' TARIQ PARVEZ, J.---This appeal by leave of the Court is directed against the judgment dated 26-5- 2003, passed by Lahore High Court, Lahore whereby Criminal Accountability Appeal No,15 of 2003 filed by the appellant has been partially allowed with certain modifications in his quantum of sentence.
2. Brief facts of the case, relevant for disposal of instant appeal, are that the appellant was charged for the offence falling within the mischief of section 9(a) of the National Accountability Ordinance, 1999 (hereinafter referred to as the NAB Ordinance') on the allegation that he being holder of public office i,e,, Secretary, Cooperative, Government of the Punjab, in connivance with the deceased co- accused Zulfiqar Ahmad Awan, Chairman of the defunct Services Cooperative Credit Corporation Limited (SCCCL) and his son Ijaz Ahmed, misused his authority and took huge amount of unsecured loan, which act on his part was covered as an offence designated as corruption and corrupt practices, defined in section 9(a) of the NAB Ordinance. A complaint in this regard was filed by the Executive In charge SCCCL/PCBL before the National Accountability Bureau (NAB), asserting therein that the ex-Management of SCCCL misused its authority in sanctioning/disbursement of financial facility to the appellant without proper security or personal guarantee.
' The matter was accordingly investigated and it was found that the appellant made different withdrawal from the Account No, 260, Main Branch SCCL, 10-Commercial Zone Liberty Market, Gulberg-H, Lahore and total liability against him amounted to Rs,23.986 millions.
2. Initially a recovery suit was filed against the appellant and an award of Rs,28.263 million was announced against him; he filed Appeal against this award before the Secretary Cooperative, Punjab, Lahore which was dismissed on 21-5-2001 and the total liability of the appellant up to 30-11- 2000 was calculated as Rs,91.262 million.
3. A perusal of record reveals that during the course of investigation i,e,, in June, 2001, the appellant agreed to pay back his liability to the extent of Rs,15.5 million and paid first instalment of Rs,2.5 million in July, 2001; part payment of second installment was made in November, 2001; however, later on he expressed in inability to pay the remaining amount.
4. In order to prove accusation against the appellant, the prosecution examined five P.Ws.; whereas, while recording his statement under section 342, Cr.P.C. The appellant did not completely denied the charge; he admitted the opening of account and withdrawal of amounts but only disputed the final amount being demanded, as according to him "there was no rate of interest qpplicable to the amount withdrawn by him" and that "nothing has been brought in evidence to show that any rate of interest was applicable, therefore, there is no question of any 'accumulation'."
5. The learned trial Court i,e,, Judge, Accountability Court No,III, Lahore after having taken into consideration all the attending facts and circumstances of the case found the appellant guilty of the charge and vide judgment dated 7-1-2001, while convicting him under section 9(a)(vi) read with section of 10 of the NAB Ordinance, sentenced him to undergo five years' R.I. With direction to pay fine of Rs,20 millions (2 crores) or in default, whereof to suffer 1 year's R.I.; he was also disqualified to hold a public office as envisaged under section 15 of the Ordinance; benefit of section 382-B, Cr.P.C. Was also extended to him.
6. Feeling aggrieved from the judgment of the trial Court, the appellant has preferred Criminal Accountability Appeal No, 15 of 2003 before the Lahore High Court, Lahore, which has been partially allowed by means of impugned judgment dated 26-5-2003; in the terms that the conviction of the appellant is maintained whereas his sentence of imprisonment has been reduced to three years'
R.I.; however, the sentence of one year's R.I. In lieu of non-payment of fine has been enhanced to two years' R.I.; the learned High Court has also directed that the amount already paid by the appellant before the commencement of the Reference shall be adjusted towards the fine awarded by the trial Court. Sentence of disqualification of the appellant to hold any public office, however, has been maintained.
7. The appellant, feeling dissatisfied from the above modification in the quantum of sentence, has approached this Court by filing Criminal Petition No, 231 of 2003, in which leave to appeal has been granted by this Court on 20-11-2003 to consider the interpretation of section 9(a)(vi) read with section 14(d) of the NAB Ordinance and also the import of the misuse of the authority in the light of the aforesaid provisions of NAB Ordinance. Hence, this appeal.
8. Learned counsel in support of this appeal has argued that appellant has wrongly been prosecuted under the NAB Ordinance in view of the fact that even before the Reference in question, which was filed against the appellant by the NAB authorities, he had entered into an agreement, when liability against him was determined to the tune of Rs,15.5 million and towards such liability, the appellant had made payment of first installment of Rs,2.5 million and part payment of second installment was also made in November, 2001 but the NAB authorities, without further waiting for the ultimate completion of the process of agreement, in total disregard of 'their understanding, proceeded to file reference against the appellant in the Accountability Court.
' He further submits that after the SCCCL was made nonfunctional and that because of public hue and cry, a Commission was constituted by the Government to resolve the dispute and for redressed of the depositors' grievances, which was headed by Mr. Justice (R) Muhammad Afzal Lone, a civil suit was filed, which culminated into award, fixing liability against the appellant to the tune of Rs,28.263 million, which order was appealed against; therefore, according to him, this fact would clearly demonstrates that the liability of the appellant towards the SCCCL was purely civil in nature and no criminal action was called for.
' He, has argued that there are two basic ingredients for commission of offence i,e,, mens rea and actus rea; according to him there was no mens rea on the part of the appellant by opening an account with the SCCCL and on the basis of such account, he asked for loan/financial facility.
' He submits that it is an admitted fact in evidence that in the year 1987 when the financial facility was obtained by the appellant, he was not Secretary Cooperative, Government of Punjab and was then posted as OSD at Qaid-e-Azam Library, Lahore. He has further added that notwithstanding the fact that the appellant was a DMG Officer, he could not use his office as OSD to influence the then Chairman, SCCCL for obtaining loan in violation of the rules and byelaws.
' Learned counsel has further argued that he never denied obtaining of loan/financial facility; this fact itself speaks of his bona fide intention which has been explicitly explained not only during cross-examination of witnesses but also in his statement under section 342, Cr . P.C.
' He further contends that the stance of the prosecution that the said financial facility was obtained without filing sufficient security is also incorrect as sufficient documents were brought on record, showing that the property owned by the mother of the appellant was mortgaged as security with the SCCCL against the loan obtained.
9. However, the learned Additional Prosecutor-General NAB has argued that the loan was obtained from the society against byelaws because under the byelaws such a heavy amount being financial facility could not have been extended; mores, nor there was any sufficient security filed against the said loan.
' He further submits that the last withdrawal was made from the account in the year 1991 by the appellant, where after a civil suit was filed for recovery of the amount, which was decreed in terms of award against the appellant, which award was appealed against by him but the said appeal was dismissed in the year 1993. According to him, until the NAB authorities took cognizance of the matter by commencing investigation, the appellant never ever paid a single penny towards the loan taken by him.
' His submission is that the appellant remained posted as the Secretary Cooperative, Government of Punjab, during which period majority of the withdrawals were made and such money was never paid back. He has added that it is a clear case of misuse of official position; therefore, the conviction/sentence has rightly been recorded by the Accountability Court, and maintained, somewhat modified, by the learned High Court.
10. We have heard the learned counsel for the parties and have also carefully scrutinized the record so made available before us.
11. It may be noted that the appellant in his statement under section 342, Cr.P.C. Has admitted the opening of account in the Main Branch of SCCCL, Liberty Market, Gulberg-II, Lahore on 24-2-1987 and that no initial deposit was made by him; he admits withdrawal of amounts from 12-8-1987 to 18-12-1990, making total of Rs,17.5 million; but he refused to accept that it was done in active aid, connivance, assistance and abetment of his co-accused Zulfiqar Ahmed Awan (deceased) and Ijaz Ahmed Awan (absconder).
' In view of his above admissions regarding opening of account, followed by withdrawal of amounts on different occasions, the prosecution has proved its first charge against the appellant regarding obtaining financial facility and its withdrawal.
12. Next aspect of the matter to be determined is whether the amount advanced to the appellant is in accordance with byelaws.
' In this regard, it has come in the statement of Amjad Javed (P.W.4), who was and Officer working in the SCCCL, Main Branch, Liberty Market, Gulberg-II, Lahore that no collateral security was obtained from the accused appellant except his personal guarantee, without any guarantee of 3rd party.
' Similarly, Basharat Mehmood Shahzad (P.W.5), Investigation Officer of this case, has admitted that during the course of investigation, he found that the amount advanced to the appellant was not against any formal application nor he could find any approval of the Board of Governor, before the sanctioning of such huge amount as financial facility.
' Nizam-ud-Din Qureshi (P.W.2), who was Additional Manager (Recoveries) has stated on oath that legal formalities were not observed while granting loan/financial facility to the accused/appellant.
13. All the above assertions made by different P. Ws. In their statements before the learned Judge Accountability Court have gone unchallenged, thus none of the witnesses was successfully cross- examined on any of the above facts.
14. No doubt that appellant remained as Secretary Cooperative, Government of Punjab from 23-5- 1988 to 3-2-1991 but admittedly before his status as such, he was very much working as DMG Officer as OSD (Librarian) at Qaid-e-Azam Library, Lahore and that in his such capacity, he has taken the financial facility from the SCCCL.
' It has also come in evidence that the then Chairman of the SCCCL was close friend of the appellant and that huge amount of loan was advanced without any collateral 'security and just on the basis of his personal guarantee, which is sufficient to hold that the appellant has used his status of DMG Officer, which tantamount to misuse of his official authority/position.
15. Bona fide of the appellant in obtaining the financial facility cannot sustain because until the year 2001 when the NAB authorities took over the matter and started investigation, only then he admitted his liability in black and white and asked for setting up of schedule for the adjustment/repayment of loan; he was well aware of the fact that he was withdrawn huge amount from the SCCCL and last withdrawal was made by him in the year 1991; a civil suit was filed against him, which was adjudicated against him and that his appeal against the said order also did not succeed; yet he has produced no evidence nor single document showing that an installment towards repayment of the advance loan was made by him, except when the NAB authorities intervened.
16. In view of above discussion, it is crystal clear that the appellant being a DMG Officer, posted in Lahore in the year 1987, while using his official status and position, has obtained a huge amount in the shape of financial facility from the SCCCL, of which in the subsequent year, he became Secretary Cooperative, Government of the Punjab and during such period he kept on making withdrawals, without making any adjustment/ repayment of the loan and that despite judicial verdict A' against him, he failed to execute the decree against him; he kept mum until the NAB authorities took the charge of the case; only then he agreed for return of the loan amount/financial facility. It was not temporary withholding of the loan amount but a permanent default on his part to repay 'the loan money, which was taken by him between the period 1988 to 1991. His conduct expressly displays his mala fides and mens rea.
17. The appellant has filed Criminal Miscellaneous Application No,463 ,of 2009 before this Court, explaining that the property document filed by him towards the collateral security had wrongly been exhibited at the trial. This stance on his part is belated one and cannot advance his case because when these documents were being exhibited at the trial, he did not raise any objection and whatever he wants to now introduce through this Misc. Application is an afterthought, rather it would support the prosecution case that at the time of obtaining loan/financial facility, no 3rd party guarantee was filed by him.
For the foregoing reasons, this appeal being devoid of merit is dismissed along with Criminal Miscellaneous Application No,463 of B 2009. No order as to costs.