ASSADULLAH KHAN CHAMKANI, J.---Appellant, Firdaus Khan has preferred the instant appeal under section 32 of the National Accountability Ordinance, 1999 (XVIII of 1999) against the judgment/order dated 2-2-2006 passed by the learned Judge, Accountability Court-IV, Peshawar in Accountability Reference No,8 of 2005 (Old No,6 of 2004) whereby he was found guilty under section 9 of National Accountability Ordinance and sentenced him to suffer seven years rigorous imprisonment with a fine of Rs, 1,18,86,434 or in default to suffer further one year rigorous imprisonment. Benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. Brief facts of the reference are that Chairman, NAB received information that the appellant Firdaus Khan while posted as Steno-typist in the office of Land Acquisition Collector, Peshawar Development Authority in connivance and in collusion with his co-accused fraudulently and dishonestly committed misappropriation of public money. He deputed Hayat Ahmad Khan, DSP as Investigating Officer to probe the above allegations. During investigation the said DSP collected material from various quarters and submitted his final report to the Chairman, NAB wherein he came to the conclusion that the accused through mutual collusion and connivance have committed the offence of corruption and corrupt practices and thereby caused a loss of Rs,1,46,59,201 to the government exchequer. After satisfying himself, the Chairman, NAB filed Reference under discussion in the trial court within the meaning of section 16(c) of the National Accountability Ordinance.
3. During trial, the prosecution examined as many as thirteen witnesses in support of its case. The appellant was examined under section 342, Cr.P.C. Wherein he categorically refuted all the allegations of the NAB authorities/prosecution and professed innocence. However, the appellant neither opted to produce any evidence in his defence nor to appear as his own witness as per section 340(2), Cr.P.C. After hearing the learned counsel for the parties, the learned Judge, Accountability Court has found the appellant guilty and convicted and sentenced mentioned above vide his judgment and order dated 2-2-2006.
4. Firdaus Khan, appellant has challenged his conviction and sentence through the present appeal.
Earlier, in the instant appeal was heard by a Division Bench of this court and vide order dated 1-11- 2007 the case was sent back to the trial Court with the following directions:-- "A perusal of the record reveals that the learned trial court heavily banked on the reports of the experts. But it is strange to note that he did not examine, either the Magistrate obtaining the specimen signatures of the appellants or the experts giving opinion in their reports, in the Court.
Notwithstanding the opinion of the experts cannot be pushed in the mischief of section 510 of the Cr.P.C. So as to dispense with their examination. It cannot be treated as substantive evidence either, when it is not affirmed on oath and subjected to the test of cross-examination. Specimen signatures sent to the experts for opinion cannot be linked with the appellant unless the Magistrate obtaining them from the appellants is examined in the Court. Failure to put the opinion of the experts to the appellants for explanation would, too, be of serious consequence, when it was taken into account while convicting the appellants. Quite apart from the fact that the appellant commented thereon in his answers. We, therefore, without adverting to the merits of the case and the arguments of the learned counsel for the parties, hold that remand of the case for examination of the Magistrate and the experts as C. Ws. And re-examination of the appellants under section 342 of the Cr.P.C., would be but imperative for the just decision of the case. This appeal is, thus, kept pending and the case is sent back to the learned trial Court to do the needful within one month. The case on completion of the examination of the above mentioned witnesses and reexamination of the appellants under the above mentioned provisions of the Cr. P.C. Be sent back to this Court. The parties are directed to appear before the learned trial Court on 10-11-2007."
5. In view of the above directions, the learned Judge, Accountability Court-IV, Peshawar recorded the statements of Zahir Gul, DSP handwriting expert, FSL Peshawar and Fazal Sattar Khan, Additional District and Sessions Judge, Peshawar as C.W.1 and C.W.2 respectively. Additional statement of appellant was also recorded and vide his order dated 19-12-2007 the case file was submitted before this Court.
6. We have heard the learned counsel for the parties and have gone through the record of the case with their valuable assistance.
7. It is a known and settled principle of law that prosecution primarily is duty bound to establish guilt against the accused without any shadow of reasonable doubt by producing trustworthy, convincing and reliable evidence having intrinsic worth to enable the court to draw conclusion that the prosecution has succeeded in establishing accusation against the accused and if it comes to the conclusion that the charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his acquittal. The requirement of criminal law is that the prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created benefit of it must go to the accused and that is sufficient to discredit the prosecution story. Person charged with criminal offence is to be saddled with the liability only if prosecution has established its case against him beyond all reasonable doubts otherwise not.
8. The perusal of the record shows that several allegations of corruption and corrupt practices have been levelled against Firdaus Khan, convict-appellant and his cc-accused and to this effect Chairman, NAB has made a detailed inquiry into the matter and finally come to the conclusion that the appellant in collusion with his co-accused namely, Muhammad Tariq, Raees Mirza and Syed Imran Wasti fraudulently and dishonestly misappropriated an amount of Rs,1,46,59,201 with the corresponding loss to the State Exchequer through forgery and cheating. The appellant in his capacity as Steno-typist in the Office of Land Acquisition Collector made fraudulent withdrawal of public funds from LAC/PDA Account No,6868-3/HBL Arbab Road, Peshawar Cantt. In the name of Arshad Hussain, Fayaz Gul and Tahir Javed who were not legal claimants as their land was not acquired. The appellant with the help and assistance of his co-accused Muhammad Tariq, Raees Mirza and Syed Imran Wasti through forged letter opened an Account No,348-9 in HBL Hayatabad Branch for disbursement and transfer of various funds pertaining to the land acquisition in the aforesaid account. It is also on record that the appellant has transferred the public money in the account of Land Acquisition Collector/PDA to his personal Account No, 166-9. So far as the personal Account No,166-9 of the appellant is concerned, Muhammad Daud Khan, Manager, Habib Bank Ltd., P.W.12 has produced the relevant record in respect of the appellant which is Exh.P.W.12/1. The documents in respect of Account Nos.100-7 and 166-9 in the name of the appellant were sent by the I.O. To the FSL whose report Exh.P.W.13/21 established that Account No,166-9 was the personal account of the appellant. Muhammad Daud Khan, Bank Manager, P.W.12 is the most important witness in the instant case. He has produced all the relevant documents from the bank record.
Exh.P.W.12/6 and Exh.P.W.12/7 are the credit and debit vouchers of the transaction made by the appellant. According to which, a sum of Rs,1,46,236 was transferred from Account No,1-4 to Account No,384-9. The profit was transferred to Account No,348-9 on the basis of Ex.P.W.12/8 and Exh.P.W.12/11. Through another pay slip Exh.P.W.12/13 an amount of Rs,57,930 as profit of the account was also transferred to Account No,348-9. An amount of Rs,31,000 was also credited to Account No,348-9 through credit voucher Exh.P.W.12/21. Vide Exh.P.W.12/31, an amount of Rs,4,00,000 was deposited in the account of appellant Firdaus Khan bearing No,166-9. This P.W.12 has given all details of the account of the appellant.
9. In view of the findings of bank inquiry committee, Exh.P.W.12/109 and Exh.P.W.12/110, the observations of the Director General, Audit Exh.P.W.13/39 coupled with the detailed statement of Muhammad Daud Khan, Bank Manager (P.W.12) it has been established that huge amount of public money and profits on public money has been misappropriated through withdrawal on the basis of pay slips, cheques as well as transfer of public money from the official account of Land Acquisition Collector to the bogus account No,348-9 and personal account of appellant bearing No,166-9. It is also on record that an amount of Rs,4,80,000 drawn from account of Land Acquisition Collector has not been paid to Sher Muhammad as compensation of the acquired land by the appellant which was subsequently re-deposited by the appellant after the registration of the case and the same were paid to the said owner. To this effect, the statement of one Junaid Khan Data Processing Supervisor (P.W.5) of PDA is self-exculpatory which clearly shows that the appellant had fraudulently withdrawn the aforesaid amount in collusion with the bank officials.
10. Vide order of this court dated 1-11-2007, the appeal was sent back to the trial Court for examination of the Magistrate who obtained a specimen signature of the appellant and sent to the experts for opinion and also the experts as C.Ws. And re-examination of the appellant under section 342, Cr.P.C. The learned trial Court recorded the statements of Zahir Gul, DSP Expert FSL, Peshawar as C.W.1 and Mr. Fazal Sattar Khan, Additional District Judge, Peshawar as C.W.2. C.W.1 while appearing in the witness box stated that vide letter Exh.P.W.13/14 sent for comparison of signatures of accused/appellant by the I.O. And he received envelope containing original cheque No,ASN-071999 dated 7-12-1999 and signatures marked as Q1 and Q2 for opinion. He examined both the signatures by putting it to resembles, nothing was deciphered beneath and in this respect he has given his opinion which was also signed by Inspector, Nawab Ali and the same is Exh.P.W.13/15 which is correct. Vide letter, Exh.P.W.13/12, this witness also received the original documents of Bank Account No,348-9, signatures marked as Q8 and Q9, original form of NIC dated 8-1-1987 and signatures of the appellant marked as Q1 to Q11 along with specimen signatures and handwriting of the appellant marked as S1 and S2 for opinion. He compared all the signatures and handwritings and sent his opinion which is Exh.P.W.13/13 and the same has been admitted by him as correct and correctly bears his signatures. This witness also received original documents of Bank Account No,166-9 and signatures Q1 to Q5, and original NIC Form of the appellant and signatures marked as R1 to R4 vide letter Exh.P.W.13/18 and to this effect, this witness along with his co-expert Nawab Ali had given their opinion which is Exh.P.W.13/19. Vide letter, Exh.P.W.13/20, this witness received documents regarding Account No,100-7 and signatures marked as Q1 to Q5 along with specimen signature of the appellant marked as S3. After comparison, he along with his co- expert Nawab Ali have given their opinion Exh.P.W.13/21. Vide letter Exh.Pl the 1.0. Sought some clarification regarding handwriting of the appellant which he explained and submitted his opinion Exh.C.W.1/1 through letter No,6266 dated 6-5-2004. This witness admitted the aforesaid opinions as correct and correctly bears his as well as the signatures of his co-Expert Nawab Ali.
11. Fazal Sattar Khan, Addl. District Judge, then Judicial Magistrate 1st Class, Peshawar appeared as C.W.2 and deposed that the I.O. Produced the appellant before him, he obtained specimen signatures of the appellant in slow, medium and fast speeds which is Exh.C.W.2/1. He also obtained the signatures of the appellant in three different speeds which is Exh. C.W.2/2, also obtained specimen handwriting of the appellant including numbers, words and figures in three different speeds which is Exh.C.W.2/3 and after doing the needful he handed over the above documents to the I.O. For safe custody. This witness admitted the aforesaid documents as correct and correctly bears his signatures.
12. Perusal of the above statements of Zahir Gul, DSP (C.W.1) and Fazal Sattar Khan, Additional District and Sessions Judge, then Judicial Magistrate 1st Class, Peshawar (C.W.2) would reveals that they have fully supported the prosecution case in respect of the signatures and handwriting of the appellant Firdaus Khan. They were lengthy cross-examined by the defence but they were not shattered in this regard. Thus, after recording the aforesaid statements of the two C.Ws., the prosecution has also proved its case against the appellant.
13. In view of the oral as well as the documentary testimony of the prosecution witnesses coupled with the aforesaid statements of the two C.Ws., the observations of the bank and financial experts, fraud, collusion, forgery and tampering in official record and accounts against the appellant has been fully established and the prosecution has fully established/proved the allegations levelled against him and thus, he was rightly convicted and sentenced by the learned Accountability Court through the impugned judgment.
14. Consequently this Eh. Criminal Appeal being devoid of any substance, is hereby dismissed.