SHEZADA MAZHAR, J.---Through this Appeal, the judgment dated 19-10-2012 handed down by Mian Altaf Hussain Mahar, Judge Accountability Court No. II, Rawalpindi, is impugned, whereby three persons namely, Muhammad Rafique Khan appellant, Khawaja Muhammad Mustafa and Abdul Hamid Zafar were tried in Reference No.12 of 2011 and on conclusion of trial, Khawaja Muhammad Mustafa Ex-Joint Director OPF and Abdul Hamid Zafar, Ex-Assistant Director, Ministry of Railways, Islamabad were acquitted whereas Muhammad Rafique Khan appellant was convicted under section 10(a) of National Accountability Ordinance, 1999 and sentenced to five years' R.I. And a fine of Rs. 55 lacs along with consequences of section 15 of National Accountability Ordinance, 1999 or in default to pay amount of fine to further undergo S.I. For another period of one year. The amount of fine after recovery from the convict was directed to be deposited by the NAB authorities with OPF. It was also directed that property of the convict if already frozen shall continue to remain as such till recovery of the fine. Muhammad Rafique Khan appellant was further convicted under serial 5 of the Schedule under section 10(b) of National Accountability Ordinance, 1999 and sentenced to five years' R.I. All the sentences were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. Was also given to the appellant.
2. The charge against Muhammad Rafique Khan appellant, and the acquitted accused namely, Khawaja Muhammad Mustafa, Ex-Joint Director OPF and Abdul Hamid Zafar, Ex.-Asstt. Director Ministry of Railways, Islamabad was somewhat as follows:- "(1) That you accused No. 1, had submitted your Cat-A claim with OPF/UNCC by using the wrong name i.e. Muhammad Rafique Zia and had obtained the approved amount, again deceitfully, fraudulently and dishonestly submitted another Category-A claim by using a fake/tampered passport bearing No. E111847. The said passport attached by you with claim form No.62075 submitted to OPF for claim purpose, which did not belong to you.
(2) That you accused No. 1 illegally and with mala fide intentions, tampered your earlier passport bearing No.D111842 and changed it to E111847 for the purpose of submitting another claim for wrongful pecuniary advantage for you and your co-accused.
(3) That you accused No. 1 has also tampered your Kuwait Civil identity i.e. Bataqa-e-Madni and added the word "Khan" in hand writing with your name. Your father name is written as "Baj Ali" in Arabic instead of "Bagh Ali".
(4) That you accused No. 1 with mala fide intentions got published an announcement on page 5th Daily Nawai-e-Waqat Rawalpindi/Islamabad dated 4-11-2003 that your passport No.E111847 and C205657 had been lost during travel, whereas actually the said passport bearing number E111847 and C205657 never belonged to you, as the same belonged to Muhammad Ashraf Khan and Muhammad Rafique Zia respectively and officially these were not issued to you. Detail of claim, illegally received by you is as under:-- Sr.
No.Claim CategoryClaim Form No.Submitted onClaim No. allotted by UNCCCheque No.Amount (Rs.)Remarks 1 A 004452 12.05.92 1208510 30999791,99,399 By using wrong name as M.
Rafique Zia 2 A 62075 1.09.03 20008656661066 1,47,312 By using fake passport No.E111847 3 C 102132 Sep. 2003 1854997 6661463 48,41,249By using fake passport No.E111847
(5) Thu, you accused No. 1 also lodge a false report regarding loss of your passport bearing No. E111847 and C205657 to PS Hajira, District Poonch, AJ&K.
(6) That you accused No. 1 also kept two CNIC with different numbers, which shows pre planed scheme of you to fraudulently get the wrongful pecuniary advantage.
(7) That you accused No. 2 knowingly misused your authority and facilitated the illegal disbursement of payment to co-accused No.1, despite the fact that on the noting portion of UNCC late claim Category-A file Welfare Officer Muhammad Shafique and Asstt. Director Pervaiz Akhter
(both) had pointed out their observation regarding tampering of Passport and CID (Civil Identity Card of Kuwait) but their observations were not accepted by you due to your criminal conspiracy with accused No. 1 and you aided and abetted your co-accused in the commission of offence.
(8) That you accused No. 3 stood guarantor of the fake claim received by your co-accused No. 1 and by doing this act you accused aided, assisted and abetted your co-accused No. 1 and submitted surety bond in order to facilitate the disbursement of fake claim.
(9) That you all accused have caused a wrongful loss of Rs.5,187,900 to the National exchequer by doing corruption and corrupt practices.
There by you accused committed the offence of corruption and corrupt practices under section 9 punishable under section 10 of the National Accountability Ordinance, 1999 and schedule thereof, which is within the cognizance of this Court and I direct that you all accused be tried by this Court"
3. In order to prove its case, the prosecution produced sixteen witnesses, during the trial. Ali Shah, the then Deputy Director NADRA appeared as P.W.1 and produced the record relating to Muhammad Rafique Khan son of Bagh Ali and Muhammad Rafique Zia son of Bagh Ali of District Poonch Azad Kashmir, which was taken into possession vide memo. Exh.P.W.1/1 and Exh.P.W.1/2.
Azhar Hussain Shah, Deputy Assistant Director Immigration and Passport, Islamabad (P.W.2) produced the record before the I.O. Relating to Muhammad Rafique Khan which was taken into possession vide seizure memo. Exh.P.W/1 and Exh. P.W . 2/2.
Pervez Akhter, Deputy Director Overseas Pakistani Foundation appeared as P.W.3 and produced the attested copies and photostat copies of the record relating to Muhammad Rafique Zia and Muhammad Rafique Khan before the I.O. Which were taken into possession vide seizure memo.
Exh.P.W.3/1 and Exh.P.W.3/2. Khalid Ramzan, Deputy Director, Overseas Pakistani Foundation (P.W.4) produced record of payment to Muhammad Rafique Khan in connection of his claim of United Nations Compensation of Claims, vide seizure memo. Exh.P.W.4/1. The record was delivered through letter Exh.P.W.4/2 and the record is Exh.P.W.4/3.
Muhammad Ali, I.O. Required certain record regarding bank account of Muhammad Rafique Khan from Muhammad Adnan Masood, the then Operational Manager Atlas Bank Saddar Rawalpindi (P.W.5) through letter Exh.P.W.5/1 who provided the attested photocopies of record Exh.P.W.5/2 and the record was taken over by the I.O. Through seizure memo. Exh.P.W.5/3. Similarly, Sardar Muhammad Jameel, Assistant Manager, HBL, CDA Branch, Islamabad produced record regarding the encashment of the cheques of Muhammad Rafique, vide letter Exh.P.W.6/1, Exh.P.W.6/2. The statement of account is Exh.P.W.6/3 and Exh.P.W.6/4. The record was taken into possession by the I.O. Through seizure memo. Exh. P.W . 6/5 .
Similarly, revenue record existing in the name of Mohammad Rafique Khan was summoned from Muhammad Arif, Revenue Patwari Halqa Mauza Kathiera Tehsil Hajira District Poonch, Azad Kashmir (P.W.7) through letter Exh.P.W.7/1, which was provided to the LO. Through letter Exh.P.W.7/2. The I.O.
Had taken over the said record through seizure memo. Exh.P.W.7/3. Muhammad Shafique Assistant Director Housing and Works Department OPF, Islamabad pointed out regarding tampering of passport and civil identity card submitted by Muhammad Rafique Khan regarding claim of category-A, through noting Exh.P.W.8/1.
P.W.9 Muhammad Rafique, the then Moharrar Police Station Hajira Azad Kashmir handed over the attested copy of Rozenamcha dated 4-11-2003 Exh.P.W.9/1 which was taken over by the I.O. Through seizure memo. Exh.P.W.9/2. P.W.10 Anjum Siddique Nagra, the then Emergency Relief Officer of Kuwait Emergency Cell OPF, Islamabad had signed Form-A (Exh.P.W.10/1) of the claim and had recommended the payment.
P.W.11 Mushtaq Ahmed Mushtaq, the then Assistant Director in Kuwait Emergency Cell OPF, Islamabad had approved the recommendations of Welfare Officer on the claim of Muhammad Rafique Zia and bears his signature on Form-A, Exh.P.W,11/1. P.W.12 Khalid Masih Khokhar, Assistant Accountant Overseas Pakistanis Foundation made payment through cross cheque amounting to Rs. 147312 regarding category A and cross-cheque amounting to Rs. 4841249 regarding category-C to Muhammad Rafique Khan son of Bagh Ali Khan.
Mehmood Sarwar Hashmi Head Master Government High School Tanda District Poonch Azad Kashmir (P.W.13) had attested photocopies of passport of Muhammad Rafique Khan while P.W.14 Muhammad Ilyas had signed indemnity bond filed by Muhammad Raifque Khan before OPF.
P.W.15 Mushtaq Ahmed, the then Managing Director Overseas Pakistanis Foundation, Islamabad had put signatures and had returned the file back to the concerned branch while P.W.16 Muhammad Ali, Deputy Director NAB is the Investigating Officer who stated about the various steps taken by him during the course of investigation and closed the evidence.
4. The appellant and the acquitted accused were examined under section 342, Cr.P.C. They denied the charges. They did not opt to examine under section 340(2), Cr.P.C.
5. Upon conclusion of the trial the learned trial Court acquitted Khawaja Muhammad Mustafa, Ex- Joint Director OPF and Abdul Hameed Zafar, Ex-Assistant Director, Ministry of Railways, Islamabad while believing the prosecution convicted and sentenced Muhammad Rafique Khan appellant as mentioned and detailed above. Hence, this appeal.
6. The main contention of the learned counsel for the appellant is that NAB had no jurisdiction to take up the matter as there was no complaint against the appellant from United Nations Compensation Commission and it was not the money of Government of Pakistan which was alleged to have been misappropriated by the appellant.
7. On the other hand, learned ADPP for the NAB opposes this appeal vehemently and supports the judgment of the learned trial Court and submits that NAB had the jurisdiction to take up the matter as under the NAB Ordinance cases of corruption and corrupt practices are to be dealt with by NAB.
Submits that the United Nations Compensation Commission (UNCC) was to make payment to the individuals, corporations and the government whose claim is submitted by the governments. In order to verify the claims Pakistan Government authorized Overseas Pakistanis Foundation (OPF) to process and forward the claims of Pakistanis affectees of Gulf War to UNCC (United Nations Compensation Commission). In this process accused in connivance with officials of the OPF submitted two claims on the basis of fake documents which were forwarded by the co-accused and the accused received payment of claims and in such like cases of corruption the NAB had full jurisdiction.
8. We have heard the learned counsel for the parties at length and have perused the record.
9. We would like to deal with the objection regarding jurisdiction of the NAB Court first. It would be advantageous to reproduce the preamble of the National Accountability Ordinance, 1999 for the ready reference, which reads as under:-- WHEREAS it is expedient and necessary to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, ["misuse or abuse) of power ["or authority '] misappropriation of property, ["taking on, kick-back commissions and for matters connected and ancillary or incidental thereto; AND WHREAS there is an emergent need for the recovery of outstanding amounts from those persons who have committed default in the repayment of amounts to Banks. Financial Institutions [Government agencies and other agencies.
AND WHEREAS there is a grave and urgent need for the recovery of state money and other assets from those persons who have misappropriated or removed such ["money or"7] assets through corruption, corrupt practices and misuse of power or authority; [AND WHEREAS there is an urgent need to educate the society 'about the causes and effects of corruption and corrupt practices and to implement policies and procedures for the prevention of corruption in the society; and] [AND WHEREAS there is an increased international awareness that nations should co-operate in combating corruption and seek, obtain or give mutual legal assistance in mattes concerning corruption and for matters connected, ancillary or incidental thereto;] AND WHEREAS it is necessary that a National Accountability Bureau be set up so as to achieve the above aims; AND WHEREAS the National Assembly and the Senate stand suspended in pursuance of the Proclamation of the Fourteenth day of October, 1999 and the Provisional Constitution Order No. 1 of 1999, as amended; AND WHEREAS the President is satisfied that circumstances exist which [-render'] necessary to take immediate action; NOW, THEREFORE, in pursuance of the aforesaid Proclamation and Provisional Constitution Order as well as Order No. 9 of 1999, and in exercise of all powers enabling him in that behalf, the President of the Islamic Republic of Pakistan is pleased to make promulgate the following Ordinance:- Bare perusal of the abovementioned preamble reveals that same has been entered to not only measures for the detention, investigation, prosecution and speedy disposal of cases relating to corruption and corrupt practices.
11. The definition of "Accused" and "Offence" has been given in sections 5(a) and 5(n) respectively when read with the section 9(a) of NAB Ordinance, makes it clear that any person can be tried under the NAB Ordinance. The relevant provisions are reproduced here under:-- 5(a) "Accused" shall include a person in respect of whom there are reasonable grounds to believe, ["that he"] is or has been involved in the commission of any offence [triable] under this Ordinance or is subject of an investigation ["or" ] inquiry by the National Accountability Bureau, or ["any other agency authorized by the National Accountability Bureau in this regard under this Ordinance"]; 5(n) "Offence" means the offence of corruption and corrupt practices ["and other offences"] as defined in this Ordinance and includes [the offences] as specified in the Schedule to this Ordinance;
(9) Corruption and Corrupt Practices.---(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:- Reading of section 9(a) makes it clear that the use of words "any other person" is not related or attached with the words "A holder of a public office" as there is a comma before the word, 'or'.
Further the perusal of the Schedule of NAB Ordinance, 1999 reveals that the offences mentioned at Serial Nos. 11 and 12 are also triable under the NAB Ordinance, 1999. These offences have not been related to "public money". For ease both the offences of schedule are reproduced here under:-- Sr. No. Offences Punishment
11. Section 468, P.P.C. Forgery for the purpose of cheating.Imprisonment of either description for seven years and fine.
12. Section 471, P.P.C. Using as genuine a forged document which is known to be a forged.Punishable for forgery of such document.
From the above provisions it is clear that very wide powers have been granted to the NAB authorities. It is not restricted to holder of public office only or relates to public money only. NAB Ordinance, 1999 is equally applicable to a person who is involved in corruption or corrupt practices.
12. We are fortified in our view by a recent judgment of Hon'ble Supreme Court reported as "Abdul Aziz Memon and others v. The State and others (PLD 2013 Supreme Court 594), wherein it was held as under:-- For what has been discussed above we hold and declare that the provisions of the National Accountability Ordinance, 1999 are applicable even to a person who is not holder of a public office and also to a person who has not aided, assisted, abetted, attempted or acted in conspiracy withholder of a public office and the words "any other person" appearing in section 9(a) of the said Ordinance are to be understood and applied accordingly. For removal of any doubt or ambiguity it is clarified that a stand alone private person can be proceeded against under the said Ordinance if the other conditions mentioned in that Ordinance in that respect are satisfied."
13. We would now deal with the main offence, from the evidence it is proved beyond shadow of doubt that the accused submitted two .Claims 1st claim was filed under Category A vide claim Form No. 04452 (Exh.P.W.2) by the name of Muhammad Rafique Zia with Civil I.D. Numbers 258052400805 and Passport No. D111842. In the said claim form as well as in the copy of the passport his date of birth is mentioned as 1-12-1958. This claim form was submitted and against this form accused received the payment of the claim. Accused filed another claim under Category A and C vide claim Form No. 62075 (Exh.(sic.)) by the name of Muhammad Rafiq Khan with Civil I.D.
Number 25802400805 and passport No. E111847. In the 2nd claim form as well as in the copy of the passport his date of birth is mentioned as 1-1-1956. Perusal of both the above mentioned passports it reveals that both the passports were issued at Kuwait on the same day, i.e. On 27th October, 1987 by the same person i.e. Syed Akhtar Hussain Third Secretary. In both the passports the detail of earlier passport is also given which is one and same i.e. AK 431730 dated 15-11-1982 issued for Kuwait. These two passports when considered along with the two I.D. Cards obtained by the accused from NADRA we on the basis of computerized form and other through manual form. In one card his name is Muhammad Rafique Zia with date of birth 1958 whereas the other by the name Muhammad Rafique Khan with date of birth 1-1-1956. It has been proved by the prosecution that the passport being No. E-111847 was issued to one Muhammad Ashraf son of Sultan Khan on 8-6-1989. Even from the bare perusal of the passport No. E111847 reveals that the same has been forged especially letters "E" and number '7'. It is also important to point out that during the arguments the counsel for the accused before this Court has again and again admitted that the accused had received both the claims. However, he remained unable to respond to the query why two claims on the basis of the two different sets of documents?
The documents/evidence available on record prove both the essential elements of an offence i.e. Mens rea and actus reus are proved. In a case of cheating and fraud these ingredients are necessary or prerequisites for punishment. In the present case accused has produced forged documents in order to induce someone to accept that as genuine and on the basis of said documents that someone has suffered some damage.
Therefore, in presence of the essential ingredients of fraud and cheating read with the admission made by the learned counsel for the accused, this appeal has no merits and the same is hereby dismissed.