' SARMAD JALAL OSMANY, J.---All these appeals arise out of the same Reference being No,40 of 2001 in which the appellants i.e, Abdul Sami Mangrio, Dr. Tanveer Alam, Rehmatullah Baig and absconding accused Riaz Hussain Shaikh being Assistant Drug Controllers were accused of preparing bogus consumption certificates with regard to raw material imported by the main accused Abdul Hameed on which duty had not been paid and thus causing a loss of 10 millions of rupees to the exchequer. The learned Accountability Court bifurcated the References into Nos.8 and 10 of 2002 with regard to appellant Abdul Sami Mangrio Nos.12 and 13 of 2002 with regard to appellant Rehmatullah Baig and Nos.9, 11 and 12 of 2002 with regard to appellant Dr. Muhammad Tanveer Alam. This was done in order to try all the Appellants/accused separately since a joint trial was not permissible under the law. Vide the impugned judgments passed by the learned Accountability Court. The appellant Abdul Sami Mangrio in Criminal Accountability Appeal No,6 of 2003 was convicted of an offence punishable under section 409 P.P.C. Read with Sr. No,2 of the Schedule attached to the NAB Ordinance and hence sentenced to suffer R.I. For four years and to pay fine of Rs,3 millions, in default of which he was to undergo R.I. For six more months. He was also debarred from holding public office and disqualified from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in the service of Pakistan or any other Province fora period of 10 years counted from the date of his release. However, he was given the benefit of section 382-B Cr.P.C. In Criminal Accountability Appeal No,8 of 2003 the said appellant was also similarly convicted and sentenced. Appellant Rehmatullah Baig in Criminal Accountability Appeals Nos.10 and 11 of 2003 and appellant Dr. Muhammad Tanveer Alam in Criminal Accountability Appeals Nos.7, 9 and 12-of 2003 were also similarly convicted and sentenced separately. Both these appellants were extended the benefit of section 382-B Cr.P.C. Insofar as Criminal Accountability Appeal No,14 of 2002 is concerned, Appellant Dr. Muhammad Tanveer Alam was convicted of an offence under section 409 P.P.C. Read with Sr.No,2 of the Schedule to the NAB Ordinance and hence sentenced to suffer R.I. For five years and to pay a fine of Rs,10 Million in default of which he was to suffer R.I. For two and half years more.
He was also disqualified as afforestated.
2. As aforementioned, all these Appeals arise out .Of the same Reference being No,40 of 2001, the facts and applicable law are also common, hence we are disposing them off through this judgment.
3. Initially, after due investigation, the cases had been bifurcated and charges were framed against the appellants/ accused in terms of the evidence collected by the prosecution, to which they pleaded their innocence and claimed to be tried. The prosecution led its evidence and examined a number of P.Ws. Whereafter the appellants/accused were examined under section 342 Cr.P.C. In which they denied the case of the prosecution. However, they did not lead any evidence in their defence. Upon reading of the evidence on the record and hearing learned counsel as well as Special Prosecutor, NAB, the learned Accountability Court convicted the Appellants/Accused separately under section 409 P.P.C. Read with Item No,II of the schedule of the NAB Ordinance and sentenced them to undergo R.I. For five years as well as to pay a fine of Rs,10 million in default of which they were to undergo R.I. For a further period of two and half years. They were also debarred from holding public office and disqualified from being elected as a member or representative of any public body or any statutory or local authority or in the service of Pakistan or any other Province. However, the benefit of section 382-B Cr.P.C. Was also given to them. Against the said judgment, the appellants/accused had preferred Criminal Accountability Appeals Nos. 12, 13, 15, 16, 17, 19 and 20 of 2002 in which the cases were remanded back to. Learned Accountability Court for the purpose of recording further evidence i.e, exhibition of the registers in which the aw material imported by the main accused was entered. After remand of the cases, the learned Accountability Court again convicted and sentenced the appellants/accused as stated above. However, Criminal Accountability Appeal No, 14 of 2002 preferred by Dr. Muhammad Tanveer Alam was not remanded since the registers in question had been exhibited in this case.
4. In the second round, P.W. Maqsood Alam was re-examined who produced a registers in question whereafter the impugned judgments in all these matters were passed.
5. In support of its case, the prosecution examined P.W.l Maqsood Alam who was the Incharge Quailty Control of Messrs Ehsan Drug Company since the year 1994. He deposed that some of the imported raw materials consumed for the manufacture of drugs in the factory were exempted from payment of customs duty and Sales Tax etc. Accordingly, the company had applied to the Drug Control Administration for such exemption on the ground that they had been so consumed.
The application was accompanied with the shipping document along with Bin Cards etc. As well as the consumption certificates issued by the appellants/accused being Assistant Drug Controllers.
On the basis of such, application and accompanying documents/certificates, the Company was granted exemption from payment of customs duty and sales Tax etc. Over a period of time.
According to this witness, the only entries regarding the consumption of raw material was in the shape of Bin cards, which he has produced as Exhibits. Insofar as the stock registers are concerned, which were exhibited by him after the cases were remanded back to the learned Accountability; Court by this Court, according to the witness, these neither contained the quantities of raw materials imported by the Company nor were there a record of their consumption in the manufacture of drugs. Under cross- examination, this witness has admitted that the company had abided by the Company rules insofar as maintaining stock registers and their presumption in the factory. Further that the Bin cards was the only record regarding consumption and the entire quantity of imported raw material had been consumed in the manufacture of drugs as per the said Bin cards.
6. The next witness P.W.2 Dr. Ali Akbar Siyal, who was then posted as Federal Inspector of Drugs has deposed in his examination in chief that the Company was required to maintain a record concerning raw material quality control, imported raw material register of finished goods and register of production. According to this witness, the Bin cards are the registers of production. He produced the files pertaining to the Company. Under cross-examination he has admitted to have inspected the factory for the purpose of renewal of its licences and found that it was functioning as per the rules and its record was properly maintained.
7. The next witness is P.W.3 Wajid Ali, Deputy Director of the Regional Accountability Bureau Sindh has deposed that he along with him had visited the company, examined the godown and record of registers etc. And found small quantities of 11 different raw materials pertaining to the case which he seized under a proper memorandum, which he produced as an exhibit.
8. The next witness is P.W. 4 Khaliquzaman, the Investigating Officer who has given an account of his visit to the factory with P.W. Wajid Ali when he seized the aforementioned quantities of drugs. He had also secured the registers produced by P.W. Maqsood Alam as well as the record of imported raw materials from various Clearing Agents. Similarly he had incurred the files produced by P.W. Ali Akbar Siyal. He finally deposed that coaccused Abdul Hameed Director of the company had entered into a Plea*Bargain with Chairman NAB during the investigation of the case and had paid a sum of Rs,6,00,00,000 to the NAB Authorities as such. Accordingly, he had filed a final report to the NAB Authorities upon which the Chairman NAB had filed the reference with the NAB Court.
9. Upon examination of the foregoing P.Ws. Prosecution closed its side whereafter the statements of the accused were recorded under section 242 Cr.P.C. Wherein they denied the charges against them in toto and fully supported the consumption certificates in question which according to them had been prepared after the record of the company had been verified by them.
10. Thereafter the learned Accountability Court upon reading the evidence available on record and hearing the arguments of learned counsel and learned Special Prosecutor convicted and sentenced the appellants/accused as aforestated.
11. In support of the appeals, Mr. Azizullah Shaikh, Advocate has firstly submitted that P.W. Maqsood Alam has deposed that the registers produced by him are neither a record of the stock of the raw materials or their consumption. Similarly, under cross-examination he has admitted that the only record vis-a-vis consumption of the raw material are the Bin cards which have been maintained under Standard Operating Procedures per the rules and regulations. Further that all the Bin cards* are genuine, This witness has further reiterated under examination that the registers do not contain any account about the imported raw material. So also he has admitted that the entire quantity of such raw material was consumed in the manufacture of drugs by the Company. Finally, according to this witness, the consumption certificates were issued by the appellants/accused after having verified the entire record- and hence the same are genuine. Hence, per learned counsel, as this witness has stated that the imported raw material was consumed in the manufacture of drugs by the Company which has not been shaken under cross-examination, the charges against the appellants/accused have not been proved, particularly as this witness has also maintained that ,the consumption certificates were based on the record available in the factory and hence were correct. According to learned counsel no other witness has stated any thing which would even remotely establish that the record regarding consumption of the raw material was manipulated or not based on the correct facts.
12. Consequently learned counsel has prayed that the appeals be allowed the appellants/accused be acquitted.
13. On the other hand, Mr. Ainuddin Khan, appearing for NAB has submitted that the deposition of P.W. Dr. Ali Akbar Siyal would adequately establish that the company is required to maintain stock registers denoting the imported raw material as well as a record regarding its consumption from which the Bin cards are prepared. Under cross-examination this witness has stated that the appellant accused are required to verify from the registers and other record of the company whether the imported raw material has been consumed in the manufacture of drugs and then issue the consumption certificates. According to learned counsel per P.W. Maqsood Alam there is no record at all of the imported raw material and the registers which were exhibited by him also do not contain the said record. Consequently, learned counsel has submitted that the Bin cards in question were manipulated to show the consumption of the imported raw materials. He has finally submitted that the ingredients of section 409 are fully attracted to the facts of the case since appellant/accused were entrusted with the property in question viz. Imported raw materials and were supposed to deal with them honestly i.e, issue the consumption certificates after actually verifying this fact which they failed to do. Hence, learned counsel has supported the impugned judgments and prayed that the appeal be dismissed.
14. We have heard both the learned counsel as well as perused the record with their assistance. Our conclusions are as follows.
15. It would be seen that the charge against the appellant/accused is abetting and conspiring with the main accused and Abdul Hameed in fraudulently obtaining exemption from the payment of customs duty and sales tax in huge amounts by issuing fake consumption certificates with regard to the raw material imported by Messrs Ahsan Drug Company. In this regard, the deposition of P.W.
Maqsood Alam and P.W. Dr. Ali Akbar Siyal is most relevant. According to the former who was in charge of the Quality Control Department of the Company, it is supposed to maintain a stock register showing the quantities of imported raw material and that, which has been consumed for the manufacture of drugs. Per the registers/record produced by him there were no entries with regard to either import/consumption of such raw materials. However, under cross-examination this witness has admitted that the Bin cards produced by him (Which were signed by him as well as that by one Abdul Razzaque in chqrge of production) are in fat the official record of consumption of the entire raw material in question in the manufacture of drugs and that the appellant/accused had prepared the consumption certificates after examining the entire record of the Company.
According to P.W. Dr. Ali Akbar Siyal who was the then Federal Inspector of Drugs the Company is required to maintain the record an d registers of raw material, quality control, imported raw material register of finished goods, medicines and the register of production. The Bin cards were prepared from the register of production. Under cross- examination this witness has admitted that the factory was functioning as per rules and its record was properly maintained.
16. In view of the foregoing evidence on the record, it can be safely concluded that the Bin cards in question are the only record denoting the imported raw material and their consumption in the preparation of drugs in the factory. In this regard the deposition of P.W. Maqsood Alam is quite clear wherein he has under cross examination unequivocally admitted that the entire quantity of imported raw materials were consumed in the preparation of drugs, by the Company which is reflected in the Bin cards signed by him as well as Abdul Razzaque in charge of production. His deposition is based on an eyewitness account and hence is quite convincing. On the other hand, the deposition of Dr. Ali Akbar Siyal to the effect that he Bin cards are to be prepared from the registers kept for this purpose is perhaps his own opinion. We have also examined the Bin cards in question, copies of which are available on the record and have found that they do contain entries with regard to receipt of the imported raw material, and their consumption in the preparation of various drugs. For example at page No,65 of the Pajber Book there is an entry regarding the receipt, of 5000 kilograms of Carnauba Wax under the Bill of Entry No,2883 dated 10-2-1996. Thereafter manufacturing of drugs commenced on 24-2-1996 and continued till 30-12-1996 when the entire quantity of Wax was consumed. Similarly, another 5000 kilograms of Carnauba Wax was received in the factory under Bill of Entry No,2283 dated 10-2-1996 which was also consumed by 30-12-1996.
So also the other Bin cards do establish that the imported raw materials as mentioned in the reference were consumed in the factory. In these circumstances, we are of the opinion that the prosecution has failed to establish beyond reasonable doubt the charges brought against the appellants/accused. Hence, we had vide short order passed earlier allowed all these appeals and acquitted them. These are the reasons for the same.