AMJAD ALI SAHITO, J. By this common judgment, we intend to dispose of the above captioned Crl.
Appeals filed by the appellants Jawed Aftab Tanweri, Nizamuddin Mangnejo, Mukhtiar Ali Gilal, Syed Shayan Ali Shah, Rajib Ali Shah, Amanullah Ghanghro, Nisar Ahmed Shaikh, Aijaz Ali Memon, Roshan Ali Kandhro, Muhammad Nawaz Buriro, Sajjad Ali Mirani, Rameez Rajab Abro, Abdul Ghani Mangi, Mushtaque Hussain Sarki, Agha Faiz Rasool, Nabi Bakhsh Mahar and Ameer Bakhsh Mahar against the Judgment dated 20.11.2017 whereby they have been convicted and sentenced by the Accountability Court, Sukkur in Reference No.24/2015 "Re. The State v. Rajab All Shah and others" as under:-
1. Accused Jawed Aftab is sentenced to suffer R.I for five years and fine of Rs. 100,000/- (Rupees one lac only).
2. Accused Nizamuddin Mangnejo is sentenced to suffer R.I for five years and fine of Rs. 360,000/- (Rupees three lac and sixty thousand only).
3. Accused Mukhtiar Ali is sentenced to suffer R.I for five years and fine of Rs.600,000/- (Rupees six lac only).
4. Accused Syed Shayan Ali Shah is sentenced to suffer R.I for five years and fine of Rs.260,000/- (Rupees two lac and sixty thousand only).
5. Accused Rajab Ali Shah is sentenced to suffer R.I for five years and fine of Rs.25,00,000/ (Rupees Twety five five lac only).
6. Amanullah Ghanghro is sentenced to suffer R.I for five years and fine of Rs. 150,000/- (One lac fifty thousand only).
7. Nisar Ahmed Shaikh is sentenced to suffer R.I for five years and fine of Rs. 200,000/- (two lacs only).
8. Aijaz Ali Memon is sentenced to suffer R.I for five years and fine of Rs.650,000/- (Rupees six lac fifty thousand only), 9.
Roshan Ali Kandhro is sentenced to suffer R.I for five years and fine of Rs. 700,000/- (Rupees seven lac only).
10. Muhammad Nawaz is sentenced to suffer R.I for five years and fine of Rs. 75,000/- (Rupees seventy five thousand only).
11. Sajjad Ali is sentenced to suffer R.I for five years and fine of Rs.280,000/- (Rupees two lac and eighty thousand only).
12. Rameez Rajah Abro is sentenced to suffer R.I for five years and fine of Rs. 70,000/- (Rupees seventy thousand only).
13. Abdul Ghani Mangi is sentenced to suffer R.I for five years and fine of Rs. 170,000/- (Rupees one lac and seventy thousand only).
14. Mushtaque Hussain Sarki is sentenced to suffer R.I for five years and fine of Rs.13,00,000/- (Rupees thirteen lac only) and 15. Agha Faiz Rasool is sentenced to suffer R.I for five years and fine of Rs. 70,000/- (Rupees seventy thousand only),
16. Nabi Bakhsh Mahar is sentenced to suffer R.I for five years and fine of Rs. 75.000/ -(Rupees seventy five thousand only) and 17. Ameer Bakhsh Mahar is sentenced to suffer R.I for five years and fine of Rs. 4,10,000/- (Rupees four lacs and ten thousand only). In case, accused fail to pay the fine it shall be recoverable as arrears of land revenue in terms of section 33-E of National Accountability Bureau Ordinance, 1999.
2. Since accused Jawed Aftab, Nizamuddin Mangnejo, Mukhtiar Ali Gilal, Syed Shayan Ali Shah, Rajab Ali Shah, Amanullah Ghanghro, Nisar Ahmed Shaikh, Aijaz Ali Memon, Roshan Ali Kandhro, Muhammad Nawaz Buriro, Sajjad Ali Mirani, Rameez Rajab Abro, Abdul Ghani Mangi, Mushtaque Hussain Sarki, Agha Faiz Rasool, Nabi Bakhsh Mahar and Ameer Bakhsh Mahar have been convicted, as such they were directed by the Trial Court that they shall forthwith cease to hold public offices, if any, held by them and further they stand disqualified for a period of ten years, to be reckoned from the date they are released after serving the sentences, for seeking or 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 any Province as required under section 15(a) of NAO, 1999. The accused are also disallowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the government for a period of 10 years from the date of conviction as required under section 15 (b) of the Ordinance. All the above named accused persons were present on bail except accused Agha Faiz Rasool; therefore, they were taken into custody and remanded to Superintendent Central Prison Sukkur along with conviction warrants to serve out the aforesaid sentences. True copies of the judgment provided to all accused as well as learned Special Prosecutor NAB, Sukkur free of costs.
3. The relevant facts, as set out in Reference No.24/2015, are that a complaint was lodged with NAB Karachi against officers and officials of Tube Well Division Khairpur Mirs on allegations of embezzlement of funds amounting to Rs. 190 million during the period of 2011, 2012 and 2013.
Procedural irregularities were being practiced in the office of Tube Well Division, Khairpur Mirs. After the verification of the complainant at NAB Karachi, the competent authority converted the case into inquiry. The inquiry was transferred to NAB, Sukkur due to territorial jurisdiction and subsequently inquiry was authorized to vide letter dated 19th January 2015.
4. During the inquiry, accused Nos. 1 to 8, 10 to 14 along with Mr. Amir Bux Bozdar, the then Executive Engineer, Mr. Aftab Ali Talpur, the then Executive Engineer, Mr. Muhammad Siddique Memon, the then Assistant Executive Engineer, Mr. Mukhtiar Hussain Mahar, Government Contractor, Mr. Farman Ali Shah, Government Contractor and Mr. Nisar Ahmed Siming, Government Contractor, applied for Voluntarily Return (VR), on simple plain paper without fulfilling the Codal formalities, therefore their VR application did not proceed.
5. On the basis, of oral evidence as well as documentary evidence the inquiry was converted into investigation vide letter of authorization dated 25th June 2015 and consequent thereto warrants of arrest were issued against the accused persons. The role and liability assigned against accused/appellants are as under.
6. Appellant Jawed Aftab Tanwri being Ex-XEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 02-12-2011 till 23-01-2012, in connivance with officers/officials and Government Contractors, caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of issuing fake work orders and by signing final bills for illegal payment for repair and maintenance of Tube Wells amounting to Rs. 260, 578/- his liability is Rs.
78,174/- (which is 30% of liability) and gains upon the embezzled amount following KIBOR charges were amounting to Rs. 21,080/- total amounting to Rs.99,254/-.
7. Appellant Nizamuddin Mangnejo being Government Contractor, (Proprietor of M/S Nizamuddin and Co.) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 951,696/- and his liability is Rs. 588,350,- (which is 50% of liability) and gains upon the embezzled amount under KIBOR charges were amounting to Rs. 59,953/- total amounting to Rs.
354,128/-.
8. Appellant Mukhtiar Ali Gilal being Government Contractor, (Proprietor of M/S Mukhtiar Ali and Co.) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs.
95151,696/- and his liability is Rs. 475,848/- (which is 50% of liability) and gains upon the embezzled amount per KIBOR charges were amounting to Rs. 105,121/- total amounting to Rs. 580,969/-.
9. Appellant Syed Shayan Ali Shah being Government Contractor, (Proprietor of M/S Shayan Ali Bukhari) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 442,922/- and his liability is Rs. 221,461/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 37, 286/-; total amounting to Rs. 258,747/-.
10. Appellant Rajab Ali Shah being Ex-XEN, Tube Well Division District Khairpur Mir's during his incumbencies viz. from (i) 23-01-2012 to 26-03-2013 and (ii) 26-03-2013 to 19-04-2013, in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of issuing fake work orders and by signing final bills for illegal payment in repair, and maintenance of Tube Wells amounting to Rs. 70,00,355/-and his liability is Rs.2,100,100/- (which is 30% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 391,749/-; total amounting to Rs. 24, 91,849/-,
11. Appellant Amanullah Ghanghro being Government Contractor, (Proprietor of M/S Mukhtiar Ali and Co) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 260,582/- and his liability is Rs. 130,291/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs, 15,551/-; total amounting to Rs. 145,842/-.
12. Appellant Nisar Ahmed Shaikh being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 18-10-2010 till 23-0:5-2022 and 07-12-2012 till 29-12-2013, in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs.834,262/- and his liability is Rs. 166,853/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 29,713/-: total amounting to Rs. 196,566/-
13. Appellant Aijaz Ali Memon being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 31-03-2010 till 30-06-2014, in connivance with officers/officials and Government Contractors, caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 26.35,778/- and his liability is Rs. 527,156/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs.
103,390/-; total amounting to Rs. 630,546/-.
14. Appellant Roshan Ali being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 31-03-2011 till 07-12-2012 in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 834,68,097/- and his liability is Rs. 5,73,620/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs.
16.836/-; total amounting to Rs. 690,456/-
15. Appellant Muhammad Nawaz being Government Contractor (Proprietor of M/S Mukhtiar Ali and Co.) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of payments in repair and maintenance of Tube Wells amounting to Rs.
126,019/- and his liability is Rs. 63,010/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 7,083/-; total amounting to Rs.
70,093/-.
16. Appellant Sajjad Ali Mirani being Government Contractor, (Proprietor of Al-Sajjad Enter Prizes) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs.
466,200/- and his liability is Rs. 233,100/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 42,080/-; total amounting to Rs, 275,180/-.
17. Appellant Rameez Rajab being Government Contractor, (Proprietor of P.R Enterprises) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs.
108,143/- and his liability is Rs. 54,143/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 11,024/-: total amounting to Rs.
65,177/-.
18. Appellant Abdul Ghani being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 02-12-2012 till 30-06-2014 in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 711.689/- and his liability is Rs. 142, 338/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs.
18,461/- total amounting to Rs. 160,799/-
19. Appellant Mushtaq Hussain Sarki being Government Contractor, (Proprietor of M/S Sarki Brothers Enterprises) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 20,50,243/- and his liability is Rs. 10,25,122/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 219,352/- total amounting to Rs. 12, 44,474/-.
20. Appellant Agha Faiz Rasool being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 25-08-2011 till 02-02-2012 in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 260,578/- and his liability is Rs. 52, 116/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs.
14,053/; total amounting to Rs. 66,169/-.
21. Appellant Nabi Bakhsh being EX-AEN, Tube Well Division, District Khairpur Mirs, during his 'incumbency from 01.07.2009 to 25.08.201.1, 16.07.2012 to 28.03.2013 and 19.02.2014 to 06.06.2014 he in connivance with officers/officials and Government Contractors caused loss to National Exchequer by misusing his authority and embezzlement of funds in account of recording fake MB's and forwarded demands and estimates of Tube Wells/Pumps with his signature in the account of illegal payments in repair and maintenance of Tube Well amounting to Rs. 2,79,524/- and his liability is Rs.
55,905/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges amounting to Rs. 15,112/-; total amounting to Rs.71,017/-.
22. Appellant Amir Bakhsh being Government Contractor (Proprietor of Habib Enterprises) he in connivance with officers/officials Tube Well Division, District Khairpur Mirs, managed to encash illegal payment and caused loss to the National Exchequer and involved in embezzlement of funds in account of illegal payments in repair and maintenance of Tube Wells amounting to Rs, 6,97,232/- and his liability is 3,48,616/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges amounting to Rs. 56818/-; total amounting to Rs. 40, 54,34/-.
23. Thereafter it was concluded that accused Nos. 1 to 09 in the Reference being officers/officials in furtherance of common intention and in connivance with each other misused their authorities to gain benefits and willfully misappropriated the government funds and converted to their own use and the property lawfully entrusted to accused Nos.01 to 09 was willfully allowed to be misappropriated by accused Nos. 10 to 20 on account of payments concerning fake bills of maintenance and repair in Tube Well Division District Khairpur Mir's. All the illegal payments caused loss to the Government Exchequer to the tune of Rs. 9,077,765/-actual Rs.7,589,928/- + KIBOR Rs.
1487,837/-) thus accused Nos. 01 to 20 committed an offence of corruption and corrupt practices as provided in Section 9 (a) (vi) and, (vi) of NAO, 1999 (National Accountability Ordinance) and schedule thereto punishable under section 10 of NAO, 1999.
24. In compliance with Section 265-C, Cr.P.C, a complete set of case papers was supplied to the accused, then charge Ex. 18 was framed against them, to which they pleaded not guilty and claimed to be tried. To prove the case, the prosecution examined PW/1 Faiz Muhammad Senior Clerk, Tube Well Division Khairpur Mir's, who produced seizure memorandum along with documents; PW/2 Shamsu. Rehman Executive Engineer, Tube Well Division Khairpur Mir's, who produced seizure memorandum along with documents containing 18 leaves and attested Photostat copies of incumbency period of AENs and XENs for the period from 2009 until 2014; PW/3 Talib, Senior Clerk, Tube Well Division Khairpur Mir's; PW/4 Ashraf Ali Shaikh, Head Draftsman, Tube Well Division Khairpur; PW/5 Muhammad Saadullan Deputy Commercial Manager SEPCO Sukkur.
PW Jawed Ahmed was given up.
25. Thereafter accused Mukhtiar Ali Gilal joined the trial, as such, case papers were supplied to him and then amended charge Ex. 44 was framed. Because of the amended charge, PWs Faiz Muhammad, Shamsu Rehman, Talib, Ashraf Ali Shaikh and Muhammad Asadullah were again examined. PW Muhammad Asadullah produced the original, seizure memorandum along with documents containing 23 leaves. PW Jawed Ahmed and Zaheer Ahmed were given up. PW Kashif Noor, the Investigating Officer was examined, who produced a complaint containing 12 leaves, letter of authorization of enquiry, application of 18 accused of acceptance of VR, letter of incumbency period of the accused, letter for authorization of investigation as well as an investigation report. Ultimately learned Prosecutor NAB, Sukkur closed its side. The statements of accused under section 342 Cr.P.C, were recorded, to which they denied embezzlement, misuse of authority, managing to encash illegal payments and causing loss to the National Exchequer. They further pleaded their innocence, how they declined to examined themselves on oath under section 340 (2) Cr.P.C, as well as to adduce or produce any evidence in their defence.
26. The learned Trial Court, after hearing learned counsel for the parties and appraisal of the evidence, convicted and sentenced the appellants/accused vide judgment dated 20-11-2017, which is impugned by the appellants/accused before this Court by way of filing instant Appeals.
27. Learned counsel for the appellants argued that PW/1 namely Faiz Muhammad who exhibited Works Orders, Estimate, Form-24 and other documents deposed that the demand and estimate of work which he produced in his evidence are also marked to the Head Draftsman and further he admitted in his cross that the work order which are produced in his evidence were passed after fulfillment of cordial formalities; that the Head draftsman, namely, Ashraf Ali Shaikh deposed in his cross-examination that the work order as well as demand and estimate of work are genuine, as such draftsman was endorsed by PW/1 Faiz Muhammad; that PW/2 Shams Rehman, Executive Engineer of Tube Well Division Khairpur deposed in cross that Tube Well Division Khairpur has Kotdiji, Gambat and Ranipur Sub-Divisions, but the same were not controlled by him and the same were controlled by another XEN and he further deposed in cross-examination that the Tube wells have incharge as well as Sub-Engineer; that the said witness has deposed in cross that the Tube wells are getting electricity from Rohri SEPCO Division and no record of the SEPCO sub-Division Rohri is produced in Court; that PW/5 Muhammad Asadullah from SEPCO Sukkur has deposed in his cross- examination that there is a particular department to deal with 51 Tube Wells as the Commercial Branch did not deal the same as XEN Rohri deals with 51 Tube Wells while no report was called from him; that he further deposed in his cross-examination that the Tube Wells in question are not included in the list of permanent disconnection even after filing of Reference; that the prosecution has failed to establish the case as serious doubtful circumstances have come on surface, therefore he prays for acquittal of appellants.
28. On the other hand learned Special Prosecutor NAB argued that accused Nos. 01 to 09 being officers/officials in furtherance of their common intention and in connivance of each other misused their authorities to gain benefits and willfully misappropriated the government funds and fails to exercise their authorities to prevent grant renditions to the accused Nos. 10 to 20, therefore, all accused dishonestly, fraudulently misappropriate the government funds and converted to their own use and the property lawfully entrusted to accused Nos. 01 to 09 were willfully allowed to be misappropriated by the accused Nos. 10 to 20 in the account of payments with regard to fake bills of maintenance and repair in Tube Wells Division District Khairpur Mirs; that all illegal payments caused loss to the government exchequer to the tune of Rs. 9,077,765/- (Rs.75,89,928/- + Rs.1,487,837/-), thus the accused Nos. 01 to 20 cited in the impugned judgment have committed an offence of corruption and corrupt practice as provided in -Section 9 (a) (iii, iv and vi) of NAO and scheduled thereto punishable under section 10 of the said Ordinance; that after framing of the charge, all the PWs have been examined who established the case against all the accused persons and produced the documentary evidence in support of their version and it has been established that the work orders have been issued during the tenure of accused Rajab Ali shah and the then. executive engineer, whereas the demand measurement sheet/abstract Sheet and form No. 24 have been established that he same have been signed by the accused Aijaz Ali Memon and it has also being established that all the payments on the part of all known official accused/Government contractors have never been denied either in the course of cross- examination on it the statements; that the prosecution has successfully proved the indictment in respect of misappropriation of government funds against accused Rajab Ali Shah; Jawed Aftab, Aijaz Ali Memon, Nisar Ahmed Shaikh, Nahi Bux Mahar, Abdul Ghani Mangi, Roshan Ali Kandhro, Agha Faiz Rasol, Syed Shayan Ali. Shah, Mukhtiar Ali Gilal, Mushtaque Husain Sarki, Nizamuddin Mangnejo, Sajjad Ali, Muhammad Nawaz, Fawad Ahmed Amir Bux Mahar Amanullah Ghanghro and Rameez Rajab Abro, beyond shadow of reasonable doubt under section 9 (a) (iii) (iv) of NAO 1999, hence, they have rightly been convicted and are sentenced under section 10 of NAO, 1999.
29. We have heard learned counsel for the parties and have gone through the material on record.
30. The accusation against the appellants is/was that they by misusing their authority, committed an offence of corruption and corrupt practices within the meaning of section 9(a)(vi) punishable under section 10(a) of the Ordinance. The misuse of authority in general means wrong and improper exercise of authority for the purpose not intended by law, therefore, to prove the charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus reus of the crime have to be necessarily established and in case anyone of these two elements is found missing, the offence is not made out. Mens rea in context to the misuse of authority means to act in disregard of the law with the conscious knowledge that act was being done without the authority of law and except in the case of strict liability, the element of mens rea is a necessary constituent of crime. The offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance, is not an offence of strict liability therefore, the use of authority without the object of illegal gain or pecuniary benefit or undue favour to any other person with some ulterior motive, may not be a deliberate act to constitute an offence. The mens rea for an offence under section 9(a)(vi) of the Ordinance, is found in two elements i.e, conscious misuse of authority and illegal gain or undue benefit and in absence of anyone of these basic components of crime, the misuse of authority is not culpable, therefore, the prosecution must establish mens rea and actus reus of the crime to establish the charge, as without proof of these elements of crime, mere misuse of authority, has no penal consequence. The offence of corruption and corrupt practices have not been as such defined in the Ordinance but in general terms, corruption is an act which is done with intent to give some advantage inconsistent with law and wrongful or unlawful use of official position to procure some benefit or personal gain, whereas the expression corrupt practices are series of depraved debased/morally degenerate acts, therefore, as contemplated in section 14(d) of the Ordinance, unless the prosecution successfully discharges the initial burden of proving the allegation in a reasonable manner, the accused cannot be called to disprove the charge by raising a presumption of guilt.
31. In the present case, in the year 2015, some complaints were received by the NAB authorities. On 19-01-2015 PW/7 Kashif Noor who was posted as Deputy Director, NAB Sukkur was authorized to conduct an inquiry against the officers and officials of Tube Well Division Khairpur Mirs on allegations of embezzlement of funds on account of repairing and maintenance of Tube Well and sums for the period 2010-20-11 to 2013-20-14. The inquiry was conducted upon a complaint that was received at NAB Karachi, the verification of the complaint was conducted at NAB Karachi and it was recommended for conversion into inquiry. The same was transferred to Sukkur for want of jurisdiction. He/I.O then issued a notice to PW/1 Faiz Muhammad Senior Clerk, Tube Well Division Khairpur Irrigation Department. As per his statement, he was called by the I0 NAB Kashif Noor at NAB Officer, Sukkur in connection with the ongoing inquiry against the officials of Tube Well Division Khairpur Mirs of Irrigation Department. He produced the seizure memo in all 6 pages along with documents at Ex. 1711. In cross-examination, he has admitted that he was also having the charge of storekeeper. The NIT (Notice inviting Tenders) was also published in the newspapers and the demand and estimate of work were marked by XEN to the drawing branch which was dealt by Head Draftsman but said Head Draftsman was not made as an accused in this case. This PW also admitted during his cross-examination, that the work orders that he produced in his evidence were passed after fulfillment of Codal formalities. Before issuance of work order, the comparative statement was/is to be prepared. He also admitted in his cross-examination that the comparative statement of the work orders was also prepared before issuance of the work orders, At the end of his evidence, he also admitted in his cross-examination that upon the pressure of I0 NAB he has deposed as well as the produced record before the Court. "It is correct that upon the pressure of I.O of NAB I have deposed as well as produced the record in court." Whereas PW-2 Shamsu Rehman Executive Engineer deposed that he was called by the I.O NAB at NAB office Sukkur where he saw the record which includes estimates; demands, work order and form 24-bills as well as some bills of WAPDA (SEPCO). After verification, he found that the billing was not made by SEPCO according to the record. According to the WAPDA record, the bills were issued wrongly as the same does not tally with the record. In cross-examination, he admitted that "At the time of recording of my statement before I.O NAB I have not visited the closed tube wells. The certificate which I issued were showing the tube wells as in running condition. It is correct that in the inquiry report we given findings that most of the Sumps were found in running conditions. It is correct that the Sumps for which we appoint as the same were in running condition are shown in the present reference as in closed conditions........ It is correct to suggest that the position at the spot is different than the record which is produced in the court."
32. It is important to note here that the role of the Head Draftsman is to check the demand and estimate of work forwarded by the AXEN and after checking the same forward to the storekeeper.
Further after receipt of demand and estimate of work the head draftsman also prepared a comparative statement. The comparative statement was approved by the official of the Irrigation Department comprising of Chief Engineer, project Director and others. PW-4 Ashraf Ali Sheikh admitted that "It is correct that no head draftsman is accused in this reference. ....No project director or chief engineer is an accused in this reference." PW-4 Ashraf Ali admitted that the work orders produced by him in court are genuine "The work orders produced in court are genuine as well as the demand and estimate of work are also genuine."
33. The prosecution has also examined PW/6 Junaid Hashim Expert NAB Sukkur in this case, hereinafter referred to as (EXPERT). He deposed that he was called by 10 NAB Kashif Noor at NAB Sukkur on 07-12-2015 in the case of Rajab All Shah and others for his opinion;-The case against Rajab Ali Shah was about Khairpur Tube Well Division, Irrigation Department from the year 2010 to June 2014. In all, there were tube wells more than 600 but the opinion which was sought from him was of the closed tube wells, which were about 51. Those tube wells were closed for about 3 years.
There was misappropriation in those tube wells and for determination of the misappropriation; his opinion was sought by NAB Sukkur. He was provided with the record of Khairpur tube wells division by the I0 NAB Sukkur, viz. demands, work orders, bills/vouchers and SEPCO electricity billing record.
He has given his opinion for the embezzlement in 51 closed tube wells as there was no electricity billing against them but expenditure were shown as incurred upon those tube wells for repair and maintenance. It is unfortunate that while sitting in the office he has given his opinion that about 51 tube wells are closed. In cross-examination, he admitted that "I have not physically inspected those 51 closed tube wells as the period for which I have given my opinion was already passed."
He has also not examined any of the lower staff from the Khairpur Tube Well Division, who was appointed with the 51 closed tube wells. Whereas the claim of the appellants was/is that they all were in working condition and High Court of Sindh in its order dated 24-12-2010 has directed the Government of Sindh and its various departments shall continue to pay the correct Electricity bills and the bills received for February 2010 till date, where such bills are based on meter reading and contain such reading by mentioning the previous and current reading separately. In case such bills remained unpaid, the WAPDA/SEPCO shall within the time prescribed in the bill, may discontinue the power supply to such defaulting consumers. The affected consumers shall however be at liberty to have a legal course against such disconnection.
34. When we have confronted with the special prosecutor NAB the documents were produced as Ex-68/1 by the PW-5 Mohammad Asadullah Deputy Commerical Manager, SEPCO, Sukkur, in some of the tube wells payments have been made and some of the tube wells units are shown zero.
However, after going through the documents he admits the above position also admitted that none of the witnesses has physically verified the said tube wells to see whether the electric meters were installed and same were in working condition or not, nor produced electricity bills of the disputed tube wells and what was reading? PW-5 admitted that "I have not produced any electricity bills of the disputed tube wells in my evidence.... I.O NAB has no personally visited the tube wells in question with me. I have not asked to any of my subordinates to personally visit the tube wells in question and furnish such report with me." The witness/PW-5 admitted that he was/is working in the commercial branch of the WAPDA. The WAPDA installation, installed for the tube wells in question were being maintained and repaired by the SCARP authorities including the transformers. The I.O/prosecution neither examined any witness from the said department nor produced him as a witness before the Trial Court to give evidence that the tube wells in question were not in working condition but the amount was charged for its maintenance. He has also admitted that "I have not given any notice or made any correspondence with the SCARP department regarding the billing of the non-functional electricity meters of the tube wells in question." Learned counsel for the appellants submits that the tube wells were in working condition and SEPCO authorities used to reconcile the electricity bills with the government departments. As such the bills were not issued and tube wells were in working condition.
35. The record was provided to the Expert by the I.O NAB Sukkur viz. demands, work orders, bills/vouchers and SEPCO electricity billing record. He had also examined the record and analyzed that the expenditure incurred on the closed tube wells was embezzled and there was the involvement of four XENs, 6 AENs and the payment was made to 12 contractors. In all, there was misappropriation of Rs. 75,89,928/-. It is surprising to note here that while sitting in the office by perusing the record, produced by the storekeeper PW/1 he has given his poinion that the above mentioned amount was misappropriated by the appellants. He neither left the office to visit all 51 closed tube wells nor issued notice to the appellants about the allegations levelled against them.
In his cross-examination, he admitted that "I have not physically inspected those 51 closed tube wells as for the period for which I had given my opinion already passed." Furthermore, after receiving the opinion, even the Investigating Officer of the case had not bothered to leave his office and inspected those 51 closed tube wells to ensure as to whether the said tube wells are in working condition or not. In his evidence, he has admitted that "he collected such list of 51 close tube wells from one Shams Rehman which was duly signed by four concerned AENs of concerned sub- divisions. In his evidence, he has also admitted that "I have not inspected physically any of the tube well involved in this reference." Voluntarily said, that as the period of investigation was already passed; hence I had not physically visited the tube wells in question. For more than 600 tube wells, I collected billing records from SEPCO." The Expert also admitted that the tube well number KE-25, D-67, 65, 62 and 92 of Khairpur division are involved in work order number 3458 dated 19-10-2012 and payment of tube well No. C-92 the payment of electricity have been received for the year 2009-2010 and 2010-2011. He has also admitted that "it is correct that there is mentioned in the title details of payment made by tube well division Khairpur against following account numbers to SEPCO (WAPDA) Division Ranipur in the documents produced with EX-68/1....It is correct that there are some tube wells against whom the no payment is made to the SEPCO for the electricity and even no expenditure were incurred upon them." In the end the Expert admitted that "The documents produced with Ex-37 are genuine."
36. In the end prosecution examined I.O of the case PW-7 Kashif Noor Deputy Director NAB, Sukkur.
He has also repeated the same story narrated by the Expert, also added that 18 accused persons entered into VR and recovered Rs. 7,72,507. Further, he disclosed that 6 accused persons were not joined as an accused person as no sufficient material was available against them. Lastly, he reached in conclusion that Rs. 7,589,928/ has been embezzled by the accused person. Admittedly the investigation was started on the complaint of one Mohammad Iqbal Malik but surprisingly he was not examined nor it was verified that the complaint is a genuine one or not. In cross- examination, I.O admitted that "The complainant of this reference is Mohammad Iqbal Malik. I have not examined him as I tried to locate him but he could not be traced out." The I.O of the case called the record which was produced by PW-1 Faiz Mohammad Senior clerk, Tube well Division which was produced by him as Ex-37/1 and PW-5 Mohammad Asadullah Deputy Commercial Manager SEPCO Sukkur. After receiving the recorded from PW-1 to 5 he/I.O had called PW-6 Junaid Hashim Expert NAB Sukkur for his opinion and based on the opinion he has conducted the investigation. In cross-examination "I have not inspected physically any of the tube wells involved in this reference. Voluntarily say that as the period of investigation was already passed, hence I had not physically visited the tube wells in question." The I.O of the case has not called the report from the SEPCO authorities as to whether the proper electricity was installed or not and the tube wells were properly working or not. Even he has not recorded the statement of the project director of SCARP. He has also admitted that "it is the practice that if the meter is not installed then average billing is the reconciling of the SDO. SEPCO and SDO irrigation but I had not produced such record of reconciled bills. ... The un-functional tube wells are repaired and maintained for its functional." On the other hand, PW-6 admitted that payments have been made through cheque to SEPCO. "It is correct that payment is shown to have been made in the list of closed tube wells produced with Ex-38/1 through cheque to the SEPCO."
37. The presumption of guilt under section 14(d) of the NAB Ordinance, in respect of an offence can only be raised after the prosecution has established preliminary facts and succeeded in making out prima facie a reasonable case to charge an accused for an offence under section 9(a)(vi) of the Ordinance. Therefore, notwithstanding the provision of section 14(d) of NAB Ordinance, this is settled law that unless the prosecution to the satisfaction of the Court succeeds in discharging the initial burden of proving the allegation, no presumption of guilt can be raised to shift the burden of disproving the allegation to the accused.
38. It is hard to believe that the I.O of the case while sitting in the office completed the investigation.
The simple controversy was involved in this case, that the appellants prepared fake work orders and misused their authority and embezzle the government funds on the non-functional tube wells.
The claim of the appellants was/is that after repair the tube wells were functional. It was the duty of the I.O of the case to physically check/verify the tube wells in question whether the same was in working condition or not. The meters were installed or not what was the reading of the meters.
Whether the electric meters were in working condition or not. The second duty of the I.O was to collect monthly electricity bills to see how many units were consumed. If any month units were not consumed then he had to call a report from the SCRAP department. But all was not done by the I.O of the case. The second claim of the appellants was that the work orders were issued toward maintenance of the tube wells which required maintenance i.e. mechanically and electrically. The I.O of the case had not checked which tube wells were maintained mechanically and which were maintained electrically, as for the maintenance material required viz. copper wire, grease oil, copper winding and other electrical material. Even I.O of the case was not sure whether he has inspected physically tube wells in question or not, in the first part of the evidence he deposed that "I have not inspected physically any of the tube well involved in this reference." For want of time, his cross-examination was reserved again he was recalled reaffirmed, during cross-examination he has taken u-turn and deposed that "It is correct that during inquiry I visited some tube wells of Khairpur with the then XEN Ghulam Mustafa Panhyar. Some of the visited tube wells were operational while some were not operational. I have not disclosed such a fact in my investigation report.... The work orders produced in evidence are genuine."
39. It was disputed between the SEPCO/WAPDA authorities and Government of Sindh on the matter of billing of tube wells and it was settled between WAPDA/SEPCO authorities and Government of Sindh that the payment will made on the basis of reading of the electricity meter installed in tube wells. In his cross, the 10 of the case deposed that he cannot say with sure that the dispute arose between. WAPDA and Government of Sindh on the matter of billing of tube wells and it is not in his knowledge that it was settled between WAPDA and Government of Sindh that the payment will be made on the basis of reading of the electricity meter installed in the tube wells.
40. When we have confronted the Special Prosecutor NAB that Tube Well KE-23, the units are shown 14738 and also the payment was made, thereafter no bill was received, subsequently, in the year 2013-2014 units were consumed as 17742 and in the year 2015 the units were consumed 31563 and payment was made, and further we enquired from the prosecutor that the dispute between the Government of Sindh and WAPDA authorities was on installation of the meter not on the meter reading, the bills were issued and if it is the fault of WAPDA authorities as they have not issued the bills, then how the accused persons have committed the offence, but he was unable to reply properly. In such a situation, it was the duty of the PW/6 who is also an engineer and expert in the NAB as well as I.O of the case to leave the office, visit the site of 51 tube wells to verify that the meters were installed on those tube wells and meters were in working condition or not, how many units were consumed. Surprisingly the I.O of the case has not recorded the statement of chowkidars and operators who were posted on the tube wells in question to bring the real facts on record as to whether the Tube wells were in working condition or not.
41. In the light of facts and circumstances of the present case and the evidence brought on record, we have not been able to find out the basic elements of an offence of corruption and corrupt practices in the transaction in question within the meanings of section 9(a)(vi) read with section 10(a) of the NAB Ordinance, 1999 which provide as under:- "9. (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.--
(vi) If he misuses his authority so as to gain any benefit or favour: himself or any other person, or renders or attempts to render or willfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority.
10. (a) A holder of public office or any other person who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or Benamindars shall be forfeited to the appropriate Government, or the concerned bank or financial institution as the case may be."
42. The plain reading of the above provisions would show that without discharge of initial burden by the prosecution, the presumption of guilt cannot be raised and trial of a person on vague allegation is a misuse of the process of law and Courts. The prosecution must discharge its duty fairly, justly and in accordance with law and since any lapse of prosecuting agency in respect of the right and liabilities of a person facing prosecution, is not condonable, therefore, the Courts must be vigilant about the right of such a person to save him from the incarceration of unjustified prosecution at the cost of his honour and reputation. In Islam right to honour was declared a sacred right, which means not only the violation of such right is punishable and to be compensated but the violation is also to be prevented and thus on one hand protection is to be provided to the victim and on the other hand, one who violates such right is made accountable. In criminal administration of justice, this is a common principle that in case of liability with a penal or quasi penal consequence, the oppressive use of law in respect of honour and reputation of a person is 'not justified and denial of safeguard of just and fair treatment must be prevented in the larger interest of justice which is the most fundamental of all the rights in Islam and cannot be abridged by any limitation. The NAB Ordinance is a special law and the use of this law in an oppressive manner must be tested on the touchstone of the fundamental right of a person as guaranteed under the Constitution. Since the Courts are under a legal duty to defend, preserve and enforce the rights of people and their Constitutional guarantees, therefore, notwithstanding the protection provided to the NAB authorities under the law in respect of their functions, the use of power by them in an unbridled manner for the prosecution of innocent persons in disregard to their constitutional guarantees, rights, liabilities and duties must not be allowed and Courts must prevent such oppressive use of penal law through judicial determination. Reliance is placed on the case of "The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118)."
43. It is a settled principle of law that if there is a circumstance that creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. In this respect." reliance can be placed upon the case of Mohammad Mansha v. The State (2018 SCMR 772), in which the Hon'ble Supreme Court of Pakistan has held as under:
4. "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted." Reliance in this behalf can be made upon the cases of Tariq Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Mohammad Akram v. The State (2009 SCMR 230) and Mohammad Zaman v. The State (2014 SCMR 749)."
44. In view of the above the prosecution has failed to discharge its onus of proving the guilt of the appellants/petitioners beyond a shadow of reasonable doubt. Resultantly all above-cited appeals are allowed, the convictions and sentences recorded by the learned Trial Court vide judgment dated 20.12.2017 are set-aside and the appellants are acquitted of the charge by extending the benefit of the doubt. The appellants are on bail, their bail bonds stand cancelled and sureties are discharged. The Office is directed to return the surety papers to the sureties after proper verification and identification.
45: Since the aforesaid main Criminal Appeals have been disposed of, therefore, the Constitutional Petitions Nos. 2217, 2218, 2219, 2220,2222, 2223, 2224, 2233, 2238, 2240, 2247, 2248, 2252, 2263, 2278 and 2279 of 2017 have become infructuous and the same are also disposed of.