MOHAMMAD IBRAHIM KHAN, J---The learned Judge of the Accountability Court-III, Peshawar by his labored judgment dated the 22nd March 2016, convicted accused Bashir Khan Carriage Contractor Food Department (KP) under section 9 of the National Accountability Ordinance 1999, found him guilty and sentenced to seven years' R.I. with a fine of Rs,7,78,72,069 under its section 10 (punishment for corruption and corrupt practices).
2. This is an appeal under section 32 of the National Accountability Ordinance, 1999 against the announced verdict wherein as many as grounds from (A to L) were highlighted for each due consideration where ultimate prayer is for acceptance, the judgment of conviction dated 22.03.2016 may be set aside and appellant is liable for acquittal of the charges.
3. The Director Food Khyber Pakhtunkhwa Peshawar under the subject "Mis-appropriation of Government wheat during Transit by the Carriage Contractor Messrs Bashir Khan and Co from various centres in Punjab to Swat" addressed his Reference No,5630/AC-117 Swat dated 11.06.2010 to the Director General (NAB KP). It touch upon, Bashir Khan is an approved Carriage Contractor of Food Department who has misappropriated 1812.984 Metric tons wheat during transportation from Pakistan Agricultural Storage and Services Corporation (PASSCO) Punjab to Provincial Reserve Centre (PRC) Swat.
4. In exercise of the delegated powers by Chairman NAB under section 34-A of N.A.O., 1999 (Order No,3(32) Part COS/2006 (NAB) Islamabad the 13th June 2006, the Director General NAB KP issued his letter # 1/34/(658)/1W-1/NAB (KP 733) dated 4th October 2010 for authorization of inquiry to Aftab Ahmad Khan Investigation Officer NAB (KP) Peshawar and after recommendation for conversion into investigation letter # 1/34/(658)/1W-1/NAB (KPK) 786 dated 4th July, 2011 was issued by the Director General KP to the same officer (Mr. Aftab Ahmad Khan I.O. NAB (KP) aura that the said (Aftab Ahmad Khan/I.O/NAB (KPK) recommended that Reference be filed against the accused/appellant in the Accountability Court. Hence with all force one's hand the Director General (NAB KP) on 17.11.2011 preferred this Reference under section 18(g) read with section 24 of the National Accountability Ordinance, 1999.
5. Ensuing the asseverations the charge reads: State v.
Bashir Khan son of Jehangir Khan Carriage Contractor, Food Department (KPK) RIO Village Khar Mohallah Babu Kato, Tehsil Bathkhela, Malakand Agency.
CHARGE: I ...............................................Judge Accountability Court-III, Peshawar do here charge you accused named above that you being A-Class Carriage Contractor of Food Department (KPK) and having contract of transportation from Pakistan Agriculture Storage and Services Corporation (PASSCO), Punjab to Provincial Reserve Center (PRC) Swat, Lower and Upper Dir misappropriated huge quantity of wheat during the transportation to Swat worth Rs,7,78,72,069/-.
And you thereby committed the offence of corruption and corrupt practices within the meaning of section 9 of the National Accountability Ordinance, 1999, punishable under section 10 of the said Ordinance and within my cognizance.
And I hereby direct that you be tried by me for the aforementioned offence.
Judge Accountability Court-III, Peshawar Dated: 23.12.2011.
Prosecution NAB examined PW-1 Syed Saeed-ur-Rehman Ex-Director KPK, Peshawar, PW-2 Mohammad Rokhan Assistant Account Officer Food Directorate Govt. of KPK, PW-3 Fazal Wadood, PW-4 Mohammad Jehangir Khan Assistant Director Food Department Bannu Division, PW-5 Ghulam Haider Assistant Account Officer Food Directorate KPK, Peshawar, PW-6 Ajab Khan District Food Controller, Swat, PW-7 Tajbar Khan Assistant Food Controller Mardan, PW-8 Allah Dad Superintendent Food Directorate Khyber Pakhtunkhwa, PW-9 Mohammad Pervez Akhtar Zaheer, PW-10 Aftab Khan Investigation Officer NAB KP. Then accused Bashir Khan was examined under section 342, Cr.P.C. He was put as many as seventeen questions. He answered by negating the prosecution version and posed innocence.
6. Having heard arguments of learned counsel for accused/ appellant, learned Special Prosecutor NAB and record with their assistance gone through.
7. Learned counsel for appellant relied on 2016 YLR 2547 (Muhammad lqbal Ahmad v. The State), PLD 1952 Federal Court 63 (Aminul Haq v. Crown), 2011 PCr.LJ 778 (Hassan Askari v. The State), PLD 1955 Federal Court 129 (Abdus Salam Molla v. The Crown), 1998 SCM R 697 (University of Peshawar v.
Mian Mohsan Shah) (the later seems to be irrelevant) 2016 SCM R 267 (Mohammad Nawaz v. The State) and PLD 1988(sic.) (Safdar All v. Mohammad Afzal), thus prayed for accused/appellant acquittal in entirety.. Repelling these rulings although no such verdicts of the Honourable Superior Courts were produced yet opposed, the learned Special Prosecutor supported the findings given in the impugned judgment to be in consonance with the evidence of the prosecution.
8. Aside from all other grounds mentioned in the memorandum of appeal let yield to Ground D reads as: "Even the impugned judgment of conviction is at loss to point out as to which provision/cause of section 9 of the Ordinance ibid the appellant stood guilty of. And the conviction and sentence is thus liable to be set aside on this score alone."
Ground E reads as: "That not only this, the evidence and the record of the case also proves that the Reference was unauthorizedly filed by the Director General NAB (KP) and that he was not possessed of the authority and jurisdiction to file the same in view of the gazette notification issued under section 34-A of the NAO, 1999. The Reference was thus not at all entertainable even."
9. Out of these grounds, ground "E" is bedrock taken first for discussion which lays foundation, authorizing the authority of Director General in confirmation of delegation of powers to file Reference under section 18(g) read with section 24 of the National Accountability Ordinance, 1999.
This pertains to an Order No,3(32) Part COS/2006 (NAB) dated Islamabad 13th June, 2006. The layout graph of Ex.PW10/3 pages 3 to 7 at serial 5/section 18(g) to file a Reference before Accountability Court extent of delegation serial No,4 of section 18(c) has been adopted.
"A businessm an employing upto 49 persons in a single business entity or in all of his business concerns, put together". Coming to the statement of the PW-10 (Aftab, Ahmad Khan Investigation Officer NAB KP Peshawar), when cross-examined very specifically rather very honestly admitted; "It is correct that from the bare perusal of the aforesaid dispatch reports Ex.PW4/9, it is evident that the total number of drivers employed by accused Bashir Khan for the purpose of transporting wheat from PASSCO Punjab to Swat, runs over hundreds. I have now seen Ex.PW10/3 at page 3 to 7 of the Reference according to which the DG NAB has been delegated the powers of Chairman NAB to proceed against a businessm an employing upto 49 persons in. a business concern."
At a few lines later this Investigation Officer categorically makes clean breast admission which too is reproduced here: "It is correct that in order to perform the contract forming subject matter of the instant Reference the accused Bashir Khan had employed over hundred truck drivers as per Ex.PW4/9. But despite the fact of admissions has negatively answered the suggestion that the Director General had no authority to have filed the Reference in violation of Ex.PW 10/3.
10. As far as ground D of the memorandum of appeal, its relevance is form of charge. Like in all criminal cases per common law charge is framed under the text of First Information Report and charge before the Accountability Court is framed on asservations levelled for filing Reference under section 18(g) of the National Accountability Ordinance. Filing of Reference is further under absolute Recommendation of submitting the investigation by concern Investigation Officer. It is extremely apathetic that Recommendation for filing Reference by the Assistant Director/I.O NAB KP while forming an opinion on the basis of evidence collected and the statement of witnesses accused Bashir Khan was plainly booked under section 9 punishable under section 10 of NAO. Section 9 of the national Accountability Ordinance is reproduced here for ready reference: 9-(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-
(i) If he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860) for doing or for bearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person, or for rendering or attempting to render any service or disservice to any person; or
(ii) If he accepts or obtains or offers any valuable things without consideration, or for a consideration which he knows to be in-adequate, from any person whom he knows to have been, or likely to be, concern in any proceedings or business transacted or about to be transacted by him, or having any connection within official functions or 2 (from) any person whom he knows to be interested in or related to the person so concerned; or
(iii) If he dishonestly or fraudulently misappropriate or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or willfully allows any other person so to do; or
(iv) If he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself; or for his spouse or depends or any other person, any property, valuable thing or pecuniary advantage; or
(v) If he or any office depends or banamidar owns, possesses or has (acquired) right or title in any "assets or holds irrevocable power of attorney in respect of any assets] or; pecuniary resources disproportionate to his known sources of his income, which he cannot commensurate with his sources of income; or (vi)[if lie] misuses his authority so as to gain any benefit or favour for himself or any other person, or [renders or attempts to render] [or willfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority].
(vii) if he has issued any directive, policy, or any SRO 9(Statutory) Regulatory Order) or any other order which grants or [attempts to grant] any [undue] concession or, benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar [or any other, person] [; or]
(viii) if he commits an offence or willful default [; or] (ix)if he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly induces members of the public at large to deliver any property including money or valuable security to any person; or
(x) if he commits the offences of criminal breach of trust as defined in Section 405 of the Pakistan Penal Code, 1860 (Act XLV of 1860) with regard to any property including money or valuable security entrusted to him by members of the public at large.
(xi) if he, in his capacity as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust as provided in section 409 of the Pakistan Penal Code, 1860 (Act XLV of 1860) in respect of property entrusted to him or over which he has domination; and
(xii) if he aides, assists, abets, attempts or acts in conspiracy with a person or a holder of public office accused of an offence as provided in clauses (i) to (xi).
(b) ......................................
(c) ....................................
11. Neither the Investigation Officer has recommended the exact provision/clause of section 9 of the Ordinance, nor the Reference under section 18(g) engender such provision. The learned Judge of the Accountability Court-III while framing the charge has also shove off to frame and did not charge the accused with exact Clause of section 9 of NAO. It is extremely mirthful that when the learned Special Prosecutor was inquired as to which Clause of Section-9 NAO would be an appropriate "Head" for to bring home charges, who referred to clause (x) which at all has no nexus with the misappropriation for which the ultimate punishment under section 10 of NAO would fall.
When recommendation of the Investigation Officer, the filing of Reference under section 18(g) read with 24 of the National Accountability Ordinance 1999, the learned Accountability Court while framing the charge without citation of the relevant Clause under which the charges are to be proved, the learned Special Prosecutor is unaware of as to which clause of section 9 of the NAO would be applicable to the offence if at all committed by accused Bashir Khan. The learned Judge of Accountability Court-III has also committed an error by convicting the accused Bashir Khan, found guilty of the offence falls under section 9 of the National Accountability Ordinance 1999, meaning thereby that neither the Prosecutors nor even the learned Presiding Officers of the Accountability Court-Ill have taken care of to prosecute and convict accused Bashir Khan under the exact clause of Section-9 of the National Accountability Ordinance, 1999.
12. In the Reference in hand the allegations of misappropriation has been elaborately drawn fine but has not been reduced into a well defined charge.
According to section 221(1) Chapter XIX of the Criminal Procedure Code; "Every charge under this Code shall state the offence with which the accused is charged." By this the accused against whom charge is framed must be well aware when is to take notice of the matter with which he is charged.
13. A look over the investigation based facts on the charges coupled with the proposition prosecutable action on the work orders two in number the charge frame shall be with separate and distinct Heads so that the accused facing such charges must be well aware that if he has any defence to offer, he may do so when offered to produce evidence in his defence. For framing of charge it was imperative for the learned Accountability Court-III to have distinctly framed the charge on the basis of; i. that the investigation revealed that 2nd work order was issued by Director Food KPK to the accused for the year 2009-10 for lifting and delivering 6114.000 metric tons wheat from PASSCO Punjab to PRC Swat within 24 days. The record shows that 6076.693 metric tons wheat was lifted and only 5775.236 metric tons wheat was delivered at PRC Swat and hence quantity of 301.457 metric tons wheat staved undelivered to PRC Swat. ii. that the investigation further revealed that Director Food (KPK) issued 3rd work order/allocation to the accused for the year 2009-10 for lifting and delivering 7000.000 metric tons wheat from PASSCO Punjab to PRC Swat within 20 days. The record shows that quantity of 5210,793 metric tons wheat was lifted by the accused Contractor for PRC Swat, but only 3699.270 metric tons wheat was delivered at the destination and a quantity of 1511.523 went missing in third allocation.
The re-assume of to be lifted wheat requirement is 16365.811 metric tons wheat from PASSCO dispatching Centres in Punjab for PRC Swat during the year 2009-10 but instead the accused delivered only 14552.827 metric tons wheat at PRC Swat. The accused thus failed to deliver 1812.984 metric tons of the entrusted wheat at PRC Swat during the year 2009-10 for which the charge shall be clear in words without any ambiguity.
14. We are thus of venerable axiom to set aside the sentence awarded to the accused/appellant by the judgment dated 22nd March, 2016 of the learned Judge of the Accountability Court-III, Peshawar. On remand this Reference is sent back to the said learned Court to further hold its independent opinion by a clarion order whether in the light of observation in Para 8 of this judgment filing of this Reference under section 18(g) of NAO, the worthy Director General was competent to have referred accused Bashir Khan for punishment in accordance with law. Likely the powers exercised under section 24(a) for the issuance of warrant of arrest (not available on Reference Book) of this accused was vested with the delegated authority falling under his domain.
If the Reference is held competently been filed, then reframe the charge in the light of observation in Para 11 under proper Heads.
15. Accused/appellant be summoned for a short date to be fixed by the learned Accountability Court-III, Peshawar where record be remitted forthwith. While parting with this judgment, we leave it to the learned trial Court to deal with the trial proceedings, as proposed of course with consent of the parties and their learned counsel representing them whether to record fresh evidence or relying on the evidence already recorded once the Reference is competently held lawful filed under the delegated powers of the Chairman NAB to the Director General NAB (KP) and after the charge is refrained. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.