Akhtar Zaman Malghani, J.--The judgment, dated 24-9-2004 passed by Accountability Court No. II, Balochistan, Quetta has been assailed in the instant appeal, whereby; the appellant was found guilty under Section 9(a)(iii) and (iv) of NAB Ordinance, 1999 and convicted under Section 10 of the NAB Ordinance, 1999 to suffer imprisonment for five years and to pay fine of Rs. 1,41,76,639. The assets/properties of the appellant were also forfeited as set off against the amount of fine, however; in case of non recovery/non-payment of fine he was directed to further undergo one year imprisonment. Benefit of Section 382-B, Cr.P.C. was also extended in his savour. Appellant was also disqualified for ten years to hold any public office or to contest election. He was also not allowed to obtain loan facility from any financial institution or bank fora period of ten years.
2. Briefly stated, facts of the case are that a reference under Section 18(g) read with Section 24(b) of the NAB Ordinance, 1999 was submitted before Accountability Court No. II, Balochistan, Quetta by Chairman NAB, wherein; it was alleged that sixteen account-holders maintaining their accounts in Muslim Commercial Bank,.Masjid Road Branch, Quetta used to hand over their cheques and cash to appellant Muhammad Riaz for the purpose of depositing in their respective accounts, but the appellant,instead of depositing the cheques/cash in respective accounts misappropriated/embezzled the same. The total amount allegedly embezzled/misappropriated by the appellant was shown to be Rs. 1,41,76,639.
On receipt of reference and after observing legal formalities, charge was read over to the appellant, to which he pleaded not guilty, whereafter; prosecution in order to substantiate the accusation produced 35 witnesses. At the end of prosecution evidence appellant was examined under Section 342, Cr.P.C. wherein; he denied the allegations and claimed innocence. He also got recorded his statement under Section 340(2), Cr.P.C., however, did not produce any witness in his defence. The learned Accountability Court on conclusion of trial found the appellant guilty and sentenced him as mentioned above.
4. We have heard the learned counsel for the appellant as well as learned Special Prosecutor. The learned counsel for the appellant vehemently contended that while passing impugned judgment, the trial Court failed to apply its judicial mind to the fact and circumstances of the case as well as material brought on record by the prosecution. He further contended that while passing the impugned judgment, the trial Court failed to appreciate the fact that the then Branch Manager Abdul Razaq Nasir was involved in the commission of offence, but his name was placed in Column No 2 of the challan despite sufficient evidence available on record spint him, which has caused great injustice and prejudice to the appellant, as he has been made escape goat and a. victim of selective prosecution by the NAB Authorities. He further contended that investigation was not carried out honestly and real culprits, who were found guilty by the Bank Authorities during enquiry and; ultimately dismissed from service, were let off without any reasoning. According to him, the trial Court also failed to appreciate the fact that an amount of Rs. 1,78,87,500 was lying with the same Bank/Branch in two accounts maintained by Haji Dad Muhammad and Haji Asad Ullah, who had no valid deposit receipt slips of the said amount, as such; no loss was caused to the account- holders nor any amount was misappropriated by the appellant, but all such facts were altogether ignored by the trial Court while passing the impugned judgment. In alternative he prayed for moderate reduction in the quantum of sentence on the ground that the appellant is a heart patient and his continuous custody has adversely affected his health coupled with the fact that other persons involved in the commission of offence were let off by the prosecution.
'On the other hand, the learned Special Prosecutor supported the judgment and contended that prosecution has successfully proved guilt of the appellant by producing account-holders as well as record, which shows that the cheques were received by the appellant and after .encashing the same from the concerned bank instead of depositing the cash or cheques proceeds in the respective account he embezzled the same. He also strongly opposed the request for moderate reduction.
5. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment as well as evidence on record. According to prosecution allegations, the appellant during October, 1999 till February, 2003 received cash and cheques amounting to Rs. 1;65,63,000 from sixteen different account-holders for depositing the same in their bank accounts, but instead of depositing in the accounts, appellant dishonestly misappropriated the same. In order to substantiate the accusation prosecution produced 35 witnesses including sixteen account-holders, who categorically stated that cheques and cash of different amounts were handed over by them to the appellant for depositing the same in their accounts, but after coming to know about fraud committed in the Branch, they checked their accounts and found such amount missing for which they tendered their claim before the bank authorities, which were accepted. Besides; prosecution has also produced cheques and deposit slips, which show that the said cheques and cash amounts were deposited by the account-holders with the bank authorities, but instead of crediting to their accounts, same were encashed and the amounts were deposited in other accounts thereby creating a parallel banking system in the branch. There is also report of Handwriting Expert confirming that most of the cheques deposited by the account-holders, which were encashed, bear signatures of appellant. Thus, after having gone through the evidence on record and judgment; we are of the considered view that the appellant was rightly found guilty.
6. As regards moderate reduction in the quantum of sentence, it may be noted that at the time of submission of challan, the Investigating Officer has placed the' then Manager Abdul Razaq Nasir in Column No. 2 of the challan, but it is not ascertainable from the contents of challan as to why he was placed in Columh No. 2 when it has been specifically stated in the challan that he and the appellant misappropriated Rs. 1,41,76,639. Under the law only those accused could be placed in Column No. 2, against whom no sufficient evidence has come on record and it is left for the Court to see as to whether he should be summoned for trial or otherwise, whereas; in the instant case there was evidence on record suggesting that Abdul Razaq was prima facie involved in the commission of offence, for example P.W.2 Irfan Baig deposed in his statement that accused Riaz Ahmed as well as Razaq Nasir, Manager, M.C.B., Masjid Road Branch used to visit their branch and they encashed the said cheques (disputed cheques). Similarly; P.W.7 Asad Haider Naqvi, Regional Manager M.C.B., Quetta in cross-examination stated that after enquiry the accused (appellant) alongwith Abdul Razaq Manager, Akbar Ali Akbar Manager, Sajjad Cashier, Javed Iqbal Cashier and Khurshid were dismissed from service. Likewise, P.W.8 Syed Muhammad Ali deposed that the then Managers Abdul Razaq Nasir and Akbar Ali Akbar used to receive cash. He also admitted in cross- examination that a single person could not embezzle the amount without connivance of higher officers such as Regional Manager and General Manager Statement of P.W.10 Sajjad Shafqat also shows involvement of Abdul Razaq in the commission of offence. According to him on 10-2-2003 Abdul Razaq the then Manager took Rs. 2,00,000 from him for payment to one of the customers and at the time of closing of cash, he demanded return of the amount from the Manager, who called Muhammad Riaz and instructed him to bring Rs. 7,00,000 from the cashier, whereafter; Abdul Razaq returned the amount to him. He further stated that he told the then Manager not to receive cash from the customers, but to no avail. Account-holder Muhammad Anwar likewise stated that his boss (Muhammad Nabi) gave him Rs. 1 1,00,000 in. cash in order to deposit in his account maintained in M.C.B. Masjid Road, Quetta, which he handed over to. Abdul Razaq Manager for the purpose of depositing the amount, who in token gave him deposit slip, which statement was also confirmed by P.W.24 Muhammad Nabi. P.W.27 Khurshid Ahmed in his statement also involved the then Manager Akbar Ali Akbar by saying that he used to receive cash from the customers of the bank. Audit report tendered by P.W.32 Muhammad Sabir as Exh.P.119 also reveals that besides appellant Abdul Razaq Nasir was also receiving cash at his table instead of cashiers. At page 16, it was also observed that main culprit was Abdul Razaq Nasir the then Manager and it was alleged that he used to sign counterfoil of the payin-slips and handovers to the customers duly affixing bank round stamp by him and then sending cash to the cashier with fresh pay-in-slips for credit of the amount other than the actual depositor's account.
Despite availability of overwhelming evidence on record, as discussed above involvement of the then Manager Abdul Razaq Nasir and other officers, surprisingly the prosecution only submitted reference against the appellant and; we find force in the contention of the learned counsel that the appellant was victim of selective prosecution. Under such circumstances, as well as keeping in view the fact that the appellant is heart patient, as is evident from the documents placed on record; we find it just and appropriate to reduce the sentence of imprisonment from five years to that of 2-1/2 years, however; the amount of fine and imprisonment in default thereof would remain the same. The appellant would also be entitled to the benefit of Section 382-B, Cr.P.C.
Except above modification in the quantum of sentence, the appeal is otherwise dismissed on merits.