RAJA SHAHID M EHM OOD ABBASI, J. Syed Shaukat Abbas Hamdani, Ahmad Junaid Kareem and Jaffar Raza (hereinafter referred to as the appellants) along with co-accused Abdul Salam Baloch were tried in Reference No.95/2004 by learned Judge, Accountability Court No.IV, Rawalpindi/Islamabad, who vide judgment dated 25.10.2010 convicted the appellants on the charge of corruption and corrupt practices as defined in Section 9(a), punishable under Section 10 of National Accountability Ordinance, 1999 (hereinafter referred to as N.A.O.) and sentenced them to undergo rigorous imprisonment for 10-years each along with fine of Rs.20,00,000/- each or in default thereof to further undergo rigorous imprisonment 01-year and they were also held liable to face the consequences of the provisions of section 15 of the N.A.O. However, co-accused Abdul Salam Baloch was acquitted of the charge by extending the benefit of doubt in his favour.
2. By filing the captioned appeals, appellants have challenged their conviction and sentence. On the other hand, the State has also filed criminal revision seeking enhancement of quantum of fine imposed against the appellants.
3. On filing of Reference, the appellants were charge sheeted on 20.06.2005. The charge against the appellants reads as under:-
1. That on 25th March, 1996 a proposal was floated that a study be carried out to examine the feasibility for laying down the pipes in Sectors G-6 and G-7/3 of Islamabad for improvement of water supply and the file was submitted to D.G. (Services) who sent the same on 27.3.1996 to you accused Jaffar Raza, the then Member Engineering, CDA and agreeing with the recommendation, you sent the file to accused Ahmad Junaid Karim, the then Director W&S (Development) CDA and you accused No.2 without asking for study of proposal and its feasibility on 31.3.1996 gave verbal instructions to approver Amir Bux Bajkani the then Deputy Director W&S Zone-A prepare the estimates on priority basis;
2. That on 01.04.1996, said Amir Bux Bajkani conveyed the above instruction to you accused No.3 Abdul Salam Baloch and on 02.04.1996, in the absence of drawing; design and survey report of the project, you prepared an estimate of Rs.5,41,49,300/10 and sent the file to Ameer Bux Bajkani approver, who on the same day submitted the estimates to accused No.2 Ahmad Junaid Karim: on 03.04.1996 you accused No.2 in violation of rules and with ulterior motive created an emergency like situation and proposed the award of work to Messrs Sadaat Enterprises owned by you accused No.4 Syed Shaukat Abbas Hamdani on single tender basis on the same rates as that of augmentation scheme on emergency basis without observing codal formalities and also enhanced the total cost of the project to Rs.6,24,44,838/-;
3. That on 04.4.1996, you accused Jaffar Raza approved the recommendation of accused No.2 Ahmad Junaid Karim and sent the file to Late Zafar Iqbal, the then Chairman CDA, who accorded approval on 07.4.1996 and the work order was issued to accused No.4 Syed Shaukat Abbas Hamdani on 11.4.1996 by Ameer Bux Bajkani, the approver;
4. That you accused No.3 Abdul Salam Baloch made false entries in the measurement book that 16100 Rft. Pipe of 24 inches dia had been shifted at site by accused No.4 although only 29 pipes of 1159 feet-6 inches length were shifted at the site after external coating and as such you accused No.3 facilitated the payment of first running bill of secured advance of Rs. 3,27,31,300/- to accused No.4 on 15.4.1996 i.e. only four days after award of work to him, with the approval of accused No.2;
5. That on 01.6.99 i.e. after three years of laying of pipeline, it was attached to 7MGR through a new control room, but it was commissioned on 15.2.2002 about five years after laying of pipeline and during this period water continued to be supplied to Sectors G-6 and G-7 through the old PRCC pipeline which shows that there was no need of said work, but you accused Nos.1-3 and Ameer Bux Bajkani approver in connivance with one another with ulterior motives to obtain undue benefit for yourselves created this work unnecessarily and without observing the rules and codal formalities awarded the work to accused.. Syed Shaukat Abbas Hamdani contractor who consumed his defective/substandard pipe in this project which was purchased by him during the period from 1992-94 and was lying in his stores in Islamabad;
6. That you accused Syed Shaukat Abbas Hamdani maintained A/C No.5520171012 in Citi Bank Blue Area, Islamabad in which all the payments released by CDA for the aforesaid work were deposited, on 23.6.96 you got encashed cheques No.006338 and 006337 amounting to Rs..57,00,000/- and Rs.3,00,000/- respectively, and on the same date and time you accused Ahmad Junaid Kareem deposited Rs.60,00,000/- in your A/C No.5520129016 in the same bank, which was obviously the amount of illegal gratification received by you from your co-accused Syed Shaukat Abbas Hamdani for awarding him the contract of aforesaid project in violation of rules and without observing the codal formalities; And thereby you accused Nos.1 to 3 as holders of Public Office in connivance and in collusion with one another and with accused No.4, misused your authority to gain illegal benefit for yourselves and also to grant undue benefit to accused No.4, and you all accused by dishonest and illegal means misappropriated an amount of Rs.20 million from Govt. exchequer and further more you accused No.2 received illegal gratification of Rs.6 million from accused No.4 and as such you all accused committed the offence of corruption and corrupt practices as defined in section 9(a) punishable under section 10 of the National Accountability Ordinance, 1999 and Schedule thereto, within the cognizance of this court.
4. The accused, including the appellants and the acquitted one, pleaded not guilty to the charge and showed their intention to contest the case on merits, upon which the prosecution witnesses were summoned and recorded. As many as fifteen witnesses got recorded their statements before the learned trial court, whereafter the prosecution evidence was closed and accused were examined under section 342, Cr.P.C. during which the questions arising out of the prosecution evidence were put to them but they denied almost all such questions while pleading their innocence and false implication in the case. Finally, the impugned judgment was passed in the above-mentioned terms. Hence, the criminal appeals and connected criminal revision before us.
5. Learned counsel appearing on behalf of the appellants maintained that Ahmad Junaid Kareem and Jaffar Raza appellants had performed their official duties by acting strictly within the four- corners of law and they were not involved in any malpractice or corrupt practice and they even had no link with the contractor/appellant Syed Shaukat Abbas Hamdani. It is added that the project was not initially proposed by Ahmad Junaid Kareem and Jaffar Raza appellants and the person who proposed the project was never joined in the investigation as an accused. Further argued that almost all the prosecution witnesses have admitted that there was water crisis in Islamabad since 1994 and they further admitted that the project was approved and work-order was issued with the approval of Chairman CDA being competent authority, but even the said authority was not made an accused in this reference; that dozens of other persons remained associated with the project, but none of them were lined in the array of accused, which shows sheer mala fide on the part of NAB authorities; that the prosecution witnesses also admitted that the work done was found to be qualitative and material used was also identified as of high standards. Further maintained that Ahmad Junaid Kareem appellant was booked in another reference of assets beyond means, wherein the amount of alleged bribe i.e. Rs.60,00,000/- which is subject-matter in this case was also included, but he was acquitted of the charge in that NAB reference, which shows that he had no assets beyond means and even during trial of present reference, he explained the manner in which the deposit was made in his account and even otherwise prosecution has not produced any convincing proof to establish that the amount withdrawn by the contractor from his account was the same which was deposited in the account of Ahmad Junaid Kareem appellant. While concluding his arguments, learned counsel argued that the prosecution has miserably failed to prove the charge levelled against the appellants, finally prayed that while accepting their appeals, the appellants may be given clean acquittal.
6. Conversely, learned Special Prosecutor NAB controverted the contentions raised by learned counsel for the appellants by submitting that the appellants have caused huge financial loss to the public exchequer in order to extract money through corruption and corrupt practices; that there was no need of project under reference and even while completing the project the appellant/contractor used substandard material with the connivance of other appellants, for which the contractor paid huge illegal gratification to them, which aspect of the case is proved through documentary evidence. He argued that it could not be a coincidence that the same amount which was withdrawn from the account of one accused (contractor) was simultaneously deposited in the account of other accused being officer of CDA; that the impugned judgment ending into conviction and sentence of the appellants is well-reasoned but the learned trial court has imposed meager fine upon them which requires to be enhanced to the amount for which they have caused loss to the public exchequer. Finally, he prayed for dismissal of appeals filed by the appellants and acceptance of revision for enhancement of amount of fine.
7. We have heard the learned counsel for the appellants as well as learned Special Prosecutor NAB and have examined the record with care and caution.
8. In view of facts and circumstances explained in the reference as well as the charge-sheet, it can be gathered that the appellants were prosecuted for the offence of corruption and corrupt practices as defined in section 9(a) punishable under section 10 of the N.A.O. The version of prosecution throughout was that there was no emergency and even there was no need of project under reference as the pipelines were already available in the concerned Sectors, but the appellants in collusion with each other firstly created emergency and got the project approved without following relevant rules and procedure and then the project was allotted to Messrs Sadaat Enterprises owned by Syed Shaukat Abbas Hamdani appellant on single tender basis. The other allegation against the appellants is that the material used was of low quality and substandard and in order to get extraordinary financial gain, Syed Shaukat Abbas Hamdani appellant being contractor had given heavy illegal gratification to other appellants.
9. Deep analysis of prosecution evidence reveals that during the days when project was proposed, approved, allotted and completed, Abdul Salam Khan Wazir (PW14) was serving as Director General Services in CDA. During his statement before the trial court, he (PW14) categorically stated that Shahid Mehmood, Deputy Director of Water Supply Directorate had initiated the proposal of project and had submitted the same before him, which he had then forwarded to Jaffar Raza appellant being Member (Engineering), who further forwarded the file of proposal to different authorities in CDA and ultimately on the instructions of Amir Bux Bajkani (PW13), then Deputy Director (W&S), Zone-A, CDA, co-accused Abdul Salam Baloch, Sub-Engineer (since acquitted) prepared estimate, which came back through same route and was ultimately approved by the then Chairman, CDA, Islamabad namely Zafar Iqbal (since dead). Sana Ullah Aman (PW1), who was then Deputy Director Water and Sewerage (Development) also admitted during cross-examination that initial proposal for the project was prepared by Deputy Director, Water Distribution, Division-V namely Shahid Mehmood, which was submitted to Shakil Jan, Director W&S (Maintenance), who further submitted it to Director General Services Abdul Salam Khan Wazir (PW 14) and then the file was sent to Jaffar Raza appellant being Member Engineering, who further sent the file to Director W&S (Development) namely Ahmad Junaid Karim appellant. PW 1 further stated that the file was then marked to Deputy Director Zone-A namely Amir Bux Bajkani (PW13). In this way, it is quite clear that Jafar Raza and Ahmad Junaid Karim appellants had little roles in the proposal of project, whereas the initiators of the proposal of project as well as the persons who approved the proposal as well as the estimate thereof were never intended to be prosecuted by the prosecution.
10. Learned Law Officer has contended that according to Sana Ullah Aman (PW1), it was Jaffar Raza appellant who vide noting at para 20/N at page 29 of Ex.PW-I/D had recorded that this was an urgent work and was to be completed on priority basis but learned Law Officer could not controvert that according to Mushtaq Ali (PW9) Incharge of water supply from Sectors G-5 to G-9, there remained shortage of water since 1994. Similarly, Siddique Abid (PW12), who was employed as Deputy Director in Water and Supply Directorate from October 1995 to August 2000 as well as Abdul Salam Khan Wazir (PW14), who was Director General Services Wing also confirmed that in year 1994, there was serious water crisis in Islamabad. Even otherwise, the then Chairman CDA along with so many other officers was responsible for proposing and approving the project under reference and he, according to Sana Ullah Aman (PW1), was competent to award the contract of the work without calling tenders, but he as well as other responsible officers were never made accused in this case and the whole burden has been shifted on the shoulders of Jafar Raza and Ahmad Junaid Karim appellants, who had neither proposed and approved the project nor they had awarded the contract of work. We are, therefore, of the view that the allegation of proposing the project by Jafar Raza and Ahmad Junaid Karim appellants with the collusion of Syed Shaukat Abbas Hamdani appellant, owner of Messrs Sadaat Enterprises, by way of corruption or corrupt practices is not established against them.
11. The other allegation that Messrs Sadaat Enterprises had used low quality and substandard material with the connivance of other appellants being Officers of CDA is also not borne out from the record. In this regard, we have observed that according to Sana Ullah Aman (PW1), thickness of pipe came out to 9.20 MM during testing of pipeline on 06.07.2001, whereas required thickness was 8 MM and it was certainly better pipe and he also admitted that the contractor had completed the work within specified time. It is argued by learned Law Officer that the pipes used in this project were earlier rejected by SNGPL being of low quality, but the contractor purchased the same pipes from Indus Steel Pipe Ltd. on cheap rates. In this regard, the prosecution has examined Tanveer Hussain (PW10), Manager Marketing, Indus Steel Pipes. Ltd. who during cross-examination has stated as under:- "Indus Steel Pipe, Ltd. was under the Ministry of Production, Govt. of Pakistan till 1997 when it was privatized. It was privatized under the privatization ordinance. I was employed in this Industry, when it was under the Ministry of Production. Indus Steel Pipe Ltd. is listed on the Stock Exchanges of Pakistan.
This Industry manufactured the pipes in accoraance with standard laid down by American Petroleum Institute (API). This Industry is API License holder. The .pipes supplied to Messrs Sadaat Enterprises were initially required to be supplied to Sui Northern Gas Pipe Line Ltd. These pipes were manufactured on the standard of API for supply to Sui Northern Gas Pipe Lines Ltd. API standards are strictly observed while manufacturing the pipes. The pipes supplied to Messrs Sadaat Enterprises under the gate passes Ex.PW10/0 and delivery challans Ex.PW-10/P were the same which were manufactured on API standard. When the pipes were supplied to Messrs Sadaat Enterprises, Indus Steel Pipes Ltd. was a state enterprise. Before supplying of pipes to Messrs Sadaat Enterprises, their quality and condition was in good order. When Messrs Sadaat Enterprises placed the order for supply of pipes, they informed that the same were to be used for water' supply purposes. Before supplying the pipes to Messrs Sadaat Enterprises, its pressure was tested at 500 PSI. It is correct that as per letter Ex.10/H at page 903-904, comparative statement of rates at which the pipe was supplied to Sui Northern. Gas Pipe Line and Messrs Sadaat Enterprises is given and as per this statement the pipe was supplied to Messrs Sadaat Enterprises at higher rates...."
From the statement of Tanveer Hussain (PW10), it can easily be determined that the pipes used in this project were not of low quality and those were not purchased at low rates rather Messrs Sadaat Enterprises paid higher price than SNGPL to Indus Steel Pipe Ltd., which was then a state enterprise. Likewise, prosecution witnesses also admitted that there was no complaint whatsoever with regard to quality of work done at the spot and according to them, the project was completed as per rules and regulations.
12. Though it was strenuously contended by learned Law Officer that transactions regarding withdrawal of Rs.60,00,000/- from the account of Syed Shaukat Abbas Hamdani appellant and deposit of same amount in the account of Ahmad Junaid Kareem appellant at the same time in the same bank cannot be a coincidence. In this regard, the version of Ahmad Junaid Kareem appellant is that the said amount was deposited by his brother-in-law in his account. His other contention is that he was also prosecuted in another NAB Reference No.10/2005 regarding assets beyond means and after full-fledged trial, he was acquitted of the charges, which shows that his assets were in compatibility with his income. Ahmad Junaid Kareem appellant has placed on the file an attested copy of judgment dated 07.12.2012 passed by learned Judge Accountability Court No.II, Rawalpindi, in Reference No.10/2005, which was pertaining to his immoveable and moveable properties including the account in which the amount of Rs.60,00,000/- was deposited. In paragraphs Nos.37 and 38 of judgment dated 07.12.2012, learned Judge Accountability Court No.II, Rawalpindi has observed as under:- "37. Second part of the charge against the accused relates to movable assets including 27 different bank accounts in different banks and according to plea of the prosecution total bank deposits of the accused are of the value of Rs.23,68,66,811/- in the name of the accused and jointly with his wife and other relatives. Unexplained deposits have been shown as Rs. 3,72,51,954/-.
Income of the accused and his family members has also been shown in the chart of bank accounts. Account numbers 1 to 3 of these bank accounts are of Emirates Bank Islamabad and its perusal shows that account number one was opened in the name of account along with Muhammad Masood Khan brother-in-law of the accused while account number 2 was opened with Mst. Robin. Account shown at serial No.2 was opened just before the month of Ramzan to avoid deduction of Zakat and the total deposit in this account are to the tune of Rs. 1,28,51,721 /-.
The bank account shown at serial No.1 as total deposit Rs. 1,60,42,943. This was joint account of the accused Masood Khan brother-in-law of the accused. All other bank accounts have also been explained in the column of remarks against each bank account. Most of the bank accounts were opened for the purposes of receiving rental income from the property of the accused and his relative. Foreign currency accounts have also been opened by the accused and some of these accounts are joint accounts with Masood Khan.
38. Detail of rental income of the property of the accused and other joint owners have also been shown in the investigation report and in this detail an amount of Rs.4,30,12,393/- has been shown as rental income. An amount of Rs.15,66,04,464/- has been shown as inter account transfer. I have also gone through documentary evidence produced during the statement of the accused. Ex.D13 is certificate of Chartered Accountant and Chartered Accountant has certified that there is sufficient indication that major credit appearing in the bank statement either represents transfers from one bank account to another or has a reasonable support. The accused has also produced many documents to show that many properties were also sold by him and his other family members. Ex.D21 approves that heavy income, wealth and property tax were paid by the accused and his family members."
It can, therefore, be easily gathered that Ahmad Junaid Kareem appellant was a well-off person and much more higher amounts were being deposited in his different accounts, for which he had given justifiable explanations during trial of Reference No.10/2005, in which he was ultimately acquitted of the charge of assets beyond means and according to learned Law Officer, the judgment of his acquittal was never challenged by NAB authorities. Apart from the above, Shahid Mehmood (PW4), Audit and Compliance Officer, Citi Bank Islamabad, has admitted during cross- examination that the deposit slip (Ex.PW-4/9) did not show as to who had deposited the amount of Rs.60,00,000/-. Even the prosecution itself has not bothered to get compared the handwriting available on withdrawal and deposit slips in order to establish that the amount was withdrawn and then deposited by the same person. In such eventuality when Ahmad Junaid Kareem appellant has already been acquitted in reference regarding his assets beyond means and in the absence of any substantial proof that amount of Rs.60,00,000/- was deposited in his account by Syed Shaukat Abbas Hamdani appellant or any other person acting on his behalf, it is difficult to believe that the amount so deposited was the outcome of corruption or corrupt practices or it was a legitimate amount as held in judgment dated 07.12.2012 passed in Reference No.10/2005.
13. In the light of evidence brought by the prosecution on the file, we feel inclined to observe here that no case falling within the purview of sections 9(a)(vi)(x) and (xii) of N.A.O. is made out for the simple reason that essential component of section 9(a)(vi) of N.A.O. i.e. mens rea is completely missing in the instant case. We agree with learned Law Officer that as per section 14 of N.A.O. the burden to prove his innocence rests upon accused, but initial burden to make up a prima facie case always lies with the prosecution and in the present case, it has miserably failed to do so. The version of the prosecution is without any corroboration which adversely affect on the credibility of its witnesses. However, the facts discussed hereinabove have not been considered by learned trial court, resulting in illegality and gross irregularity of judgment and decision.
14. After exhaustive discussion of prosecution evidence, we have arrived at the ultimate conclusion that evidence on record falls short of disclosing the offence charged against the appellants beyond the shadow of doubt, therefore, we accept Criminal Appeals Nos.2291-E, 2438-E and 2455-E of 2010 filed Syed Shaukat Abbas Hamdani, Ahmad Junaid Kareem and Jaffar Raza appellants, set aside their conviction and sentence and acquit them of the charge by extending the benefit of doubt in their favour. They were released from jail by way of suspension of their sentence, therefore, their sureties stand discharged from the liability of bail bonds.
15. Criminal Revision No.31 of 2010 filed by the State for enhancement of fine, having become infructuous, is disposed of accordingly.