FAHIM AHMED SIDDIQUI, J. By preferring the instant criminal Accountability Appeal, the appellant Khadim Hussain Shah has assailed the impugned judgment dated 23.10.2018 passed by Judge, Accountability Court, Sukkur in Reference No. 2 of 2017 (State v. Khadim Hussain Shah), whereby the appellant was convicted under Section 10 of the. National Accountability Ordinance, 1999 (hereinafter referred as the NAO) and sentenced him to under R.I for 10 years and fine of Rs.
35,061,833 (Rupees Three Crore fifty lac sixty one thousand eight hundred and thirty-three only).
The impugned judgment further speaks that in case of failure to pay the fine it should be recovered as arrears of land revenue in terms of section 33-E of NAO, 1999. It is further directed to disqualify the appellant/convict from holding any public office as well as he was disqualified for 10 years to be elected in the legislation after serving the sentence.
2. Compendious of the facts are that the appellant/convict while serving as Food Supervisor / Incharge WPCs S. Bhatyoon and Pirjogoth-II, District Khairpur during Crop Season 2010-2011 received a total of 20,000 allocated empty bags from PRC Khairpur and further received 7450 wheat bags and 9319 empty bags (bardana) from different food centers and amongst them the total number of 3231 empty bags (bardana) worth Rs.342,486/- were misappropriated by him. It is further alleged that during Crop Season 2013-2014 the appellant/convict being supervisor/Incharge WPC Murad Gopang received 15300 wheat bags and 10,000 plastic bags at PRCs Gambat and Khairpur and subsequently 10657 used bags and 3939 PP bags in shape of stock having 1262.650 M.T was received on different PRCs but 4663 jute bags and 6061 P.P bags (bardanas) were misappropriated by him and caused loss to the tune of Rs.892,460/-. It is further alleged that during Crop Season 2013-2014 the accused procured 2280.000 Metric Tons and allowed payments to the growers for procured wheat of 2280.000 Metric Ton through the bank but only 1262.650 Metric Tons wheat were received at different WPCs/ PRCs of Gambat, Tando Masti Khan, and Kotdiji District Kharipur and in that way, he with mala fide intention misappropriated 1017.350 Metric Ton wheat amounting to Rs. 35,708,985. In this way, the appellant/ Convict allegedly has caused loss to the National Exchequer due to misappropriation of empty bags (bardana) as well as wheat during Crop Season 2010-2011 and 2013-2014 to the tune of Rs.41,670,137 which amount was allegedly converted by the appellant into his personal use and by misusing authority, as such he has committed the offence of corruption and corrupt practices as envisaged under Section 9(a) (iii) and (vi) of National Accountability Ordinance (XVIII of 1999), punishable under Section 10 of the said Ordinance and the schedule thereto.
3. After completion of the requisite formalities, a formal charge was framed upon the appellant/convict by the trial Court (Exh. 2) to which the appellant/ Convict pleaded not guilty and claimed trial (Exh. 3). In such a situation the prosecution was required to prove the case by producing evidence, as such prosecution examined PW-1 Syed Asghar Ali Shah (Exh. 4) who produced certain documents indicating misappropriation by the appellant/convict (Exh. 4/1 and 4/2). PW-2 Ghulam Akber Lashari (Exh. 5) who produced seizure memorandum along with 16 documents containing 38 leaves (Exh. 5/1), PW-3 Kareebullah Soomro (Exh. 6) PW-4 Zulifqar Ali Abro (Exh. 7) he produced a seizure, memorandum along with documents containing 121 (Exh.7/1), PW-5 Mujeeb-ur-Rehman (Exh. 8) he produced a seizure memorandum along with documents in all 23 leaves (Exh. 8/1), P.W-6 Iqbal Hussain (Exh. 9), PW-7 Mukhtiar Ahmed Hisbani (Exh. 10), PW-8 Arif Abdullah (Exh. 11), he produced seizure memorandum (Exh. 11/ A), PW-9 Atta Hussain Jamro (Exh. 12), he produced seizure memorandum along with certificate (Exh. 12/ 1), PW-10 Syed Mazhar Ali Shah (Exh. 13), he produced seizure memorandum along with certificate, in all 3 leaves (Exh. 13/1), PW-11 Ali Muhammad Meerjat (Exh. 14), he produced a seizure memorandum along with a certificate (Exh. 14/1), PW-12 Abdul Hakeem Shar (Exh. 15), he produced his report and statement containing 3 leaves (Exh. 15/1), PW-13 Ali Muhammad Kandhro (Exh. 16), he produced seizure memorandum (Exh. 16/1), attested copy of a letter issued to him by DC Khairpur (Exh. 16/2), attested copy of report of Tapedar (Exh. 16/3) and 5 attested photocopies of Rulency Cards (Exh. 16/4), PW- 15 Zahid Ahmed Rahujo (Exh. 18), he produced seizure memorandum along with documents containing 9 leaves (Exh. 18/1), PW-16 Faiz Muhammad Rajput (Exh. 19), he produced authorization letter, up-gradation of investigation letter, news clippings, call-up notices, death certificate of Noroz Soomro, daily arrival reports and letter issued by Section Officer (Wheat) to DDs (Exh. 19/1 to 19/8) and PW-1.7 Diljeet Lal Chandwani (Exh. 20), he produced authorization of investigation, Call up Notices, Investigation report and letter requiring verification of death certificate of Noroz Soomro (Exhs. 20/1 to 20/4). Thereafter learned Special Prosecutor NAB, Sukkur closed the evidence on the part of NAB (Exh. 21). The statement of the appellant/convict was recorded before the trial Court (Exh. 22) wherein he denied the allegations levelled against him and claimed himself to be innocent. The appellant/convict declined to examine himself on oath in disproof of charge as well adduce or to produce any evidence in his defense.
4. Mr. Bhanbhro, learned counsel for the appellant, preferred his submissions at length. According to him, the entire prosecution case depends upon oral evidence and the same also falls under the category of hearsay evidence. Regarding the documents produced during the trial, he contends that all of them are managed during the investigation and no original or base document was produced during trial. According to him, the documents are categorized into primary and secondary documentary evidence but whatever documents have been produced by the prosecution neither fulfilled the definition of primary nor secondary documents. He submits that since the evidence produced is neither direct nor primary; therefore, the entire trial is vitiated. He submits that none of the witnesses has stated that he had seen the act of stealing or misappropriation. By quoting the deposition of PW Asghar Ali Shah, the learned counsel for the appellant submits that the report produced by the said witness was prepared on the basis of certain records but the said record was never produced during trial. The learned counsel for the appellant also questioned about the daily report of empty bags for the year 2010-2011 and after referring Page No. 153 of the paper book, he submits that the prosecution document itself indicates that 9319 empty bags were received by DFC from the appellant, as such the appellant is not a defaulter. He further points out that although some daily reports-were produced for the year 2010- 2011 but no such report was produced for the year 2013-2014. According to him, it is a practice that a huge quantity of wheat was received at PRC instead of WPC, which is the main reason for showing a shortage of procured wheat. He referred the examination-in--chief of different witnesses in which they had stated that the wheat was also procured from the grower directly at PRC. According to him, the members and chairman of the inquiry committee were examined as prosecution witnesses but whatever documents they have produced are inadmissible as the same are plain certificates without reference to the base document. He further submits; that the shortfall was calculated on the basis of certain certificates issued by Centre Incharges, which does not fulfill the requirements of inquiry to determine the shortfall. He submits that no inquiry was conducted as neither the statements of witnesses were recorded nor supporting material was examined during the inquiry. According to him, the appellant's center was temporary without any storage facility; therefore, the procured wheat was shifted to PRC daily through the contractors, as such no question of shortage arises. He submits that it has come on the record that these certificates pertaining to the year 2013-2014 and produced during the trial while prepared at the DFC Office in the year 2016, as such the same cannot be relied upon. He points out that the register of arrival is maintained at every center but no register was produced and on the very day of recording of the statement by the investigator, the same were prepared and produced to the investigator, which itself loses the credibility of those certificates. According to him, as per procurement policy, DFC must visit each center daily during the procurement season but no such report was produced during the trial. He submits that the list of beneficiaries i.e. growers was prepared by the bankers and produced by PW Ghulam Akber which is not sufficient to establish prosecution case. He further submits that since the wheat was procured from the growers and payments were made to them; therefore, their evidence was also important but no grower was produced during trial to substantiate the charge of the prosecution. He points out that the prosecution witnesses themselves are not trustworthy as one of the prosecution witnesses Mazhar Ali Shah loses his credibility since a reference of similar nature has also been filed against him. According to him, it is worth mentioning that despite the instant reference, the department has not taken any action against the appellant till this date which according to him sufficient to establish that he is innocent.
By harping the same string, he says that neither direct evidence of any witness is on the record, that he has seen stealing of the wheat nor' the prosecution has produced primary evidence, as such the case against the appellant was not established and he was wrongly convicted. Regarding the non-production of primary evidence, he contends that the prosecution has taken advantage of Section 14 of the NAO but under the law initial onus is upon the prosecution, which they could not discharge during the trial, as such the appellant is entitled to acquittal. In support of his contentions, he has relied upon the cases of Ghulam Qadir Mahesar and others v. The State (PLD 2004 Kar. 210) and Sanaullah v. The State (1990 PCr.LJ 466) Lahore.
5. Mr. Muhammad Zubair Malik, the learned Special Prosecutor NAB has strongly opposed the instant appeal. He opens his arguments by submitting that the NAO is a special law pertaining to white-collar crimes, for which the rules of appreciation are entirely different. According to him, the legislature was well aware that the digging out of evidence in such type of crimes and presenting them before the court is not an easy task; therefore, some special provisions are laid down under the law. He submits that being a white-collar crime, it is sufficient for the prosecution to establish some misappropriation and prima facie connect the accused with the said mis-appropriation.
According to him, it is not denied that the appellant was given charge of Murad Gopang WPC with a target for procuring 25,000 bags of wheat and it is also admitted position that he has procured 22,800 bags. Now it is the duty of the appellant to establish that he has dispatched 22,800 bags but he could not do so. If he is not taking proper care of and/or misappropriated, he is guilty as such conviction and sentence were rightly fallen upon him. He further submits that the prosecution has produced the witnesses who were either the chairman or member of the facts finding committee or the Incharges of different centers. Regarding the certificate produced by PW-1, the learned Special Prosecutor submits that the said certificate was signed by the same witness, and the same was produced in original, as such, it is a primary document and the same was rightly relied upon by the learned trial Court. He submits that against the prosecution case of misappropriation, no defence was placed to explain why the shortage had taken place. He submits that in the present case daily monitoring report was not required to be produced as there was no denial of procurement of wheat. He further submits that all the documents produced by the prosecution are relevant, direct, and primary in nature as such the same are admissible. He submits that the objection regarding secondary evidence is the first time posed before this Court and the same has not taken before the trial Court, as such the same is not considerable. He further submits that in such types of cases the responsible persons are used to prepare a record for their own but the appellant has not produced any record of dispatching of wheat or empty bags, which he could do at the end of the trial in his defence. He submits that all the members of the committee have visited all the three PRCs and they did not find quantity of wheat procured by the appellant at his WPC while no proof of dispatch could be produced by the appellant. He submits that the shortfall was worked out through onward reconsolidation and compilation of the record according to which 12626 bags of wheat were received from the appellant while there was a shortage of 10174 bags. According to him, being a white-collar criminal and as per the provision under Section 14 of the NAO, the appellant has no presumption of innocence. Learned Special Prosecutor NAB relied upon the cases of S.A.K Rehmani v. The State (2005 SCMR 364), Sohrab Khan Marri Khuda Bakhsh v. The State (2017 SCMR 669), Malik Din v. Chairman National Accountability Bureau and another (2019 SCMR 372) and Tariq Saeed v. The State (2020 SCMR 1177).
6. We have heard the arguments advanced and have scanned the available record minutely in the light of valued submissions made before us.
7. It is unfortunate indeed that since the last few years, we have seen an alarming rise in the offences, which falls under the category of white-collar crimes, and all those offences are done by responsible persons of government machinery, who have access to the public exchequer and record in any manner. These persons do not hesitate to siphon out the public money for their personal and private gain and in this way, they destroy the country's economic structure. The present case is also an example of rampant white-collar crimes, wherein the private gain was allegedly one not only on the cost of the public but also amounts to disrupt the delicate weave of the food supply chain for the masses. We are cognizance of the fact that the Courts should maintain equilibrium in white-collar offences in a way that on the one hand, it safeguards the necessary requirements of a fair trial as envisage under Article 10-A of the Constitution and on the other hand to curb the cases of corruption done by siphoning public money, as if its rampant upsurge was not checked, it would amounting to economic genocide of the country.
8. In the present case, Mr. Bhanbhro, learned counsel for the appellant, has argued about the quality of evidence produced before the trial Court by submitting that the same is neither direct nor primary. In our view, such arguments of Mr. Bhanbhro are not well-founded. From direct evidence, he presumed that the witnesses should come forward with the specific allegation as an eye-witness of the act of misappropriation but in such type of cases, it is not necessary. Even it is not obligatory for the prosecution to establish a gray-collar offence through direct evidence of the eye-witnesses, as circumstances so connected to form a chain are sufficient to establish the guilt of an accused. It is also not necessary that the witnesses should be monotonous in respect of the happening of some facts. Mr. Bhanbhro controverted the certificates produced by some witnesses during the trial, through which the prosecution had established misappropriation by the appellant.
However, all those documents are original and signed by the responsible person, who has the authority to issue the same. The contention of Mr. Bhanbhro is also not defensible that the entire record or base documents of the certificates indicating mis-appropriation should be produced. We are of the view that the production of the numerous and voluminous records was not necessary when the certificates were prepared during the visit of the WPC through which the tune of misappropriation was worked out. Even the law does not require to produce such numerous documents as mentioned under clause (h)of Article 76 of Qanun-e-Shahadat Order, 1984, which reads as under:-- "76. Cases in which secondary evidence relating to document may be given. --- Secondary evidence may be given of the existence, condition or contents of a document in the following cases: ... ... ... ... ... ... ... ... ... ... ... ...
(h) when the original consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection."
9. Even otherwise, the angle of appreciation of evidence under the law is entirely different for white- collar offences under the NAO. In view of Section 14 of the NAO, the plea, of innocence is not available to the appellant. Hence, the cases of accountability are distinct to the ordinary gray- collar offences and in such types of cases, the criminals are well connected and have direct access to the resources and documents, which enables them to use their position to exploit the public money and property. We are of the view that the unique characteristics of economic offences demand that the unique methodology is adopted, as such the legislature has given the room to a unique provision under the NAO by inserting Section 14 in the statute. No doubt, in a criminal trial the accused is a favorite child of the Court but ends of justice are not fulfilled only when a judgment is pronounced in favour of the accused. We consider that the public acting through the State and Prosecutor is also entitled to justice. Hence, the cause of the community also deserves equal treatment at the hands of the Courts in the discharge of judicial functions.
However, the gray-collar and white-collar offences are distinct in their characteristics. In a routine criminal case, the state on behalf of the community prosecutes the offender but in an economic offence the community is directly aggrieved and becomes aggrieved par-excellence if the economic offenders are not brought to book. A poverty reddened person may plunge into the offence of pick-pocketing and murder may be committed in the heat of the moment but an economic offence is done with thoughtful planning and well designed with a lust for personal gain without considering its effect and consequences to the entire society comprising all the countrymen. The courts of law should not be oblivion of this aspect of the case, as such at the time of appreciation of evidence of an economic offence, the specific provision of Section 14 of the NAO could not be overlooked otherwise it amounts to shatter the trust of and faith of the general masses.
10. Mr. Bhanbhro also argued about the inquiry and formation of the inquiry committee and submits that the inquiry was not properly done and no statement was recorded by the committee.
It is worth noting that such contention of Mr. Bhanbhro regarding inquiry and formation of an inquiry committee is also contrary to the factual matrix of the case. The fact is that the committee formed by the DFO through an Officer Order dated 11-6-2014 (page 191 of PB) whereby a committee was formed not for the purpose of any inquiry but for the purpose of scrutinizing the wheat procurement of WPC Murad Gopang. The said Office Order is reproduced as under:-- "OFFICE ORDER MOST IMPORTANT The undersigned has constitute a committee which is comprising on the following members under the chairmanship of Mr. Mujeeb-ur-Rehman Unar, Assistant Food Controller for scrutinizing the Wheat Procurement of W.P. Center Murad Gopang for the crop 2013-2014 of center incharge Mr. Khadim Hussain Shah, Food Supervisor who is not remain under contact and also verifying the record/ensue the collection of Wheat/Bardana if lying pending against to any party as per record in the interest of Government and report to under-signed within 2 days positively for onward transmission.
1.Mr. Mujeeb Rehman Umar, Assistant Food Controller,(Chairman)
2.Mr. Buxial Panyo, Food Supervisor, (Member)
3.Mr. Mukhtiar Heesbani, Food Supervisor (Member)
4.Mr. Iqbal Hussain Jumani, Food Supervisor (Member) (sig)
DISTRICT FOOD CONTROLLER KHAIRPUR."
From the above Office Order, it is clear that the mandate of the committee was not a full-fledged inquiry but it was a fact-finding committee to scrutinize the stock as per record and to detect any shortage in the stock. Hence, there was no need to record the statements and to provide an opportunity for cross-examination and prefer a formal and comprehensive report. In such a situation, the certificate furnished by the chairman of the committee is according to the mandate of the committee.
11. Now, we come to the prosecution case. The prosecution has examined eight important and material witnesses. Amongst the prosecution witnesses, two are the District Food Controller (DFC) i.e. PW-1 Syed Asghar Ali Shah (Exh.4) and PW-3 Kareebullah Soomro' (Exh. 6) who'being the DFC at the relevant times are well aware of the case. The prosecution has examined three members of the committee i.e. PW-5 Mujeeb-ur-Rehman (Exh. 8), P.W-6 Iqbal Hussain (Exh.9), and PW-7 Mukhtiar Ahmed Hisbani (Exh. 10) and being members of the committee they have firsthand information about the shortage of wheat and empty bags. The last but not the least important prosecution witnesses are the incharges of different centers i.e. PW-9 Atta Hussain Jamro (Exh. 12), PW-10 Syed Mazhar Ali Shah (Exh. 13), and PW-11 Ali Muhammad Meerjat (Exh.14). All the above-mentioned prosecution witnesses are the relevant persons, who are privy to the facts and circumstances of the case, as such their statements recorded during trial falls under the category of direct and material evidence. All these witnesses have deposed regarding the shortfall and on the material points, their deposition is unshaken and supported by the documents, which were either of primary nature or based upon the firsthand information collected by them.
12. PW-1 Syed Asghar Ali Shah (Exh.4) in his deposition has stated that the appellant during 2010- 2011 posted as Food Supervisor at Pir Jo Goth and Saddar Joun Bhation and as per the record of DFC Khairpur, he has misappropriated 3231 empty bags (bardana). Similarly, he deposed that the appellant was also posted as Food, Supervisor at WPC Murad Gopan in the year 2012-14 of wheat crop season and as per record, he misappropriated 10174 bags of wheat including bardana. It is worth noting that the veracity of the documents produced by this witness was not questioned by the appellant at the relevant time. Similarly, all the other prosecution witnesses have deposed against the appellant and they have produced teaming number of documents but all those documents were exhibited without any objection regarding their admissibility at the time of production of those documents. Although, this objection has already dealt with in preceding paras but it will also not out of place that at this belated stage such objection cannot be entertained. It is a well-settled rule of jurisprudence that a secondary document if produced and exhibited without objection during the trial, the admissibility of the same cannot be challenged at a later stage. We are of the view that after production and marking of the exhibits of all., the documents during trial, their contents can be looked into and some results may be derived from the contents. If a document is properly admitted and exhibited during the trial, the contents of the same are also admitted although those contents may not be conclusive evidence. It is also not out of place to point out that the documents which are produced fall under the category of official record and the same are produced in original or attested/ certified copies. Besides, all those documents were produced by those who are the custodian of the record or have direct access to them. In such a situation, those documents cannot be denied, as a man may lie but a document will not.
13. We have already explained that the plea of innocence is not available to a white-collar offender under the NAO. The white-collar offenders generally have a trend of corruption and corrupt practices and whenever they find a chance, they do not hesitate to encash the same for their personal gain and benefit. Corruption can exist only if there is someone willing to corrupt and capable of corrupting. A person who is willing to corrupt can translate his such willingness into actual corruption whenever he becomes capable to corrupt. We regret to say that both this willingness and capacity to corrupt is found at a large scale in some of the government departments including the department in which the appellant was employed. In view of Section 14 of NAO, the prosecution can shift the burden upon the accused if it is succeeded in linking the capability of an accused for corruption with some material from the record that manifests the corruption. In the present case, it is not denied that the appellant remained incharge of certain Wheat Procurement Centers (WPC) and in that capacity, he was entrusted with some commodities and sufficient cashflow through banks was at his disposal. It is also not denied that the appellant was assigned the task of procurement of wheat. The prosecution has established payments to growers through banks on the basis of Purchase Bills issued by the appellant. The prosecution has also established that the entire quantity of procured wheat was not received at PRC. Now, it is the burden of the appellant to establish through evidence that either he had not procured the alleged quantity or he had dispatched or disposed of the entire quantity of wheat as per relevant policy and procedure. Similarly, when the prosecution has established that he was given a certain quantity of empty bag (bardana), now it is the duty of the appellant to explain that he had disposed of those empty bags as per policy and standard operating procedure. In the instant case, the appellant could not discharge his burden. It is the admitted position that the appellant was authorized to purchase 25000 wheat bags while posted at WPC Murad Gopang and it is also established that he had purchased 22800 wheat bags from which record reflects that only 12626 were received at PRCs. Similarly, from the empty bags provided to the appellant, a shortage of empty bags was also established by the prosecution during trial. Hence it is presumed that the said quantity of wheat and empty bags are misappropriated by the appellant. Now, the appellant was required to establish that alleged quantity wheat bags and empty bags were not misappropriated. Nevertheless, the appellant could not discharge this burden from the record or in the shape of any other evidence. Even he did not offer to enter into the witness box in order to disprove the prosecution case or to examine anyone in his defence.
14. The case law cited by learned counsel for appellant do not attract to the facts and circumstances of the instant case and the same are not helpful for the appellant/convict.
15. Consequent to the above discussion, we came to conclusion that the conviction and sentence pronounced by the trial Court is based upon the proper appreciation of the evidence as such there is no need to interfere the same. Resultantly, the instant appeal is dismissed.