MAULVI ANWARUL HAQ, J, - This case was re-heard on 9.9.2004 and we had announced a short order allowing the Criminal Appeal and acquitting the appellant. Following is the judgment containing the reasons for our said short order.
2. Upon presentation of Ehtesab Reference No. 33 of 1998 later numbered as reference No., 27/2000 under section 15(1) of the Ehtesab Act, 1997, a trial was commenced by a learned Ehtesab Bench of this Court and concluded by a learned Judge, Accountability Court No. 1, Rawalpindi/Islamabad, who vide judgment dated 12.9.2002 convicted the appellant under section 4 of the Ehtesab Act, 1997 and sentenced him to seven years' imprisonment and a fine of Rs. 4,00,00,000/- (Rupees Four Crores) or in default to undergo one year's imprisonment. The disqualifications prescribed in section 9 of the said Act were imposed, after holding the appellant guilty of the following charge to which a plea of not guilty had been entered by him:- "That you in the first week of September, 1995 at the Prime Minister House, Islamabad (where you lived with your spouse, the then Prime Minister) in your capacity as a holder of a Public Office, being a Member of the Parliament of Pakistan, called Sajjad Hussain (approver), the then Chairman, Pakistan Steel Mills Corporation Ltd., Karachi and you ordered him to ask M/s. Mercury Corporation, Karachi, who were holding a Contract dated 28.7.1993 of $ 22 Million for supply and. Installation of 130 Tons Converter No. 3 at the above Steel Mills, to seek and obtain for you an amount of $ 2 Million failing which their above contract would have ended in cancellation; That on 12.9.1995, in the area of Pakistan Steel Mills, Bin Qasim Karachi, in pursuance of your aforementioned demand, Sajjad Hussain (approver), under colour of his office, as Chairman (bestowed upon him w.e.f. 8.5.1995 when your spouse was the Prime Minister), summoned Javed Sultan ot M/s. Mercury Corporation, Karachi and asked him to arrange an amount of Rs. 4 Crores in dollars, for payment to you as a motive or reward for bearing you to show disfavour in cancellation of the above-mentioned contract; That on said date, time and place, on Javed Sultan's having shown inability to arrange the amount demanded by you, on direction of Sajjad Hussain, he had submitted an application to the Chairman of Pakistan Steel Mills Ltd., Karachi, for approval of an advance loan of Rs. 4 Crores towards approval of an advance and his application was entertained and processed on the same day.
That on 13,9.1995 Sajjad Hussain (approver) on directing approval of loan of Rs. 4 Crores to facilitate cash payment desired by you, got issued a cheque of said amount in favour of M/s. Mercury Corporation, Karachi, drawn on Allied Bank Ltd. Bin Qasim Branch, Karachi and deposited it same day in the account of M/s.* Mercury Corporation Ltd., in Prudential Commercial Bank Ltd., I.I.
Chundrigar Branch, Karachi and the amount of Rs. 4 Crores was then credited to the account of M/s. Mercury Corporation in the Prudential Commercial Bank on 14.9.1995; That to make good the above payment to you on 13.9.1995, Javed Sultan arranged 140 F.E.B.Cs., each of value of Rs. One Lac through S.M. Saleem, a Stock Exchange broker and delivered this amount same day to Sajjad Hussain, who on 14.9.1995 in the morning left by PIA for Islamabad and on his instruction Javed Sultan further arranged 149 F.E.B.Cs. Each of the value of Rs. One Lac and an amount of Rs. 60 Lacs, converted into dollars and went to Islamabad by PIA flight and delivered to.
Sajjad Hussain the said amount at V I.P. Lounges, Islamabad with a view to further pass it on to you.
That on 14.9.1995, in the evening,. Sajjad Hussain (approver) went to the Prime Minister House, Islamabad, where you were already present. He met you and delivered to you F.E.B.Cs. And cash, in dollars, amounting to Rs. 3 Crores and 12 Lacs in all, whereas, Sajjad Hussain (approver) himself retained . F.E.B.Cs. Worth Rs. 7 Lacs and thus by corrupt and dishonest and illegal means and further by abuse of your position as a holder of a public office, utilizing the services of the then Chairman, Pakistan Steel Mills Ltd., Karachi, you obtained. An amount of Rs. 3 Crores and 12 Lacs from Javed Sultan of M/s. Mercury Corporation under threats of cancellation of contract, and thereby committed an offence within the meaning of section 3(d)(e) punishable under Section 4 of the Ehtesab Act, 1997, and within the cognizance of this Court."
3. Dr. Z. Banar Awan, learned counsel for the appellant, contends that the impugned conviction and sentence have been recorded by the learned Trial Court by failing to read entire evidence on record and the circumstances emerging therefrom, mis-reading the evidence referred to in the judgment and relying upon inadmissible evidence. According to the learned counsel, the entire judgment 'is based upon the statement Ex. PP of Sajjad Hussain erstwhile co-accused later made an approver and this stands conceded in the impugned judgment as well. The learned counsel has asserted with same vehemence that the said statement did not qualify to be a duly recorded statement under section 164, Cr.P.C, It .Was recorded in the presence of the I.O. And further after administering oath to the said person. Further contends that the statement was recorded behind back of the appellant and no opportunity of cross-examination was granted. According to the learned counsel, the conditions precedent laid down in section 265-J, Cr.P.C, for treating the said statement as evidence in the case do not at all exist. The learned counsel also cnaiienges the reasons recorded by the learned Trial Court for admitting the said statement in evidence and basing the conviction and sentence upon the same According to the learned counsel, the statement, by no means qualified to be admitted in Evidence in terms of Article 46 of the Qanun-e- Shahadat Order, 1984. He also questions that the pardon was not tendered by the Chief Ehtesab Commissioner in the manner, prescribed by law. According to him, the approval of Federal Government is not there and the prosecution has not produced on record application, if any, field by Sajjad Hussain co-accused/approver seeking the grant of said pardon. Alternately argues that if valid pardon was granted in terms of the provisions of the Ehtesab Act, 1997 or Cr.P.C, then it cannot be said that the said person might have been exposed to the prosecution because of the contacts of the said statement. Learned counsel then argues that the prosecution, was mala fide and the person Incharge of the prosecution was biased against his client. Learned counsel has started before us the history of his case with reference to the evidence recorded at the trial and also the documents tendered in this Court wc/e Crl. Misc. No. 16-M/2003 and Crl. Misc. No. 54- M/2004 which form part of judicial proceedings. We may note here' that the said documents were handed over to the learned Deputy Prosecutor General and in the first instance, it was agreed that these documents be refered by the learned counsel in the course of his arguments subject to determination of admissibility at a later stage. However, ultimately, the learned DPG has expressed his consent that the said documents which are Certified copies of judicial records be read as evidence in this case). According to the learned counsel, the contract was granted before the political party to which his client belongs came in power and his spouse become the Prime Minister of the country. Also points out that it was before the. Disposal of the said government that a civil suit was filed for recovery of the amount, the subject-matter of this reference against the Contractor-Firm as also Sajjad Hussain suit is still pending. He then refers to the proceedings by Ehtesab Court in matters pertaining to the same amount of money in which a plea bargain was effected with the main accused, namely, Muhammad Asif (not the appellant) of the said Contractor- Firm and the prosecution, which was approved by the leamed Ehtesab Court and one.
Of the terms was that the entire amount including the amount in question was paid by the said Muhammad Asif to the NAB Authorities. Learned counsel points out that these proceedings were so finalized and vide judgment of the Ehtesab Court at Karachi all the accused persons were acquitted. The appeal filed by NAB against the said acquittal was dismissed, by a learned Division Bench of the High Court of Sindh at Karachi vide judgment reported as PLD 2003 Karachi 123. The learned counsel complains that the matter 'was decided by the learned Ehtesab Court at a point of time before the impugned judgment was passed but the learned Trial Court was kept in dark and so was the matter with his client. Learned counsel then proceeds to contend that there is no evidence on record that the appellant ever demanded illegal gratification from the said Sajjad Hussain or the said Contractor-Firm. According to the learned counsel, in the first instance, there is no valid evidence that Sajjad Hussain ever visited the Prime Minister House at Islamabad on the dates mentioned by the prosecution noted in the charge and in the second even if the contents of the diaries produced by the prosecution are believed, there is not an iota of evidence on record that Sajjad Hussain ever met his client on the said dates and delivered him the amount in question.
He also states that the record of the issuance of F.E.B.Cs. Has been cooked up and nobody knows as to what happened to those F.E.B.Cs. Which were never encashed. The learned counsel further contends that the plea of alibi raised by his client stood proved on record inasmuch as it has been proved that he was not present in the Prime Minister's House at the relevant time. The learned counsel then argues that the said statement of Sajjad Hussain does not get any corroboration in law or in fact, particularly refers to the testimony of Javed Sultan PW to demonstrate that he was an interested witness and his deposition did not Carry any credence. Then refers us. To the statement of Feroze Shah, the I.O. Of the case to demonstrate the dishonest manner in which the said officer conducted the investigation, if any.
4. Mr. Abdul Bashir Qureshi, learned Prosecutor General, on the other hand, supports the impugned conviction and sentence recorded by the learned Trial Court. Now the learned DPG contends that pardon was granted to Sajjad Hussain by the learned Chief Ehtesab Commissioner in accordance with law after the appeal of the Federal Government and what was recorded by Muhammad Ali, Magistrate PW was a confession and since it was's confession that was recorded, there was no obligation upon t|ie Magistrate to issue a notice to the appellant and. To afford him an opportunity of cross-examination. According to the learned DPG, in the matter of grant of pardon, specific provision had been made., In the Ehtesab Act, 1997 and this being a special provision In a special law, the general provisions contained in Cr.P.C, shall stand excluded. Learned DPG argues that the confession was not recorded on oath. Learned DPG while admitting that the amount involved in the present case is the same amount which was involved in the Reference decided at Karachi and that the same has been recovered by NAB, insists that the primary rather the sole allegation made by the prosecution was that the appellant demanded illegal gratification and received the same in the manner proved .By the prosecution at the trial. According to the DPG, the statement of Sajjad Hussain Ex.PP was admissible in evidence, In terms of Article 46 of the Qanun-e-Shahadat Order, 1984, as he had confessed having committed a crime and the contents of the statement could have exposed him to prosecution. Learned DPG then refers us to the several pieces of evidence to demonstrate the movements of the said money commencing with the order of Sajjad Hussain for release of payment and ending in its delivery to Sajjad Hussain by Javed Sultan PW and then by Sajjad Hussain to the appellant in the Prime Minister's House at Islamabad. Regarding the F.E.B.Cs.
Learned DPG opines that these are bearer certificates and negotiable and the fact that there is nothing on record to show as to what ultimately happened to those F.E.B.Cs. And as to whether they were encashed or not would not matter. According to the learned DPG, the appellant was prosecuted in good faith and the impugned judgment is based on legal evidence.
5. We have gone through the voluminous Trial Court records and additional documents in the form of copies of judicial record tendered in this Court, with the assistance of the learned -counsel for the appellant and the learned DPG. Having gone through the said records, we deem it proper to make an attempt to place the facts in chronological order as we have been able to understand upon a reading of the entire material available on record. On 28.7.1993 when the country was. Being taken care of by a CAFE Taker Government, a contract (Ex.PJ at pages 65 to 109 of the reference) was awarded to Mercury Corporation for installation of 130 Tons Converter No. 3 at Steel making department of the Pakistan Steel Mills Corporation Limited. According to this document the tender inquiry was floated on 22.11.1992 and a letter of intent was issued on 26.7.1993. According to PW-14 Javed Sultan this is a business in the name and style of M/s. Mercury Corporation at L-13 Block No. 21 Federal B Area, Karachi and he is a partner in the same and there are three other partners, namely, Muhammad Asif, Muhammad Riaz and Muhammad Saleh. The delivery period was settled at 18 months after the effective date of contract, the total price which was to be firm and fixed was $ 22.5 Million. 20% of this amount was to be paid by the customer (Pakistan Steel Mills) to the said Contractor in three equal monthly instalments against Bank Guarantee. The remaining payment was to be released as per clause 3.3 of part-2 of the said contract. The said schedule was revised vide letter dated 19.5.1994, present at pages, 106 and 107 of the reference. According to Hamid Pervaiz PW-9 Sajjad Hussain joined Pakistan Steel Mills as Director Finance in the year 1992 (Ex.PR).
He w^s given acting charge of Chairman on 4-8.1994 vide Notification dated 8.5.1995 (Ex'.PT). He was removed from the said post and made on OSD on 5.12.1995 as stated by the said PW-9 in response to a question in cross-examination put to him with reference to the file of Establishment Division.
6. Saleem Ullah Khan PW-7 produced an application Ex.PL with nothing part Ex.PM and the payment voucher Ex.PN, Ex.PL is dated 12.9.1995 (pages 58 and 59 of the reference). This is addressed by Javed Sultan, Director, Mercury Corporation to the Chairman, Pakistan Steel Mills. After referring to several reasons as to the nonperformance of the said contract in the manner stipulated attributing the same mostly to the said Customer, a prayer was made that art advance payment of Rs. 40 Million be released forthwith to enable the said Corporation to ship the material and to take up the installation work in the right earnest. There is a note recorded on the said application that the addressee agrees in principle with the applicant-and the Director Finance may see to it that the amount it released. There is another noting of Director Finance to put up summary. Ex.PM is the summary ultimately leading to the release of the aid amount vide voucher Ex.PN dated 13.9.1995, the cheque of the same date issued in favour of Mercury Corporation is Ex.PA produced by Samoon Khan PW-2 vide recovery memo. Ex.PB.
7. According to Haji Abdul Sattar PW-13, he was posted as Operation Martager in the Prudential Commercial Bank Limited, I.I. Chundrigar Road, Karachi, in the year 1995 and Javed Sultan was client who is holder of the Bank. On 13.9.1995 Javed Sultan brought the said cheque Ex.PA and he issued receipt Ex.PU/1 and sent the cheque to Allied Bank of Pakistan for clearance. The amount of Rs. 4 Crores (we may note here that in the opening lines of the statement of this witness, as per record of the learned Trial Court, the amount is typed as Rs. 14 Million, which to our mind is obviously a clerical error) was credited to the account of Mercury Corporation as per statement of account Ex.PV. On the same day after the banking hours, Javed Sultan "visited him in the said Branch of the Prudential Commercial Bank. He delivered him cheques Ex. PU/2 in the sum of Rs. 22 Millions and Ex.PU/3-in the sum of Rs. 14,518,000/-. The said amount was debited in the Said account of Mercury Corporation. The PW-13 then contacted a broker S:M. Saleem in the Stock Exchange, Karachi, who was holding a Foreign Currency Account in the said Bank and introduced him to Javed Sultan. The said S.M. Saleem used a cheque Ex.PU/4 in the sum of $ 9,02,176 alongwith application Mark 'B' (Ex.PU/5).This amount of US Dollars was debited to the amount of S.M. Saleem.
On 13.9.1995 F.E.B.Cs. In the sum of Rs. 14 Millions were issued to S.M. Saleem who delivered the same to Javed Sultan. On the next date Javed Sultan and S.M. Saleem again came to the bank and another lot Of F.E.B.Cs. In the sum of Rs. 14.3 Millions were issued to S.M. Saleem who delivered the same to Javed Sultan.
8. On 17.4.1996 Pakistan Steel Mills filed a suit for recovery of Rs. 43,500,000/- against M/s. Mercury Corporation, Sajjad Hussain, Ex-Chairman, S.N. Abbasi, Ex- Director Finance of Pakistan Steel. The plaint of this suit is Ex.PZ, It was complained that the work under the said contract (which is Ex. P J).
Ought to have been completed within 32 months of the effective date which was 23.10.1993 but it was not done. Then there is reference to a revised schedule, It is then stated that a mobilization advances in the sum of R. 13,50,00,000/- has been paid to the Mercury Corporation. However, it was stated that this is not the subject-matter of the suit. The grievance made out was that the said Sajjad Hussain and the said S.N. Nabi in collusion with Mercury Corporation proceeded to pay the said amount of Rs. 40 Millions when there was no provision in the contract for payment of the said amount either as an advance or by way of loan by the plaintiff in the case to the Mercury Corporation. The payer made was for the recovery of the said amount with 15% per annum interest which was the term of the release of the said amount. A decree for the said amount was thus prayed for. The written statement was filed by the Mercury Corporation and the copy is Ex.PZ/1. This document is bears the signatures of Javed Sultan who admitted having filed the said document when confronted. The document duly verified upon oath before a Commissioner for taking affidavits. The document is dated 21.8.1997. The plea taken is that the payment was released with authority after scrutiny and the intention was to provide mobilization advance to the Mercury Corporation in relation to implementation of the said contract. Further plea was that the amount stands utilized for the purpose of the contract, It was further stated that the original mobilization advance was given against performance guarantee which have been renewed and is fully secured. Accusation was made against the plaintiff that the breach is on its part in the matter of performance and completion of the said contract.
9. On 11.2.1996 with reference to an inquiry a' case under sections 409/109/34, P.P.C, read with section 5 of the Prevention of Corruption Act, 1947, was registered vide FIR No. 17, dated 11.12.1996 at P.S. FIA/SSC, Karachi. (This document is Ex.DA/23). The allegation was that It. Gen. (Rtd). Sabeeh Qamaruz Zaman while posted as Chairman. Pakistan Steel Mills (PSM) in collusion with Habibullah Siddiqui, Director (Procurement) fraudulently and which criminal intent manipulated the purchase' of 3rd Converter which was not required. The services of Mr. Asif owner of Mercury Corporation were obtained who had come in contact with the said former Chairman during his visit to Rssia. A sum of Rs. 135 Millions was paid to the Mercury Corporation as mobilization advance against Bank Guarantees in three instalments w.e.f. 30.8.1993 to 12.10.1993 but the contractual commitment was not fulfilled and the amount was mis-appropriated without any material progress. The said Asif of Mercury Corporation did not deal in machinery and being the Sole Garment dealer exported from Pakistan to Russia on barter system and was facing some problems with the realization of their export bills while the Russian Government was inclined to make payment in the shape of Machinery/Hardware. The said It. Gen. Sabeeh Qamaruz Zaman facilitated Asif of Mercury Corporation while placing the order of 3rd Converter for realizing the outstanding export bills from Russia, It was then narrated that Sajjad Hussain while posted as Chairman, PSM also a availed the opportunity and facilitated by extending advance payment of Rs. 40 Millions without any lawful justification with the connivance of S.N. Nabi, Director (Finance) and other officers of PSM and thus used the funds of PAM for their pecuniary advantage and for the advantage of co- accused Asif of Memory Corporation, In this manner, a total loss of more than Rs. 175 Millions was caused to PSM.
10. On 26.12.1996 challan Ex.DA/24 was put up against It. Gen. (R) Sabeeh Qamar-uz-Zaman, Habibullah Siddiqui, Muhammad Asif, Sajjad Hussain and S.N. Abbasi. Sajjad Hussain was sent up in custody and was remanded to judicial custody on the same date.
11. On 2.5.1997 yet another interim challan Ex. DA/25 was put against It. Gen. (R) Sabeeh Qamaruz Zaman. Habib Ullah Siddiqui, Muhammad Asif, Muhammad Ehsanullah Sharif, M. Israil Khan, Sajjad Hussain and S.N. Abbasi. According to this document, Sajjad Hussain had been granted bail on 11.3.1997.
12. A third challan Ex.DA/26 was put up on 11.12.1996 against the above-noted seven persons. On 6.2.1998 a learned Special Judge (Central)ll, Karachi, framed charge (Ex.QA/29) against Sajjad Hussain, S.N. Abbasi, It. Gen. (R) Sabeeh Qamaruz Zaman, Habibullah Siddiqui, Muhammad Ehsanullah Sharif, Muhammad Israil Khan and Syed Mazhar Alam. Sajjad Hussain was charged for making unauthorized payments of Rs. 40 Millions at the behest of Asif Mercury Corporation with the collaboration "of Syed Mazhar Alam, S.N. Abbasi and Muhammad Israil Khan. Vide Ex. DA/30, Sajjad Hussain pleaded not guilty to the said change.
13. In the meanwhile on 13.6.1997 writ petition Ex. DA/32 was filed by Mst. Amna Hossain through Mr. Talib H. Rizvi, Advocate, DW-2 in the High Court of Sindh at Karachi. After mentioning that Sajjad Hussain was first detained under the M.P.O, on 26.11.1996 and was released by the said learned Court. Thereafter, he was again arrested on11.12.1996 and was granted bail on 11.3.1997. However, before his release, he was arrested in case FIR No. 1 of 1997 and was granted bail by the said learned Court. According to he contents of the said writ petition, Sajjad Hussain has become a mad man having developed extreme depressive condition. She accused the Ehtesab Cell of coercing her -husband into making a statement in accordance with their wishes. There is then reference to recording of statement implication the present appellant in the matter of payment of Rs. 323 Millions by Sajjad Hussain to him; that her husband is being forced by one Waseem Afzal to make a statement on Television as also before the press. The Television Team came to her house and found her husband under sedation. The relief prayed was that Sajjad Hussain be interrogated in the presence of the said writ petitioner or her Advocate and should not be taken out of the jurisdiction of the said Court. He should not be removed from the Hospital where he is under treatment and he should not be forced to make statement on Television or before the Press and the statement already recorded be not used illegally. - 14. On 3.2.1998 (this is the date verified by the Hon'ble members of the Ehtesab Bench who recorded the. Evidence in this case), the present Reference. Was prepared (Ex. PA/C) naming Sajjad Hussain and the appellant as accused persons. Following are the contents of this reference:- "Mercury Corporation, at Karachi based firm, entered into a contract vide No. 22470/PP (PC)/BMR/92-93, dated 28.7.1993 with Pakistan Steel Mills for providing 3rd Converter to Pakistan Steel Mills, Karachi. This contract took place during the tenure of It. Gen. Sabih Qamar-uz-Zaman as Chairman, Pakistan Steel.
2. After retirement of It. Gen. Sabih Qamar-uz- Zaman as Chairman, Pakistan Steels, Mr. Sajjad Hussain, an officer of the Secretariat Group who was working as Director Finance in Pakistan Steels was allowed to look after the work of the Chairman, Pakistan Steel Mills with effect from 7th August, 1994, vide Establishment Division's notification dated 4th August, 1994. Later on he was posted on the same post vide Establishment Division's Notification dated 8th May, 1995. According to the statement of Mr. Sajjad Hussain he was called by. Mr. Asif 'Ali Zardari before his Notification dated 8th May, 1995 and was told by him that they are going to post him as Chairman, Pakistan Steel and he has to contribute in the party funds out of the Steel Mills. On the next. Day his meeting was arranged with Prime Minister so he met her alongwith Brig. (Retd.) Asghar, Minister for Production.: Prime Minister directed the Minister to keep good working relations with Sajjad Hussain.
In the first week of September, 1995, Mr. Asif Ali Zardari called Sajjad Hussain to the Prime Minister House and asked him. To arrange an amount of 2.00 million dollars, In this context, Sajjad Hussain called upon Javed Sultan of Mercury Corporation and asked. Him to arrange an amount of 1.00 million dollars as he has to pay to a very important personality at Islamabad. On his call Javed Sultan of Mercury Corporation visited his office and met him. Sajjad Hussain demanded Rs. 40 million positively. Javed Sultan responded in negative and told Sajjad Hussain that they were not in a position to pay such huge amount without any justification. However, Mi. Sajjad Hussain insisted and alarmed Javed Sultan that he has already extended the period by one year for the completion of project and as a reward he should pay the amount otherwise the contract of 3rd Converter will be cancelled, In addition to these facts, Sajjad Hussain suggested to Javed Sultan that if he or his Corporation could not arrange the amount then /the Mercury Corporation may make a written request to the Pakistan Steel Mills for payment against outstanding bills, etc., so he being Chairman of the Pakistan Steel Mills will approve and disburse the amount to the Corporation. Javed Sultan under the threat and fear submitted an application on 12.9.1995 which was presented to Mr. Sajjad Hussain in his office and in the presence of Javed Sultan, Sajjad Hussain endorsed a hand written note on the application and sent the same to the lower echelon for immediate action. On 13.9.1995 a cheque bearing No. 27392246, dated 13th September, 1995 issued from Pakistan Steel M:!Ls in favour of Mercury Corporation. The same was deposited in Prudential Commercial Bank on the same day by Javed Sultan. This cheque was to be drawn on Allied Bank, Bin Qasim Branch, the proceeds of which were realized and credited to the Mercury Corporation Account. Javed Sultan also presented two cheques bearing Nos. 008255 and 008256, dated 13th September, 1995, for \ Rs.
14,518,000/- and Rs. 22,000,000/- respectively after banking hours to the Operational Manager Haji A. Sattar of the Prudential Commercial Bank with a request to arrange/provide F.E.B.Cs. Against both cheques. The Operational Manager on 13th provided Javed Sultan F.E.B Cs, bearing Nos.
669947 to 670086 out of the account of S.M. Saleem and asked Javed Sultan that the remaining F.E.B.Cs. Will be arranged on 14,9.1995. Similarly, the balance F.E.B.Qs. Bearing Nos. 670587 to 670729 were arranged next day i.e. 14.9.1995. According to record the F.E.Ef.Cs. Bearing numbers mentioned above were issued from Prudential Commercial Bank out of the US Dollars account of S.M. Saleem Iqbal. According to the statement of S.M. Saleem Iqbal he stated that he used to run a business of F.E.B.Cs. In the Stock Exchange and is holding US Dollars account in the Prudential Commercial Bank. He further states that on 13.9.1995 he was' called by Haji Sattar in the evenings to the Prudential Commercial Bank and was asked that they were in need of F.E.B.Cs. Worth about 4 Crores. On the same day he issued a cheque for an amount of 902176/07 US Dollars alongwith an application for provision of F.E.B.Cs. As the working hours of the bank were over, therefore, according to the witness S.M. Saleem Iqbal, he noted the date on his application and cheque to be 14.9.1995 he has also witnessed that Haji Sattar on 13.9.1995 gave 140 F.E.B.Cs. To Javed Sultan.
Similarly, on the next day i.e. 14th September, in his presence PW Haji Sattar gave 143 F.E.B.Cs': to Javed Sultan.
All these F.E.B.Cs. Were accounted out of the dollars account of S.M. Saleem Iqbal and in return S.M.
Saleem Iqbal got Pakistani rupees from Sattar out of the account of Mercury Corporation drawn against the two cheques of Javed Sultan for book entries in the bank with respect to the US dollars account of S.M. Saleem and account of ' - M/s. Mercury Corporation were madew on 14th September, 1995 after the completion of cross transaction among both the accounts. Javed Sultan further requested S.M. Saleem Iqbal to provide him some more F.E.B.Cs' according to Saleem Iqbal he states that some F.E.B Cs. Were lying in his office at Stock Exchange, Karachi who provided Javed Sultan 6 F.E.B.Cs. In addition to the F.E.B.Cs. Which were drawn from his account on his cheque from Prudential Commercial Bank, Karachi.
5. On 13.9.1995 Mr. Javed Sultan after receiving 140 F.E.B.Cs. From Operation Manager of Prudential Commercial Bank-Haji Abdul Sattar handed over the same to Sajjad Hussain who then left for Islamabad in the morning flight No. PK-300 at 7.00 a.m. Dated 14th September, 1995. After his arrival to Islamabad he again contacted Javed Sultan on phone regarding the balance. As mentioned above Javed Sultan after receiving 149 F.E.B.Cs. And Rs. 60 lac in shape of dollars left for Islamabad on PIA Flight No. PK-308 at 4.00 P.M. Dated 14th September, 1995 and handed over the remaining F.E.B.Cs. To Sajjad Hussain in the * VIP Lounge at Islamabad Airport and then returned to Karachi on PIA Flight No. PK-309 at 7 5 p m. Dated 14th September, , 1995. These facts get support from the documents of PIA,
6. According to the statement of Sajjad Hussain he after receiving the F E.B Cs. 'and dollars in the mode and manner described above then went to the Prime Minister's House and handed over to Asif Ali Zardari, F.E.B.Cs. And dollars worth Rs. 3 crore and 12 lacs and kept F.E.B.Cs. Worth Rs. 37 lacs for him.
7. Accused Sajjad Hussain is ready to pay to the Government the entire amount which he himself .
Mis-appropriated/illegally received during his posting as Chairman Pakistan Steels. '
8. In view of the above-mentioned facts and circumstances, it is clear that the role of Asif Ali Zardari falls under the ambit of Section 3(a) as well as Section 3(d) of Ehtesab Apt, 1997. Similarly the role of accused Sajjad Hussain falls under the ambit of Section 3(a) as well as Sections 3(d) and 4(d) of Ehtesab Act, 1997."
15. On 28.5.1998 a revised Reference was prepared. The contents are identical except that it was mentioned- in para-7 that Sajjad Hussain who was shown as an accused in the provisional report of the I.O. Dated 2.3.1998 is now being placed in the calendar of witnesses after requesting' on his part and subsequently accepting pardon and thereafter his statement was recorded under section 18(2) of the Ehtesab Act, 1997.
16. The Reference was received in Court on 8.6.1998 and the appellant was summoned for 22.6.1998. :
17. The charge noted above, was framed on 24.6.1998.
18. Sajjad Hussain was murdered on 11.9.1998 as per contents of FIR copy produced by the learned Chief Prosecutor on 13.5.1999.
19. The recording of prosecution evidence commenced on 14.9.1998 and concluded on 13.5.1999. . .
20. The reference was then transferred to the learned Judge, Accountability Court, Rawalpindi and was received by the, Registrar or> 25.7.2000 and was put up before the Court on 26.7.2000 and thereafter the proceedings were conducted till such time that the impugned judgment was passed on 12.9.2002.
21. In the meantime the said case FIR No. 17/96 dated 11.12.1996 at P.S. FIA/SBC, Karachi, had been transferred to learned Judge, Accountability Court No. 11, Karachi, as Reference No. 32/2001. On 18.7.2002 the learned , Prosecutor General Accountability filed an application in tems of Section 31-B of NAB Ordinance, 1999, seeking consent of the Court for withdrawal of prosecution against Muhammad Asif of Mercury Corporation. It was stated in the said application that Muhammad Asif of Mercury Corporation has made good for loss caused by him . To the PSM, it will. Be in the interest of justice to withdraw the prosecution against him. An objection was raised by the learned Court that M. Asif of Mercury Corporation is fugitive from law and is absconding and besides the contract between NAB and M. Asif is not filed. A copy of the said contract/settlement was accordingly filed.
According to the terms of this settlement, Mercury Corporation agreed to return Rs. 200 Millions in consideration of NAB agreeing to withdraw the Reference under section 31-B of NAB Ordinance against Muhammad Asif and to apply for withdrawal of warrant issued against him and to remove his name from ECL and that this agreement between Mercury Corporation and PSM has been entered into in consultation with and approved of by NAB. The mode of payment was also stipulated Upon payment of Rs. 110 Millions, the NAB was to withdraw the name^ of Muhammad Asif from Reference No. 32/2001 and Reference No! 19/2002 arising out of FIR No. 17 of 1996 and appropriate orders were to be obtained from the Court in both the cases, the warrant was to be cancelled and his name was to be removed from ECL. It was further stipulated that settlement would be full and final settlement of all or any dispute or rights in connections with 3rd Converter of PSM and liability of Mercury Corporation pertaining to 3rd Converter.
22. The learned Accountability Court at Karachi took up the matter and decided the same vide judgment dated 10.8.2002. The said settlement, was allowed and the application filed by the Prosecutor General, NAB, was allowed inasmuch as the prosecution was withdrawn against M. Asif, thereafter, all the other accused persons,, namely, It. Gen. (R) Sabeeh Qamaruz Zaman, Habibullah Siddiqui and Muhammad Ehsanullah Sharif were acquitted vide the same judgment. According to the learned Judge, the prosecution had failed to bring any evidence on record to support the said allegations made in the said Reference/FIR and further Muhammad Asif has compensated PSM for the losses caused by him to PSM. The appeal against this judgment was dismissed by a learned Division Bench of the High Court of Sindh at Karachi- vide judgment dated 30.8.2002 in the case of State v. Syed Mazhar Alam and others (PLD 2003 Karachi 123).
23. The impugned judgment was passed on 12.9.2002.
24. Now upon an examination of the said documents forming part of judicial proceedings, one thing is certain and as noted by us above, learned DPG was also constrained to conceded that the same amount of money which is involved in the present case was the subject-matter of the said FIR, the trial before the Special Judge and ultimately the References decided by the learned Judge, Accountability Court at Karachi, who after allowing withdrawal of prosecution against. Muhammad Asif on the plea of the Prosecutor General, NAB, that the loss had been made up and that a sum of Rs. 200 Millions has either been paid or agreed to be paid by Asif. The learned DPG is also not in a position to controvert tat the amount subject-matter of this case had, in fact, been paid and recovered from the said Asif by the NAB under the said settlement approved by the learned Judge Accountability Court at Karachi on the application of the Prosecutor General, NAB, itself, It is a matter of record that the Prosecutor General did not deem it proper to inform the learned lower Trial Court of the said events.
25. Another fact glaring on the face of the record is that at no stage prior to the proceedings commenced by the prosecution in. The present Reference, the name of the appellant was ever remotely mentioned.
26. Now PW-15 Syed Feroze Shah, I.O. States that the investigation of this reference was entrusted to him and in the first instance on 23.12.1997, he proceeded to Karachi on 24.12.1997, joined officers of PSM in the investigation and collected the documents already referred to by us above. He then states that on 25.12.1997 he- recorded the statement of Sajjad Hussain. This statement is available at pages 114 to 116 of the Reference. On 27.12.1997, he investigated the officers of Allied Bank Limited who delivered him the copy of cheque Ex.PA. On 29.12.1997, he recorded the statements Of the. Officers of Prudential Commercial Bank as also of said Saleem Iqbal, Broker, Stock Exchange, Karachi and Javed. Sultan PW. He collected the several cheques noted by us above, He then collected. Travel certificates Exs. PC, PD and photo-copies of Flight Coupon Exs. PE, PF and PG on 1.1.1998 from Wasif- ud-Din PW. On 9.2.1998, he joined Suqlain Hussain Shah, Inspector, Security Prime Minister House with the investigation who handed over the copies of the record at the gate of Prime Minister House, Islamabad, which are Exs.PH, PH/1 and PI and PI/1. His statement was recorded on 25.2.1998, he also recorded the statement of Commander Misbah PW. It was on the basis of this evidence collected by him that he prepared the report Ex.PAC. According to him, the date is wrongly mentioned as 3.2.1998 whereas it is 2.3.1998, thereafter, he received a letter Mark "Q" from the Principal Staff Officer of Chief Ehtesab Commission desiring that Sajjad Hussain he produced before Chief, Ehtesab Commissioner on 18.5.1998, he informed Sajjad Hussain and produced him before the Chief Ehtesab Commission on 18.5.1998. He was sent out of the office and again called back after 15 minutes with a direction to produce Sajjad Hussain on 21.5.1998. He states that Sajjad Hussain was produced before the CEC on 25.5.1998. He was again sent out of the office for 1.5 minutes and then recalled and directed to take Sajjad Hussain and produce him before Ch. Muhammad Ali, Assistant Commissioner, Islamabad, for recording his statement. He took Sajjad Hussain to the Court of Ch. Muhammad Ali and handed over the file which was delivered to the I.O.
By the CEC to the said Muhammad Ali and informed him that Sajjad Hussain has been produced on the direction of CEC for recording of statement. Letter dated 21.5.1998 Mark 'PR' was also produced. Ch. Muhammad Ali sent him outside the room and he waited outside and after about VA hour Sajjad Hussain came out and left for his residence. On his request, certified copy of the statement of Sajjad Hussain was delivered to him. He again prepared a report Ex.PAE on 28.5.1998.
The I.O. Then states that in view of the statement recorded before the Assistant Commissioner and the pardon granted by CEC he deleted the name of Sajjad Hussain from the list of the accused persons and cited him as a witness and filed a final report to the CEC.
27. Now this witness states in cross-examination that he did not join the appellant in the course of investigation while he was fully aware that he is arrested in some other cases. He was also admitted that he became aware of the pending civil litigation as also the pendency of the said criminal cases arising out of the same transaction but did not deem it proper to obtain the records or to inspect the same. He admits that he has not prepared any case diaries or recorded any Zimnis in the course of investigation. He admits that he made no efforts to recover the money. He 'knew that Muhammad Asif absconder in the said criminal cases is the real brother of Javed Sultan PW. He did not make any effort to trace the amount in the records of Mercury Corporation. He did not check up the audit reports of Pakistan Steel for the relevant years. He states that he did not join Brig. (R) Muhammad Asghar, the then Minister for Production, who was named by Sajjad Hussain in the investigation. He admitted that he never confronted the said Ex-Minister with the statement of Sajjad Hussain mentioning him.
28. Now under section 15(2) of the Ehtesab Act, 1997, a reference under the said Act may be initiated by the learned CEC on a Reference received from the appropriate Government; or receipt of a complaint; or his on accord.
There is nothing on the record and the Reference filed in. Court dated 2.6.1998 under the signatures of the learned .CEG is absolutely silent as to how and in which of the three said modes or basis the Reference was initiated by the learned CEC. According to the statement of I.O. PW-15 he was entrusted with the investigation on 23.12.1997, he proceeded to Karachi on 24.12.1997 and instantly dug gold when somehow or the other he proceeded to record the statement of Sajjad Hussain and everything else ticked. Now this entire Reference revolves around the statement of Sajjad Hussain, In the initial Reference prepared on 3.2.1998 (or 2.3.1998), the revised Reference prepared on 28.5.1998 and the Reference filed by the learned CEC on 2.6.1998 the entire-relevant facts have been stated with reference to the said statement and it has been noted in the beginning "according to the statement of Sajjad Hussain". The learned Trial Court in its impugned judgment refers to the said statement of Sajjad Hussain as "the most important piece of evidence ," The learned Deputy Prosecutor General also states before us that this is the only piece of evidence connecting the appellant with the offence after reading the same in conjunction with the other evidence on record.
29. The said statement of Sajjad Hussain is on record as Ex.PP, it was introduced into evidence in the statement of Ch. Muhammad Ali, Deputy Commissioner, CDA, Islamabad, PW-8. We have already noted the proceedings preliminary to the recording of the said statement while referring to the statement of I.O. PW-15. Now the said Ch. Muhammad Ali PW-8 states that he was posted as Assistant Commissioner Saddar, Islamabad and - was discharging the functions of Sub-Divisional Magistrate in May, 1998. On 21.5.1998 Feroze Shah, I.O. From Ehtesab Bureau came to him with written request from learned CEC for recording the statement of Sajjad Hussain, Ex-Chairman, Pakistan Steel Mills, Karachi, under section 164, Cr.P.C, as an approver. He then produced the order of the learned CEC Ex.PO nominating him to record the statement. He got the Court Room vacated and called Sajjad Hussain witness in the Court Room for recording of his statement. He inquired from him whether he was willing to get his statement recorded as an approver and after obtaining his concurrence he made Sajjad Hussain to sit in the Court Room for 1 !4 hour' time to think to make the statement. Then for his satisfaction, he put more questions to the witness before recording his statement to ascertain whether the witness was voluntarily prepared to make statement. He then recorded the statement of Sajjad Hussain Ex.PP/1-6. The statement was then signed by him. The appended the certificate Ex.PQ and signed the same. He sealed the statement and sent the same to the learned CEC.
30. The statement is correctly reproduced in para 38(i) of the impugned judgment by the learned Trial Court at pages 22 and 23 thereof. Now upon an examination of the said Exs. PP and PP-1 to 6, we find it to be glaring on the face of the said document that at the relevant time in the Court Room where the statement was recorded following three persons were present:-
(i) The Magistrate,
(ii) Sajjad Hussain; and
(iii) The I.O.
Another fact apparent on the face of this document is that the statement was recorded after administering oath upon solemn affirmation.
31. Now the learned counsel for .The appellant contends with reference to the reference filed by the learned CEC containing the said two reports filed by the I.O. Who has also stated in his statement and so . Is the case with the Magistrate that statement was recorded under section 164, Cr.P.C. This is how the statement was treated by the Hon'ble Members of the Ehtesab Bench of this Court while admitting it in evidence, It is on this basis that the learned counsel for the appellant argues that the statement has not been recorded in accordance with Section 164, Cr.P.C, and further that the statement does not qualify to be admitted in evidence. The learned DPG, on the other hand, insists that this was a confession and as such the requirements of Section 164 read with Section 265-J, Cr.P.C. Are not necessary to be adhered to.
32. Now the learned Trial Court has proceeded to admit the said statement in evidence as according to it, it is relevant under Article 46(3) of the Qanun-e-Shahadat Order, 4984 as according to the learned Trial Court this is a statement which if true would have exposed Sajjad Hussain to a criminal prosecution.
33. Now in the Reference forwarded to this Court, the learned CEC has stated that the statement has been recorded under section 18(2) of the Ehtesab Act, 1997.
34. Before we proceed further in the matter, we may note here that the distinction between the various kinds of statements that can be recorded under Section 164, Cr.P.C, came to be noted by the Federal Court of Pakistan in the case of Ibrahim Bhak and another v. The Crown (PLD 1955 Federal Court 113). We may note here that in the said case which was a murder case and the conviction was based upon, inter alia, the statement of an approver. Their Lordships observed that if no pardon had been tendered when the approver makes his statement under section 164, the statement can only be recorded as a confession subject to restrictions of that Section, but where such pardon has been previously tendered and accepted, the statement has to be recorded as that of a witness, the former being without oath and the latter being on oath. We are in respectful agreement with the said observation of the Chief Justice Muhammad Munir (as his Lordship then was) in the said judgment.
35. In the present case, the prosecution had led evidence in the form of Ex. PO whereby the learned CEC had tendered "full pardon" to Sajjad Hussain under section 18 of the Ehtesab Act, 1997 and Sajjad Hussain had accepted the tender of pardon and signed in presence of the learned CEC.
Thereafter, the learned CEC called for I.O., handed over the record of the case and directed him to produce Sajjad Hussain before the said A.C./Magistrate, Islamabad, for examination and recording the statement.
36. It was, therefore, a statement of a witness and not the confession of an accused, which was recorded by the said Muhammad Ali, Magistrate, vide Ex.PF. Needless to state that if we go by the argument of the learned DPG the confession is liable to be discarded on the sole ground that it was recorded on oath which is an incurable illegality and makes it not admissible on relevant as per judgment of the Hon'ble Supreme Court of Pakistan in the case of Muhammad Bakhsh v. The State (PLD 1956 SG 420).
37. Now having held that the statement was recoded in terms of section 18(2) of the said .Ehtesab Act, 1997, under section 164, Cr.P.C, by the said Magistrate PW- 8, further question arises as to whether and for what purposes the said statement can be used and in what manner. Now section 18(2) of the said Ehtesab Act, 1997, provides that every person accepting a tender of pardon under sub-section (1) of section 18 shall be examined by a Magistrate nominated by the learned CEC and shall also be examined as a witness in the subsequent trial. Sub-section (4) of section 18 lays down that where the learned CEC certifies that in his opinion any person who has accepted such tender has, either by. Wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such a person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the said matter including the offence of giving false evidence. Sub-section
(5) authorizes the prosecution to give in evidence any statement made before the learned CEC or the Court by a person who has accepted a tender of pardon against him at such a trial envisaged in sub-section (4) of section 18 of the said Act.
38. It will, thus, be seen that sub-section (4) primarily prescribes a penalty for an approver who has reneged upon the term of grant of pardon stated in section 18(1) of the said Act which, of course, is a point of time when in compliance with section 18(2) of the said Act, the said person have been examined as. a witness in the said subsequent trial. Such a stage never came in the present case as Sajjad Hussain could not be examined as a witness because of his murder before the said event could have taken place.
39. Now under section 12 of the Ehtesab Act, 1997, the provisions of the Code of Criminal Procedure shall mutatis mutandis apply to the proceedings under the said Act unless there is anything inconsistent with the provisions of the said Act. Sub-section (3) of section 12 authorizes the Court to dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case, for reasons to be recorded.
40. Now there is no provision whether consistent or inconsistent in the Ehtesab Act, 1997 as to how a person under section 18(2) of the said Act is to be examined by a Magistrate nominated by the learned CEC. Needless to state that the Act does not at all authorize the CEC to dispense with any provision of Cr.P.C. Thus, the statement Of the said. Person could have been recorded only in terms of and in accordance with section 164, Cr.P.C. We may further note here that except for reducing the time between the delivery of copies and framing of the charge neither the Hon'ble Members of the Ehtesab Bench nor the learned Judge Accountability Court has passed any order dispensing with any provisions of Cr.P.C.
41. Now one of the pre-requisites of section 164, Cr.P.C, contained in sub-section (1A) of the said section 164, Cr.P.C, are that such a statement may be recorded by the Magistrate in. The presence of the accused and the accused given an opportunity of cross-examining the witness making the statement. Section 265-J, Cr.P.C, lays down pre- conditions for admission of the said statement in evidence. These are that the statement must have been duly recorded under section 164, Cr.P.C.; it was made in the presence of the accused; the accused had notice of it; the accused was given an opportunity of cross-examining the witness; such a witness is produced and examined, It will be seen that none of the said conditions exist in the present case, so as to enable the Court exercise it discretion in the matter of treating the said statement as an evidence in the said case.
41. Both the I.O. And the said Magistrate had stated without any demur that no notice was issued to the appellant before recording the said statement and of course there is no question of any opportunity being given to him of cross-examining the witness.
42. As to whether the statement can be treated as a duly recorded statement under section 164, Cr.P.C, is also a matter not at ^ll free from doubt in view of the fact recorded in the Ex.PP itself that the proceedings were conducted by the Magistrate in the presence of I.O.
43. This brings us to the reasoning recorded in the impugned judgment for admitting, the said statement Ex.PP in evidence. As noted by us above, the learned Trial Court has opined that the statement is admissible in terms of Article 46(3) of the Qanun-e-Shahadat Order, 1984, the said provision of law on terms stated which do exist in the present case, i.e. That the said witness is dead, makes his statement as a relevant fact in case, inter alia.
"When the statement is against , the pecuniary or proprietary interest of the person making it, or when, if true, it would expose or would have exposed him to a criminal prosecution or to suit for damages."
Now as noted by us above, vide Ex.PO, the learned CEC had tendered full pardon to Sajjad Hussain under section 18(1) of the Ehtesab Act, 1997. Now section 18(3) of the said Act places a complete bar and prohibits the Trial of the person to whom a full pardon has been granted for the offence in respect of. Which the pardon was granted,
44. Now in the presence of said .Facts being placed' on the record by the prosecution itself and being relied upon by it. One needs of course to stretch the conjectures to a breaking point to hold that Sajjad Hussain deceased was either exposed to or. Was likely to be exposed to prosecution while making the said statement, In fact, he made that statement after accepting the tender of full pardon of CEC. It cannot even be said that upon the tender of the said full pardon and while Sajjad Hussain was making the statement he could have even a remote apprehension that he would be tried in the case in which he is making a statement and in which he had been tendered a full pardon which he has accepted. The defence does but the prosecution does not question the said statement on any of the grounds mentioned in sub-section (4) of section 18 of the said Ehtesab Act, 1997.
45. We, therefore, find that whether it was a confession or a statement under section 164, Cr.P.C, read with section 18(2) of the Ehtesab Act, 1997, it was inadmissible in evidence as none of the conditions mentioned in the relevant laws to make it admissible exist.
46. Now assuming that the statement was admissible for the reasons stated by the learned Trial Court and further assuming that it was a duly recorded statement and all conditions mentioned in law making it admissible exist, Article 129 read with illustration (b) raises a presumption that an accomplice is unworthy of credit, unless he is corroborated in material particular. The inconsistent provision in Article 16 of the Qanun-e-Shahadat Order, 1984 (section 1-33 of the Evidence Act, 1872) have been sought to be harmonized and ultimately the consistent view is that it is now a fundamental rule in practice for over the last more than one century it while it is not illegal to act upon uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in. Material respects so as to implicate the accused. This is also the rule laid down in the judgment in the case of Federation Pakistan v. Muhammad Shafi Muhammadi, Advocate and 3 others (1994 SCM R 932) discussed at some length by the learned Judge, Accountability in the impugned judgment.
47. Now the learned Accountability Judge while placing implicit reliance upon the statement of Javed Sultan PW-14 has not at 'all taken into consideration the entire evidence on record particularly the said civil suit and the defence admittedly taken by Javed Sultan therein as also the cases which were in progress in the Accountability Court at Karachi arising out of the same transaction. He also completely lost sight of the fact that for the first time this witness PW-14 named the appellant while he was in the witness-box in the Court. Learned Trial Court although has reproduced verbatim the said statement Ex.PP of Sajjad Hussain in its judgment yet has failed to see that according to the said statement of Sajjad Hussain as well he had not told Javed Sultan as to whom the payment was to be made. In his statement recorded by the said I.O., Javed Sultan had not named the appellant. According to him, Sajjad Hussain' had told him that money was to be paid to a very important personality at Islamabad. The learned Trial Court also lost sight of the fact admitted by this witness in cross- examination that his brother is being prosecuted in connection with the same .Transaction and that he is an absconder. The testimony was itself tainted and not at all inspiring any confidence. As would further be evident what ultimately happened in the said Ehtesab cases at Karachi, before the case was decided by the learned Judge Accountability vide the impugned judgment. Want is shocking is that the learned Trial Court has completely ignored the admission of PW-14. He was asked as to how much amount the Mercury Corporation has received from Pakistan Steel Mills in connection with contract of 3rd Converter and the answer was that an amount of Rs. 17,0, 00,000/- in Pakistani currency has been received till date. Now if one is to add up the said 20% mobilization advance and the said Rs. 40 Millions, it comes to the amount, which Javed Sultan admits to have been received by the Mercury Corporation. There is no allegation on. Record that any amount other than the said amount was paid to Mercury Corporation by Pakistan Steel Mills.
48. So far as the matter of the acquisition of F.E.B.Cs. Is concerned which no one including the I.O.
Tried to trace or recover, we have examined the register Ex.DV. Haji Abdul Sattar PW admits that this register nowhere discloses that it pertains to the Prudential Bank or bears the stamp of the said bank. Be that as it may, according to this witness, the relevant entries are at page 17 of the register..
A bare look on the said page-of the register would show that entries pertaining to F.E.B.Cs. In question against the date 14.9.1995 are in an ink different from the one used against the rest of the entries. There are cuttings and Serial number wise also the arrangement is not correct. Leaving this matter aside, Javed Sultan as well as Haji Sattar PWs have stated that he was in dire need of .F.E.B.Cs, but the same could not. Be given by the Bank in the requisite amount as. These were not available and ultimately 140 F.E.B.Cs. Were given on 13.9.1995 and 143 F.E.B.Cs. Were given on 14.9.1995 while six F.E.B.Cs. Were donated by S.M. Saleem PW the Stock Broker. Now we find that the entries for 14.9.1995 were closed with 657 F.E.B.Cs. Of denomination of Rs. 1,00,0007- in balance. As to what prevented Haji Sattar and the said Saleem from further obliging Javed Sultan PW is not on record, It is also rather unusual that Haji Sattar made a transaction of 14 Million rupees after the close of banking hours on 13.9.1995 when the cheque for Rs. 40' Million (Ex.PA) had yet to be cleared and credited to the account of Mercury Corporation.
49. So far as the gate entry records at the Prime Minister House Ex.PH and Ex.PI are concerned, suffice it to say that not a single witness has stated as to why Sajjad Hussain sought entry into the Prime Minister House on the said dates and whom he met there. There is certainly no evidence on record stating that Sajjad Hussain did meet the appellant on the said dates.
'
50. We may further note here the innuendos made by the learned DPG while stating that the defence team of the appellant did not let Sajjad Hussain to be examined in his life-time and the response of the learned defence counsel for the appellant with equal vehemence that the proceedings were fabricated and since Sajjad Hussain was not ready to support the same, he was done away with. As to who killed Sajjad Hussain is not a question we are called upon to answer in these proceedings. However, the learned counsel for the appellant has placed on record a judgment recorded by a learned Additional Sessions Judge at Karachi acquitting the appellant in case FIR No. 220 of 1998 under Sections 302/109/114/34, P.P.C, at Police Station Defence,. Karachi(S) on 13.8.2003. We are told that the decision was not challenged any further.
51. So far as the plea of alibi is concerned, nothing turns on the same either way. Three of the witnesses i.e. Commander Misbah PW-10, Dr. Ata Muhammad DW-1 and Rukhsana Bangish DW-4 do appear to be present in the P.M. House on the relevant date and time as per entries in the said diaries Exs. PI and PI/1. Commander Misbah PW10 stated that Sajjad Hussain met him and requested him for facilitating his boarding the plane for Karachi but was not able to state the date and time of the meeting, with the said deceased person. Besides, according to Mark 'B' Sajjad Hussain had not flown to Karachi rather he had flown to Lahore from Islamabad on the said date.
The witness had not said anything about appellant. The other two witnesses who are also reported to have entered the Prime Minister House have been discarded by the learned Trial Court as according to it they are very close to the appellant. For the same reason, the statement of Ch. Inayat Ali DW-3 has been discarded because of his political affiliation and relations with the father of the appellant. The fact remains that primarily it was for the prosecution to prove that Sajjad Hussain did enter the Prime Minister House to meet the appellant and that he did meet him. There is no evidence to this effect on the file.
52. For ail that has been discussed above, we allow this Criminal Appeal and set aside the impugned judgment, conviction and sentence of the learned Judge, Accountability Court, Rawalpindi/Islamabad Capital Territory and acquit the appellant. If not required in any other case, he be released forthwith.