' RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose of (1) Criminal Appeal No,1082 of 2002 (2) Criminal Appeal No,992 of 2002, (3) Criminal Appeal No,1076 of 2002 and (4) Criminal Appeal No,2123 of 2002, all of which have arisen out of the judgment dated 12-6-2002 passed by the learned Judge Accountability Court No,II, Lahore whereby he had convicted the accused under section 9 read with section 10 of the NAB Ordinance, 1999 and had sentenced them as under:-- Col (R.) Iftikhar Ahmad Awan and Imtiaz Elahi Johri, appellants:14 years' R.1 and a fire of Rs,25, 08,70,000 each which - will to be recovered from their properties forfeited in favour of N.A.B. Col. (Retd.) Iftikhar Ahmad Awan appellant because of his alleged special role for shifting/transferring money belonging to 35/40 thousand depositors to some unknown place was also additionally fined Rs, 50 crore.
Sylvester Desouza, appellant:7 years' R.I. And a fine of Rs,20,00,000.
2. Brief facts of the case are that the accused namely (1) Imtiaz Elahi John (2) Col. (R.) Iftikhar Ahmad Awan and (3) Sylvester Desouza faced the trial in Accountability Reference No,35/2001.
Their co-accused Mst. Parveen Shah Nawaz, Dr. Khalid Haroon and Ijaz after the commencement of the trial.
3. The Chairman N.A.B. Had filed the reference under section 18(g) read with section 24(b) of the N.A.B. Ordinance, 1999, to the effect that accused Nos.1 to 7 were the Chairman, Directors, and General Manager of Service Co-operative Credit Corporation Limited respectively (hereinafter called SCCCL) which was registered on 22-8-1982. There were reports that the accused in furtherance of their common intention had dishonestly and fraudulently misappropriated the funds of SCCCL. At an early stage the matter was inquired into by the Lone Commission constituted by the Government, as well as by the Registrar, Cooperative Societies under section 43 of the Cooperatives Societies Act. Audit was also conducted by a Chartered Accountant and the said inquires disclosed that the above-mentioned accused had dishonestly and fraudulently misappropriated funds of SCCCL amounting to Rs, 1,50,52,03,656. The Anti-Corruption Department was directed to investigate the matter and which submitted an interim report. Investigation disclosed that the accused persons had caused huge loss to SCCCL and the amount which they had embezzled was Rs,1,50,52,03,656.
4. Imtiaz Elahi Johri, Col. (R.) Iftikhar Ahmad Awan, Malik Inkisar Ahmad Awan and Sylvester Desouza accused were charged by the learned Trial Court to the effect that they in furtherance of their common intention along with Mst. Parveen Shah Nawaz, Dr. Khalid Haroon and 1.02 Ahmad Awan, the absconding co-accused, had dishonestly and fraudulently misappropriated the funds of the SCCCL amounting to Rs,1,50,52,03,656 and had thus committed the offence under section read with section 10 of the N.B. Ordinance.
5. All the accused pleaded not guilty and claimed to be tried. Hence the prosecution was asked to produce its evidence. It may be mentioned here that Malik Inkisar Ahmad Awan, accused, died before P.W.1, P.W.2 and P.W.3 were cross-examined by the Defence Counsel and hence the reference to his extent had obviously abated.
6. In this case the prosecution has examined as many as 6 witnesses, of whom P.W.1 is Muhammad Iftikhar Ahmad, P.W.2 Syed Raza Haider P.W.3, Humayun Waheed, P.W.4 Sheikh Ilyas Ahmad, P.W.5 Muhammad Amin and P.W.6 is Muhammad Abbas, Inspector. A large number of documents were also produced from the side of the prosecution and a mention of which shall be made subsequently.
7. Of the prosecution witnesses examined in this case, P.W.1 Muhammad Iftikhar Ahmad stated that in April, 2000, he was acting as Executive Incharge, Services Cooperative Credit Corporation Limited (SCCCL) and he had examined the record of SCCCL and during examination of record he had found a great difference in the assets and liabilities of the said Corporation. On 6-11-1991 liability of Corporation was Rs,2,18,87,47,833 whereas its assets were Rs,68,53,44,177 and the deficit was of Rs, 1,50,52,03,656. He deposed the depositors might be ranging from Rs,35,000 to 40,000. He lodged the complaint Exh. PA which was elaborate and descriptive of the misdeeds of the accused. According to him, on 22-8-1982, the Defunct Corporation had five Directors while on 24-10-1988 it had seven.
Two brothers of Zulfiqar Ahmad Awan, Chairman, were also the Director of Corporation namely Iftikhar Ahmad Awan and Inkisar Ahmad Awan, whereas Ijaz Ahmad Awan, the General Mamager of the Defunct Corporation was also his real brother and he was also a paid employee of the Corporation. Parveen Shah Nawaz and her son Dr. Haroon Khalid were also the Directors of the said Corporation. Parveen Shah Nawaz was the first cousin of Zulfiqar Ahmad Awan. Imtiaz Johri accused was the only person from outside and he was Vice-Chairman of the Defunct Corporation.
After the murder of Zulfiqar Ahmad Awan, i.e, the Chairman of the Corporation every Director was liable to pay Rs,2,58,700,000 approximately in respect of the deficit faced by the Corporation.
8. P.W.2 Syed Raza Haider deposed that he had joined the investigation of this case and that on 28- 4-2001 he had produced inquiry report dated 21-1-1992 under the Co-operative Societies Act and it consisted of 15 pages. He produced certified copy of the report as Exh.P.W.2/1-15. On the same day he also produced the certified copy of the audit report dated 1-12-1997 along with its annexures as P.W.2/2/1139. He also produced extract of Lone Commission Report concerning SCCCL as Exh.P.W.2/3/1-2 and the Investigating Officer took all these documents into possession vide memo.
Exh.P.W.2/4. On 3-8-2001 he produced copies of ledger of Account No,46 concerning Mrs. Sitara Jabeen relating to a loan of Rs,32,32,468 as Exh.P.W.2/5/1. He produced minutes of the meeting of Directors dated 5-1-1991 as Exh.P.W.2/6/1-2 and then on the same day he produced copy of the authorization certificate whereby Col.(R.) Iftikhar Ahmad Awan was authorized to collect different amounts vide Exh.P.W.2/7 and these documents were taken into possession by the Investigating Officer through the seizure memo. Exh.P.W.2/8. Similarly this witness proved the documents Exh . P.
W.2/8,Exh. 2/9/1 , Exh. P. W . 2/10/1-34 , Exh.P.W.2/11/1-10, Exh. P.W .2/12/1-9, Exh.P.W.2/13/1-12,Exh. P. W .2/14 , Exh.P.W.2/15/1-8, Exh.P.W.2/16/1-4, Exh. P.W . 2/17/1-5, Exh. P . W . 2/19/1-15 , Exh. P .W.2/20, Exh. P.
W . 2/21/1, Exh. P.W. 2/22/1-3, Exh. P.W .23 , Exh. P . W . 2/24/1-5 ,Exh. P . W . 2/25/1-4 , Exh. P.W. 2/26/1-4, Exh. P. W . 2/27/1-3 ,Exh. P . W . 2/28/1-5 ,Exh.P.W.2/29/1-2,Exh. P. W . 2/30/1-5 ,Exh.P.W.2/31/1-5,Exh. P . W . 2/32 ,Exh. P. W . 2/33/1-12, Exh. P. W. 2/34 , Exh. P W 2/35/1-20 and Exh. P.W. 2/36.
9. P.W.3 Humayun Waheed deposed that he had joined SCCCL in June, 1989 and remained posted there as Manager till its closure on 6-11-1991. During the investigation of the case, on different dates he had attested the recovery memos. Exh.P.W.2/4, Exh.P.W.2/14, Exh.P.W.2/23, Exh.P.W.2/32, Exh.P.W.2/34 and Exh.P.W.2/36. He deposed that he had also attested the seizure memo. Exh.P.W.3/1 relating to the inquir report under section 43 of the Cooperative Societies Act, prepared by the Investigating Officer on 16-10-2001. He deposed that A/c No,497 had been operated in the name of Riaz Ali a year before his posting (in SCCCL) but the cheques concerning this account were always received by him from Imtiaz Ali Johri accused and to whom he has been making payment. He deposed that he had never himself seen the account holder during his tenure of posting in SCCCL.
10. P.W.4 Sheikh Ilyas Ahmed deposed that he had produced the Inquiry Report Exh.P.W.2/1-15 before the Investigating Officer and who had taken it into possession vide memo. Exh.P.W.2/4 which was also attested by him.
11. P.W.5 Muhammad Amin deposed that in the year 1969 he was posted in Cooperatives Department as Inspector and that in the year 1992, the inquiry regarding the affairs of SCCCL was entrusted to him whereupon he prepared the report Exh.P.W.2/1-115.
12. P.W.6 Muhammad Abbas, Inspector deposed that investigation of this case was entrusted to him on 22-4-2001 through letter Exh.P.W.6/1.--According to him the SCCCL was incorporated on 22- 8-1982 and the certificate of incorporation is on record as Exh.P.W.6/2. He deposed that he had seen the bye-laws of the Society which are Exh.P.W.6/3 and had taken into possession the record mentioned in the seizure memo. Exh.P.W.2/4, Exh.P.W.2/8, Exh. P . W . 2/14 , Exh. P. W. 2/20, Exh. P. W.
2/23, Exh .P. W.2/32, Exh. P. W. 2/34, Exh. P. W .2/36 and Exh. P. W.3/1.
13. On the conclusion of the prosecution evidence, the statements of the accused were recorded under section 342, Cr.P.C. Col.(R.) Iftikhar Ahmad Awan accused/appellant in reply to question No,7 deposed that he had been falsely implicated in this case on account of a mala fide intention on the part of the NAB Authorities and that in fact Zulfiqar Ahmad Awan (since dead) was the sole 'Controlling Authority' in this Corporation and he was its Chairman and the names of his brother and family members were shown as Directors just to comply with the legal formalities. He deposed that he had nothing to do with the business and affairs of the SCCCL. He also deposed that after the death of Zulfiqar Ahmad Awan accused i.e, Chairman of the Corporation, he being his brother was involved in this case only to pressurize him and his family.
14. Sylvester Desouza accused in his statement under section 342, Cr.P.C. Took the plea that he had been falsely involved in this case due to mala fide intention of the NAB Authorities because Zulfiqar Ahmad Awan, who was Chairman of the Corporation, had died and that he i.e, Zulfiqar Ahmad Awan had committed irregularities.
15. Imtiaz Elahi Johri accused, in the statement under section 342, Cr.P.C. Stated that PCBL had involved him in this case with a mala fide intention and that in fact Zulfiqar Ahmad Awan and his family members were the controlling authority and that he i.e, NAB in connivance with the SCCCL.
He deposed that he was only an employee of the Corporation and was authorized to sign the documents on its behalf regarding sale and purchase but he was not authorized to receive any amount. He deposed that the assets of SCCCL were much in excess of its liabilities. He stated that an application was filed by PCBL before the learned Cooperative Judge that assets of SCCCL were much in excess of its liabilities in 1994. He deposed that after the death of Zulfiqar Ahmad Awan, the record was manoeuvred and just to save their own skin, PCBL in connivance with the NAB had initiated different references with mala fide intent but had not produced the original record. He deposed that he had been involved in this case and the P. Ws. Being employees of PCBL had falsely deposed against him. He stated that Humayun was in fact an accused and the said person being the Manager was responsible (for the irregularities) but he had become a witness against him in order to conceal his own wrong doings. He deposed that no independent witness was produced against him.
16. The learned counsel for Col. (R.) Iftikhar Ahmad Awan, appellant has argued that the prosecution had failed to place on record even an iota of evidence to show the active participation of his client i.e, Col. (R.) Iftikhar Ahmad Awan in the affairs of the Corporation or any fraudulent transaction and the prosecution witnesses in the course of cross-examination clearly stated that Zulfiqar Ahmad Awan (since dead) was the sole incharge of the affairs of the SCCCL; that P.W.1 Muhammad Iftikhar Ahmad had admitted in the course of cross-examination that Col. (R.) Iftikhar Ahmad Awan had not signed any document i.e,, sale-deed or any other document relating to any transaction in SCCCL; that P.W. i.e, the Investigating Officer admitted that neither any sale-deed nor any receipt bears signatures of Col.(R.) Iftikhar Ahmad Awan; that in order to prove the allegations of misappropriation and embezzlement, it was required that the prosecution should have established that during the period when the accused/appellant was on the Board of Directors of the Corporation, a particular loss was caused and which was directly the result of a particular act or omission on the part of the accused and the prosecution had not been able to prove as to what particular loss was caused to SCCCL during the period when Col.(R.) Iftikhar Ahmad Awan was on the Board of Directors of SCCCL, nor the prosecution has been able to prove that any act or omission of the accused had caused any loss to the orporation; that prosecution in order to prove its case had relied upon (1) the Lone Commission Report, (2) Inquiry Report prepared by P.W.5 Muhammad Amin under section 43 of the Cooperative Societies Act, 1925 and (3) Audit Report, that in fact all the said reports could not be relied upon by the prosecution because the same were not per se admissible in evidence and because the contents thereof had not been proved; that these reports were the opinions which could hardly be used as incriminating evidence without producing supporting evidence; that P.W.6 had admitted that he had calculated the liability of the Directors of the Corporation by dividing the total liability of the SCCCL to the number of Directors and he had admitted that he had not worked out separate liability of any Director but he had relied solely on the Audit; that P.W.6 had also admitted that except the above-mentioned three documents he had not looked into or attended to any other matter or book of the Corporation and neither the abovementioned three documents nor any other document including the complaint refers to any specific act or omission of any Director which had resulted in loss to the SCCCL; that the inquiry report prepared by P.W.5 Muhammad Amin suggested that a thorough probe should be made into the irregularities committed by the Corporation and had made implied observations regarding Imtiaz Elahi Johri, Ahmad Awan and Zulfiqar Ahmad Awan but had not specifically said so about Col.(R.) Iftikhar Ahmad Awan; that none of the P.Ws. Had been able to point out any instance of misfeasance, malfeasance, misappropriation or embezzlement on the part of Col. (R.) Iftikhar Ahmad Awan; that the prosecution was unable to prove the existence of mens rea and the conviction could not be recorded on the basis of mere presumption; that the main allegation against Co.(R.) Iftikhar Ahmad Awan in about sale of land described as Tukra Shah Alam in pursuance of an undated resolution of the Board of Directors of SCCCL and misappropriation of its property because the proceeds of sale were not deposited in SCCCL's account. However, the prosecution was unable to prove beyond reasonable doubt that had been passed authorizing Col. (R.) Iftikhar Ahmad Awan to collect sale proceeds of the aforesaid land and the only document on which the prosecution has relied upon in this respect is a photocopy of an undated resolution passed by the Board of Directors of SCCCL; the P.W.1. Had admitted during cross-examination that Col. (R.) Iftikhar Ahmad Awan had not signed any document such as any sale-deed and that lie was not in a position to say whether he had seen any record to the effect that Col. (R.) Iftikhar Ahmad Awan was receiving any proceeds or not; that P.W.6 admitted, as already submitted by him; that neither any sale-deed nor any receipt bears signatures of Col.(R.) Iftikhar Ahmad Awan; that the prosecution had failed to prove its case against Col.(R.) Iftikhar Ahmad Awan beyond reasonable doubt and that the learned trial Court had wrongly convicted and sentenced him on the basis of a mere presumption and as such he is entitled to be acquitted.
17. The learned counsel for Sylvester Desouza, appellant has argued that the learned Accountability Court had not mentioned in the charge the time, place and manner of alleged misappropriation although it was a mandatory requirement of law as such the charge as framed by the learned trial Court was defective; that Sylvester Desouza appellant was convicted by the learned trial Court on the sole ground that he was found guilty of having availed benefit of Rs,20,00,000 for his personal use and that he had never returned the said amount that the said observation/finding of the learned trial Court is against record and no charge was framed against him for the said allegation and no question to this effect was put to the appellant by the learned trial Court when his statement was recorded under section 342, Cr.P.C., nor any evidence was produced in that respect; that the appellant never played any role in the affairs of defunct SCCCL and had never signed any document nor he was a party to any transaction on behalf of the said Corporation and even according to the prosecution the appellant was a teacher of Zulfiqar Ahmad Awan and his three brothers; that the basis of the reference was a complaint lodged by P.W.1 which is on record as Exh.P.A. And wherein names of certain persons are mentioned, who were responsible for misappropriation/embezzlement of the funds of the Corporation and the name of the appellant was not mentioned in the list of those persons. Similarly in the inquiry report (under section 43 of the Cooperative Societies Act) which has been produced as P.W.2/1-15, his name has not been mentioned as one of the persons were liable for misappropriation/embezzlement; that the appellant is an old and infirm person of more than 75 years of age and is not enjoying good health; that there was no one, except his old wife, to pursue his case and the benefit of section 382-B, Cr.P.C. Has been denied to him without any lawful justification that, the prosecution has been unable to prove its case against Sylvester Desouza appellant and as such he is entitled to be acquitted.
18. The learned counsel for Imtiaz Elahi Johri, appellant, has argued that the appellant was only a paid' Director and was designated as its Vice Chairman and that it had come in evidence vide document Exh.P.W.2/1-2 i.e,, resolution dated 5-1-1991, whereby he was authorized to sign the documents and was not authorized to receive any amount or make any deal regarding the property. Besides that, no evidence has been produced and no buyer of property or witness of sale-deed or any other person was produced in the Court to show that he appellant had received any amount; that no Bank officer was produced to prove that any amount received by him was not deposited in the account; that there is no property in his name or in the name of his family members and they were living in the house of his father which had been purchased by him (by his father) in the year 1976.
19. The learned counsel for Imtiaz Elahi Johri appellant has also argued that the charge was framed only with respect to misappropriation of funds by the accused and there was no mention of duration within which the offence was allegedly committed, although under section 222 of Cr.P.C., the charge must specify the exact date; that even otherwise prejudice had been caused to the appellant by not mentioning the duration of the alleged misappropriation; that the audit report is stated to be for the period from 1991 to 1996, as mentioned by P.W.2 while P.W.1 in the course of his statement deposed that the period of embezzlement was from 1989 to 1991 and there is no evidence on record to show the date and period within which the misappropriation was committed by the accused; that the record and all the property of SCCCL was taken over by Punjab Cooperative Board for Liquidation on 6-11-1991 as mentioned by P.W.6, while the complaint was filed in the year 1999 and that after a lapse of almost 10 years, without being shown the originals or the attested copies, it was not humanly possible for anyone to defend the case; that no direct evidence whatsoever has been produced in this case and it is crystal clear that by not mentioning the period of embezzlement, further prejudice has been caused to the appellant as he was not in a position to defend because the charge was also ambiguous and illegal.
20. The learned counsel for Imtiaz Elahi Johri appellant, has further argued that his client had left SCCCL in the year 1991 when it was taken over by the Punjab Cooperative Board for Liquidation on 6-11-1991, so the offence cannot be said to have been committed after 1991 and at that time the sentence for the offence of dishonest misappropriation was under section 403, P.P.C. And which was imprisonment for two years; that the appellant was arrested in this reference on 6-8-2001 and he has been behind the bars since then and has already undergone the maximum sentence provided for the offence of dishonest misappropriation; that the appellant was arrested while he was working in a bank and he was detained for 90 days and during the said period of physical remand of 90 days nothing was recovered from him. The learned counsel has further argued that no original document has been produced in this case and no witness was produced to verify the signatures or the contents of the documents; that under Article 75 of the Qanun-e-Shahadat Order, every document was proved through primary evidence but in the present case no document was proved and so the same cannot be read in evidence against the appellant that besides the formal proof of documents; their contents have also be proved by direct evidence to warrant conviction against the accused persons; that a petition was filed by the Punjab Cooperative Board for Liquidation on 12-4-1994 that the assets of SCCCL were estimated in excess of liabilities by 86.06 million rupees; that the prosecution had intentionally suppressed the aforesaid piece of evidence and has not put forward the complete record before the evidence and has intentionally suppressed the aforesaid piece of evidence and has not put forward the complete record before the Court. He has argued that the document P.W.2/3/1-2 consists of only two photostat copies from the Lone Commission Report produced in the Court, although the complete report consists of several hundred pages and so the document Exh.P.W.2/3/1-2 cannot be relied upon. About the inquiry report Exh.P.W.2/1/1-15, he has argued that these are photocopies of 15 pages of this report produced in the Court while the covering letter of the report states that it consists of 108 pages; that even otherwise it does not mention any accused specifically and merely states that the correct facts can only be ascertained after complete and thorough study of account and under the circumstances, this incomplete report is of no value. About the Audit report Exh.P.W.2/2/1-39, he has argued that P.W.2 admits that it is not an audit report but merely the answers of queries and even otherwise it is for the period starting from 1991 to 1996, whereas admittedly the Cooperative Societies was taken over in the year 1991.
21. Referring to the statement under section 342, Cr.P.C., the learned counsel for Imtiaz Elahi Johri appellant has argued that no question regarding the Lone Commission Report, Inquiry Report under section 43 or Audit Report had been asked and no question regarding the documents or the signatures of the appellant on any document were asked from the appellant and as such these cannot be used against him. He has argued that no question regarding account of wife of the appellant was asked and there was no evidence to show that the account was operated by the appellant or his wife and that they had never signed any document or cheques in this respect and even the account opening form was not signed by them; that the most important ingredient of an offence is the existence of mens rea and in the present case the petitioner had not gained anything and merely had performed his duties and so he cannot be held liable for the offence as held in PLD 2002 Lahore 233. The learned counsel for Imtiaz Elahi Johri appellant has argued that this a case of no evidence, so far as his client is concerned and that unauthentic copies of documents have been produced by the prosecution without formally proving the same and that the prosecution had miserably failed to prove its case against Imtiaz Elahi Johri appellant and he is thus entitled to be acquitted.
22. The learned counsel for Mst. Parveen Akhtar, widow of Inkisar Ahmad Awan, has argued that the husband of Mst. Parveen Akhtar i.e, Inkisar Ahmad Awan had died during the trial but the learned trial Judge did not issue notices to his legal heirs; that there is no provisions in law for the conviction of a dead person or for the attachment/forfeiture of his properties which were inherited by his legal heirs; that the impugned judgment to the extent of the direction for the confiscation/forfeiture of the properties of deceased Inkisar Ahmad Awan is unwarranted and hence the judgment of the learned trial Court in that respect is liable to be set aside.
23. From the side of the prosecution, the D.P.G. (NAB) has argued that there was no uproar in the Country about the misdeeds of certain cooperative societies and when it reached the climax, the then government took up the matter and made stringent efforts to curb the after-effects.
Resultantly a very high commission was set up and which after going into the details of the working conditions of the societies, recommended for their dissolution in this respect eventually Punjab Undesirable Cooperative Societies Dissolution Act, 1993, was promulgated and the SCCCL was also declared as 'undesirable' and was recommended to be dissolved.
24. The learned D.P.G. (NAB) has argued that no prejudice was caused to the defence even if there was any lacuna in the framing of charge because the copies of the reference had been provided to all the accused under section 265(c), Cr.P.C. And so all of the accused has a very clear picture and idea about the allegation levelled against them; that no objection was taken by any of the accused/appellant regarding framing of charge against them by the learned trial Court.
25. The learned Deputy Prosecutor General (NAB) has argued that the evidence of the prosecution should be read and understood in the given circumstances mentioned in Punjab Undesirable Cooperative Societies Act, 1993; that the documents produced by prosecution met the requirements of Articles 74 and 76 of Qanun-e-Sahahadat Order, 1984; that by virtue of Article 162 of Qanun-e-Shahadat Order, 1984 when other substantial evidence had been produced by the prosecution admissible in nature, their inadmissible evidence can also be brought on record; that as many as 6 P.Ws. Had been produced by the prosecution to prove its case against the accused persons; that Audit Report, Inquiry Report and Chartered Accountants Report although at variance in terms of certain digits, but what is evident is that all these reports are consistent with respect to default, irregularities and illegalities committed by the Directors of SCCCL. He has argued that a fair reading of the bye-laws except P.W.6/3 would indicate that all the Directors were involved in illegal activities regarding conduct of business of society; that follies in investigation cannot destroy case of the prosecution; that filing of other references against the accused does not have any effects far as the present reference was concerned, because the other references were based on different allegations and the principle of double jeopardy is not attracted as the conviction of the accused in other references which were based on different facts would not debar the prosecution from pursuing the present reference against them.
26. About statements of accused under section 342, Cr.P.C., the learned D.P.G. (NAB) has argued that very specific questions had been put to the accused but their answers were evasive; that if some portion of evidence was not put to the accused, it will not prejudice the case of the prosecution at all, nor it will benefit the accused in any way as the said portion of evidence was not the only evidence available against the accused persons in this case; that the sentence passed by the leaned trial Court was in conformity with the evidence produced by the prosecution but after reappraisal of evidence, if this Court comes to the conclusion that the learned trial Court had erred in law, this Court can alter the sentence. He has argued that the sentence awarded to the accused/appellant except Col.(R.) Iftikhar Ahmhad Awan does not call for any interference because their sentence of imprisonment and amount of fine is quite proportionate to the offence committed by them. He has submitted that so far as Col.(R.) Iftikhar Ahmad Awan is concerned, the learned trial Court in view of his position in the hierarchy of Directors has imposed an additional fine of Rs,50 crores on him and which seems to be uncalled for as the learned trial Court was only empowered to impose fine against the amount embezzled. However, he has argued that so far as Col.(R.) Iftikhar Ahmad Awan was concerned, there were lot of omission on his part; which indicate his apathy towards the account holders and the documents on record also indicate that the amounts had been fictitiously entered into the books. He has argued that, in any way, the appeals filed by Col.(R.) Iftikhar Ahmad Awan, Sylvester without any basis and Imtiaz Elahi Johri are concerned, the same are without any basis and are liable to be dismissed.
27. So far as Criminal Appeal filed by Mst. Parveen Akhtar (Criminal Appeal No,2123 of 2002) is concerned, the D.P.G. (NAB) has argued that the husband of Mst. Parveen Akhtar (Inkisar Ahmad Awan) had died during the pendency of trial as such the trial to his extent had abated; that the appeal filed by Mst. Parveen Akhtar is without any lawful basis and that if so advised, she can file a writ petition challenging the impugned judgment, if at all she is aggrieved of the same. But there is no justification for filing an appeal and hence the appeal filed by her dismissed accordingly.
28. We have carefully considered the arguments advanced from both sides and have also gone through the record.
29. We agree with the learned Deputy Attorney General that no prejudice was caused to the defence even if there was some lacuna in the framing of charge as copies of the reference had been provided to all the accused under section 265-C, Cr.P.C. And as such all the accused facing the trial should have a clear picture of the allegations against them. The lacuna/defect in the charge, in our view, had not occasioned a failure of justice and the error or the omission in the charge about the time and date of the commission of offence was merely an error/omission curable under section 537, Cr.P.C. Furthermore, we are conscious of the fact that this objection regarding any error/defect in the charge could and should have been raised at early stage of trial and there is no justification for raising it now for the first time before this Court.
30. In this case P.W.1 Muhammad Ifikhar Ahmad is the Under Secretary, P.C.B.L., Lahore who proved the complaint Exh.P.A. As this witness had taken over the record as an employees of P.C.B.L., and as the record was in his custody in official capacity, so he could competently attest copies of the said record. P.W.2 is Syed Raza Haider who is the Ex-Executive Incharge of SCCCL. He had joined the investigation and had inter alia produced the following documents before the Investigating Officer:--
(i) The Inquiry Report under section 43 of the Cooperative Societies Act, 1925 (Exh.P.W.2/1-15).
(ii) Audit Report dated 1-12-1997 which is Exh.P.W.2/2/1-139.
(iii) Extract of Lone Commission Report regarding SCCCL which is Exh.P.W.2/3/1-2.
' He also produced before the Investigating Officer the documents Exh.P.W.2/5/1-5 and Exh.P.W.2/6/1-2. He further produced before the Investigating Officer the Authorization Certificate which was issued to authorize Col.(R.) Iftikhar Ahmad Awan on behalf of the Society to collect different amounts of the Society but the amounts so recovered/collected by him were not reflected through entries in the ledgers or other books. A number of other documents had also been produced by this witness before the Investigating Officer. The learned Deputy Prosecutor General has pointed out that the aforesaid documents indicated that the Society (SCCCL) was involved illegally in projects of housing, selling property at throw-away prices and the sale proceeds were never entered in to accounts books or ledgers. He has also referred to other documents produced by P.W.2 before Investigating Officer and has pointed out the irregularities including writing off the loans of huge amounts without any lawful justification.
31. After going through the record we are of the view that it is a case of misuse of authority by the Directors of the Corporation, rather than that of embezzlement. Even though the prosecution has not tried to prove any specific amount which had been embezzled by the Directors of the SCCCL individually, yet they produced sufficient evidence to indicate that a huge amount as per prosecution version was lost on account of misuse of authority by the Directors of the SCCCL. It has been alleged that the main culprits in this case were Zulfiqar Ahmad Awan (since dead), Ijaz Ahmad Awan and Imtiaz Elahi Johri accused, yet the alleged role of other Directors of the Society is also evident.
32. So far as Col.(R.) Iftikhar Ahmad Awan is concerned, admittedly he was a Director of SCCCL and a brother the Chairman of the Corporation i.e, Zulfiqar Ahmad Awan. He was given the authority to collect the dues of the Society. He has been unable to establish that he had deposited the amounts received by him in the proper accounts. In case he had nothing to do with the affairs of SCCCL, he could have taken this plea in the life-time ofhis brother Zulfiqar Ahmad Awan and should have told him that he had no role to play in the SCCCL. It has been mentioned above that the learned Deputy Prosecutor General has agreed that so far as the imposition of additional fine of Rs,50 crores on him was concerned, the judgment of the learned trial Court in that respect was not based on any evidence on record, but so far as the imposition of the fine of Rs,25,08,70,000 was concerned, he was liable to pay the same like his other co-accused namely Imtiaz Elahi Johri. In this respect he appears to have been rightly convicted by the learned trial Court.
33. So far as the Imtiaz Elahi Johri is concerned , he was stated to be the Vice-Chairman of SCCCL.
He appears to have played the major role in the sale/purchase of the properties on behalf of the SCCCL. He has taken the plea that although he was authorized to sign the documents regarding the sale and purchase of properties but was not authorized to receive money or deposit the same.
However, this plea in that respect stands clearly negated as P.W.3 Hamayun Waheed, an Ex- Manager of SCCCL clearly deposed that he had always received the cheques from Imtiaz Elahi Johri and had been making payments to him and that he himself had never seen the Account holder during his tenure in lie SCCCL.Hence, the role assigned to Imtiaz Elahi Johri accused/appellant is even more serious than that of Col.(R) Iftikhar Ahmad Awan, as he appears to have played an active role in the affairs of the SCCCL as its Vice-Chairman. Hence, he is liable for the offence in question, like Col.(R.) Iftikhar Ahmad Awan accused at least, if not more.
34. So far as the alleged role of Sylvester Desouza accused/appellant is concerned, we do not find anything on record to the effect that besides being a Director of the SCCCL he had played any other role in its affairs. He did not have any relationship with the family of Zulfiqar Ahmad Awan, the Chairman of the Corporation, nor he was holding any other post in the SCCCL. The learned trial Court while convicting him vide the impugned judgment observed that he had availed of Rs,20 lacs from the account of the Corporation because of his being Director of the Corporation. However, the learned trial Court has not referred to any piece of evidence in that respect nor such evidence was put to him while recording his statement under section 342, Cr.P.C. And the learned counsel appearing on behalf of the NAB agreed that there was no E specific evidence on record so far as the said observation of the learned trial Court is concerned. However, although we are inclined to uphold the conviction of Sylvester Desouza for being a Director of the SCCCL, yet we are of the view that the sentence of the fine of Rs,20 lac imposed on him was unwarranted and as such is liable to be set aside the sentence of imprisonment of R.I. For seven years awarded to him by the learned trial Court is also liable to be reduced.
35. So far as the other two accused/appellants namely Col.(R.) Iftikhar Ahmad Awan and Imtiaz Elahi Johri are concerned, they besides being Directors of SCCCL had performed important duties in connection with its affairs. While Col.(R.) Iftikhar Ahmad Awan was authorized vide minutes of the meeting dated 5-1-1991 of the Directors of the SCCCL to collect dues of the Society from different persons/parties (vide documents Exh.P.W.2/6/1-2) and in this respect an Authorization . Certificate had been issued in his favour, such amounts received by him were not reflected through entries in ledgers or other account books.
36. So far as Imtiaz Johri is concerned, he has himself admitted in his statement under section 342, Cr.P.C. That he was authorized to sign the documents regarding the sale and purchase of property on behalf of the SCCCL but has taken the plea that he was not authorized to receive any amount or to deposit the same and that he had never received any such sale consideration. But his statement as mentioned above is clearly negated by P.W.3 Hamayun Hameed, an Ex-Manager of SCCCL who had stated that he had been receiving the cheques from Imtiaz Elahi Johri and to whom he had been making the payments. Hence, both Col.(R.) Iftikhar Ahmad Awan and Imtiaz Elahi Johri had been rightly convicted by the learned trial Court for the charge. However, so far as the sentence of imprisonment awarded to them i.e, R.I. For 14 years is concerned, we feel that the sentence of R.I., for 5 years under the circumstances of the case would serve the ends of justice as they have already undergone the agony of trial in connection with this case over the years. Hence, we reduce their sentence of imprisonment of R.I. For 14 years to R.I. For 5 years, with benefit of section 382-B, Cr.P.C. However, we uphold the sentence of fine of Rs,25,08,70,000, imposed on each of the aforesaid two appellants i.e, Col. (R.) Iftikhar Ahmad Awan and Imtiaz Elahi Johri. The amount of aforesaid fine shall be recovered through sale of forfeited properties and also by having recourse to proceedings under section 386, Cr.P.C. Insofar as the imposition of additional fine of Rs,Fifty Crores on Col.(R) Iftikhar Ahmad Awan is concerned, as there is no evidence on record that it was he who had shifted/transferred money belonging to 35,000 or 40,000 depositors to some unknown place, therefore, we do not feel persuaded to agree with the finding of the learned trial Court in that respect and hence was set aside imposition of additional fine of Rs,Fifty Crores on the aforesaid accused/appellant.
37. So far as Sylvester Desouza appellant is concerned, we set aside the sentence of fine of Rs,20 lac imposed on him by the learned trial Court. We also reduce the sentence of imprisonment of R.I.
For 7 years imposed on him to that already undergone by him. If not required in connection with any other case, he be set at liberty forthwith.
38. With the above modification in the impugned judgment, the appeals filed by Col.(R.) Iftikhar Ahmad Awan, Imtiaz Elahi Johri and Sylvester Desouza are dismissed.
39. So far as the appeal (Criminal Appeal No,2123 of 2002), filed by Mst. Parveen Akhtar is concerned, it has already been mentioned above that Malik Inkisar Ahmad Awan had died after the framing of charge and hence the reference to his extent had abated. Obviously no conviction could be recorded against him. In case any order regarding forfeiture of the properties to his extent is in the field and of which Mst. Parveen Akhtar or other legal heirs of Malik Inkisar Ahmad Awan are aggrieved, in that event, if so advised, they can file a constitutional petition. However, so far as the Criminal Appeal filed by Mst. Parveen Akhtar is concerned, the same is not competent and hence the same is accordingly dismissed.