ABDUL H A MEED BALOCH, J.---This common judgment shall dispose of Criminal Ehtesab Appeal No. 04 of 2014, Criminal Ehtesab Appeal No. 05 of 2014 and Criminal Ehtesab Appeal No. 06 of 2014 as all these cases have arisen out of the same judgment dated 4.9.2014 (impugned judgment), passed by the Accountability Court-I, Balochistan Quetta (trial court), whereby the appellants were convicted under section 10 of the National Accountability Bureau Ordinance 1999 (hereinafter referred "the Ordinance ") and sentenced to suffer RI for ten
(10) years each and also directed to pay fine of Rs.6867780/ each, in default whereof to further suffer SI for two (2) years each with benefit of section 382-B, Cr.P.C. The amount of fine if recovered will be deposited in favour of Government of Balochistan for subsidy of wheat to the poor people. The appellants were further convicted in the following terms: i) They shall forthwith cease to hold public of fice, if any . ii) They are disqualified for a period of ten years for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory local authority . iii) They are disqualified for ten years to apply or be granted or allowed any financi al facilities in the form of loan or advances by any bank or financial institution owned or controlled by the Government.
2. Brief facts of the case are that on the basis of complaint received by NAB Balochistan with regard of embezzlement of wheat quota by not providing the flour (Atta) to the authorized fair price shop holders and allocation of wheat quota to non-functional flour mill, inquiry conducted and inves tigation was authorized against the officials of Food Department as well as Messrs Ishaq Flour Mill. According to standard procedure for providing wheat to the flour mills on subsidize rates it was to be issued to the flour mill according to its body capacity for purpose of grinding and supplying to various fair price shops on the government rates and no permits were issued to specific fair price shops or designated sale points. The flour mill was bound to submit their return to the Food Department according to Balochistan Flour Mills (Control) Policy and four different proformas were to be obtained from the mill to ensure no embezzlement and to check the mill to ensure the correctness of the proforma/returns and to maintain the same on daily/weekly/monthly basis.
It is the allegation of the prosecution that Messrs Ishaq Flour Mill lifted much more quantity of wheat but provided much less quantity of flour to the Fair Price Shops and embezzled the balance wheat during different years totally amounting to Rs.20,603,340/- (rupees two Crore Six lacs three Thousand, three Hundred and forty). It is the allegation against the appellants Abdul Haleem and Haji Akhtar Muhammad that they being Assistant Director Food were duty bound to implement the policy of the government and to ensure complete and full supply of flour to the fair price shops and sales point but failed to ensure the policy/rules and allowed the flour mill owner to embezzle the major portion of the wheat lifted at subsidize rates causing loss to the public exchequer . The prosecution has fixed 50 percent liability on the flour mill owner and 50 percent liability on the concerned Assistant Director Food (Mills) and has held the appellant Abdul Haleem liable for loss/liability of Rs.90,57,537/- (rupees Ninety Lacs Fifty Seven Thousand Five Hundred Thirty Seven). The appellant Haji Akhtar Muhammad Assistant Director Food was held liable for Rs.12,44,134/- (rupees Twelve Lacks Forty Thousand One Hundred Thirty Four only) while the Ishaq Flour Mill was held liable for 1,03,01,671/- (Rupees One Crore Three lacs One Thousand Six Hundred and Seventy One only).
3. The trial court after submission of the references against the appellants/accused persons, framed and read over the charge to them to which they did not plead guilty and claimed trial. The prosec ution in order to substantiate the case against the accused persons produced eight. On completion of prosecution evidence the accused persons/appellants were examined under section 342, Cr.P.C, wherein they once again professed their innocence, none of them recorded his/her statement on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in their defence. On completion of trial the appellants were convicted and sentenced in the above terms.
It is pertinent to mention here that due to the death of the appellants Akhtar Muhammad and Haji Abdul Haleem during pendency of the referred appeals, their surviving legal heirs were arrayed as appellants.
4. We have heard the learned counsel for the appellants and have perused the available record with their able assistance. The allegation against the appellants is that they have caused Rs.20.63 millions to the National exchequer . The Government of Balochistan Food Department vide Notification No.P .S./Food/Wheat Policy/2006/481-99, under the provision of Balochistan Government Rules of Business, 1976 pleased to notify the policy about procurement, storage and distribution of wheat/flour in the province to achieve the objective of price stabilization and maintenance of strategic as well as operational reserves of wheat and flour to meet the food requirements of the population in the wheat deficit areas. In the notification it has been held that the District Government will be sensitized to monito r that the flour is sold at prescribed rates to the general public. In this regard review board under the Chairmanship of Secretary Food was also established.
5. The Private Secretary to Minister for Food, Balochistan vide letter No.PS/Min/FOOD/2004/1 1-23/2/ dated 19th, March, 2004 had intimated that in a meeting held on 18.3.2004 with the Chief Secretary , it was decided that 139 Fair Price Shops recommended by the people/ representative of Quetta will sale Atta to the General Public on Control Rate and the District Administration will monitor the sale as per policy decision. The policy clearly indicates that the administration will be A responsible for any shortcoming. It means when any grievance arises, the people should approach the administration. The prosecution neither inquired from the administration nor recorded statements of the administrative officers to ascertain as to whether any embezzlement was made or the authority was misused.
6. The District Coordination Officer Quetta vide letter addressed to the Director Food Balochistan Quetta referred the minutes of meeting held on 17.12.2003 for approval of list of Fair Price Shop for sale of Atta to the general public in their respective areas. In the said letter it has also been mentioned that the Nazim/Naib Nazim of the respective Union Council will monitor the new system to ensure the distribution of Atta/flour to the general public.
But during inquiry the prosecution did not bother to record statement of any Nazim/Naib Nazim to ascertain about misuse of authority . The statement of public representative was essential but no such statement was recorded during the investigation. The record further transpires that the Food Department vide letter dated 14th February , 2006 addressed to the Deputy Commissioner Quetta clearly mentioned that the Food Department is only responsible to issue wheat to the Flour Mills and the responsibility lies upon the DCO. It was incumbent upon the inquiry officer to inquire from the DCO whether any mismanagement or embezzlement has been committed but no such evidence is available on record.
7. The allegation against the appellant Umer Mukhtiar is that he was the proprietor/agent of Ishaque Flour Mills.
The prosecution collected cash challan, utility store corporation letter No.6 5-Admn/3668 dated 5.9.2007, agreement between Utility Stores Corporation and Ishaque Mill, signed by Saifullah as owner . The articles collected by the prosecution do not prove that the appellant Umer Mukhtiar was owner of the Ishaque Flour Mill. Even in the revenue record the recorded owner of Ishaque Flour Mill was Shah Jehan son of Saifullah, who had sold the same to Jehangir Khan son of Malik Muhammad Younas. In order to prove the ownership of the mill, the prosecution did not record statements of employees of the mill nor inquired from the revenue of of ficial.
8. During investigation the prosecution did not record statement of any Fair Pirce Shop owner . There is nothing on record to show as to on what basis the prosecution assumed the loss caused to the Government exchequer by the appellants. There is no evidence on record to prove that the wheat was misappropriated or sold to any person by misusing the authority by the deceased of ficials.
9. PW -1 and PW -2 are recovery witnesses. They produced certain documents.
As per PW-1, the NAB official asked for some documents, which he handed over to them. Thereafter the Investigation Officer prepared memo Ex-P1-A. During cross-examination PW-1 stated that the document was not signed by him. PW-1 further replied that according to notification it was the responsibility of the DCO to monitor the distribution of wheat. PW-1 further state d that it is correct that the Deputy Director Food had no concern with challans, which he had submitted in court. Articles 1 to 193 are carbon copies PW-2 exhibited the affidavit of appellant Umer Mukhtiar as Ex-P/2-A. While replying to a question PW-2 stated that he did not submit the original of the same.
PW-3 stated that he received the record through post and handed over the same to the Investigating Officer, who prepared memo but the record is silent as to who prepared the list of the documents.
PW-5 deposed that he handed over documents of Ishaq Flour Mill comprising five pages to the investigating officer which were taken into possession through vide recovery memo Ex-P/5-A. In reply to a question PW-5 stated that it is correct the name of Ishaq Flour Mill is not included in. Ex-P/5-A.
PW-6 produced report (Ex-P/6-A) comprising of two pages which he had handed over to the Investigating officer during investigation. In reply to a question PW-6 stated that the report relates to Adil Flour Mill and Nadeem Flour Mill.
PW-8 produced investigation report (Ex-P/8-A) on the basis whereof the reference was prepared. PW-8 also exhibited the reference as Ex-P/8-B. During cross PW-8 stated that during investigation he did not record the statement of the Fair Price Shop/Authorized Relation Dealers. PW-8 did not record statement of any person who had acquired wheat on the rates higher than the subsidized rates or with a complaint of not receiving the wheat.
PW-8 further stated that he has no knowledge as to how much money was given to the Flour Mills as subsidy . PW- 8 admitted that he met with Haji Saifullah at Ishaq Flour Mill but he did not take into possession any document in respect of ownership of Ishaq Flour Mill.
10. The prosecution has to make out a reasonable case against the accused. In Concise Oxford Dictionary Seventh Edition - the word reasonable has been defined as follow: "Having sound judgment, sensible, moderate, nor expecting to such ready to listen reason.
2. In accordance with the reason nor observed within the limit or reason not guilty less or more than might be expected in expensive not extortionate, tolerable air 3. Arch endowed with faculty of reason"
11. Unless misuse of authority , as mentioned under section 9(a)(v) of the Ordinance is established the accused cannot be called upon to prove his innocence within the meaning of Section 14 of the Ordinance.
12. "Corruption" has been defined in Black Law Dictionary (9th) Edition as under: "The act of doing something with an inten t to give some advantage inconsistent with official duty and the rights of others; a fiduciary's or official's use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others."
13. It is mandatory for the prosecution to prove the essential elements of mens rea and intention to commit an offence under section 9(a)(vi) of the Ordinance. In case any of these two elements are missing, the 'offence is not made.
In the case of The State v. Idrees Ghauri 2008 SCMR 1118, it has been held as follows by the Hon'ble apex Court: "The National Accountability Bureau Ordinance, 1999, no doubt is a special law and prosecution having the advantage of the provision of section 14(a) of the Ordinance may not under heavy burden to discharge the onus of proving the charge as the court may on discharge of initial burden of proving prima-facie case by the prosecution raise a presumption of guilt but in the light of concept of criminal administration of justice, the prosecution is not absolved of its duty to prove the charge beyond reasonable doubt under the NAB Ordinance as the burden of proof is only shifted on the person facing charge if the prosecution succeeds in making out a reasonable case by discharging the initial burden of proving the charge."
14. It would not be out of place to mention here that for the reasons best known to him, the investigation officer did not record the statement of complainant. None of the prosecution witness ever stated a single word against the conduct, behavior as well as criminal intent of the convicts. No evidence is available on record to establish the monetary benefit ever extended to the convicts.
15. The prosecution case lies on presumption and assumption. The burden of proof lies on prosecution. The prosecution has failed to prove that the accused had misused the authority and caused loss to the government exchequer or willfully avoided to exercise the authority to prevent such loss.
Thus, in view of above it is concluded that the prosecution has failed to prove the charge beyond reasonable doubt against the appellants.
For the above reasons the Criminal Ehtesab Appeals Nos.04, 05 and 06 of 2014 are accepted. The impugned judgment dated 4.9.2014, passed by the Accountability Court-I, Balochistan Quetta in Reference No.7 of 2011 is set-aside. The appellant Umer Mukhtiar son of Muhammad Yousaf, deceased appellant Haji Abdul Haleem son of Abdul Raza and deceased appellant Akhtar Muhammad son of Syed Faqir Muhammad are acquitted of the charge.
The bail bonds of the appellants stand discharged.