ABDUL HAMEED BALOCH, J. Through this common judgment we intend to dispose of the Criminal Ehtesab Appeal No. 03 of 2013 and Criminal Ehtesab Appeal No. 04 of 2016, arising out of the same judgment dated 20.09.2013 (impugned judgment), passed by the Accountability Court-I, Balochistan Quetta (trial court), whereby the appellants were convicted and sentenced as under: 'Resultantly, accused Abdul Nabi/Nabi Bux and Muhammad Jaffar have been found guilty of committing offence under section 9(vi) of the "Ordinance". Resultantly, accused Abdul Razzaq Rind is convicted of the offence under section 10 of the Ordinance and sentenced to three (03) years' RI with a fine of Rs.8,00,000/- and in default of payment of fine to further undergo RI for 6 months'.
19. Accused Abdul Nabi/Nabi Bux and Mohammad Jaffar are also convicted of the Offence mentioned herein above and sentenced to Two (2) years' RI with a fine of Rs. 8,00,00/- each and in default of payment of fine to further undergo RI for 6 months' each. Accused Abdul Razzaq Rind, Abdul Nabi/Nabi. Bux and Mohammad Jaffer are further convicted in the following terms.
(i) They shall forthwith case of hold Public Officer, 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 financial 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 upon a complaint, an inquiry was conducted against the accused persons. It was alleged in the complaint that on 19:03.2002 accused Abdul Razzaq Rind in the capacity of president, All Pakistan Clerks Association,' Dera Murad Jamali, in connivance with other accused person namely Abdul Nabi alias Nabi Bux and Muhammad Jaffar, Tehsildar and Patwari, Dera Murad Jamali, illegally sold five acres of land belonging to the All Pakistan Clerks Association, Naseerabad (hereinafter referred "the land in dispute") to one Sadiq Ali Umrani, Ex-MPA on a very meager price. On 25th November, 1997 Board of Revenue Government of Balochistan, had transferred the land measuring 82 acres vide mutation No.789, Khasra Nos.171, 172, 173, 174 and 175/1, 181 and 182, as well as land measuring 18 acres vide mutation No.790, Khasra Nos.171 and 183, in the name of President, All Pakistan Clerks Association District Naseerabad for Clerks Association Naseerabad for the allotment of plots to the members of Clerk Association. Investigation revealed that on 19th March, 2002 land measuring 5 acres bearing Khasra No.174, Mouza Jaddar, Tehsil Dera Murad Jamali was sold out by accused Abdul Razzaq Rind vide mutation No.1412, to Sadiq Ali Umrani against a sum of Rs.60,000/- in connivance with the revenue - staff named above.
According to the prosecution case, the market value of the said land at that time was Rs.8,00,000/- and at the time of filing reference was about Rs.18,00000/-. After Investigation, the NAB authorities filed the Reference No.05 of 2008, under section 9(a) of the National Accountability Ordinance 1999 (hereinafter "the Ordinance").
3. The trial court after submission of the reference against the appellants/accused persons, framed and read over the charge to them to which they did not plead guilty and claimed trial. The prosecution in order to substantiate the case against the accused persons produced six witnesses.
On completion of prosecution evidence, the accused persons/appellants were examined under section 342, Cr.P.C, wherein they once again professed their innocence. The appellants did not opt to record their statements on oath as envisaged under section 340(2), Cr.P.C, however the appellant Abdul Razzaq produced one Muhammad Yousaf as defence witness. On completion of trial the appellants were convicted and sentenced in the above terms.
4. We have heard the learned counsel for the appellants, learned Special Prosecutor NAB and have perused the available record with their able assistance. The prosecutor in order to substantiate the accusation recorded the statement of six witnesses including the Investigating Officer as PW-6, whereafter again recorded the statement of investigating officer as CW-1, who produced documents related to one Sadiq Umrani. The prosecution case rest on documentary evidence. PW- 1 Wazir Ahmed Ex-Tehsildar Dera Murad Jamali produced Mutation No.1412, dated 12.03.2002, mutated in the name of Sadiq Umrani in respect of land measuring five acres, in Mouza Judir Tappa Sadder Tehsil Dera Murad Jamali, which bears signature of the appellants. The land Khata/Khatooni No.1/1 was owned by Government of Pakistan and got allotted in the name of President of All Pakistan Clerk Association for Housing Scheme by the Member Board of Revenue vide order No.300-3/87/Rev, December, 1985, and Deputy Commissioner Nasirabad vide order No.9341-42, dated 19.11.1997, whereafter on 19.03.2003 the appellant in Criminal Ehtesab Appeal No 04 of 2013 (Abdul Razzaq Rind) transferred five acres land in the name of Sadiq Umrani in consideration of Rs.6000/- per acre in revenue record.
The PW-2 produced record of crime branch, specimen signature sheet of appellant Abdul Razaq obtained before Judicial magistrate First Class Quetta and forensic report of specimen signature Ex-P/2-A.
PW-3 Muhammad Umar SI/Handwriting Expert, FSL/Crime Branch, Balochistan Quetta, who produced the handwriting expert report as Ex-P/2-A-2.
PW-4 Muhammad Hassan Qanoongo, who produced seizure memo as Ex-P/4-A, and the other documents as Art-4-1 to Art-4-3, which were taken into possession by the Investigating officer.
PW-5 Mirza Luqman Mirza, who produced the record Ex-P/5-A and Art-5-1 to Art-5-7 and identified his signature over the same.,
5. The trial court convicted the appellant under section 9(iii) and (vi) of the Ordinance, as far as the contention of appellant in Ehteshab Appeal No.03 of 2013 that they had not drawn any financial gain or financial loss to the government, is concerned. The offence of corruption or corrupt practices also include an attempt to misuse the authority to gain any benefit to any other person. It would be necessary to reproduce section 9 of the Ordinance as under:-
9. Corruption and corrupt practices.---(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices--
(i) if he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward Such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860) for doing or for-bearing to do any official act, or for showing or for bearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person; or
(ii) if he accepts or obtains or offers any valuable thing without consideration, or far a consideration which he knows to be inadequate, from any person whom he knows to have been, or likely to be, concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with his official functions or from any person whom he knows to be interested in or related to the person so concerned; or
(iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him; or under his control, or wilfully allows any other person so to do; or
(iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents of any other person, any property, valuable thing, or pecuniary advantage; or
(v) if he or any of his dependents or benamidars owns, possesses, or has any right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for; or
(vi) misuses his authority so as to gain any benefit or favour for himself or any other person, or to render or attempt to do so;
(vii) if he has issued any directive, policy, or any S.R.O.
(Statutory Regulatory Order) or any other Order which grants or enables any concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative, or associate or a benamidar.
(b) all offences under this Ordinance shall be non-bailable and, notwithstanding anything contained in sections 497, 498 and 561-A or any other provision of the Code or any other law for the time being in force no court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance.
(c) Where the Chairman, NAB decides to release from custody or detention a holder of a public office or any other person accused of an offence under this Ordinance, he shall do so after considering the gravity of the charge against such person and where the accusation specifies any amount in respect of which the offence is alleged to have been committed, he shall not be released unless such amount is deposited with the NAB: Provided that the Chairman NAB may impose other conditions for release from custody or detention.
6. The appellants in Criminal Ehtesab Appeal No.03 of 2013 were Tehsildar and Patwari. They are under obligation to act according to law and rules as enumerated under the Land Revenue Act.
Every public functionary should function in good faith with honesty within the domain of its power.
The State functionary has to act in accordance with law not on his whim, capricious and arbitrary manner. The State functionary should follow the procedure as nobody is above the law. The officials of the revenue department (appellants in Criminal Ehtesab Appeal No.03 of 2013) had misused their authority and transferred the land of Clerk Association to the name of Sadiq Umrani with connivance of the President of Clerk Association. The word authority has been defined in the Black's Law Dictionary as under: "Permission. Right to exercise powers; to implement and enforce laws to exact obedience; to command; to judge. Control, over: jurisdiction. Often synonymous with power. The power delegated by a principal to his agent. The lawful delegation of power by one person to another.
Power of agent to affect legal relations of principal by acts done in accordance with principal's manifestations of consent to agent."
7. Admittedly the land was owned by the Government, which was allotted on the name of President Clerk Association for Housing Society of the Clerk Association and the appellant Abdul Razaq in capacity of President of Clerk Association sold five acres in consideration of Rs.60000/- and transferred the mutation in the name of Sadiq Umrani. The President of Clerk Association had no right to sold five acres to private person. The representative of Association had no power to sell the property, which was allotted to the Association. The representative has limited power for looking after the property and welfare of the member of the Association.
8. The appellant Abdul Razzaq had taken a specific plea that the signature in respect of transferring the mutation was foraged one. The record transpires that the investigating officer obtained the signature of appellant Abdul Razzaq and sent to the handwriting expert. PW- 3/Handwriting Expert appeared before the trial court and produced the report, and confirmed the facts that the documents bearing the signature are of the appellant. The report Ex-P/2-A-2 contain the following observation: "The questioned signature tally with the specimen/routine supplied."
9. Resultantly the appellant Abdul Razzaq being President of the Association misused his authority and acted illegally in order to facilitate the Sadiq Umrani, whereas the appellants (appellant in Criminal Ehtesab Appeal No.03/2013) being custodian of revenue record, transferred the association land to a private person, despite the fact that they had to protect the interest of the government and citizen.
10. The appellant Abdul Razzaq produced one defence witness. The testimony of the defence witness is not useful to the appellate. The defence has failed to controvert/rebut the prosecution evidence. The prosecution evidence is based on official record. The defense failed to prove the signature of appellant Abdul Razzaq is forged one. On assessment of evidence we have found that the prosecution has proved its case beyond reasonable doubt against the appellants by producing trustworthy and confidence inspiring evidence. The prosecution witnesses produced record regarding allotment of the land by the Government to the Clerk Association and five acres land transferred by the appellants with connivance of each other to Sadiq Umrani. All the witnesses stood firm on their deposition. The defence failed to create Material contradiction/doubt in the evidence which made the prosecution case doubtful.
For the forgoing reasons, the appeal being devoid of merit is dismissed.