.20 of his securities is stated to have been transferred to the account of Commander NAB. But no detail about this amount is available; therefore, nothing can be mentioned. The accused during trial relied from this plea bargain. Even on 10-9-2001 when his statement under section 302, Cr.P.C. Was recorded he stated that he is responsible to return the cost of 146,640 bags of wheat of Rs,102, 208,080. While for the remaining amount he is not concerned. But on 17-10-2001 his counsel submitted an application along with bargain sanction letter of Chairman, NAB dated 13-10-2001 for approval of the Court. According to this letter of bargain for Rs,1.6 Crore has been accepted out of which Rs,85,480,917.20 is reported to be in NAB account whereas the remaining he has to deposit. The accused in his application offered to deposit the remaining amount with four instalments each after 3 months. But he abandoned the deposit of instalments in his application dated 18-10-2001 and shown willingness to deposit the outstanding amount in a lump sum. Since the approval given by the Chief Executive secretariat is not in accordance with the evidence and calculations made by this Court, therefore, approval of such bargain cannot be given."
9. The learned trial Court also held responsible the appellant for the shortages made by Contractor Haji Khan Muhammad Mengal on the basis of power of attorney. According to learned trial Court the appellant is also liable for payment of Rs,20,910,000 for 30,000 bags of wheat for which he had earlier deposited at normal rate vide challan article-A/99 to article-A/101.##TE# The calculation regarding total amount carried out by the trial Court has been discussed in para. No,139 of the impugned judgment, which reads as under:-- "The last point pertain to the losses occurred to the Government and under what parameter the recovery be effected. As discussed above that accused Shamrez Khan had made shortages of 146,270 bags in his own name and 543,612 bags of shortages in the name of accused Khan Muhammad Mengal. At the nominal rate the cost of this wheat comes to Rs,101,950,190 + 378,897,564 = 480,847,754. Whereas under clause (13) of contract agreement this amount as per calculations 101,950,190 + 378,897,564 x 2 comes to Rs,961,695,508. So he is required to deposit Rs,961,695,508 as an amount for these shortages. Besides he is also liable for payment of Rs,20,910,000 for 30,000 bags of wheat for which he had earlier deposited at normal rate vide challan article A/99 to article A/101. The total amount due against him is Rs,982,605,508."
' Feeling aggrieved by the judgment of learned Judge, Accountability Court; the present appeal has been filed under section 32 of the said Ordinance.
10. We have head Messrs Wasim Sajjad, Senior Advocate Supreme Court and Muhammad Riaz Ahmed, Advocate Supreme Court for appellant and M.S. Rakhshani learned Deputy Prosecutor- General for NAB.
11. After hearing the learned counsel for the parties regarding rejection of plea bargaining and relying upon the power of attorney and going through the relevant observations made in the impugned judgment in the appeal, we are inclined to agree with the contentions of learned counsel for the appellant that in the circumstances of the case the learned trial Court should have approved the request of plea bargaining when the same was accepted by the Chairman, NAB on 13-10-2001. We also see force in the contention of learned counsel that the power of attorney which was not annexed with the challan and subsequently produced through invalid evidence should not have been accepted by the trial Court for attributing the shortages caused by Contractor Khan Muhammad Mengal to the appellant. It is stated that the plea bargaining of the appellant was accepted during July, 2000 in the sum of Rs,160,000,000 and the appellant deposited an amount of Rs,85,480,417.20 of 146640 bags of wheat with NAB during bargaining in order to sustain his business reputation and was ready to deposit the remaining amount. It is stated that the appellant also filed an application under section 25 of the said Ordinance for acceptance of plea bargaining and release of the appellant which was allowed vide order, dated 13-10-2001. The relevant portion of which reads as under:-- S. No, Name of accusedGist of allegationsStatus Remarks Decision of Committee 1 2 3 4 5 6 6 Mr. Shamraz Khan Ref. No,10 of 2000Matter pertains to massive misappropriation of Government wheat/shortage as in connivance with food DepartmentThe accused has forwarded petition through Honourable Judge, Accountability Court No,1, Quetta that according to the reference and challan, the total loss caused to State exchequer comes to Rs,102,208,080 as his part of share, out of which he has already eposited Rs,85,480,917 and ready to makeD.G, RAB, Quetta has rejected the application of the accused due to the reason that offered amount is less than the actual amount it has further been recommended that the matter be left at the "discretion of the Honourable Court subjectThe original acceptance of plea bargain at an amount of Rs,16 crores with consultations already stipulated is again confirmed.
Court be informed accordingly by RAB,Quetta. payment of the balance amount of Rs,16,727,163.
Moreover he is ready to reconcile figures of the shortage with the NAB Authorities for which he will mortgage immovable property till reconciliation of amount or figures.
He has further requested that he may not be held responsible for payment of the shortage of wheat of other contractors, who are absconders, fugitive from law they should be held responsible for their liabilities and should meet the shortage according to their share of responsibility.
Brief history of the case is as under:- - Earlier the accused had offered an amount of Rs,16 crores as Plea bargain which was approved by the competent authority. He had deposited Rs,7 crores as downto approval by the Chairman, NAB, Islamabad. payment awl gave post dated cheques for the remaining amount of Rs,9 crores and promised to make payment within period of six months.
His plea was accepted subject to the condition that he would mortgage property equivalent to the balance amount.
Subsequently, the accused informed that his property is attached by the order of Judge, Anti- Corruption hence cannot mortgage his property. In August, 2000, RAB, Quetta informed that the accused is using delaying tactics and recommended that reference be signed and request of the accused for plea- bargaining should be processed through the Court.
In October, 2000, the accused forwarded request for plea bargain through Court which was rejected on the recommendations of Commander RAB Quetta stating that RAB has no objection to plea bargain of accused provided the whole amount i,e, 58 crores embezzled by the accused party be recovered and deposited in Government treasury.
In July, 2001, the wife of the accused forwarded request for plea bargaining through the Court for Rs,16 crores and requested that balance amount will be deposited within 6 months in two instilments.
The Commander RAB, Quetta and Honorable Judge, Accountability Court rejected the same, due to the reason that amount shown against absconder may also be deposited.
12. Learned counsel for the appellant has submitted that the appellant entered into plea bargaining in terms of section 25 of the Ordinance, 1999. He has contended that the provisions of section 25-A which were originally enacted the Chairman had the powers to release an accused person under the aforesaid section. He has further stated that the said section was 'substituted on 3-2-2000 according to which the Chairman had the powers to release the accused if the trial has not commenced and in case of commencement of trial the release of the accused person by the Court shall be made with the consent of chairman, NAB. It is stated that section 25 of the said Ordinance was amended on 5-7-2000, whereby the Chairman in case of taking of cognizance of offence by the Court or the commencement of the trial, was authorized to release an accused with the approval of the Court. The said section was further amended on 10-8-2001 and Court or the Appellate Court as the case may be, may release the accused person where at any time, whether before, or after the commencement of trial the holder of a public office or any other person accused of any offence under this Ordinance, returns to the NAB, the assets or gains acquired through corruption or corrupt practices. It is stated that prior to amendment ins section 25 of the NAB Ordinance (dated 10-8-2001) the Chairman, NAB could allow plea bargain without intervention of the Court if trial had not commenced. It is stated that the plea bargaining was accepted in accordance with section 25 of the NAB Ordinance by the Chairman and the same was submitted before the trial Court with the request that appellant admits and accepts the plea bargain but the learned trial Court neither issued notice to the prosecutor nor heard the accused and his counsel on the said application and mentioned the fate of the application in the impugned judgment condemning unheard the NAB Authorities as well as appellant and passed order rejecting the plea bargain which is unjust, improper and without lawful basis.
13. The leaned counsel for the appellant while elaborating their arguments regarding second main contention of the power of attorney, submitted that the bare perusal of the report under section 173, Cr.P.C. On the basis of which the reference against the appellant and others was submitted before the Accountability Court would show that the shortages attributed to the appellant was only to the extent of 146640 bags of wheat. There is also mention of application for plea bargaining and depositing of an amount of Rs,85480917.20 in the account of RAB Balochistan by the appellant. The challan is dated 19-8-2000, while the reference is dated 25-8-2000. Admittedly, no reference (under section 18 of the NAB Ordinance) or report under section 173, Cr.P.C. Had been filed against the appellant indicating the shortages caused to the Government by Khan Muhammad Mengal and ascertained by the trial Court.##TE# Section 17 makes the provision of Criminal Procedure Code applicable mutatis mutandis subsections (a), (b) and (c) to section 18 of the said Ordinance relate to taking of cognizance by the Court and for initiation of proceedings by the National Accountability Bureau. According to section 18(a) of the said ordinance the Accountability Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman, NAB or an Officer of the NAB duly authorized by him.
14. It has been contended that the calculation carried out by the learned trial Court is arbitrary and without lawful authority, evidence and illegally attributed shortages of Khan Muhammad against the present appellant. It is stated that the shortages against Khan Muhammad as an independent contractor has been indicated and contract has been awarded in his favor by the Director, Food through the legal procedure by the competent authorities and has unjustifiably being attributed to the present appellant who has got no concern with shortages of Khan Muhammad. The learned counsel has also criticized the evidence of P.W.24 by contending that this witness was not a calendar witness and has been subsequently examined and article A/206 was also subject to admissibility. Similarly the evidence of P.W.25 has also been criticized by contending that same was not properly considered by the trial Judge and illegally attributed the contents of the statement against the appellant. It has been submitted that the author of the power of attorney has not been examined nor any witness of the department has been examined to verify whether this power of attorney was, produced before the department and it was accepted by the department to grant permission to the appellant to take delivery of wheat for and on behalf of Khan Muhammad. It has further been contended that the learned trial Judge illegally attributed the proceedings against the appellant on the basis of power of attorney which is against the terms of agreement and procedure and legally not admissible. It is stated that as per contract agreement clause 9(d) the contractor neither sublets nor assigns his contract without written consent of the Secretary and Director, Food but the learned trial Judge has illegally appreciated the said aspect of the case.
15. The power of attorney (articles A/207 to A/212) has been produced by P.W.25 Amir Choudhary, who is neither the attesting witness nor author of the power of attorney; therefore, the evidence of said witness is of no help to the prosecution. The examination of the document (power of attorney) with naked eye reveals that the signature of executant does not tally with his signatures on the other documents available on the record (articles D-471 to D-487). Essentially the onus to prove that the power of attorney was a valid one was upon the prosecution because it was their assertion that on the basis of this power of attorney the appellant had been dealing with the contract of Khan Muhammad and the cross-cheques were credited to his account but the prosecution failed to discharge its burden as per provisions of Qanun-eShahadat. It may also be pointed out that the bank account is stated to be operated by the appellant and his son, but his son was not put on trial for want of evidence, as stated earlier. P.W.24 Tauseef-ul-Islam produced bank statement article A/206 of Khan Muhammad stated to have been prepared by Amir Choudhary who did appear as P.W.25 but has not produced the same. The admissibility was objected by the learned counsel for the appellant as the same was not part and parcel of the record of Reference No,10. In cross-examination the witness admitted that the cross-cheques should in the first instance have been deposited in the bank account of Haji Khan Muhammad Mengal, which has not been done. The learned counsel has relied upon the authorities reported in 1995 CLC 531 (Peshawar) and 1990 CLC 1014 (Lahore). In the authority relied upon by the learned counsel for the appellant and cited in 1990 CLC 1014 (Lahore) the following observations have been made:-- "Nonetheless, a document does not prove itself. In case of its denial, party relying upon it must prove its execution in accordance with the modes of proof laid down in the law of evidence. In the instant case, Article 78 of Qanun-e-Shahadat shall apply which provides that if a document is, alleged to be signed or to have been written by any person, signature or writing must be proved to be in that person's handwriting. The Article by itself does not lay down any particular mode for proving the signature or the writing. It merely requires the signature or writing to be proved to be in the hand of the person to whom it purportedly belonged. Any mode of proof recognized by law may suffice. However, a litigant is required to observe the rule of best evidence and if the best evidence is available and withheld from the Court, then, it may attract legitimate adverse comments against the proof offered. Afore-stated rule fastens itself upon the plaintiff. Evidence produced by him does not sufficiently discharge the onus of proof resting upon him. Statement of P.W.1 coupled with that of the plaintiff was not considered sufficient by Courts of fact to prove genuine execution of the agreement to sell. I think the approach of the Courts below to the point at issue was correct and there is no reason to take a different view therefrom. As the plaintiff had failed to prove agreement to sell in his favor, Courts below were justified in non-suiting him."
' In the same authority it has also been held:-- "Be that as it may, plaintiff can succeed on the strength of his own case and not upon any alleged weakness in defence of his adversary. Unless he could prove to the satisfaction of the Court that what he stated was true, he could not be given relief. Looked at thus, agreement to sell relied upon by him having not been proved, his claim for specific performance was rightly dismissed by the Courts below."
16. We see force in the contention of learned counsel for the appellant and the authorities relied upon are applicable and we are of the view that the power of attorney has not been proved in accordance with law and the same cannot be relied upon for attributing shortages to the appellant. Reliance is also placed on the authority of Honourable Supreme Court reported in PLD 2003 SC 31.
17. The learned Deputy Prosecutor-General NAB (Mr. M.S. Rakhshani) while defending the impugned order submitted, that the shortages detected against the absconding accused Haji Khan Muhammad in view of the power of attorney can be attributed to him as Khan Muhammad was the front man of appellant, therefore, he is liable for the shortages caused by his front man.
Learned D.P.G. Has also submitted that it is very difficult to collect direct evidence in white collar crimes and an inference can be gathered from the circumstances of the case. He has referred to the provisions of section 14 of the NAB Ordinance. He however, on a Court query, did not deny the factual position regarding entering of appellant into plea bargaining with NAB Authorities and acceptance of the plea of bargain by the Chairman, NAB. He further did not deny the shortages indicated in the report under section 173, Cr.P.C. To the tune of 146,640 bags of wheat attributed to the appellant. He has also not denied the position that the report submitted by the Investigating Agency indicated the aforesaid figure and no fresh reference was submitted holding the appellant responsible for the shortages caused to the Government by contractor Khan Muhammad Mengal.
18. We may also observe that the Accountability of an accused person is indeed a laudable objective but the finding must reflect transparency and strict adherence to the principles of natural justice. As stated earlier power of attorney has wrongly been relied upon as the same is not a registered one and has not been even otherwise proved against the appellant. We may not further comment as the same may prejudice the case of either party as and when the absconding accused is arrested and put on trial. The observations made by the Honourable Supreme Court in the authority reported in PLD 2001 SC 607 are noteworthy. The relevant portion is reproduced below for the sake of facility:- "Be that as it may, the prosecution has to establish the preliminary facts where after the. Onus shifts and the defence is called upon to disprove the presumption. This is also the consistent stand taken by Mr. Abid Hassan Minto as well as the learned Attorney General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB 'Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. We are also of the view that the above provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set up, we deem it necessary to issue the following directions for effective operation of Section 14(d):
(1) The prosecution shall first make out a reasonable case against the accused charged under Section 9(a)(vi) & (vii) of the NAB.
(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt."
19. Similarly in PLD 2003 SC 46 the following observations have been made:--- "The examination of above section would reveal that for raising the presumption of guilt at the first instance the essential elements of mens rea and intention to commit the crime must be established and then the criminal liability must be proved through the positive evidence. The perusal of record would show that in the instant case, the above two basic elements were not available to suggest criminal liability of the appellant in the transaction and further the prosecution has not been able to bring on record any evidence in proof of the initial burden of personal interest or financial gain of the appellant or abuse of authority by him in the matter to raise a legitimate presumption of guilt. The mere fact that the proposal of re-auction made by the Secretary, Local Government and Rural Development Department, Government of Sindh, was not accepted by the Minister was not a valid ground to raise such a presumption under section 8 of the Ehtesab Act, 1997."
20. Learned counsel for the appellant has also contended that clause (13) of the Contract Agreement is not attracted in absence of notice and the reconciliation matter was still pending in the Food Department and Criminal Court is not competent to enforce the contract. It has also been contended that the learned Court despite evidence against Director Food acquitted them of the charge but convicted the appellant causing discrimination which is against the Constitution. It has been submitted that the documents articles D-597 to 603 produced by the appellant were not challenged by the prosecution; therefore, the same should have been considered and treated as accepted. In the last the learned counsel for the appellant has submitted that the plea bargaining which has since been accepted by the Chairman, NAB for which he was competent to be approved.
21. Having regard to the above mentioned factors, relevant provisions of the said Ordinance and principles laid down in the cited authorities, we are of the view that the power of attorney has not been validly proved against the appellant for attributing the losses to him and the calculation carried out by the Court is also not justified and the plea bargaining which has been accepted by the Chairman, NAB should have been approved keeping in view the circumstances of the case and in the interest of justice. We, therefore, see no reason to disapprove the plea bargaining on the same terms and conditions which has been accepted by the Chairman, NAB on 13-10-2001, and the same is accordingly approved. After complying with the terms and conditions of plea bargaining, the appellant be released if not wanted in any other case. The disqualification clause will however, to remain intact.
' With the above observations, the appeal stands disposed off.