KHADIM HUSSAIN TUNIO, J.---Through captioned Criminal Accountabilit y Appeals the appellants have assailed judgment dated 14.12.2017 passed by Accountability Court-III, Karachi in Ref. No, 23 of 2015, whereby appellants were convicted for the offence punishabl e under section 10 of National Accountability Ordinance, 1999 read with Sr. No, 04 of the schedule of the offences appended with the NAB Ordinance to suffer R.I for 05 years each; both the appellants were further disqualified for a period of 10 years to be reckoned from the date they were to be released after serving their sentence for seeking, from being elected, chosen, appointed, nominated as member or representative of any public body or any statutory or local authority or in service of Pakistan or any of the province.
However , benefit of section 382-B, Cr .P.C. was extended to them.
2. The prosecution case is that on receipt of information against Revenue Officers and others, an inquiry was authorized which was subsequently converted into investigation by the competent authority of NAB vide authorization letter No, 2314/IW -2/CO-F/T -21/NAB Sindh/ 2011/1004 dated 28.10 .2011. It was found and alleged that absconding accused namely Muhammad Ilyas prepared a fake general power of attorney in his favour bearing Registration No, 5928 dated 01.09.2004 in the name of Mst. Lal Bai wife of Piyaro Khan by using her old NIC, which had already expired on 18.05.2000 , regarding immovable property i,e, Gove rnment land measuring 21 acres 20 ghuntas, Jeryan 29/169, NA-Class-162, situated in Deh Safooran Tapo Song al, Taluka and District Karachi attached with Form-VII, who with connivance of deceased accused/Sub-Registrar T-Division namely Muhammad Zafar Baloch got a General Power of Attorney registered. It is also alleged that absconding accused Muhammad Ilyas got bogus NOC for sale No,761/2005 dated 26.07.2005 issued in his name in connivance with appellant Khadim Hussain Kutrio, Mukhtiarkar (Revenue) Malir , so also accused Ilyas through fake power of attorney sold the Government land measuring 21-20 acres to Khursheed Khan and Muhammad Arif Rogatia fraudulently . Appellant Khadim Hussain Kutrio also issued and signed bogus NOC for sale No, 761/2005 and form VII in the name of absconding accused Ilyas on the basis of fake General Power of Attorney . It is also the case of prosecution that NOC for sale No,761/2005 was forwarded by Sub-Registrar (East) to DDO (Revenue) Malir for verification, which was marked by the DDO (Revenue) Malir to accused Mushtaq Ali Solangi, Mukhtiarkar Malir Town for report, who verified the fake NOC and bogus entry of survey No, 162 and confirmed the same to DDO (Revenue) Malir , who subsequently passed on that confirmation to Sub-Registrar Agricultural Land Karachi (East), so also appellant Mushtaq Solangi confirmed the genuineness of said fake NOC and kept fictitious entries in record of rights through which prized government land measuring 21-20 acres worth Rs, 430 million (approx.) was illegally transferred to Khursheed Alam and Muhammad Arif Rogatia and subsequently entries were cancelled in the record of rights by Suo Motu Notice of EDO (Revenue) CDG Karachi. Thus both accused being government officials have misused their authorities and committed criminal breach of trust to manipulate record of rights in respect of government land measuring 21-20 acres in connivance with absconding accused M. Ilyas and cause a loss of Rs, 430 Million to the Government Exchequer and committed the offences of corruption and corrupt practices, hence Cr. Reference was filed.
3. The appellants were sent up to face trial before the Accountability Court-HI, Sindh, Karachi.The appellants having refused to plead guilty were put to trial.
4. The prosecution in order to substantiate the accusations examined as many as 17 witnesses namely: Muhammad Amir Sabir , Fareed Ahmed, Chandan Kumar , Muhammad Saleem Burfat, Ghulam Muhammad, Muhammad Siddique, Abdul Wajid Shaikh (Section Officer-I Land Utilization Department Board of Revenue, Karachi), Muhammad Iqbal Awan, Haji Ahmed, Ghulam Rasool, Iqbal Ahmed Mirani, Qurban Ali, Rasool Bux Laghari, Shamir Ali Jokhio, Muhammad Ishaq, Sajjad Ahmed (Investigation Officer NAB Karachi) and Zain-ul- Abdin. Prosecution also tendered number of documents in evidence.
5. Statements of appellants under section 342, Cr.P.C. were recorded wherein they denied the charges and claimed to be innocent. Appellant Khadim Hussain Kutrio examined D.W Tufail Ahmed Khaskheli at Ex. 29 who produced photostat copy of handing/taking over of record of rights of Deh Mehran-I and Deh Safooran and copy of Entry No, 29 as Ex.29/1-2, respectively . He also examined himself on oath under section 340(2), Cr .P.C. at Ex. 30.
6. On conclusion of trial, the appellants were convicted for the offence punishable under section 10 of National Accountability Ordinance, 1999 read with Sr. No, 04 of the schedule of the offences appended with the N.A.B Ordinance to suffer R.I for 05 years each; both the appellants were further disqualified for a period of 10 years to be reckoned from the date they were to be released after serving their sentence.
7. Mr. Shoukat Hayat, advocate for the appellants has argued that the D.D.O. was the custodian of Revenue record and not Mukhtiarkar; that NOC was valid for two months only from the date of issue i,e, 26.07.2005 and lease deed was registered on 10.10.2005; that beneficiaries and D.D.O. did not implicate the accused and NAB closed the investigation against Messrs Black Stone Developers hence N.A.B authorities could not be permitted to re- investigate the matter; that none of the P.Ws had implicated the appellants with specific and direct oral or documentary evidence that he had misus ed his authority; that from the evidence, it is clear that the I.O. had hand- picked the appellants to be the scape goats even though the appellants have been exonerated by P.W.06 Haji Ahmed DDO, who was the custodian of the record and authority of issuance of letter on the basis of which the plot in question had been transferred; that the 1.0/P .W.15 in his cross-examination admitted that the appellants are not found beneficiary; that not a single document has been brought on record purported to forged document with supporting any forensic report; that the prosecution has failed to produce any substantial material against the appellants; that no evidence was produced showing their involvement in any manner of corruption and corrupt practices; that the punishments awarded to the appellants are illegal and harsh under the circumstances of the case; that there are material contradictions in the prosecution case. In support of his contentions, he has cited case-law reported as 2006 SCMR 1886 , PLD 2008 SC 166, 2008 SCMR 1118, 2009 SCMR 517, 2014 SCMR 985, PLD 2015 Lahore 129 , PLD 2016 SC 276 , 2017 SCMR 986 and 2018 SCMR 772 .
8. Conversely , learned Special Prosecutor for NAB though vigorously supported the judgment and emphatically opposed the plea of acquittal. He has argued that the appellant Khadim Hussain being a government official issued bogus NOC for the sale on the basis of fake documentations and manipulated the record whereas the appellant Mushtaq Ali verified and confirmed the genuineness of the said bogus NOC forwarded by the Sub-Registrar hence, they misused their authority; that the appellants committed breach of trust to manipulate the record of rights for 21- 20 acres in connivance with the absconding accused; that all the P.Ws supported the case of prosecution hence present appeals are liable to be dismissed.
9. We have heard learned counsel for the appellants and learned Special Prosecutor NAB and perused the evidence on the record.
10. After hearing the learned counsel for the parties and carefully perusing the material available on record, we find that the prosecution has successfully made out a reasonable case showing misuse of authority by the appellants.
They conferred benefits to the abscondin g accused, firstly by manipulating record of rights and thereafter verifying bogus NOC, resulting to the transfer of the government poverty in question. At the relevant time, the appellant Khadim Hussain was posted as Mukhtiar kar from 21.07.2005 to 29.07.2005, for a total of eight (8) days and had powers as conferred in section 12 of the Sindh Land Revenue Code, 1879. Under such code, the appellant Khadim Hussain had the powers to issue sale certificate and the said allegation, cannot be surpassed by stating that the same was also counter-signed by DDO. Neither of the appellants have denied the issuance of NOC and its verification. The appellant Mushtaq Ali, in his defence deposed that he furnished the report to DDO on the basis of report of Tapedar and thereafter the DDO after verification of Revenue record, himself, issued letter to Sub- registrar . It is relevant practice in law that the DDO marks the letters for verification to concerned officer/custodian of record, where after report is send to Sub-Registrar . It is clearly shown by the letters of DDO, Malir Town and Mukhtiarkar that Original record verified and found that this entry is available in V.F VII deh safooran . What pertains from these letters is that the said docum ents, while originally not being valid or even in existence, however the same were confirmed by the, appellant Mushtaq Ali.
11. The defense counsel has failed to debunk the allegations of the prosecution against the appellants. It is well settled that all the prosecution has to do is prove the charge under section 9(a)( vi) before, the Court, thereafter prosecution would be deemed to have discharged the burden of proof and then the burden of proof shall shift on the accused to rebut the presumption of guilt. Reference in this respect is placed on PLD 2001 SC 607 .
12. Before proceeding further , we would like to examine as to what is the true connotation of the work "misuse" occurring in section 9(a)(vi) of the Ordinance. According to the Concise Oxford Dictionary (9th Edition), page 872 the word "misuse" means to use wrongly and apply to, the wrong purpose. The Oxford (Advanced Learner's)
Dictionary (5th Edition), page 747 gives its meaning as under:--
(1) To use in the wrong way or for the wrong purpose: misuse a word/an expression, misuse alcohol/public funds;
(2) To treat badly .
The Chambers 21st Century Dictionary (Revised Edition), page 877 gives the meaning of the word "misuse" as under:- To put something to improper or inappropriate use: To treat something or someone badly .
Because the word misuse has not been defined under the Ordinance, we will follow its ordinary dictionary meaning.
In plain words misuse of authority would mean a wrong and improper exercise of authority for a purpose not intended by the law. A person may, in exercise of his authority , go wrong due to some ordinary human failing, or error but this, per se, will not be actionable under the law. However , if a person knowingly and deliberately follows a wrong course of action and deviates from the purposes of law and proceeds to achieve some other objective either prohibited or not intended by the law then he becomes liable under the law. In the present case, it was not a mere erroneous order or lack of jurisdiction on that part of a public functionary will, but in the present circumstances, the appellants being representatives of a public functionary , deliberately used/exercised their own authority or for that matter usurped the power of the public functionary with the objective of letting the absconding accused to gain advantage/benefit. Under such circumstances, they are guilty of an offence under section 9(a)(vi) of the Ordinance.
It is true that in the process of misappropriation with the record of rights and the verification NOC on the basis of non-existent documents, the appellants have not shown to have gained any pecuniary benefit for themselves.
However , they gained benefit for the absconding accused. The land in question is in possession of the Government of Sindh and is lying vacant, the suit for the ownership of the same has been filed by Khursheed and Arif Rogatia.
Both of them stand exposed to hazards of future litigation. For this, none but the appellants are to be blamed.
13. According to Crawford's Interpretation of Laws, Criminal and Penal Statutes must be strictly construed, that is, they cannot he enlarged or extended by intendment, implication, or, by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted.
14. Furthermore, the principles governing the white collar crime have been laid down by the Hon'ble Supreme Court in the case of Imtiaz Ahmed v. The State PLD 1997 SC 545. Although in this case, the Hon'ble Supreme Court was considering a bail application but the principles laid down are in general terms and shall apply to the final determination of the guilt or innocence of an accused charged with corruption or corrupt practices. The Hon'ble Supreme Court has observed as follows:- "I may observe that a distinction is to be made between an offence which is comm itted against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly , a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail."
The Hon'ble Supreme Court has further observed as under:- "The Court should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international, magnitude, which cannot be resolved unless the whole Pakistani Nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money . Some of the holders of the public office commit or facilitate commis sion of offences for monetary considera tion. In the above scenario the Court's approach should be reformation-oriented with the desire to suppress the above mischieves. To achieve the above objective, it is imperative that the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. It should not be overlooked that Article 9 of our Constitution, which relates to a fundamental right guarantees life and liberty of every person. Life, inter alia, includes the right to have access to a fair and independent judicial forum for redress. A balance is to be struck between national and individual interest/right."
Walking in the same shoes, the dicta laid down by the Hon'ble Supreme Court reproduced above, it is held that the ratio of the judgments in ordinary criminal cases pertaining to the benefit of doubt are not attracted to the case coming within the purview of white collar crime and particularly pertaining to the corruption and corrupt practices.
15. Now adverting to the merits of the case, Mr. Aslam Parvez Abro, Asst. Director NAB, Karachi who obtained the signature of the appellants and produced the same has deposed that he obtained the specimen signatures of the appellants in slow, medium and fast speeds and after doing the needful he handed over the above documents to the for safe custody . A bare reading of the statement of Asst. Director . NAB, Karac hi would reveal that he has fully supported the prosecution case in respect of the signatures of the appellants. He was put through lengthy cross- examinations by the defence, but his evidence could not be shattered in this regard.
16. We have also minutely gone through the report submitted by the handwriting expert. Even a report of expert is an opinion under the law and it is not binding upon the court. Undoubtedly , the opinion of handwriting expert is relevant but it does not amount to conclusive proof, as the evidence of expert is a very weak type of evidence and the expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring evidence is available. More particularly , in a number of judgments, the Hon'ble apex Court has held that in the presence of direct evidence, expert evidence carries no legal value. In this respect, reliance may be placed on case titled as 2006 SCMR 193 (Mst. Saadad Sultan and others v. Muhammad Zahoor Khan and others) , PLD 1976 SC 53 (Yaqoob Shah v. The State) and 2015 SCMR 284 (Qazi Abdul Ali and others v . Khwaja Aftab Ahmed).
17. As regards the case law reported by the learned defence counsel is concerned , the same is not applicable with the facts and circumstances of the present case as the same are distinguishable from the instant matter .
18. The offence committed by the appellants is very heinous in nature because they have committed forgery and fraud by manipulating record of rights and issuing bogus documents to illegally transfer government land in the favour of absconding accused. If the public functionaries are doing such kind of a job, especially when they are the custodians of public record and committing forgery and fabrication to gain unfair advantage, so in the prevailing circumstances, no misreading or non-reading of evidence has been pointed out by the counsel for the appellants and the same is based on proper appraisal of proof. Therefore, we hold that the findings of. Accountability Court III, Karachi are fully supported by the evidence on record and we uphold the same hence the appeals in hand are dismissed.
19. Before parting with this judgment, it would be observed that the I.O. in the present case namely Aslam Parvez has failed to join the beneficiaries namely Khursheed Alam and Muhammad Arif Rogatia as accused which is discriminatory . Such a conduct would undermine the public's confidence in the rule of law and good, fair and effective administration of justice. Chairman NAB, Islamabad is directed to take appropriate action against delinquent I.O. namely Aslam pervaiz in accordance with law under intimation to this court in a period of 60 days.
Office is directed to send copy of this judgment to Chairman NAB , Islamabad, for perusal and compliance.