' QAZI EHSANULLAH QURESHI, C.J.--- The above captioned appeal has been moved by the petitioner against the short judgment and order passed in Criminal Appeal No,5 of 2001 dated 29-8-2003 challenging the veracity of judgment on legal as well as factual grounds.
2. The brief narrated facts as enshrined in the memorandum of _appeal are that Haji Abdul Hakeem Vice-Chairman and six other Ex-Directors, NATCL namely Haji Muhammad Yousuf, Maj. Retd. Zafar Jang, Sub. Retd. Ali Sher, Liaqat Ali Changazi and Aman Shah, lodged a written complaint in Urdu dialect, against Mr. Mehmood the then Chief Secretary N.As' Gilgit, before the Ministry of Interior Corruption Cell, Islamabad in the year 1996, alleging malpractices and embezzlement in the NATCL on his part. The said Ministry transmitted the complaint in question to FIA Crime Circle Rawalpindi, who further forwarded the same to Deputy Director, FIA Crime Circle Gilgit, for Investigating the matter and submission of report as to whether the then Chief Secretary is really involved and if there is any incriminating evidence available then a necessary sanction is to be obtained from the competent authority.
3. The inquiry to this effect was conducted by the then. A.D. FIA Mr. 'Hajat Mir (P.W.37) FIA Crime Circle Northern Areas, Gilgit. The report of investigation by the aforesaid agency pin pointed five culprits namely Mr. Mehmood Khan the then Chief Secretary, N.As., Mr. Nasir Ahmed Khan former Home Secretary, Mr. Younus Khan Ex-S.O., KA/NA Division, Mr. Hassan Mir the then XEN B&R Division NAPWD Gilgit and Pervaiz Iqbal now appellant. But while preparing the challan, in the column of accused only the name of Pervaiz Iqbal is Appearing. The rest four names mentioned above despite highlighted in the investigation report are not incorporated neither in the Column No,3 along with Pervaiz Iqbal nor in the Column No,4 nor any such remarks depicts that the remaining accused are discharged under section 169, Cr.P.C. By the prosecution.
4. The Chairman National Accountability Bureau after receiving the reference prepared by the FIA Crime Circle, Gilgit adopted the same and a ditto copy of the said reference filed before Accountability Court Northern Areas Gilgit. The learned trial Court framed multipronged charges against Pervaiz Iqbal accused who did not plead guilty.
5. The prosecution in support of the reference produced 39 witnesses and produced documentary evidence duly exhibited. The accused person in his defence provided opportunity under section 342, Cr.P.C. Whose statement was so recorded, whereby he denied the allegation in toto.
6. The learned trial Court after conclusion of trial convicted and sentenced the accused Pervaiz Iqbal for 14 years rigorous imprisonment with a fine of Rs,27,32,09,052 (Rupees twenty-seven crore thirty-two lac nine thousand and fifty-two only); vide judgment dated 25-10-2001. The appellant not satisfied with the judgment/order of the trial Court went in appeal before the Chief Court Northern Areas. The Chief Court after hearing the parties modified and reduced the sentence of the appellant. The relevant portion reproduced as below:-- "By this short order, therefore, reasons whereof will be recorded later in the detailed judgment to follow, we propose, while modifying the sentence which we find inexplicably excessive and disproportionate to the wrong doings the convict is fixed with, to uphold his conviction which we hereby do uphold. We accordingly sentence him to four years' R.I. In jail and half a million of fine under section 10 of the NAB Ordinance. In addition he is fixed with liability to pay to the organization 50% of the cost of missing Gas Cylinders (1765) as found in the report prepared by M. Hussain Chaudhry & Co., the Chartered Accountant. The total amount thus works out Rs,35,30,000, half of which shall be credited by the convict to the NATCL account to be further passed on to be consumer owner with utmost dispatch. In default of payment of the fine he shall further undergo rigorous imprisonment for a year and half. The convict-appellant however, shall be entitled to the benefit under section 382-B, Cr.P.C. As prayed for."
7. Thus, the appellant aggrieved of aforementioned judgment preferred the instant appeal.
8. The learned counsel for the appellant argued that under section 18(d) of the National Accountability Ordinance, 1999 inquiry and investigation of an alleged charge against the accused officers has to be carried out by the National Accountability Bureau, excluding any other agency unless authorized as such by the Chairman, National Accountability Bureau, whereas in the case in hand, the entire exercise of inquiry and preparation of reference was initiated by the FIA/Anti- Corruption Cell on the private complaint by Haji Abdul Hakim and others, against the then Chief Secretary, Northern Areas only which on the face of it never probed or investigated by the Northern Areas Accountability Bureau however, it was adopted and filed by the Chairman, NAB before the Accountability Court in utter violation of the mandatory provision of the Ordinance (ibid).
9. That the Accountability Bureau also submitted the reference without any number and the appellant was arrested without warrant on 17-6-2001, unlawfully. Next contended that the impugned judgment by the Chief Court is also based on misreading and non-reading of evidence.
10. Lastly, submitted that the short judgment by the Chief Court is no judgment in the eyes of law as it lacks the reasoning and grounds which led the learned Court to maintain the sentence.
11. In rebuttal the learned Deputy Prosecutor-General appearing on behalf of respondent submitted that the judgment and order passed by the learned trial Court was a legal and proper order based on oral and documentary evidence which was illegally disturbed through the short judgment by the Chief Court which carries no weight as .Short judgment is no judgment under the law.
12. We have heard the learned counsel for the parties exhaustively at length and perused the record minutely.
13. What transpires from the record that a complaint by the Directors, Board of Governors was conveyed to the Anti-Corruption Cell against the then Chief Secretary.
14. The inquiry was conducted against the accused mentioned above. The reference prepared by the FIA indicates the names of the five accused, but astonishingly while preparation of challan, the name of accused Pervaiz Iqbal only appears. So we fail to understand that how and why other four named accused are missing in the challan. Evidence available on record comprising of 39 witnesses out of which three complainants namely Haji Abdul Hakim, Muhammad Yousuf and Zafar Jang, categorically involves accused Pervaiz Iqbal and the then Chief Secretary but the judgment of the trial Court consisting of about ninety pages is quite silent and not a single sentence is figured against four (4) other accused in any shape, whether they were innocent or falsely charged.
15. We also could not find any remarks in the reference or anywhere in the investigation report that the 4 accused excluding Pervaiz Iqbal are either exonerated or cleared by Anti-Corruption/FIA during the conduct of inquiry or placed in Column No,4 or discharged under section 169, Cr.P.C.
16. The learned counsel for the parties could not satisfy us while confronted with said query by the Court regarding moot legal questions that why only the accused Pervaiz Iqbal was charged by the trial Court and why entire responsibility was shifted to him, when according to the counsel for the appellant, NATCL by-laws never confer absolute unbridled and necked powers upon the General Manager NATCL to do the way he likes as per his whims without being checked. He is only defacto/titular and nominal head.
17. Secondly, the impugned judgment by the Chief Court is also very shaky, on the other hand it is short judgment which is not at all warranted within the four corners of law.
18. Thirdly, the Chief Court only held the accused Pervaiz Iqbal responsible for malpractices in Cylinders scandal without indicting any reason or reference to available evidence.
19. Regarding contention by the learned counsel for the appellant, that since the file is complete in all respect no further evidence or any material is required. The Court can decide the case itself safely on available record without remanding the case to subordinate Court.
20. No doubt the proposition put forwarded by the learned counsel for the appellant that case can be disposed of by apex Court as no further evidence or any material is required, do carry weight, but each case has to be dealt with on its own merit and in accordance with the on going circumstances. This proposition is feasible to the extent of appellate authority where the available evidence and other material can be looked into by the Presiding Officer/Bench. But it is the final and apex Court which can evaluate the legalities and go into the question of law only. Scrutiny of evidence or factual controversy is not the job of the apex Court. Still we have taken into consideration some of the material facts and legal discrepancies. Hence we constrain to interfere in the matter.
21. As a sequel to above detailed discussion, both the impugned judgments by the Chief Court dated 29-8-2002 and the trial Court dated 25-10-2001 are set aside.
22. Resultantly, the case is remanded back to the trial Court to rewrite the judgment after hearing the learned counsel for the parties, keeping in view the available documentary, oral evidence and to take into consideration the legal implications, inquiry and as to maintainability of reference, as agitated by the learned counsel for the appellant. The learned trial Court is further directed to decide the matter expeditiously, within one month from the receipt of the record.
' File of this Court be consigned to record after due completion. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.