1. ' RAHMAT HUSSAIN JAFFERI, J.--- On 20-6-1997 the complainant Iftikhar Ahmed Khan, AVP/Manager, Allied Bank Ltd. Mereweather Tower Branch, Karachi, lodged the F.I.R, which reads as under:--- "In 1985 Tawakkal Garments Industries Limited, D-81, Mauripur Road, Karachi, hereinafter referred to as the said company, opened a Current Account No,1930 in the Mere-weather Tower Branch, Karachi of Allied Bank of Pakistan. According to the documents produced by the said company, the following were its Directors:
(1) Abdul Qadir Tawakkal son of Noor Muhammad.
(2) Rafiq Tawakkal son of Abdul Qadir.
(3) Junaid Abdul Qadir son of Abdul Qadir Tawakkal.
(4) Muhammad Yousuf Abdul Qadir son of Abdul Qadir Tawakkal.
(5) Ali Hussain Mooney son of Late Hassan Ali.
(6) Iqbal Mehdi son of Mehdi.
2. ' The account was operated upon by Rafiq Tawakkal and Junaid Abdul Qadir Tawakkal.
3. ' Following persons stood guarantors and mortgaged properties securing the bank against all the liabilities of the said company:
(1) Mst. Noor Bano wife of Noor Ahmed, resident of 9-A/1, Khayaban-e-Shamsher, Defence Housing Authority, Karachi.
(2) Farooq Tawakkal son of Abdul Qadir Tawakkal, resident of 9-A/1, Khayaban-e-Shamsher, Defence Housing Authority, Karachi.
(3) Sohail Tawakkal son of Abdul Qadir Tawakkal, resident of 8/2, Zum Zama Street, D.H.A., Karachi.
(4) Fareed A. Qadir son of Abdul Qadir Tawakkal, resident of 6th Floor, Lakson Square, Building No,1 Sarwar Shaheed Road, Karachi.
(5) Muhammad Younus son of Abdul Latif, resident of E-34, Block "FIR" North Nazimabad, Karachi.
(6) Abdul Razzak son of not known, 705-Muhammadi House,
1. I. Chundrigar Road, Karachi.
4. ' The company had been availing Finance against Foreign Export Bills (FAFEB) secured against Export Bills drawn on DA/DP Basis and collaterally secured against Mortgage of various Properties, Pledge of Shares, floating charge on current assets and guarantee of the owners of property.
5. ' The company through its directors in a pre-planned manner with the ill motive to cheat the bank presented a number of Export Bills and obtained finance thereagainst.
6. ' All the bills against which finances were obtained were drawn on Messrs Silk Mate of Hong Kong and were sent in collection to their bankers Toyoho Finance Limited Kowloon, Hong Kong. However, proceeds of none of the bills were repatriated through the said collecting bank of Hong Kong but was being repatriated through some other channels and from some other countries. This was done to show credibility of the importers i.e. Messrs Silk Mate and to gain confidence of the bank with the ultimate intentions to obtain further finances and to misappropriate the same.
7. ' The company during the period 17-2-1994 to 7-6-1994 dishonestly presented 32 Export Bills aggregating Rs,53.480 (M) and obtained finance amounting to Rs,39.999 (M) thereagainst from the bank under SBP Refinance Scheme but the proceeds of the said bills were not repatriated or if repatriated through some other channel were misappropriated by the directors of the company thus causing a huge financial loss of Rs,59.426 (M) to the Bank inclusive of mark-up and SBP penalty.
8. ' The company through its directors simultaneously availed a Finance Against Packing Credit of Rs,42.600 (M) from the Bank under SBP Export Refinance Scheme Part-II on the basis of EE Statement. The company however failed to make the export matching with the facility availed and misappropriated the finance, thereby causing further loss of Rs,47.901 (M) to. The Bank which include the amount of mark-up.
9. ' The said company, its directors and guarantors dishonestly and fraudulently availed finances from the bank under FAFEB and FAPC-II and misappropriated the same causing loss to the bank in the amount of Rs,107.327 (M) which has not been repaid by the company till to-date and the securities held by the bank are totally insufficient to recover the loss.
10. ' The above facts show that the company, its directors and the guarantors in complicity with each other entered into planned conspiracy with definite motive and intention to defraud and cheat the bank thereby causing wrongful loss to the bank and wrongful gain to themselves.
11. ' You are, therefore, requested to take necessary le-gal action against the culprits named above."
12. ' The FIA authorities after usual investigation challaned the appellant in the Court. The co-accused Iqbal Mehdi was subsequently arrested.
13. ' On 5-8-2003 the case was transferred to the Accountability Court by Special Judge, Anti- Corruption Central, as the Chairman NAB moved an application under section 16(a) of the National Accountability Ordinance, 1999, (hereinafter referred to as the Ordinance) for trahsferring the case from the Court of Special Judge, Anti-Corruption Central to Accountability Court, which was allowed.
14. ' On 27-10-2003 the Accountability Court No,I, Karachi, framed the charge against the appellant and acquitted accused Iqbal Mehdi. In support of the case the prosecution examined 10 witnesses.
15. The appellant in his statement recorded under section 342, Cr.P.C. Denied the allegations of the prosecution, but admitted that he stood guarantor and further stated as under:- "I am 70 years old confined in Jail over eight years. I have not committed any criminal offence. The liability against me is Civil in nature. Most of the Civil Cases filed by the banks against me have been decreed. I could not defend cases, as I was confined in Jail. Some of the executions are pending against me. Presently my assets in Pakistan are more than the liabilities."
16. ' The appellant did not examine himself on oath or lead any evidence in his defence.
17. The learned trial Judge after considering the evidence and hearing the parties' counsel acquitted the co-accused Iqbal Mehdi, but A convicted the appellant for offence punishable under section 10 of the Ordinance and sentenced him to suffer R.I. for seven (7) years and fine of Rs,107.327 millions or in default thereof to suffer S.I. For one year with benefit of section 382(B), Cr.P.C. The appellant was disqualified within the meaning of section 15 of the Ordinance under the impugned judgment dated 16-11-2004.
18. ' We have heard Advocate for the appellant, D.P.G.A. For NAB and perused the record of this case very carefully.
19. ' The learned Advocate for the appellant has stated that the Letter of Credits (L.Cs.) were opened by the importer; that Tawakkal Garments Industries had exported the required material; that the witnesses did not state that the export documents were forged or the consignment was not exported, but they have grievance with the bank at Hong Kong, who did not honour their commitment by paying the amount, therefore, it was the fault of the bank officials and not the appellant. He has further stated that an amount of Rs,86.500 millions was sanctioned against the security of Rs,180.215 millions; that the Bank had filed Suit bearing No,1641 of 1999 in respect of the amount involved in the case; that the said suit is pending; that the liability, if any, is of civil nature, which is subjudiced before the Court; that there was no criminal liability. He has further stated that the prosecution did not lead any evidence with regard to financial facilities of Rs,42.600 millions; that the prosecution witnesses did not give the details of amounts allegedly diverted by the appellant.
20. ' Conversely, the learned D.P.G.A. Has stated that the export documents were filed, but the same were not honoured by the Bank at Hong Kong; that the appellant did not export the consignment but utilize the amount for clearing his outstanding dues; that the amount of Rs,42.600 millions was sanctioned to export the consignment; but the appellant did not do so, as such, he has committed the offence. He has supported the impugned judgment.
21. ' We have given due consideration to the arguments, gone through the evidence with the assistance of the learned Advocate for the appellant and found that on 3-8-1994 as per Exh.19/3 Rs,86.500 millions were sanctioned to Tawakkal Garments Industries against the securities of Rs,180.215 millions. There are two allegations of the prosecution, first in respect of 32 export bills for which Rs,86.500 millions were sanctioned as per Exh.19/3 and second in respect of advancement of the financial facilities of Rs,42.600 millions.
22. ' As regards the first allegation, the Letter of Credits (L.Cs.) were opened by the importer. The National Garments exported the material. The evidence of the prosecution witnesses Nos.1 to 5 does not show that the export documents were forged or that the consignment in respect of said documents was not exported. It is further clear from the evidence that the export documents were negotiated by the Bank. When the Dank tried to recover the amount from the Bank at Hong Kong, the said Bank did not honour its commitment, as such, the amount was struck-up. It was the basic responsibility of the Bank officials to thoroughly examine the documents before accepting the same by making necessary enquiries about the Letter of Credits (L.Cs.), bank which issued the documents and export documents, but it appears that the Bank officials did not perform their duties in accordance with law to safeguard the interest of the Bank. As against the advancement of the amount, the National Garments Industries had furnished securities which are double the sanctioned amount. The said securities are still with the Bank as per statement of the learned Advocate for the appellant. The Bank had filed Suit No,1641 of 1999 to recover the struck-up amount and the said suit is subjudiced before the Court.
23. From the above facts, it is clear that there was a civil liability in respect of said transaction. The civil suit would proceed in accordance with law to decide the said liability. With regard to the criminal liability, the prosecution has led no cogent or convincing evidence to prove the ingredients of the offence and involvement of the appellant.
24. ' As regards the second allegation, the prosecution did not lead any evidence to prove the said facts. Even the prosecution did not produce the sanction order, by which, Rs,42.600 millions were sanctioned. The P.W.3. Deposed that Rs,86.600 millions were also sanctioned for the said purpose; that the appellant did not utilize the advance finance facility for exporting the consignment, but utilized it to clear outstanding dues. The prosecution did not produce any document or sanction order to prove the allegation of advance finance facility of Rs,86.500 millions for the purpose of export. The prosecution also did not produce any document to show that amount was deposited in the Bank or paid to any person to clear outstanding dues. The allegation levelled by the P.W.3 could have been supported and corroborated by the documentary evidence and without such documents neither the amount could have been sanctioned nor outstanding dues could have been paid. As such, without the production of such documents, the above statement of the P.W.3 cannot be safely relied upon.
25. ' After considering the material available on the record, we are of the considered view that the prosecution has failed to prove the case against the appellant, therefore, by our short order dated 6-3-2007 we had set aside the impugned judgment and allowed the appeal.
26. ' These are the reasons of the said short order.