TASSADUQ HUSSAIN JILANI, J.---The applicant seeks suspension of sentence awarded to him by the learned Judge, Accountability Court No,II, Rawalpindi, vide judgment, dated 19-2-2002, through which, he has been convicted and sentenced to undergo five years' R.I. with a fine of Rs,10,00,000 and forthwith ceased to hold the public office and disqualified for a period of ten years for seeking or from being elected/chosen, as a member of any public body , etc.
2. The reference has two parts, according to the first, the Accused Nos, 1 to 7 including the applicant (Accused No,4), who all were the employees of Pakistan Agricultural Research Counci l (PARC), in collaboration and collusion with each other and accused No,8, a private person purchased 15 vehicles for the PARC at the inflated price and in this manner , have misappropriated an amount of Rs,61,71,700. Moreover , the accused have also misappropriated further sum of Rs,35,10,000 which was, paid to Alpha Motors, a fake company , owned by accused No,7, for fictitiously purchasing another vehicle, which was never intended to be bought. The applicant though was charged by the Court for both the offence, but neither the prosecution has led evidence against him nor the Court has found him guilty of the offence relating to the transaction of purchase of 15 vehicles. He has been convicted for the misappropriation of Rs,35,10,000 as he had signed the Cheque in favour of National Bank of Pakistan, which ultimately culminated into the payment to Alpha Motor in the shape of bank draft prepared on, the instructions of accused No,7.
3. The applicant alongwith two others were tried, whereas the remaining accuse d were declared as proclaimed absconders. All the three were convicted and the operative part of the judgment qua the applicant is as under:-- "The defence of Dr. Abdul Qaddus, accus ed is that he was only alternate second signatory and signed the cheque as Dr. Abdul Jabbar second signatory had gone abroad, that he signed the cheque having seen a valid, sanctioned order , pre-audited cheque, bill of supply , etc. which were available and the cheque was signed. But record shows that no document was available. He under the rules was bound to see that he was giving his signature on a cheque valued of Rs,35,10,000. According to rules, tender was a must, further , administrative sanctions, budgetary provision and certificate from Director Procurement were to be produced alongwith cheque. He was having the role- of a second signatory . It was not a formal duty rather it is a double check to avoid any pilferage or negligence of any rules or procedure. The evidence go to show that Dr. Abdul Quddus having full knowledge with ulterior motives signed the cheque. The defence plea that he had no concern with ARP-II does not appeal to wisdom: There are sufficient material revealing that he remained acting as Deputy Director in project. ARP-II. I have also observed that why he alone was picked up as alternate second signatory if Dr . Abdul Jabbar was not available."
5. Learned counsel for the applicant contends that it is a case of no evidence against his client; the Court while holding the applicant guilty of the offence, has grossly misread the evidence on the record; erroneous and illegal conclusions of law and fact have been drawn by the Court; the Court has even travelled beyond the scope of the case set out by the prosecution. It is also contended that as per the allegations contained in the reference and the evidence on the record, the prosecution has only proved that the applicant is a co-signatory of the cheque, but there is no evidence that he is the beneficiary of the misappropriated amount and has even received a single penny , rather according to the prosecution itself, such amount has been traced credited to the accounts of other accused; even the I.O. (P. W.17) has not deposed that any amount out of the above was shared by the applicant and he is party to misappropriation. It is further stated that the view of the learned Judge, Accountability Court, that documents which the applicant was supposed to see before signing the cheque to verify a valid sanction in accordance with the rules, pre-audited cheque and the bill of supply , etc. were not available with him, is absolutely erroneous and is gross misreading of the evidence.
6. Mr. Ahmar Bilal Sofi, learned -Deputy Prosecutor General, has opposed the application and by relying upon section 9(a)(vi) of the National Accountability Bureau Ordinance, 1999, states that a holder of public office, is said to have committed an offence of corruption and corrupt practices, if he wilfully 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 . Because the applicant at the time of signing the cheque was a co-signatory , but he did not bother to ascertain and raise objection that the Chairman PARC had violated the rules in granting the sanction for the purchase of vehicle, therefore, he is proved guilty of the commission of above offence. It is also submitted that at the time of considering the application for suspension of sentence, deeper appreciation and consideration of evidence, should not be made. As in the instant case, 1'7 witnesses have been examined by the NAB and large number of documents have been produced, thus reading the evidence in its totality , it is established beyond doubt that the applicant was in league with the other co-accused and had misappropriated the amount of Rs,35,10,000.
7. Heard.
8. There is no cavil to the proposition that a deeper appreciation of evidence cannot be undertaken in a petition under section 426, Cr.P.C. However , the Court of appeal can suspend the sentence if a bare perusal of the judgment reflects that the appraisal of evidence made by the learned trial Court is against the law declared.
Nevertheless, the Court of appeal while considering this has to confine itself to the infirmities in the judgment which are apparent and are prima facie indicative that the conviction and sentence may not ultimately be sustainable. The material evidence through which the prosecution sought to connect the applicant with the commission of offence is in the shape of statements of the I.O. (P.W.17) and P.W.15, Muhammad Mushtaq, senior auditor of PARC. It is not denied by the Deputy Prosecution General, that both these witnesses, in their statement, have not deposed a single word that the applicant was in league with the other co-accused and has misappropriated the amount in question. Admittedly , it is not prosecution case that any part of the misappropriated amount, had been snared by the applicant, rather , as per the judgment itself, beneficiaries in this regard are AP Durrani, M.A. Dar and M. Nishat, the other co-accused of the case. The Deputy Prosecutor General, has also not been able to rebut the submission of applicant's counsel that at the time, when the cheque was presented to the applicant for his signature, it was already pre-audited and Accounts Officer of PARC who appeared as P.W.15, had already signed it before it was sent to the applicant. The finding of the trial Court that the latter signed it without the requisite documents is prima faice against the record. He has not been able to show us any law or the rules under which, while signing the cheque, applicant had any authority vested in him, to question the validity of the sanction of the amount given by the Chairman, PARC and proceedings which had been undertaken by the Accounts-Department of the PARC, in pre-auditing the transaction and preparing the cheque, prima facie, when the sanction of the competent Authority alongwith the pre-audited cheque and the voucher Exh.P-95, were placed before the applicant as a co-signatory , he under no authority could refuse to sign the cheque and commence an inquiry about the validity of the transaction.
9. There is another important aspect of the matter . According to the case of the prosecution misappropriated amount was traced and was shared by some other co-accused and not a single penny out of the misappropriated amount, is either alleged or proved to have been received by the applicant. The applicant admittedly was not the member of the Purchase Committee constituted for buying the vehicles; he never took a decision from whom it should be purchased and for what price, all these decisions were taken by the other; he did not issue instruction to the National Bank of Pakistan for preparing the bank draft for further payment to Alpha Motors. The observation of the learned trial Court, that since the applicant was picked for the purpose of co-signature in absence of Dr. Abdul Jabbar , who has gone abroad and therefore, he is part of the fraud, is prima facie, conjectural and against the evidence led. It is not denied that as per practice and rules when the actual co-signatory was away , someone had to be nominated in his place and if per chance it is the applicant. In the afore-referred circumstances ex facie, the finding of the learned trial Court, that evidence goes to show that the applicant having full knowledge with ulterior motive, had signed the cheque is also not supported by any evidence. Learned Deputy Prosecutor General has failed to point out a single word in the entire oral evidence of the prosecution, to justify the above conclusion of the Court.
In the light of above, we find that the applicant has been able to make out a case for suspension of his sentence because of the infirmities in the impugned judgment, highlighted above, which are apparent on the record.
Therefore, this application is allowed and subject to applicant's furnishing bonds in the sum of Rs,10,00,000 (Rupees Ten lakh only) with two sureties in the like amount to the satisfaction of learned trial Court, his sentence shall remain suspended till the final disposal of appeal. However , we direct the NAB to immediately apply to the Ministry of Interior for placing the name of the applicant on ECL, so as to prevent the possibility of his leaving the country , till such time, the main appeal is decided. Copy dasti.