' SARDAR MUHAMMAD ASLAM, J.---Four persons namely Atiq-ur-Rehman, Irfan Ahmad, Muhammad Akram and Muhammad Afsar Abbasi were tried in Reference Case No,8 of 2005 registered vide F.I.R.
No,3 dated 28-5-1998 under sections 420/468/471/409/109, P.P.C. Read with sections 9(a)(vi)/10 of National Accountability Ordinance, 1999 at Police 'Station F.I.A./SIU, Islamabad. The learned Judge, Accountability Court No,III vide his judgment dated 29-4-2006 acquitted Muhammad Afsar Abbasi and Muhammad Akram whereas convicted Attiq-ur-Rehman and Ifran Ahmad appellants under sections 468/471/109, P.P.C. And sentenced to 7 years R.I. Each. They were also convicted under section 9(a) (vi) read with section 10 of National Accountability Ordinance, 1999 and sentenced to 14 years' R.I. And a fine of Rs,1,20,00,000 each or in default thereof to further undergo 3 years' R. Each.
The benefit of section 382-B, Cr.P.C. Was also given to them. All the sentences were ordered to run concurrently. They were further ceased under section 15 of National Accountability Ordinance, 1999 to hold any public office and they stand disqualified for a period of 10 years from today for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or any service of Pakistan or of any province of Pakistan.
2. Both the convicts have filed their separate appeals viz. Criminal Appeal No,7-E of 2006 and Criminal Appeal No,10-E of 2006 against their sentences and convictions. We propose to dispose of both these matters by this single judgment.
3. The prosecution examined 13 witnesses in all. The accused were examined under section 342, Cr.P.C. They denied the charges. They did not opt to examine under section 340(2), Cr.P.C.
4. The learned trial Judge believing the prosecution, convicted and sentenced the appellants hereinbefore.
5. Learned counsel for the appellant in Criminal Appeal No,10-E of 2006 contends that except confessional statement of co-accused Irfan Ahmad, there is no evidence worth the name against the appellant. Learned counsel for the appellant in Criminal Appeal No,7-E of 2006 submits that the confessional statement was recorded under coercion and duress and was not in consonance of law calling for its outright exclusion from consideration and the documentary evidence relied upon by the prosecution consisted of Photostat copies, which were inadmissible in evidence.
6. On the other hand, learned Additional Deputy Prosecutor General for NAB vehemently controverted the arguments and supported the judgments of the learned trial Court.
7. We have heard the learned counsel for the parties at length and have perused the record.
8. Artillery and Ammunition Factory P.O.F. Had a requirement Of 2.847 tons of Aluminium Alloy Bar 1.7 dia and 4.197 tons of Aluminium Alloy Strip 5 SWG. Tender inquiries were issued. M/s Metal and Matrix, a firm allegedly based in UK, was included by Muhammad Irfan, a Chargeman in the Factory, statedly, without the information and approval of his seniors. Tender documents were issued to the firm.
' Four other tender inquiries were issued subsequently to this firm. Within a period of one year, 5 contracts amounting to 161, 165.13 pounds were awarded. The prosecution asserted that bank guarantees obtained for contracts were not scrutinized and naked irregularities were committed, by Purchase Officers of the Factory. The bank guarantee issued by American Express Bank, Islamabad along with its genuineness certificate issued from the said Branch was received in the office of Managing Director of the Factory. At the request of firm inspection by Pakistan Army, Technical Liason Officer (PATLO) was waived of by the officials of P.O.F. The firm was unnecessarily granted extentions in supply. A short-landing of material was reported against Contract No,223 and 232-FPAA-25. Material shipped by the firm in three containers reached at Karachi Terminal and was found containing scrap instead of contracted material. A Court of Inquiry was constituted to fix responsibility on person or persons, who caused colossal loss to the P.O.F. Chairman, P.O.F.
Board corresponded with High Commission of Pakistan at London to help him out in tracing the accused.
9. The scrap was shipped in the containers through a Shipping Agent in UK and according to the investigation, two containers were loaded with scrap by a company named F.J. Church, Centenary Works Manor Way Rainham. Mr. Stephen Church of this firm confirmed the delivery of scrap to M/s Metal and Matrix UK: A case was also got registered through the intervention of High Commission of Pakistan in London with Metropolitan Police Services London which is still under investigation.
10. P.W.4 Muhammad Sharif appeared in the Court and produced the report of Court of Inquiry, Exh.
P4. Muhammad Irfan appellant was found responsible for introducing a fake firm and processing the fake guarantees without seeking confirmation from Zonal/Head Office. Muhammad Wasim, real brother of appellant Dr. Atiq-ur-Rehman was proprietor of the firm. On the strength of statement under section 164, Cr.P.C. Of appellant Muhammad Irfan, it was found that appellant Atiq-ur-Rehman is also involved in the matter.
11. The learned trial Court also relied on the documents Mark-A, Mark-B and Mark-C in view of section 21(g) of National Accountability Ordinance, 1999.
12. Only evidence available against Atiq-ur-Rehman appellant, is the statement of his co-appellant Muhammad Irfan, recorded under section 164, Cr.P.C. At the very outset, we may mention that the statement under section 164, Cr.P.C. Of co-accused is exculpatory in nature. It cannot be read against the other accused. The appellant thus, cannot be convicted only on this piece of evidence.
There is no other evidence on record connecting the appellant with the crime.
13. As far as Muhammad Irfan appellant is concerned, he was a Chargeman. Allegation of his inclusion of the firm M/s Metal and Matrix in the tendering documents is not supported by any other evidence, except his own statement under section 164, Cr.P.C. There was a hierarchy above Purchase Officer, a Purchase Manager and a Managing Director. He was not responsible in any way to see as to whether the bank guarantees furnished were genuine or otherwise. Even if we concede for the sake of arguments, he included the name of M/s Metal and Matrix at the instance of co- accused, then the officials at the helm of affairs could not escape their responsibility. They were bound to examine themselves the record of Metal and Matrix, inquire into the gunuineness of the bank guarantees reconfirming their status from the Head Office of the concerned bank. P.W.6 Muhammad Sohail Assistant Stores Holder stated that a fax message was received by him on 27- 4-1995 in respect of Metal and Matrix Co. It contained the order of Managing Director, Artillery and Ammunition, Factory P.O.F. Wah that "we may include their name for the above items". I tagged this fax in my file. After a lapse of 2 years, when the firm Metal and Matrix was declared defaulter, the Managing Director added the words "after verification in his order". This shows that, even, the Managing Director who was in full knowledge of the picture and under his direction, name of the firm was included and after finding that the firm has become defaulter he committed interpolation and added the word "after verification" in his previous order recorded on the fax message.
14. Confessional statement Exh.P.10, was recorded by P.W.10, Syed Tahir Abbas Bokhari, Senior Special Magistrate, when accused Muhammad Irfan was in custody of F.I.A. He was not informed that after recording his statement, he will not be handed over to F.I.A. It was recorded after Court's hours and is exculpatory in nature. He included the name of Metal and Matrix, in the tender inquiry for a healthy competition. Its approval was however, given by the senior officials. He claimed himself to be innocent.
15. The prosecution evidence clearly indicates that the waiver of inspection by PATLO of the stores to be shipped by M/s Metal and Matrix, was allowed under the clear orders of Managing Director.
No reasons have been given by the prosecution for this waiver. The Managing Director has not given justification for his action in waiving the pre-shipment inspection. Reliance of the trial Court on Mark-A, Mark-B and Mark-C is also misplaced; firstly for the reason that these documents are Photostat copies and are inadmissible in evidence; secondly the same were not transferred by a Government to Government as required under section 21(g) of National Accountability Ordinance, 1999 and lastly; these documents were not put to the appellants in their statements under section 342, Cr . P. C .
16. The document Exh. P.10, the confessional statement of Muhammad Irfan being relied upon by the prosecution very heavily was also not put to the appellants in their statements under section 342, Cr.P.C. Attention of Muhammad Irfan, appellant in question No,5, was only invited whether he disclosed the name of Atiq-ur-Rehman. It did not satisfy the requirement of law. Conviction cannot be based on material not put to accused in his statement under section 342, Cr.P.C. Muhammad Irfan was not asked whether he made a statement, voluntarily, before the Magistrate,. Similarly, this statement was not put to Atiq-ur-Rehman, that his co-accused has made a confessional statement, involving him in the offence and what is his explanation. The prosecution has thus, miserably failed to bring home guilt to the appellants.
17. As far report of Court of Inquiry is concerned, it finds mention that besides appellants; (i)
Basharat Ali Malik, Managing Director, (ii) Muhammad Iqbal, General Manager, (iii) Afsar Abbasi, Manager Purchase, (iv) Muhammad Sharif Manager Purchase (v) Muhammad Akram, Assistant Manager Purchase, (vi) Sohail Khattak, Assistant Manager Purchase and Zakir Iqbal, Assistant Manager Purchase were found guilty. Under what circumstances, the reference was sent up only against the appellants and two acquitted co-accused, leaving highups, high and dry, without any rhyme or reason, begs answer.
18. For what has been discussed above, we are confident in our view that the prosecution has badly failed to prove the charge against the appellants beyond reasonable doubt. We therefore, allow these appeals, set aside the conviction of the appellants and direct their release from jail forthwith, if not required to be detained, in any other case.
19. Before parting with this judgment, we are constrained to observe that highups of P.O.F., particularly M/s Basharat Ali Malik, Managing Director, Muhammad Iqbal, General Manager and a host of other officials, who were concerned with the purchase of stores, were associated in the investigation but not sent up for trial. It appears that either the evidence was knowingly not allowed to be collected against these senior officials or they influenced the Investigating Agency in not bringing evidence on record against them. A colossal loss to the exchequer to the tune of 161,165.12 pounds has occurred. These officials have waived the PATLO inspection without any justification.
Had been they fair in discharge of their duties, the nation would not have suffered this loss. The Managing Director after his retirement on superannuation has been given a job heading another factory, a subsidiary of P.O.F. The investigation was badly conducted and real culprits were knowingly allowed to escape. Those who are at the helms of affairs, should take notice of what is happening and how by fraudulent deeds of the officials, loss is being caused to the exchequer.