' EJAZ AFZAL KHAN, C.J.---By this single judgment, we propose to dispose of E.Cr.A. Nos.1, 19, 24, 42 of 2009 filed by the appellants against their convictions and E. Cr. A. No,60 of 2009 filed by the State for enhancement of sentence, as they arise out of reference No,5.
2. The allegations against the appellants are that they by forging pensionary documents drew huge amount from the Treasury and caused loss to the national exchequer. The Prosecution to substantiate the allegations examined as many as 32 witnesses but the essence of the evidence examined is that Bahadur Khan, Mushtaq Ali, Muazzam Khan and Iqbal Hussain, appellants herein, in collaboration with each other, obtained photograph from P.W. Tayyeb, pasted it on Pension Payment Order prepared in the name of Gul Muhammad and after getting it verified presented it in the Treasury Office and on the basis of a voucher issued by it encashed the amount. On conclusion of the trial, the learned Accountability Court No,1 held them guilty and sentenced them to two years'
R.I. Each with a fine of Rs,1,00,000 each, vide judgment dated 3-3-2009, hence these appeals.
3. Learned counsel appearing on behalf of the appellants contended that so long as the report allegedly made by the appellant Bahadur Khan regarding the incident of the robbery is not proved in accordance with the requirements of law, it cannot be used as evidence against him The learned counsel next contended that though P.W. Gul Muhammad, Khaista Gul, Sher Afzal (statement of Sher Afzal recorded twice as P.Ws.28 and 31), Shamsul Islam and Tayyeb have been produced against them but their testimony cannot be relied upon as all of them being accomplices and approvers cannot be relied upon unless corroborated by unimpeachable source.
The learned counsel next contended that the finger prints available on the document with the PPO resemble those of appellant Mushtaq Ali, but they cannot be used to connect him with the crime, as these prints were taken during the days, when he was in the custody of the NAB authority. If these documents, the learned counsel concluded, are left out of account, there remains nothing to link them with the crime and that the convictions and sentences recorded by the learned Accountability Court, being based on no evidence, are liable to be set aside.
4. As against that, the learned counsel appearing on behalf of the NAB, contended that the preliminary inquiry, statements of the P.Ws. And report of the Finger Print's Expert, connect the appellants with the crime beyond any shadow of doubt. The F.I.R., the learned counsel added, recorded at the instance of Bahadur Khan in the wake of robbery constitutes another circumstance, which clearly links the appellants with the crime. The learned counsel by pressing his appeal for enhancement of sentence contended that when the case has been proved beyond any shadow of doubt, the appellants were required to be given the maximum sentence provided by the Statute at least in terms of fine so that the loss caused to the national exchequer could be made up.
5. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
6. The record reveals that the appellant Bahadur Khan after encashing the voucher was on his way to his desired destination that he was robbed. He reported the incident in the Police Station. The amount he was robbed of was somehow retrieved by the Police investigating the case from the robbers. When he demanded the money, thus, retrieved, he was asked by the Police to explain the origin of that amount. When he could not, the probing eye of the Investigating Agency itself reached its origin. When it turned out to be an outcome of an act of fraud and forgery, it led to further probe firstly by the Anti-Corruption Establishment and then by NAB. The NAB after completing the probe filed a reference before the learned Accountability Court which ended in their conviction as mentioned above.
7. Now the question arising for our consideration is whether the evidence collected by the Investigating Agency together with the one examined in the Court is of a nature as could support and sustain the conviction of the appellants? A perusal of the preliminary inquiry and statements of the P.Ws. Recorded in the Court shows that many officials of Education Department, Treasury and the State Bank of Pakistan have aided and abetted the commission of the crime but strangely enough their role appears to have been hushed up either with design or by default. Many allegations have been levelled against many other officials of Treasury and the Bank but the nabbing hands of the NAB, were never laid on their shoulders notwithstanding even a single penny could not have been drawn from the Treasury or the Bank without their consent, connivance or complicity. Why this picks and choose, is the most nagging question, which has not been answered by the learned Deputy Prosecutor-General. Why those people have not been taken on the board for being interrogated. In case they have been interrogated, why did they remain behind the scene with their faces and names veiled and covered? When no explanation comes forth, the only tenable deduction in the circumstances would be that the case was not investigated fairly and faithfully. It looks as if actual players have been let off and only figureheads have been brought forth to bear the brunt. The entire exercise seems to be an eye-wash. In any case, we are to see whether the evidence available on the record can bring guilt home to the accused beyond any shadow of doubt.
8. The scam, according to the Prosecution, came to light, when appellant Bahadur Khan reported the incident after being robbed. Though the copy of the F.I.R. Was brought on the record but its content was not proved in accordance with the requirements of law. Mere production of its copy is not sufficient to prove it, especially when its maker denied to have made it. It could have been proved by examining the secondary evidence but strangely enough, that too, was not done. Where neither the maker nor the scribe of the F.I.R. Was examined, we do not think, it can prove anything against any. Therefore, the very first link connecting the appellants with the crime cannot be held to have been proved on the record.
9. Next comes the evidence of Gul Muhammad. He charged appellant Bahadur Khan by stating that he obtained a photograph from him for the purpose of providing him some aid from Zakar and took him to the Treasury and then to the Bank, where from he encased an amount of Rs,5,64,439 and paid a sum of Rs,4,000 to him but the fact is that he is an approver. His testimony cannot be relied upon unless it is corroborated in material particulars. Khaista Gul, Shamsul Islam, Sher Afzal and Muhammad Tayyeb implicated Bahadur Khan and described his activity in connection with the preparation of pensioner documents but they too are approvers, therefore, their testimony does not have much probative worth.
10. Granted that conviction in some cases can be recorded on the testimony of such witnesses but rule of prudence which has crystallized into a rule of law, requires that it alone cannot be made basis for conviction unless it is corroborated by independent, impartial and unimpeachable source. We do not find any corroborative evidence of this nature on the record. Approvers do corroborate each other but their testimony being tainted cannot be termed as unimpeachable in any sense of the word. Even otherwise one tainted piece of evidence cannot corroborate another tainted piece of evidence. Therefore, we exclude it out of account, especially when it is presumed to be unworthy of credit under Article 129(b) of Qanun-e-Shahadat Order, 1984.
11. The only evidence we are left with is that of Finger Prints Expert. It does show that the finger prints available with the PPO resemble those of Mushtaq Ali and Muazzam Khan but the question whether such opinion alone can prove the case against them and others, when it cannot be ruled out that these prints could be obtained during the days, the appellant were in the custody of the NAB.
12. Investigating Officer who was examined as P.W.32 despite admitting that many LPCs sent to the expert were found to have been typed from 16 typewriters recovered from the office of Fazal Rabbi, ADEO, yet he did not make further probe to reach the hand at the back of all this. Pension Books in these cases were of fundamental importance as nothing could be drawn from the Treasury or Bank without their presence but it is surprising to note that they were not taken possession of. Nor an effort was made to see who prepared them. We do not understand how one or two teachers or a few clerks on their own could do all this not for one day or week but months and months together. How a file could be processed without the involvement of the office of the Accountant- General Office and the officials working therein is yet another mystery which becomes deeper and deeper the more we probe in to that. How a tedious and even tiresome process could be leaped over by the appellants, when the pension papers pass through many scanning and scrutinizing eyes? How verification of service record and L.P.Cs. Could be overlooked, when at each stage, there is an unerring mechanism for detecting fraud and forgery. How the papers signed by P.W. Fazal Rabbi went through all the hedges and impediments notwithstanding his specimen signatures were lying in the AG Office. Opinion of the Finger Prints Expert may point to the complicity of Mushtaq Ali and Mauzzam Khan in the crime but when there is no other independent and above board evidence showing as to where did these finger prints come from, in whose presence they were taken and whether the official taking them could take them in the absence of the concerned person whose PPO was prepared or whether such official could accept the Finger Prints impressed on a document in his absence, are equally relevant questions whose answers have deep and even decisive bearing on the fate of the case. When no answer muchless satisfactory comes forth, evidence of finger prints alone cannot provide a dependable foundation for recording or maintaining the convictions of the appellants, especially when evidence of this type can be fabricated by the Investigating Agency at subsequent stage. When this is the quality and quantity of evidence, it would not be in accord with safe administration of justice to maintain the conviction and sentences of the appellants. We, therefore, do not feel persuaded to maintain the conviction and sentences of the appellants.
13. For the reasons discussed above, we allow these appeals, set aside the conviction and sentences of the appellants recorded by the learned Accountability Court and acquit them of the charge by giving them the benefits of doubt. Since we have allowed the appeals against conviction, the appeal for enhancement of sentences is dismissed.