MEHMOOD MAQBOOL BAJWA, J.---After conclusion of trial in Accountability Reference No, 26 of 2009, the learned Accountability Court No, II, Lahore while reaching to the conclusion regarding proof of charge, recorded conviction against Salah-ud-Din (Appellant in appeal No,1436 of 2012), Malik Munir Hussain (who has preferred Appeal No,1492 of 2012) and Zaigham Mehmood (appellant in Criminal Appeal No,1659 of 2012) through judgment dated 14th of July, 2012 and awarded them sentences under section 10(a) of The National Accountability Ordinance, 1999 (Ordinance XVIII of 1999) (hereinafter called Ordinance XVIII of 1999).
Amount of fine was required to be recovered under section 33-E of Ordinance XVIII of 1999.
2. Salah-ud-Din, Malik Munir Hussain and Zaigham Mehmood through separate appeals have called in question the legality and validity of judgment seeking acquittal. Since all the three appeals arise out of one and the same judgment, therefore, shall be disposed of through this judgment.
3. Reference was sent against Zaigham Mehmood (National Saving Officer)(NSO), Malik Munir Hussain (Cashier), Salah-ud-Din (UDC) and Hafeez-ur-Rehman (Deputy National Saving Officer).
Hafeez-urRehman was declared proclaimed offender through order dated 8th February, 2006.
4. Accusations in brief contained in the Reference are that after receipt of complaint by Rafique Ahmed, Assistant Director, National Saving Centre, Multan (PW-3) regarding mis-appropriation of Rs,15,92,350/- in National Saving Centre-V, Multan, FIR No,2 of 2002 was registered against the appellants and proclaimed offender in pursuance of complaint (Exh.P3/1). After that, special audit of the Branch was conducted and approximately Rs,70,00,000/- were found mis-appropriated.
Ultimately, cognizance was taken by the National Accountability Bureau and after conclusion of investigation, Reference was sent to the learned Accountability Court, who took the cognizance, served the appellants with charge sheet. Accusations were controverted putting the prosecution to produce evidence and 17 witnesses were produced by the prosecution to prove the charge.
5. All the three appellants in their respective statements recorded under section 342 of The Code of Criminal Procedure, 1898 (Act V of 1898) (hereinafter called The Code) denied the incriminating evidence. Zaigham Mehmood, appellant, produced documentary evidence in defence.
6. Heard adversaries at length and perused the record.
7. Abdul Majeed Azhar, Assistant Director, Incharge Zonal Inspection and Accounts Office (PW-1) deputed Ghulam Mustafa, Inspection Officer to conduct special audit after getting information about fraud and irregularities. According to him, Inspection and Audit Officer (PW-7) intimated him through different letters about the misappropriation of huge amount. He also produced certain documents to the Investigating Officer.
Evidence of this witness will not substantiate the case of prosecution to prove guilt of appellants for the simple reason that he did not conduct audit himself.
Muhammad Jehangir Shehzad, Assistant Director (PW-2) being representative of department associated himself in the investigation. He had no personal knowledge about the scam and got information through record as admitted by him in cross-examination.
Evidence of Rafique Ahmad Malik (PW-3), who is complainant of FIR No,2 of 2002 will not prove the case of prosecution as he after getting information about fraud lodged crime report. Whatever was stated by him is based on the report of special audit conducted in the A year 2002.
Shehzad Ahmed, UDC (PW-4) produced different record before the Investigation Officer, the detail of which has been given by him in his statement. He also produced Special Audit Report comprising 23 pages (Exh.PW-4-12). He is just the attesting witness of recovery memos (PW-4-1 to PW-4-330). Any of documents does not bear his signatures Likewise, evidence of Muhammad Mushtaq Ali (PW-5), an Administration Officer, National Savings Centre, Multan will not prove culpability of appellants as the witness just produced documents (Exh.PW5-1 to Exh.PW5-20) before the Investigating Officer who took the same into custody through memo (Exh.PW.5-21).
Munir Hussain, Second Officer, National Saving Centre-V, Multan (PW-7) produced documents (Exh.PW.7-1 to Exh.PW.7-4-1 to Exh.PW.7-4-36) and (Exh.PW.7-6 to Exh.PW.7-10) before the Investigating Officer. Reliance on the evidence of this witness cannot be placed from any aspect as he was also served with charge sheet with the allegation of mis-conduct and corruption and was compulsory retired.
Rao Muhammad Shafi (PW-8) produced certain documents before Investigating Officer and as such his evidence by itself would not prove culpability of appellants.
8. Evidence of Sajid Mansoor Hafeez, Joint Director (PW-9) highlights the culpability of appellants as the witness deposed that misappropriation was made in Account No,S.A.5044 and S.A.4826. The witness further stated that payment journal of Khata No,SA.5044 was prepared by Salah-ud-Din and amount was withdrawn by Munir Hussain (appellant).
According to his evidence, Rs,2 lacs were misappropriated from Account No,SA-1826. Stating reason of embezzlement, it was deposed that cheque through which amount was withdrawn was not issued to account holder.
He admitted in cross-examination that cheque of account No,S.A-5044 was passed by Hafeez-ur- Rehman (since P.0). In the circumstances, irregularity, if any on the part of appellants by itself would not be sufficient to prove heads of charge against them.
9. Evidence of Amir Hussain (PW-11) one of the claimants is important. According to him, he purchased three special saving certificates from Hafeez-ur-Rehman Malik, the then Manager (Since P.0). The witness also purchased two more certificates on 17.06.2000.
The witness exonerated Zaigham Mehmood (appellant) by adding that as and when he purchased certificates, the said appellant was not present. He in clear terms stated that he had no grievance against Zaigham Mehmood and Munir Hussain.
Though he stated that certificates were issued by Salah-ud Din but in cross-examination, he disclosed that he obtained loan of Rs,2,25,000/- on said certificates from Habib Bank and prior to sanction of loan, the bank got verified genuineness of certificates. In the circumstances, how evidence of this witness can prove charge against appellants?
Sh. Khuda Bakhsh (PW-12) is another claimant, who accused only Zaigham Mehmood and did not attribute any act to rest of the appellants. His deposition against Zaigham Mehmood will also not prove the allegations as he just stated that it came to his knowledge that fraud was committed by said appellant.
10. Certain documents were sent for comparison of handwriting to Shaukat Ali, Handwriting Expert (PW-16) but admittedly signatures of all the appellants were not sent to him.
11. Prior to dealing with some remaining evidence, it is desirable to add that according to allegations contained in the charge- sheet, period of embezzlement starts from 1st January, 2000 ending on 31st December, 2001.
Allegation against the appellants is that they in collusion with one another committed fraud.
Perusal of record of posting (Exh.PW4-10), Zaigham, Mehmood (appellant) served at National Saving Centre-V, Multan, from 13th January 2000 to 15th September, 2001. Though, he also served in this Branch earlier as well but posting prior to the crucial period is totally irrelevant.
Likewise, Munir Hussain (appellant) remained posted at National Saving Centre-V Multan from 1st October, 1999 to 16th September, 2001.
Salah-ud-Din (appellant) remained posted at said branch from 8th November 2001 to 7th December, 2001.
Posting of all the three appellants at same Branch earlier keeping in view the period of fraud will not substantiate the case of prosecution.
Collusion as such among the appellants was required to be established for the period mentioned in the charge regarding which no convincing evidence as discussed was produced.
12. Great stress was laid down by the prosecution on the evidence of Amir Ali Hussain Khan, Director Forensic Science Laboratory (PW-10). His report is Exh.PW.10-1. Report is admittedly in positive but the evidence in view of discussion made in preceding paragraphs is not sufficient to prove guilt of appellants beyond shadow of doubt.
The report though creates suspicion against appellants but suspicion, however, strong cannot take the place of proof.
13. Evidence adduced by prosecution, no doubt, suggests irregularities on the part of all the three appellants but in the absence of evidence regarding mens rea, charge could not be established.
Reliance is placed upon the dictum laid down in "The State and others v. M. Idrees Ghauri and others" (2008 SCM R 1118) and "Mansur-ul-Haque v. Government of Pakistan" (PLD 2008 Supreme Court 166).
14. Pursuant to discussion above, while accepting all the three appeals bearing No,1436 of 2012 titled "Salah-ud-Din v. National Accountability Bureau etc." No, 1492 titled "Malik Munir Hussain v. National Accountability Bureau etc." and No,1659 of 2012 titled "Zaigham Mehmood v. National Accountability Bureau etc." appellants are acquitted.
15. After hearing the arguments on 17th September, 2015, we through short order announced the judgment, acquitting the appellants. These are the reasons for reaching to the conclusion.