ROZI KHAN BARRECH, J.---This is an appeal under Section 32 of the NAB Ordinance, 1999 (the "NAB Ordinance") against the judgment dated 07.01.2010 passed by Accountability Court-II, Quetta ("trial court") in NAB Reference No. 01 of 2009, whereby appellant was convicted in the following terms: "1) to suffer RI for four years and six months and 2) to pay fine of Rs.2.258 million or in default the accused shall further suffer SI for two years.
3) The amount of fine be recovered from the movable/ immovable properties of the accused and be paid to the National Bank of Pakistan, cantt/city branch.
4) a) The accused ceases to hold public office forthwith; b) He is disqualified for a period of ten years for seeking of from being elected, chosen, appointed or nominated as a member of representative of any public body or any statutory or local authority or in service of Pakistan or of any province, and c) He is disqualified for ten years to apply for or be grantee or allowed any financial facilities in the form of loan or advance, by any bank or financial institution owned or controlled by the government."
2. Briefly stated the facts. relevant for disposal of this appeal are that the appellant remained posted an officer of Grade-II in National Bank of Pakistan (NBP) city branch during (13.06.1996 to 14.02.2002) and cantt. branch from 15.12.2002 to 7.06.2005. On 24.12.2008 a Reference No. 1/2008 was filed under Sections 18(g) and 24(b) of the NAB Ordinance against the appellant alleging therein that appellant while posted as Officer Grade-II in NBP city branch and cantonment branch fraudulently misappropriated an amount of 10.820 million rupees through bogus pension bills/ vouchers and after detecti on of the fraud he deposited an amount of 8.562 millions whereas Rs.
2.258 millions are still outstanding against him. It was further alleged in the reference that appellant made fraudulent withdrawals through bogus pension bills and has prepared fake pension bills in his own handwriting by putting forged signatures of pensioners and had violated instructions and has not sought proper identification of the pensioners and has failed to enter paid pension bills in ledgers.
3. With the above allegations investigation was conducted and after completion of investigation appellant was put on trial before the trial court. During the trial the prosecution in support of its case against the appellant produced 20 witnesses i.e. PW-1 Muhammad Ali Khajak, who produced Ex.P/1 seizure memo and the seized documents (i) duty list, charge sheet and appointment order 70 pages (ii) punishment. orders 13 pages (iii) President office circular No.205 dated 8th August 1977, 21 pages (iv) detailed list of CMP A pension payment vouchers 25 pages (v)attested photocopies of standard procedure (SPM) 2 pages (vi) attested photocopies of challan submitted by Amanullah Khan 41 pages (vii) pension files 249 pages (viii) Statement submitted by Amanullah Khan NBP cantt branch 03 pages, (ix) cashiers payment book 707 pages (x) NBP head office instruction circular No.2-91 dated 01- 01-1991 10 [ages (xi) investigation report 19.06.2006 by Mr. Muhammad Arshad AVP CUFF unit Lahore 74 pages Art-P/1 to 215.
PW-2 Agha Dad Muhammad produced Ex.P/2-A seizure memo and the seized documents as Art-P/1216 to Art- P/1230.
PW-3 Muhammad Amin Rana produced' Ex.P/3 and Ex.P/3-B seizure memos and seized documents as Ex.P/3-A- 1 to Ex.P/3-A 251, Ex.P/3-B-251 to Ex.P/3-B-271.
PW-4 Khurshid Ali complainant stated about ocular accounts and produced complaint/letter dated 2.7.2005 Ex.P/4.
PW-5 Behram Khan, PW-6 Muhammad Akbar , PW-7 Muhammad Hussain identified their signatures over challans/TRs deposited by the accused.
PW-8 Syed Amanullah, PW-9 Abdul Raoof, PW-10 Muhammad Anwar Shanwari, PW-11 Abdul Qudoos, PW-12 Nadir Khan, PW-13 Muhammad Tanveer Kban, PW-14 Naseem Ahmed, PW-15 Muhammad Rafiq, PW-16 Muhammad Sharif, PW-17 Nawazish Ali (he identified his signatures over challans/TRs deposited by the accused), PW-18 Malik Tariq Anwar , PW -19 Abdul Kari and PW -20 Muhammad Javed Iqbal.
On completion of prosecution evidence appellant was examined under Section 342 Cr.P.C, wherein he once again professed innocence. He also got recorded his statement under Section 340(2) Cr.P.C but did not produce any evidence in his defense. The trial Court after hearing arguments from both sides convicted and sentenced the appellant in the above terms. Hence, this appeal.
4. We have heard the learned counsel for the parties and have also gone through the record available on case file with their able assistance.
5. Prosecution produced Article P/84 through PW-1, which is an instruction 'circul ar bearing No.205 dated August 8th 1977 according to which, the branches of NBP were empowered for distribution of pensions by them and commencing from 1.9.1977. The facility was in addition to existing arrangement of pensions' payment through treasury offices/district account offices, which enabled the pensioners to draw their pension through the bank branches of their choice without intervention of treasuries. The said circular also provided procedure for disbursement/payment of pensions. The above document remained uncontested and it establishes the fact that NBP branches were authorized for disbursement/payment of pension to Government pensioners including pensioners of Controller of Military Pension Accounts.
6. Record transpires that appellant remained posted in charge of pension branc h / passing officer in NBP city branch and cantonment branch. According the document Article P/2, which is the duty list, duties of appellant were prescribed at serial No.6 i.e. maintaining of staff salary preparation of pension forms file, keeping record of pensioners, Government receipt payment etc. In his statement recorded under Section 342 Cr.P.C appellant did not deny his posting in the said branch of NBP as Of ficer Grade-II and allocation of his duties.
7. PW-1 produced 249 pension files as Art.P/173 to Art.P/421. The said file reveals that pensioners of CMP A were receiving their pensions from NBP cantonment and city branches. The said documents contain payment order vouchers, bank scroll, pensions payment orders, specimen signature of pensioners and pension book.
8. As per allegation contained in Art.P/1 145 the appellant during his tenure as OG-II in connivance with one Nadir Khan paying cashier against Pension Payment Orders (PPO) of absentee pensioners and PPOs regular pensioners under bogus pension bills which he prepared with his own handwriting by putting forged signatures of pensioners, thereby embezzled an amount of Rs.9,849,128.00/-; that all the pension payments were passed under single signature of appellant in deviation of standard rules and procedure; that scroll of pension payments and entry of each and every voucher were prepared or checked at the time of pass ing rather the same have been written with a stroke of ball point at closure of the daily proceedings with incom plete particulars by the passing officer himself.
The inquiry report i.e. Art.P/1216 reveals that: "on inquiry scrutiny of the documentary evidence and also analyzing all the aspects of the case, the undersigned has reached the conclusion that the fraud was committed by the pension passing officer/incharge pension seat with close connivance of pension paying cash ier and unidentified official of military pension section Lahore cantonment while the then manager/managers operation/incharge cash department/all pension paying cashiers have also been found negligent in performance of their duties. Therefore, lapses against them are framed under column 11-A of report and statement of allegations served upon them, may be prepared from respective lapses given therein if competent authority deems it fit."
9. Further scrutiny of prosecution's evidence unveils that PW-2 produced Art.P/1216 to 1230 and PW-3 produced memos Ex.P/3 and Ex.P/3-B and seized pension payment vouchers Ex.P/3-A-1 to Ex.P/3-A-251 and Ex.P/3-B to Ex.P/3-B-270. Perusal of the above documents reveals that the pension payment vouchers were passed by the appellant with his own signatures and paid by the cashiers. The signatures of appellant on the pension payment vouchers have been compared with signatures of appellant affixed on his confessional statement available on record, which were found to be similar . The documentary evidence was furthe r corroborated by the pension payment vouchers prepared and passed by the appellant and paid by the cashiers. PW-12 Haji Nadir Khan corroborated that he used to pay pension amounts to appellant. When the PWs were cross-examined the defense did not put a single suggestion to the said witnesses that the documents produced by them were not signed by appellant.
10. Perusal of statements of PWs-15, 16, 17 and 19 who are retired pensioners, reveal that they did not receive any excess amount while receiving their pensions, which further corroborates the prosecution's case that the appellant fraudulently withdrew the alleged excess embezzled amount.
11. Art. P/422, 423 and 424 produced through PW-1 are the statement of appellant given to the Bank's officers, which too have not been disputed by the defense. PW-18 further corroborated the above documents and stated that "the said documents were executed and delivered to the bank by appellant. According to statement of appellant, he confessed his guilt and deposited an amount of Rs.8.526 millions". The said amount was deposited/refunded by appellant through challan/TRs, which have been produced by the prosecution as Art.P/122 to Art.P/172.
12. PW-6, PW-7 and PW-17 identified their signatures over the said documents as they were cashiers at the relevant time. It is established from perusal of their statements that the appellant deposited the challans/TRs towards refund of embezzled amount. The appellant in his statement recorded under Section 342 Cr.P.C and 340(2) Cr.P.C did not deny the deposition of amount through challans/TRs but he stated that these were deposited by high ups of the bank through him.
The other piece of evidence is extra judicial confession of the appellant. It is worthwhile to mention here that for awarding conviction on basis of extra judicial confession three fold proof was required; firstly , that in fact it was made; secondly that it was voluntarily made; and thirdly that it was truly made. Though extra judicial confession, is a weak evidence, but could be accepted, if it inspired confidence and was supported by attending circumstances, and the court's approach while appraising evidence of extra judicial confession should be dynamic and not static.
Judicial or extra judicial confession, could be made sole basis for conviction of accused, if the court was satisfied and had believed that it was true and voluntary , and was not obtained by torture or coercion or inducement. In the instant case extra-judicial confession of the appellant is corroborated by attending circumstances of the case and documents produced by the prosecution. Moreover , the appellant failed to produce any defense witness or any document to prove that, the embezzled amount was deposited by the accused on the instance of high ups of the bank, who induced him to do so.
13. Furthermore, the principles governing the white collar crime have been laid down by the Hon'ble Supreme Court in the case of lmtiaz 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 under 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."
In 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.
The prosecution witnesses were subjected to lengthy cross-examination but nothing beneficial to the defense came from their mouth. They were consistent on each and every aspect of the matter and did not contradict each other on material issues.
14. The offence committed by the appellant is very heinous in nature because he has made fraudulent withdrawal of an excess amount of Rs.10,852 millions with fake/forged signatures of pensioners against PPOs of CMP A. - He prepared fake pension bills with his own handwriting by putting forged signatures thereon. He misused his official position dishonestly and fraudulently misappropriated an amount of Rs.10,852 millions when he was custodian of the public office. 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 II, Quetta are fully supported by the evidence on record and we uphold the same hence the appeal in hand is dismissed.