IRFAN SAADAT KHAN, J.---This is an appeal under section 32 of the National Accountability Bureau Ordinance, 1999 ("the NAB Ordinance") against the Judgment dated 6-4-2010 passed in NAB Reference No.7 of 2005 by the Accountability Court No.1, Sindh Karachi convicting the appellant under section 10 of the NAB Ordinance and sentencing him to undergo R.I. For 14 years with fine of Rs.317.019 million after deducting Rs.15 million already recovered from him as fine and in case of default in payment of fine to further suffer R.I. For four years. The properties belonging to the appellant were also ordered to be confiscated. The appellant was also disqualified for 10 years to hold any public office or contest for election. However, benefit under section 382-B, Cr.P.C. Was extended to him.
2. Briefly, the facts of the case are that the appellant is a graduate from University of Karachi and joined Habib Bank Limited (HBL) in 1964 (when the bank was a private bank) as Cashier. The bank was nationalized in 1974 and was again privatized in the year 2004 and the appellant continued to remain an employee of the bank. During his service he served as Manager, HBL, Empress Market Branch from July, 1996 to 16 June, 2001 and Manager HBL, Bohra Bazar Branch, from 10 July, 2001 to 6 February, 2005. According to the statement of P.W.1, Muhammad Younus, on 7 October, 2005, he along with a team of officers of the Bank, namely, Umer Riaz, Vice-President, P.W.2, Masood-ul- Hassan, P.W.3, and Muhammad Naseem, P.W.4 went to the said Branch on the instruction of the high officials of the bank. It is stated that when these persons reached the bank at 9-00 a.m. The appellant was not in the bank, however, he arrived at 9-10 a.m. And on the instructions of P.W.1, opened the Strong Room and handed over the cash to Mr. Kausar Ali, P.W.5, who started physical checking and counting the cash. While the process of physical checking of the cash was underway the appellant left the Bank without informing the P.W.2 or any other person. However, subsequently, it transpired that he had left the bank to attend his ailing mother. While the bank officials were investigating the matter, a customer of the bank, namely, Haji Zafar. Came along with his wife for obtaining a pay order of Rs 300,000 but he was informed by the bank officials that sufficient amount was not available in his account. Upon knowing this Haji Zafar started raising voice and claimed that he had more than One Million Rupees in his bank account. When the other customers, who were present in the bank, came to know about this alleged discrepancy, they also approached the cashier to inquire about their account balances and suddenly the matter started getting bad to worse. The high ups of the bank were immediately informed who directed investigation into the matter and P.W.1 to take over the charge of the bank as Manager on the instruction of the high officials of the bank, the matter was also referred to the Chairman, National Accountability Bureau (NAB), who instructed for an inquiry and thereafter the appellant was arrested in the matter.
3. On 28-2-2005 the appellant was, produced before the Administrative Judge, Accountability Court at Karachi. After a thorough inquiry it was found that the appellant was involved in parallel banking, falsification of bank accounts, opening of fictitious accounts and A misappropriation of funds of public-at-large. It was also found that the appellant used to receive cash under his own signatures on deposit slips directly from the customers and also used to mention lesser amounts in the relevant ledgers/statements thus manipulating the accounts. A number of other allegations were also levelled against the appellant by way of transferring amounts to different accounts and clearing them without due process of law. It was also found that the appellant had opened certain fictitious accounts from which he used to conduct some illegal business of transferring the amounts. It is alleged that approximately 9 million rupees had been misappropriated by the appellant from the accounts`' of the Executive District Officer Malir Development Authority and in all a shortfall in 117 accounts in the sum of Rs.232.589 million was detected, while a sum of Rs.90 million was embezzled by way of showing fictitious entries in clearing proceeds. As per the inquiry after unearthing the scam of misappropriating in accounts an amount of Rs.38.763 million was recovered from the appellant and Rs.27.150 million was paid over to the account holders and some other persons who had lodged their claims with the bank or the NAB authorities. Thus, a total liability of Rs.297.610 million was worked out against the appellant. During the investigation it was also, discovered that the appellant had indulged in trading of shares in the Karachi Stock Exchange in a factitious name of some Raza Hussain and for this purpose had maintained five accounts in the name of different persons, which all were fictitious and based on forged documents.
4. In all 7 P.Ws. Were examined in the case and the learned Judge, after examining all the P.Ws. And going through the entire material on the record placed before him, came to the conclusion that the appellant had indulged and was involved in the above mentioned illegal activities and vide the impugned judgment convicted and sentenced him in the manner prescribed above. It is against this judgment that the present appeal has been filed by the appellant.
5. We had heard Mr. Shafat Nabi Sherwani, learned counsel for appellant, Mr. Muhammad Aslam Butt, Deputy Prosecutor-General NAB, and Mr. Iqtidar Ali Hashmi, learned counsel for complainant.
6. Initiating his arguments, Mr. Shafaat Nabi Khan Sherwani, the learned counsel for the appellant first read out the statement of appellant under section 342, Cr.P.C. Recorded on 3-1-2008 before the trial Court. He then took us through the charge and also referred to Reference No.7. Of 2005 and then elaborated on the direct examination and on the cross-examination of the Star witness of prosecution i.e. Muhammad Younus P.W.1 and tried to pinpoint the discrepancies which had emerged in his examination and cross-examination and then argued the case point wise. The first point argued being that the learned trial Court had not applied its mind and had reached to the decision by ignoring the submissions of the defence and had not given any finding on these submissions. In this connection he relied on a judgment of the Hon'ble Supreme Court of Pakistan in the case of FASIH-UD-DIN KHAN and others v. GOVERNMENT OF PUNJAB and others reported in 2010 SCMR 1778 and in the case of GULZAR AHMED v. THE STATE reported in 2010 PCr.LJ 1438.
7. The next point on which the learned counsel argued was that the burden lies on the prosecution to prove its case beyond the shadow of doubt and until and unless prosecution proves its case the burden does not shift to the defence and according to the learned counsel in this case the prosecution has not been able to make out a case free from doubt and had not submitted cogent arguments and sufficient material evidence before the learned trial Court on which the prosecution case could be allowed. He therefore, submitted that despite the fact that he had advanced his arguments which were not properly appreciated by the learned trial Court and on misreading of the evidences and distortion of facts the judgment was rendered against him. In this connection he relied on Article 129 of the Qanun-e-Shahadat and section 14(C) of the NAB Ordinance and in support of his arguments, the learned counsel relied on the following judgments:--
(1) Syed Qasim Shah v. The State (2009 SCMR 790)
(2) Mansur-ul-Haq v. The Government of Pakistan (PLD 2008 SC 166)
(3) Khan Asfandyar Wali and others v. Federation of Pakistan (PLD 2001 SC 607)
8. He further submitted that the learned trial Court has not appreciated the facts of the case and has not considered the evidences placed before it. While elaborating his view point he submitted that the documents produced by P.W.1 and relied upon by the trial Court were against the terms of Article 72 of the Qanun-e-Shahadat Order, 1984 as the parameters given in the said Article have not been fulfilled. He further submitted that the learned trial Court has not appreciated that the proof of signatures and the handwriting alleged to be that of the appellant were not produced in terms of Article 78 of the Qanun-e-Shahadat Order, 1984, which rendered the whole case doubtful.
He submitted that the signatures of the appellant were accepted by making sweeping remarks that P.W.1 was well conversant with the signatures of the appellant without fulfilling the requirements of Article 84 of the Qanune-Shahadat Order, 1984. In the end the learned counsel submitted that the trial Court has committed grave error in misreading and non-reading of the evidences and passed a totally illegal judgment which needs to be set aside, as according to him the case of the prosecution is based on no evidence. In support of his above contentions, the learned counsel relied on the following decisions:
(1) Hakim Ali Zardari v. The State (2007 MLD 910)
(2) Khizar Hayat v. The State (PLD 2011 Kar. 52)
(3) Riaz Ahmed v. The State (2010 SCMR 846)
9. Mr. Muhammad Aslam Butt, learned D.P.-G., NAB, appeared on behalf of the NAB and submitted that the learned trial. Court, not only after examining the P.Ws. But also examining the entire material produced before it through an exhaustive and erudite judgment has come to the right conclusion that the charges levelled against the appellant were duly proved and as the appellant was not only running parallel banking business but also misappropriated the accounts of public- at-large of which he was the custodian. He submitted that the appellant deserves no mercy and leniency and his appeal may be dismissed.
10. The learned counsel also submitted that the appellant has also filed an application for grant of pardon under sections 25(a) and 26 of the NAB Ordinance which amply proves that he was involved in committing the above mentioned offences and in support of his contentions the learned counsel has relied on the judgment in the case of Saeedullah Soomro v. The State (2011 YLR 144) authored by one of us, namely, Irfan Saadat Khan, J. Wherein, according to the learned counsel, the Division Bench, after finding the said person to be involved in accumulating wealth from unknown sources, has convicted him. The learned Counsel in the end submitted that the appeal filed by the appellant may be dismissed. In support of his above contentions the learned counsel also relied on the decision in the case of China Petroleum Engineering Construction v.
Khattak Allied Construction Company (2004 SCMR 1777).
11. Mr. I.A. Hashmi appeared on behalf of the complainant Bank and supported the arguments of the learned DPG, NAB and stated that he adopts the arguments of Mr. Aslam Butt and submitted that due to the misappropriation made by the appellant the goodwill of the'bank has not only been tarnished but the bank had made the losses of the account holders good. Thus, in a way, the bank has doubly suffered firstly on account of loosing its goodwill and credibility and secondly on account of making the losses of the account holders good. He, therefore, submitted that the present appeal may be dismissed and the judgment passed by the learned trial Court may be maintained.
12. In his rebuttal Mr. Sherwani submitted that as his application under section 25(a) of NAB Ordinance is pending hence the appellant could not be convicted and relied upon the following decisions:--
(1) PLD 2007 Karachi 43. (sic)
(2) Saleem Raza v. The State. (PLD 2007 Karachi 139)
(3) The State v. Khalid Aziz (2011 SCMR 136)
13. We have heard the learned counsel for the parties at considerable length and have perused the record and the case laws relied upon by them.
14. The deposition of P.W.1 Muhammad Younus Khan son of Abdul Sattar Khan, Manager Habib Bank, Bohra Bazar Branch, Karachi, which is available from pages 113 to 1616 of the paper book, reveals that he joined the Bank as Typist in 1974 and at present is working as Grade-1 Officer and Manager of the Bank. On instructions of his superior, on 7-2-2005 he went to Bohra Bazar Branch at about 9- 00 a.m, along with Muhammad Umar Riaz, Vice-President ICD RHQ, Karachi Region-A, and Masoodul Hasan OG-I and Muhammad Naseem Khan 0G-I. However, when these persons reached the Branch, the appellant was not available in the Branch and arrived at 9-10 a.m. After his arrival in the Branch the appellant opened the strong room with his key along with the keys of other offices, and took out the cash from safe and handed over the same to Kausar Ali Naqvi 0G-II, who started physical checking of the same. Thereafter the appellant left the Branch leaving his keys on the table. P. W.1 waited for the return of the appellant but he did not come. While this process was going on one customer of the Bank namely Haji Zafar, who came along with his wife for getting a pay order of Rs.3,00,000, started raising voice when he was informed that sufficient funds were not available in his account to issue the pay order. Upon knowing this he showed a receipt of the Bank declaring balance in his account to be more than Rs.10,00,000. Other persons present in the Branch also enquired about their balances and when they came to know that the balance in their respective accounts was less than what they had deposited they also started raising hue and cry.
Considering the sensitivity of the situation the high-ups of the Bank were immediately informed and Mr. Manzoor Ahmed Rajput, RGM Operation, arrived the Bank and sympathized with the customers and assured them that there was no need to worry and all the customers will get their due amounts which they had deposited with the Bank.
15. When the appellant did not turn up, after taking the permission from the high-ups, P.W.1 took over the charge of the Branch as Manager at about 12-00 noon. All day long the customers kept coming in and enquiring about their balances and in almost every account there were manipulations. ,As per P.W.1 in about 2/3 days time he received 117 claims amounting to Rs.232.587 million. Thereafter the matter was referred to NAB on the directions of the high officials of the Bank.
According to P.W.1 some more claims were also received by him, which in all came to 141 claims amounting to Rs.255.687 million. The detail of the claims include manipulation in SNTD Accounts, Profit & Loss Sharing Accounts and manipulation in Daily Cash Receiving Registers etc. He thereafter also produced complete details of these accounts showing that all these manipulations have been done by the appellant in his own handwriting. A detailed series of these manipulations had been given in his deposition which is not reproduced here for the sake of brevity. However perusal of which shows hefty manipulations duly based on proper documentary evidences. P.W.1 has further affirmed that the total embezzlement made by the appellant comes to Rs.345,696,186 out of which certain accounts were settled and remaining are pending. Out of the said amount an amount of Rs.39,866,401 was recovered from the appellant, however, the net loss suffered by the Bank, due to the misappropriation made by the appellant, comes to Rs.305,829,785. A complete summary in this regard was also produced by P.W.1.
16. P.W.1 further submitted that though a proper cashier of the Bank was posted, whose job is to collect the cash and sign the counter slip, but it is strange that it was the appellant used to receive the cash directly from the customers and sign on these counter slips. P.W.1 further affirmed with vehemence that he can say without any doubt that all the slips produced by him were signed by the appellant as he is well conversant with the signatures and the handwriting of the appellant. He further stated that he had no enmity with the appellant to falsely implicate him in the present case and he has done his duty as assigned to him by the Bank. He also produced in this regard specimen signatures card of the appellant and the signatures of the appellant made on various documents, which according to P.W.1 are one and the same. He further submitted that the mala fide on the part of the appellant is evident from the fact that he was using one discarded stamp of the Bank for receiving the cash whereas it is Bank's procedure to destroy and discard the old stamp but the appellant was illegally using the said discarded stamp for his ill intentions to usurp the amounts of the innocent account holders and to play foul with the Bank's funds. However, it is to be noted that the said stamp recovered was neither sealed nor was it recovered under a seizure memo.
17. P.W.1 further submitted that the appellant was running a parallel banking business which is evident from the fact that certain fictitious bank accounts were operated by him which were maintained by him in which he used to transfer the money and take out the same to promote his private business. P.W.1 in this regard also produced documents which were exhibited. P.W.1, however, admitted that the alleged fictitious entries were not detected by the Bank but were discovered only when the slips maintained by the account holders were produced. P.W.1 also admitted that he cannot testify the act which is not done in his presence and also admitted that every financial document of the Bank has to be signed by two officers. He also admitted that the documents exhibited by him were not sent to an expert for forensic report. He also admitted that the documents produced and exhibited by him were never sent to any handwriting expert. He also admitted that Headquarter used to issue bi-annually bank statement to each account holder and Branch has got nothing to do in this regard. He also admitted that he made a complaint to the NAB on the instructions of the Headquarter. He also admitted that an enquiry was conducted by the Headquarter but he is not aware of ultimate findings given in this regard by the Headquarter. He also admitted that no liability could be created without signature of two officials on the financial document.
18. He further admitted that initially 21 persons were implicated in this case. He also admitted that the documents produced by him in the Court spread over ten years. He also admitted that he produced before the Court some documents which were not produced by him at the time of recording of his 161, Cr.P.C. Statement. He also admitted that the investigation made by the Head Office was the opinion of the Head Office only and not that of his. He also admitted that specimen signatures of the appellant were never produced before the 1.0. While recording his statement under section 161, Cr.P.C. He also admitted that the Cashiers were not called to examine the receipt.
However, voluntarily said that there was no need as these slips do not contain the signatures of the Cashiers rather they contain the signatures of the appellant. However, he submitted that all these documents have been exhibited and contain the signatures of the appellant. In the end, P.W.1 submitted that whatever he has deposed was based on the documentary evidences and there was neither any personal grudge nor any enmity with the appellant, hence, the question of either levelling false charges against the appellant or implicating him falsely does not arise.
19. P.W.2 Muhammad Umer Niaz son of Ayaz Ahmed Siddiqui, Deputy General Manager HBL, in his deposition reiterated the same facts as that of P.W.1.
20. P.W.3 Muhammad Raza son of Hyder Ali, Manager HBL Manipur Branch, Karachi, in his deposition also narrated somewhat same story and stated that he, is well conversant with the signatures of the appellant and affirmed that the signatures of the appellant appearing on certain exhibits and documents were that of the appellant. He in this regard pointed out to certain exhibits belonging to certain account holders and thereafter affirmed that the same bears the signatures of the appellant. He, however, submitted that SNTDs which bear the signature of the appellant were neither prepared nor signed by the appellant in his presence. He also affirmed that he had not seen certain documents prior to his appearance in the Court, however, submitted that these documents bore the signatures of the appellant.
21. P.W.4 Muhammad Asad son of Muhammad Abdul Hafeez (the then V.P. Regional Assistant General Manager Internal Audit Cash and Pak Account Reconciliation) also reiterated the same facts as that of P.W.1 and submitted that as he was informed that a panic had occurred in the Branch and when he reached the Branch Mr. Manzoor Ahmed Rajput, Umer Niaz and Muhammad Younus Khan were already present there. He submitted that when he reached the Bank there was complete chaos in the Bank and a number of people were present and were raising hue and cry to know about their balances. He stayed in the Branch till Maghrib prayers and till the time he left the Bank the customers were pouring in to know about their balances. He submitted that though he visited the Branch on 7-2-2005 but was not aware who was the Incharge Manager of the Branch as at the time he visited the Branch P.W.1 was sitting on the Manager's seat. However, he submitted that he received a number of applications from the customers which he handed over to Mr. Umer Niaz and Mr. Muhammad Younus.
22. P.W.5 Manzoor Ahmed Rajput son of Nawaz Khan Rajput, Deputy General Manager HBL, also narrated the same facts as that of P.W.1. However, he submitted that he reached the Branch on 7- 2-2005, controlled the situation which was getting out of control and asked the customers to remain calm and do not worry as all their amounts will not only be settled but will also be given to them accordingly. He provided to the I.O. The posting orders of the appellant, his specimen signature card and power of attorney issued by the Bank in his favour. He also submitted that the appellant was arrested on 26-2-2005 in his presence and he was a witness of the arrest. He also submitted that at the time of arrest of the appellant he appeared to be in a normal condition.
23. Deposition of P.W.6 Syed Saifuddin Ahmed son of Elamuddin Ahmed, Executive Vice-President and Head of the Investigation Wing stated that he received a complaint against the appellant he then called I.O. Ghulam Farooq who produced arrest warrant to him and thereafter the appellant was arrested on 26-2-2005 in his presence. He further submitted that the appellant produced certain vouchers before him and a sum of Rs. 11 Million was also recovered from him. He submitted that the entire emoluments were collected in his presence. He also admitted that some 20 persons were terminated in the present case. He further admitted that he was not aware whether emoluments of those 20 persons were forfeited and adjusted or not. He also affirmed that as per his knowledge some 150 claims were made by the customers and most of them were settled. He also admitted that among the claims there were a number of false claims which were refused by the bank. He also admitted that the locker was opened with the help of the appellant and it is incorrect to suggest that the said locker was broken. He also stated that it is incorrect to suggest that the bank has not sustained any loss due to the adjustments of the emoluments of 20 persons who were employees of the bank.
24. The deposition of P.W.7 Ghulam Farooq son of Usman Muhammad, Additional Director, NAB Karachi reveals that he was appointed I.O. In the case on 26-2-2005. He also admitted that the appellant was arrested in the presence of mushirs Saifuddin and Manzoor Ahmed Rajput. He submitted that during his investigation he collected the documents from the bank and the complainant of the case and also examined some 67 witnesses including the effectees of the case.
He also submitted that he also seized a note book from one Syed Musham Ali in presence of mushir Muhammad Hashim Qureshi and Zain-ul-Abidin from where it revealed that the appellant made investments with one Stock Broker Khawaja Aamir Ishaq, who also affirmed the same and documents in this regard were also produced in the court. He further submitted that during the investigation he found the appellant involved in parallel Banking misappropriation, falsification of accounts, misuse of authorities and engaged in illegal businesses. He also affirmed that he was assigned to investigate the cases of 22 persons and he examined each of them. He further submitted that he has recorded the statement of the all witnesses except one. He submitted that the items recovered from the locker could not in stricto sensu be considered to be that of the appellant.
25. The statement of the appellant recorded under section 342, Cr.P.C. Reveals that. He had categorically denied all the allegations levelled upon him and had stated that there was no direct evidence against him and all the evidences were hearsay and full of contradictions and ambiguous. He further submitted that he had been falsely involved in the case on the statement of some bank officials. He further submitted that all the P.Ws. Were bank employees and interested parties and their evidences and documents produced could not be considered confidence inspiring as none of the bank official had signed these documents, hence the documents could not be relied upon. He further submitted that he is an innocent person and a senior banker and had vast experience and there was no complaint against him neither from any bank official nor from any audit authority or any customer! The appellant further submitted that bank accounts are always subject to strict audit and no allegation of any manipulation etc. Has even been levelled against him either from Internal Audit Department or by any other bank official. He submitted that he had remained the Manager of the branch, which used to be full of customers for a number of years. He stated that he had been serving the branch since many years smoothly and during this period there was not a single complaint either from any bank official or from the bank account holder against him. In the end he prayed that he may be acquitted.
26. The learned Counsel for the appellant has relied upon the above mentioned judgments which are discussed hereinbelow:--
(1) The facts of the case of Gulzar Ahmed v. The State (2010 PCr.LJ 1438) appears to be quite distinguishable as this case pertains to C.N.S. Act wherein the learned trial Court convicted the appellant without examining evidences wherein in the instant case ample material was produced by the prosecution and P.Ws. To implicate the appellant with the charges levelled upon him. In the present case sufficient material was produced before the , learned trial Court, which after detailed deliberation has come to the conclusion that involvement of the appellant in respect of charges levelled upon him had been proved beyond any reasonable doubt.
(ii) 'The next case relied upon was that of Riaz Ahmed v. The State (2010 SCMR 846) wherein the Hon'ble Supreme Court of Pakistan while dealing with the case under section 302(b), P.P.C. Came to the conclusion that as the Ocular Testimony was not in conjunction and corroborated with Medical Evidence hence acquitted the appellant from the charges. As is evident the facts of this case are also quite distinguishable to the facts pertaining to the present case.
(iii) The next case relied upon was the decision of Syed Qasim Shah v. The. State (2009 SCMR 970) wherein the Hon'ble apex Court acquitted the appellant on the ground that the prosecution has failed to prove charges against him beyond any reasonable doubt, whereas in the instant case the prosecution was able to bring home the charges levelled against the appellant through cogent and ample material to convict him in respect of the charges levelled against him.
(iv) The next case relied upon was the decision of Khalid Aziz v . The State (2011 SCMR 136) wherein the Hon'ble apex Court acquitted the appellant on the ground that the prosecution had failed to prove the charges levelled against the appellant beyond any reasonable doubt. The facts of this case are also quite distinguishable .From the facts available in the present case.
(v) The next case relied upon was the decision of Khizar Hayat v. The State (2011 SBLR 324) wherein a Divisional Bench of this Court in ATC case came to the conclusion that the charges levelled against the appellant for kidnapping a child and demanding the ransom was not proved. The facts of this case are also found to be distinguishable from the facts of the present case.
(vi) The next case relied upon was the decision of Hakim Ali Zardari v. The State (2007 MLD 910) wherein the learned Counsel for the appellant appeared as a Counsel representing the NAB. The learned Court after detailed deliberation came to the conclusion that the prosecution had failed to prove its case against the appellant. In this case the learned Court had dealt with in detail what is meant by the terms "corrupt practices" and "known-source of income". In this case the learned Court found that I.O. Had not held proper inquiry or investigation to ascertain the "known-source of income" of the appellant therefore the prosecution had failed to prove charges against him.
Whereas in the instant case, as discussed above, enough material was produced by the P. Ws. To prove the active involvement of the appellant in respect of charges levelled against him, which have not been denied. It is however to be seen that in NAB cases onus to prove the innocence lies upon an appellant person, which in the present case has neither been satisfactorily, explained nor rebutted with cogent material.
(vii) The next case relied upon is the decision of Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607) wherein the Hon'ble Supreme Court of Pakistan through a comprehensive order, apart from making a number of other observations, came to the conclusion that as per section 14(d) of the .NAB Ordinance prosecution should first make out a reasonable case against the appellant in respect of charges under section 9(a)(vi) and (vii) of the NAB Ordinance and in case the prosecution succeeds in making out a reasonable case to the satisfaction of Accountability Court the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the appellant to rebut the presumption of guilt. Under section 14(d) of the NAB Ordinance the 'burden of proof' has been placed on the person appellant of an offence under section 9(a)(vi) and (vii) of the Ordinance.
Reading of the above judgment of the Hon'ble Court reveals that in NAB cases onus lies upon the appellant to prove his innocence, which in the present case in our considered view, has not been proved with cogent material and enough evidences. Hence the above decision doesn't come to the rescue of the appellant rather strictly speaking this decision gives in favour of the Prosecution.
(viii) The next decision. Relied upon the learned Counsel is Mansur-ul-Haq v. Government of Pakistan (PLD 2008 SC 166) wherein the Hon'ble. Apex Court has followed the case of Khan Asfand Yar Wali. Hence this case also is of no help to the appellant.
(ix) The next case relied upon the learned Counsel is the case of Saleem Raza v. The State (PLD 2001 Karachi 139), wherein the learned Counsel representing. The appellant has appeared on behalf of the NAB. In this decision the learned Court came to the conclusion that persons convicted under the NAB Ordinance are entitled to remedies as available to the persons convicted under ordinary laws and the provisions of section 10(d) of the NAB Ordinance was held to be ultra vires to the Constitution. As is evident that the facts of the present case are totally different from the facts of this case, hence this case apparently also is of no avail to the appellant.
(x) The learned Counsel for the NAB has relied upon the decision China Petroleum Engineering Construction v. Khattak Allied Construction Company Limited (2004 SCMR 1777) wherein the Hon'ble apex Court observed that documents exhibited in evidence, without objection are admissible as evidence. The Hon'ble Court observed as under:- "No objection whatsoever was made regarding the admissibility of above mentioned documents which objection cannot be allowed to raise before this Court which was never agitated either before the Trial Court or learned High Court. Nisar Ahmed (P. W. 1) was never questioned regarding the genuineness, validity and authenticity of the above mentioned documents which amounts to admission. We are not persuaded to agree with the main objection of learned Advocate Supreme Court on behalf of appellant regarding the authenticity and genuineness of Exh. P.W.1/6 consisting of 191 pages indicating the details of work got done through the respondent for the reasons that each page of Exh.P.W.1/6 was signed by the representative of the appellant. It is not the case of appellant that Exh.P.W.1/6 consisting of 191 pages was never signed by their representative. How the admissibility of a document prepared on behalf of the appellant duly signed by its representative could have been challenged which was admitted before Trial Court without raising any objection worth the name and moreso, its authenticity and genuineness was never challenged".
Applying the above principles laid down by Hon'ble Supreme Court of Pakistan in the present case, it is seen that at no stage of proceedings the appellant denied the varacity of the documents produced by the P. Ws. Before the trial Court. Hence apparently non raising of objection with regard to admissibility of these documents exhibited before trial Court could not be raised at this stage.
27. The learned Counsel for the appellant has also relied upon on Articles 72, 78, 84 and 129 of the Qanun-e-Shahadat Order 1984. These clauses read as under:-- Article 72 72. Proof of contents of documents: The contents of documents may be proved either by primary or by secondary evidence.
Article 78 78. Proof of signature and handwriting of person alleged to have signed or written document produced:---If a document is alleged to be signed or to have been written wholly or in part by any' person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
Article 84 84. Comparison of signature, writing or seal with others admitted or proved. .---(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature writing or seal has not been produced or proved for any ether purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written -with any words or figures alleged to have been written by such person.
(3) This Article applies also, with any necessary modifications, to finger-impressions* Article 129 129. Court may presume existence of certain facts..---The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
28. As per the learned Counsel the trial Court was not justified in relying upon the documents produced before it, which was against Article 72 reproduced above. Perusal of this clause reveals that the contents of documents must be proved either by production of documents, which are called primary evidence, and oral, which are called secondary evidence. In the present case the allegations levelled on the appellant by producing the primary documents, which were voluminous bearing the signatures of the appellant have not been denied. Moreover maintaining of false accounts involving in trading in shares by using factitious names and other charges were moved by producing primary evidences hence so far as placing reliance on this Article is concerned, we do not find any substance in the argument made by the learned Counsel, which is hereby repelled.
29. So far as reliance on Article 78, reproduced above, is concerned, we have already observed that prosecution had produced the documents bearing the signatures of the appellant, which were neither denied nor refuted. Hence so far as the producing the documents alleged C to be in the handwriting of the, appellant is concerned the same has been proved to be in his own handwriting and the parameters of this Article, in our considered view, have duly been complied with.
30. So far as the parameters of Article 84 is concerned here also the P.W.1 has produced enough material to satisfy the trial Court that those documents contained the signatures of the appellant and specimen signatures card of the appellant, to prove its case, was also produced. However interestingly the appellant at no point of time had denied those signatures. The P. W.1 had not only produced deposits slips but also bank ledgers and other relevant documents to prove manipulation of amounts of public at large by the appellant. Hence parameters of this Article also have been complied with.
31. As per this Article 129 the judicial and official acts are likely to have been regularly performed.
This Article hardly had any bearing with the present case. It is seen from the record that the signatures appearing on the documents pertain to the appellant, which had not been denied.
Though Mr. Sherwani had raised an objection that the material produced before the trial Court was neither sent for forensic opinion nor to handwriting expert opinion but this argument in our view is of little significance, in view of the facts that the appellant had not denied that the signatures do not belong to him rather the whole emphasis of the learned Counsel for the appellant was based on the fact that the evidences were hearsay, ambiguous and full of contradictions. Whereas examination of those documents, if considered in view of the depositions made by the P.Ws., would reveal that at no stage the appellant had denied that the documents produced do not bear his signatures or denied the other allegations levelled upon him. The whole emphasis of the appellant was based on the fact that prior to 7-2-2005, when certain bank officials visited the branch, there was not a single complaint against him either from any bank official or from any account holder. It is also seen from the record that no plausible reply has been given by the appellant that why in presence of a Cashier of the branch, whose job is to collect and deposit the cash, the appellant used to sign the cash slips. It is interesting to note that the appellant had not even denied signing of these deposits slips but has simply stated that as the matter was not referred to either Forensic Expert or Handwriting Expert hence the allegations levelled against him have not been proved.
32. It is a trite proposition of law that a matter is referred to forensic expert when there is a of the signatures whereas in the present case there was no denial on the part of the appellant regarding the signatures made, on the deposits slips and involvement in parallel banking, maintaining fake accounts and misappropriating of accounts. There is also no denial on the part of the appellant with regard to signatures and mentioning of incorrect amounts in the bank ledgers which also proves his involvement in manipulation of amounts. It is also seen from the record that in certain cases where the appellant had deposited lesser amount in their accounts when a cross cheque was issued by a respective customer the appellant used to deposit the amount equal to the amount of the cross cheque in the relevant account, so that the amount could be cleared without any hindrance. Sufficient material has been produced in this regard which has not been denied by the appellant. The appellant has also not denied opening of the five accounts and showing less amounts in term deposit and SNTD accounts. The appellant has also not given any proper explanation with regard to misappropriating the funds of the Malir Development Authority. -
33. Prior to 2-7-2005 these misappropriations could not be unearthed but when a thorough investigation was made all these misappropriations came to surface and thereafter matter was referred to the NAB. The involvement of the appellant in illegal trading of shares of the Karachi Stock Exchange (KSE) in the name of some Raza Hussain was also proved when an investigation in this regard was made from a member of the Stock Exchange, which also has not been denied by the appellant. We have also observed that contradictions, if any, in the depositions were minor.
Moreover non-fulfilment of certain obligations also were technical in nature, whereas the basic and primary responsibilities and formalities had duly been fulfilled and complied with in the case, as is evident from the record. We have also observed that P.W.1 had produced ample material comprising of almost 1500 pages to prove active involvement of the appellant in respect of the charges levelled against him. We have also observed that depositions of P. Ws. Were consistent and no major contradiction had been found. We have also seen that the appellant during the pendency of proceedings filed an application under section 25(a) of the NAB Ordinance, which according to the Prosecution proves that he had admitted his guilt. For the sake of brevity section 25(a) of NAB Ordinance is reproduced as under:-- "25. Voluntary return and plea bargain.---(a) Notwithstanding anything contained in section 15 or in any other law for the time being in force, where a holder of public office or any other person, prior to the authorization of investigation against him, voluntarily comes forward and offers to return the assets or gains acquired or made by him in the course, or as the acquired or made by him in the course, or as the consequence, of any offence under this Ordinance, the Chairman NAB may accept such offer and after determination of the amount due from such person and its deposit with the NAB discharge such person from all his liability in respect of the matter or ' transaction in issue".
34. The appellant through a letter written in April, 2005 to the Chairman NAB had applied to the Chairman NAB that he is willing to return all the assets including the assets already provided to the bank as security towards the loss and requested to decide his case under section 25(a) of the NAB Ordinance. In the said letter he also admitted that during the inspection some discrepancies were found in some accounts. He further requested to Chairman NAB that he handed over more than Rs.
60 Million in the form of cash, bond, share certificates etc. And is ready to extend cooperation in this regard. In our view as the matter is still pending as per learned Counsel for the appellant hence no comment is made in this regard. The learned Counsel for the appellant further drew our attention to section 14-C of the NAB Ordinance which states as under:-- 14(C): In any trial of an offence punishable under clause (v) of subsection (a) of section 9 of this Ordinance, the fact that the accused person or any other person on his behalf is in possession for which the appellant cannot satisfactorily account, of assets or pecuniary resources disproportionate to his known source of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property .For which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the appellant person is guilty of the offence of corruption and [xxxx] corrupt practices and his conviction therefore, shall not be invalid by reason only that it is based solely on such a presumption.
35. Perusal of this section would reveal that it is for the appellant to prove his innocence and satisfactorily explain that the charges levelled upon him were incorrect, false and he is not guilty of the offence as levelled upon him. We in this -regard would like to reproduce observations made in a decision reported as 2007 SBLR 755 wherein it was observed as under:-- "As regards the burden on proof the normal rule of law is that an accused is presumed to be innocent until his guilt is proved, established and the onus of establishing the guilt is always on the prosecution. But the rule of law laid down in section 14(c) of the Ordinance is a departure from normal law and under this section, a presumption of corruption and corrupt practices is required to be drawn, if the accused or any person on his behalf is in possession of pecuniary resources or, property disproportionate to his known sources of income for which sources he cannot satisfactorily account. For shifting the burden upon accused to account for the sources of income, the words of the statute are peremptory and the burden must lie all the time on the accused to prove the contrary after the conditions laid down in the earlier part of the section have been fulfilled by the prosecution through evidence to the satisfaction of the Court and then the Court is required to draw the presumption that the accused is guilty as provided under section 14(c) of the Ordinance. Such presumption continues to hold the field unless the Court is satisfied that the statuary presumption has been rebutted".
36. In the cases pertaining to NAB, it is for the applicant/appellant to prove beyond any reasonable doubt his innocence. It is pertinent to note that not a single document has been produced by the appellant to prove his innocence whereas the P.W.1 had produced more than 1500 documents to prove active involvement of the appellant in respect of the charges leveled upon him. The I.O. In this case had also proved the charges against the appellant that he had maintained factitious accounts and was involved in dealing in share business with a factitious name. All the evidences produced by the P.W.1 thus lead to the irresistible conclusion the charges levelled against the appellant were proved beyond any reasonable doubt.
37. We, therefore, in the light of the above observations have come to the conclusion that charges leveled upon the appellant had duly been proved as he was involved in misappropriating the funds of the public at large. The appellant had also not produced any independent witness to prove his innocence that the business run by him in fact belongs to some other persons. Non-making of any complaint by the audit department or by any other official of the bank would not absolve the appellant from the charges levelled against him, as P.W.1 had produced ample material to prove his active involvement- in respect of charges levelled upon him, Which had neither been denied nor refuted. The upshot of the above discussion is that the appellant was found to be involved in respect of the charges leveled upon him and is found to have committed an offence tinder section 9(iii) of the NAB Ordinance punishable under section 10(3) of the NAB Ordinance. Hence the sentence and fine imposed by the trial Court is hereby affirmed.
38. The present appeal is therefore dismissed in the manner as indicated above as a result of which the Constitution Petitions bearing No. 2427 of 2008 and 370 of 2009 in respect of Payment of Service Dues and Refund of amount paid to the NAB are also hereby dismissed.