' REHMAT HUSSAIN JAFFERI, J.--- This judgment will dispose of Criminal Accountability Appeals Nos.31 and 32 of 2002, as they arise out of a common judgment.
2. The present appeals have been directed against the judgment dated 9-5-2002, passed by the Accountability Court No,II, Karachi, in Reference No,31 of 2001 (State v. Agha Wazir Abbas and others) by which the learned Judge had convicted the appellants under section 10 of the National Accountability Ordinance, 1999 (hereinafter referred to as the "Ordinance", 1999) and sentenced them to suffer R.I. For seven years and to pay fine of Rs,2,500,000, each or in default thereof to suffer S.I. For three years with benefit of section 382-B, Cr.P.C. The appellants were ordered to stood disqualified for a period of ten years to be reckoned from the date they are released after serving their sentences, for seeking or 'from being elected, chosen, appointed or nominated as a member or representative of any public body or any Statutory or local authority or in the service of Pakistan or of any Province.
3. The facts giving rise to the present appeals are that the Chairman, National Accountability Bureau, Islamabad, filed a reference against eight accused persons, out of them present appellants Agha Wazir Abbas and Abdul Hameed were arrested whereas the remaining six accused persons were shown as absconders. It was alleged in the reference that the appellant Agha Wazir Abbas was serving as Assistant Excise & Taxation Officer ("AETO") in Excise Department, Government of Sindh, Karachi. In between the years 1997-98 alongwith absconder accused persons Riaz Hasan Khoso, Abdul Razzak Abbasi, Asif Ikhlaq Ahmed and Saleh Muhammad Rahu.
The appellant Abdul Hameed was alleged to be the Manager of Messrs Standard Wine Company (Pvt.) Limited. It was alleged in the reference that appellants and absconder accused persons were involved in causing huge loss to the tune of Rs,38,287,290 to the public exchequer through acts of forged documents, i,e, import, permit and transport permits thereby causing fraudulent evasion of vend fee and fee of cess charged on transport permits for the disposal of liquor. It was further alleged in the reference that five other officials of Excise and Taxation Department, during their posting as Excise & Taxation Inspectors indulged in the abuse of their authority.
4. The investigation started on the receipt of spy information from partners of Messrs Azad Wine Shop, Karachi, who made disclosure of large scale scam and fake transport permits in transporting liquor and appellant Abdul Hameed as Manager of Messrs Standard Stores Karachi, received illegal gain, therefore, it was found that the appellants and absconding accused had committed offence as defined under section 9 of the Ordinance, 1999, punishable under section 10 of the said Ordinance.
5. The investigation agency after usual investigation submitted a report to the Chairman, National Accountability Bureau, who after going through the same filed the reference as mentioned above.
6. On 8-10-2002 a charge was framed for offence of corruption and corrupt practices as defined under section 9(a) of the Ordinance, 1999 and punishable under section 10 of the Ordinance, 1999 against the appellants, to which they pleaded not guilty.
7. In support of the case the prosecution examined ten witnesses, namely P.W.1 Bashir Ahmed (Inspector, A.C.E., Karachi). He produced the photostat copies of the documents which he had secured from Messrs Murree Brewery Company, Rawalpindi), P.W.2 Rafiq Ahmed Memon, (S.-I.P., A.C.E., Karachi. He recovered the transport permits from Messrs Azad Wine Shop), P.W.3 Zahid Ali (Excise Constable. He produced the original record of transport permits), P.W.4 Abdul Rasheed Sheikh (Junior Clerk Vend Fee Office, Excise Department), P.W.5 Raja Javaid Suleman (Manager Finance, Messrs Quetta Distillary. He produced the import permits), P.W.6 Amir Ahmed Khan (AETO,)
Excise Department, Karachi), P.W.7 Saeedullah (Deputy Registrar Companies Registration, Quetta.
He produced a list of Directors of Messrs Standard Wine Stores, Karachi), P.W.8 Muhammad Shoaib Ahmed (E.T.O., Headquarters D.G. Office Sindh), P.W.9 Syed Shabbir Hussain (E.T.O. Vend Fee, Excise Department) and P.W.10 Sikandar Ali Baloch (10).
8. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellant Abdul Hameed in his further statement stated that he was working as Peon with Messrs Standard Wine Stores. All dealings with officers of Excise Department in respect of handling of permits, submission of challan papers and documents in connection with the business were being handled by the Directors of the Company personally. He was not beneficiary or gained anything. All the correspondence on his behalf was done by the Directors.
The appellant Agha Wazir Abbas has filed his written statement giving the procedure of issue of import and transport permits and issue of Vend Fee etc. And functions of Vend Fee Officers.
9. After considering the material available on the record the learned trial Judge formed opinion that the appellant Agha Wazir Abbas had issued a single permit bearing Import Permit No,65 (Exhibit 14), which was found to be fake and in pursuance of the said import permit he caused loss to the public exchequer to the tune of Rs,1,978,625. With regard to the appellant Abdul Hameed the trial Court formed opinion that he being the Manager of Messrs Standard Wine Stores, sent eleven transport permits to Quetta Distillary and caused loss of Rs,8,900,000 to the public exchequer, therefore, the appellants were convicted as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeals.
10. We have heard the Advocates for the appellants and A.D.G.P. For the State and with their assistance gone through the evidence and documents available on record.
11. The learned Advocate for the appellant Agha Wazir Abbas has stated that the case is based upon Import Permit No,65 (Exhibit 14), which was not signed by the appellant and the prosecution have failed to prove that the said import permit bears the signature of appellants Agha Wazir Abbas, therefore, he has committed no offence.
12. The learned Advocate for the appellant Abdul Hameed has argued that the appellant was not the Manager of Messrs Standard Wine Stores or he had sent the permits to Messrs Quetta Distillary and that there is no evidence to connect him with the commission of this crime.
13. On the other hand, the learned A.D.P.G. Representing the N.A.B. Has argued that the case against the appellant Agha Wazir Abbas is based upon the single fake Import Permit No,65 (Exhibit 14), which shows that it was addressed to Messrs Standard Wine Stores and sent by Messrs Quetta Distillary whereas the original import permit which has been produced as Exhibit 132 was addressed to Messrs Azad Wine Stores sent by Messrs Murree Brewery Company, Rawalpindi; that both the permits bear the signatures of appellant Agha Wazir Abbas and that the signature of appellant Agha Wazir Abbas on the import permit has been proved through P.W.4 Abdul Rasheed and P.W.9 Syed Shabbir Hussain, therefore, the involvement of the appellant Agha Wazir Abbas has been proved. As regards the appellant Abdul Hameed, the learned A.D.P.G. Has argued that the involvement of the appellant Abdul Hameed has been established from the evidence of P.W.5 Raja Javaid Suleman, who had received the eleven transport permits from the appellant Manager of Messrs Standard Wine Stores.
14. We have given due consideration to the arguments, gone through the record very carefully, examined the documents minutely and find that the cases of the appellants are based upon documentary and oral vidence.
15. First we will take up the case of the appellant Agha Wazir Abbas. The allegation against him is that he had prepared a fake Import Permit No,65 (Exhibit 14) by putting his signature over it and caused huge loss to the public exchequer. In order to prove this allegation the prosecution have produced original and fake Import Permits No,65 (Exhibits 132 and 14 respectively) and for proving the signature on the Exhibit 14 the prosecution have examined two witnesses, viz. P.W.4 and P.W.9.
16. First of all it is to be seen whether Exhibit 14 is a fake import permit or not, P.W.1 Bashiruddin, Inspector, A.C.E., has been examined. He secured the photostat copy of the said import permit from Messrs Quetta Distillary which he produced in his evidence as Exhibit 14. As it was a photostat copy, therefore, the learned Advocate for the appellant Agha Wazir Abbas objected to its production and proof but the Court admitted the said document with a direction to the prosecution to produce its original. In pursuance of the said direction the prosecution examined P.W.5 Raja Javaid Suleman, Manager (Finance) of Messrs Quetta Distillary. He had bought the original Import Permit No,65 and produced it in Court but the Court exhibited its photostat copy as Exhibit 135 by returning the original to the witness after seeing the same. The prosecution examined . P.W.4 Abdul Rasheed Sheikh. He produced the original .Genuine Import Permit No,65 as Exhibit 132 and a copy of its challan as Exhibit 132-A. A perusal of Exhibit 132 and Exhibits 14 and 135 reveals that import permit number, year, date of issue and its validation are same but the parties and quantity of liquor are different. According to Exhibit 14 it was issued in the name of Messrs Standard Wine Stores. Plot No,79-A, Street No,24, Gizri Road, Karachi and the name and place of Distillery has been shown as Messrs Quetta distillery for 650 bottles worth Rs,402,375 whereas according to Exhibit 132 the name of Importer is shown as Messrs Azad Wine Stores, Shop No,4, Plot No,20-C, Zamzama Commercial Lane, Phase V. Clifton, Karachi, and the name of Distillery is shown as Messrs Murree Brewery Company, Rawalpindi. The quantity has been shown as 680 bottles with an amount of Rs,419,340.
Furthermore, the prosecution have produced the paid-up challan of Exhibit 132 as Exhibit 132-A which shows that the amount mentioned in Exhibit 132 was paid by Messrs Azad Wine Stores whereas the challan of Exhibit 14 has been produced as Exhibit 136, which shows that it was paid by Messrs Standard Wine Stores and the same was received by Messrs Quetta Distillary Company.
Exhibits 132 and 132-A were produced by the Excise and Taxation Department being their office copies. These documents have not been challenged by the appellants. Thus, it has been established beyond any shadow of doubt that Exhibit 14 is fake document and Exhibit 135 is another photostat copy of original of Exhibit 14.
17. Now the next question arises about the signature on Exhibit 14 whether it belongs to appellant Agha Wazir Abbas or not. In order to prove the signature of the appellant Agha Wazir Abbas the prosecution examined two witnesses, viz. P.W.4 Abdul Rasheed and P.W.9 Syed Shabbir Hussain.
Both these witnesses were serving in Excise & Taxation Department. The evidence of P.W.4 shows that he worked with the appellant for about one year and was conversant with the signature of the appellant Agha Wazir Abbas. After seeing Exhibit 14, he deposed that it bore the signature of appellant Agha Wazir Abbas. The evidence of second witness P.W.9 shows that he worked with the appellant Agha Wazir Abbas in the year 1972-73 at Hyderabad for about 15/20 days. After seeing Exhibit 14 he deposed that it bore the signature of appellant Agha Wazir Abbas. Both these witnesses admitted that appellant Agha Wazir Abbas had not signed Exhibit 14 in their presence or they are Handwriting Expert.
18. Under Article 78 of the Qanoon-e-Shahadat Order, 1984 (hereinafter referred to as the "Order, 1984"), it is provided that a document, which is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. The said Article reads as under:-- "78 Proof of signature and handwriting of person alleged to have signed or written document produced.--- If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."
19. According to Order, 1984 there are five methods for proving a signature or handwriting of any person i,e,,
(i) by admission or examining the person who signed the document (Articles 78 and 81);
(ii) by examining the person before whom the alleged document was signed (Article 79).
(iii) by referring the disputed document and the specimen signature of the person or admitted signature to the Handwriting Expert for his opinion (Article 59).
(iv) by examining the person who is conversant with the signature (Article 61) and
(v) by comparison of the signature on the disputed document and on admitted documents by the Court (Article 84).
20. In the present case the document Exhibit 14 was put to the accused in his statement recorded under section 342, Cr.P.C., as question number one but he denied its execution. Thus, the signatory of the document Exhibit 14 has not admitted his signature. Both the witnesses P.W.4 and P.W.9 have admitted that the signature on Exhibit 14 was not put in their presence. It is an admitted fact that the documents were not sent to Handwriting Expert for his opinion. As such the prosecution has tried to prove this document by examining P.W.4 and P.W.9 allegedly conversant with the signature of the appellant, therefore, their evidence has to be scrutinized in order to see whether the witnesses were conversant with the signature of the appellant and the document (Exhibit 14) bears the signature of the appellant Agha Wazir Abbas or not.
21. In this connection the evidence of P.W.9 reveals that he worked with the appellant Agha Wazir Abbas for 15/20 days in the year 1972-73 i,e, about 20 years prior to giving his evidence in the Court.
The period of this witness worked with the appellant was very short and it is not known in which capacity the appellant and the witness had worked together and whether the witness had occasion to see the signature of the appellant Agha Wazir Abbas during that period. Therefore, the statement of P.W.9 is of no help to the prosecution for establishing that he was well-conversant with the signature of the appellant Agha Wazir Abbas.
22. Now we are left with the evidence of P.W.4. He worked with the appellant Agha Wazir Abbas for about one year. The period is sufficient where a person can be well-acquainted with the signature with whom he is working. When this document viz. Exhibit 14 was being produced in evidence an objection about its production and admissibility was raised by the Advocate for the appellant and on the basis of said objection the prosecution were directed to produce the original of Exhibit 14.
Original of Exhibit 14 was produced in evidence as Exhibit 135 after the examination of P.W.4. No effort was made by the prosecution to show the original of Exhibit 14 to the witness for identifying the signature of the appellant Agha Wazir Abbas on it. The prosecution could have moved an application for recalling P.W.4 for the said purpose but that was not done. It appears that no effort was made by the prosecution to establish the said point by showing the original document to the witness. It is pointed out that whenever documents are sent for opinion of Handwriting Expert the original documents are required to be sent for comparison purpose. The Handwriting Expert never accepts the photostat copy of a disputed document for comparison purpose. It appears that the proper comparison cannot be made by the expert from the photostat copy of the disputed document. When expert cannot properly compare the signature from a photostat copy then how a layman can compare the signature from the photostat copy of the document, therefore, a proper comparison cannot be made by the witness by just looking at the photostat copy of the disputed document. Thus the prosecutions have failed to prove the said fact through the P.W.4 in accordance with law.
23. As an abundant caution, though it is not required that comparison should be made from a photostat copy but in order to satisfy our own conscience we have compared the signature of appellant Agha Wazir Abbas on Exhibit 14 with his admitted signatures on Exhibit 132-C. We find that by just a glance on the signatures it appears that some body had tried to imitate the signature of the appellant appearing on Exhibit 14. The reason for arriving at the above conclusion is that the signature appearing on Exhibit 14 has not been done in the one and same flow as done and appearing on Exhibit 132-C. The number of towers in the signatures on Exhibits 14 and 132-C are not corresponding with each other. The first and last curves on both the signatures are quite different from each other. As such we are of the considered view that the signature on Exhibit 14 appears to.Have been forged by some one trying to imitate the signature of the appellant.
24. After taking into consideration all the circumstances we have found that the prosecution have failed to prove that the signature appearing in Exhibit 14 is' the signature of appellant Agha Wazir Abbas.
25. Now we will take up the case of appellant Abdul Hameed. The allegation against the appellant Abdul Hameed is that he being the Manager of MessrsStandard Wine Stores had sent eleven transport permits to Messrs Quetta Distillary and thereby caused loss of Rs,8,900,000 to the public exchequer.
26. In order to prove the case the prosecution relied upon the evidence of only one witness namely P.W.5 Raja Javaid Suleman. His evidence reveals that first he gave the procedure for issuing of import permits and transport permits and payment of the, taxes then he produced, eleven import permits which were received by Messrs Quetta Distillary from Messrs Standard Wine Stores, from the file, containing the said permits which he had brought for producing the import permits 2nd then deposed that the said import permits were sent by the appellant Abdul Hameed, Manager Standard Wine Stores. None of these documents produced by this witness bear the signature of the appellant Abdul Hameed. The documents do not show anywhere as to which official of Messrs Standard Wine Store had sent these documents to Messrs Quetta Distillary. These documents do not show that in the capacity of Manager, Standard Wines Store the appellant Abdul Hameed had sent these documents. No other document whatsoever has been produced by the prosecution showing that the appellant Abdul Hameed was working as Manager Standard Wine Store. When the prosecution alleges that the appellant was the Manager of Messrs Standard Wine Stores then they could have produced his appointment letter or any document or correspondence made by him to any person or to Quetta Distillary in the capacity of Manager, Standard Wine Stores but they have failed to do so. Moreover, this witness P.W.5 has not stated that he had received these eleven import permits from the appellant personally or through any letter. He had brought the original file, containing the said 11 permits, therefore, he had produced them in the evidence. It is pertinent to point out that this witness was Finance Manager. Apparently his duties would be in dealing with the financial matters and no administrative matters. However, except the bare statement of this witness that these import permits were sent by the appellant Abdul Hameed Manager, Standard Wine Stores no other facts were disclosed by him. He had not disclosed the source of information from where he obtained this information.
27. According to Article 70 of the Order, 1984 all facts are to be proved by oral evidence except the contents of documents. Under Article 71 of the Order, 1984, the oral evidence must be direct if it refer to a fact which could be seen then it must be the evidence of a witness who says he saw it if it refers to a fact which could be heard then it must be the evidence of a witness who says he heard it. There are other conditions also for proving a fact through the direct evidence but for the purpose of the present case the above two conditions have been mentioned.
28. However, Article 71 of the Order, 1984 is reproduced so as to understand its true implication which reads as under:-- "71. Oral evidence must be direct.--- Oral evidence must, in all cases whatever be direct, that is to say--- ' If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; ' If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; ' If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it'by that sense or in that manner; ' If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the persons who holds that opinion on those grounds: ' Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead, or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable: ' Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
' Provided further that, if a witness is dead, or cannot be found or has become incapable of giving evidence, or his attendance cannot be procured without an amount of delay or expense which under circumstances of the case the Court regards as unreasonable, a party shall have the right to produce Shahadaala-al-Shahadah by , which a witness can appoint two witnesses to depose on his behalf, except in the case of Hudood."
29. From the above provision of law it is incumbent upon a witness when he enters into a witness- box before stating any facts he must say that either he saw that fact or he heard and so on so forth and then he gives the evidence so that the Court can assess the evidence of the witness and form an opinion as to in which one of the above mentioned categories the witness is falling. Without proving the facts that the witness had either seen or heard the fact, his further statement cannot be judged properly.
30. Suppose in a murder case if a witness appears before a Court and deposed that A murdered B then immediately a question would arise as to how he obtained the information about the above fact: Thus the witness without first disclosing the source of information is not legally competent to depose the fact as it is hit by Article 71 of the Order, 1984. In such situation, the witness has to first show to the Court that either he saw the incident himself or he heard it from someone about the said fact. A bare statement that murdered would not fulfil the requirement, of Article 71 of the Order, 1984.
31. In the same manner the bare statement of this witness that these import permits were sent by the appellant Abdul Hameed, Manager, Standard Wine Stores is not sufficient without first proving the source of information about the said fact.
32. The witness was required to have stated before the Court that he himself saw the appellant working as Manager or he gathered the said information from any of the documents addressed to him by the appellant in-the capacity of Manager or heard it from some one and secondly these permits were received by him from the appellant personally or he was informed by somebody that the appellant had delivered the said import permits personally or through any letters or he himself received the import permits through letters sent by the appellant. But no such facts have been disclosed by this witness before giving the above evidence.
33. Moreover, the witness was working as Manager Finance in Messrs Quetta Distallary. He was not an Administrative Officer to receive such permits. There is no evidence that his one of the duties was to receive such permits. This witness was examined to produce the import permits which he had brought from Messrs Quetta Distillary and produced the same in Court.
34. It is pertinent to point out that Messrs Quetta Distillary is situated at Quetta in the Province of Balochistan whereas Messrs Standard Wine Stores is situated in Karachi in the Province of Sindh. No doubt, some of the Directors of both the companies are same but it does not mean that all the employees in both the different companies knew each other.
35. Unless some evidence is led on the above point the said fact cannot be established through bare statement which is dependent upon the facts which are to be disclosed before giving the said statement. We are aware of the fact that this statement has not been challenged by the appellant in the cross-examination but this by itself will not absolve the witness from first disclosing the fact on which the subsequent statement was based. First the requirements of Article 71 of the Order, 1984 are to be fulfilled and then further facts are to be disclosed and without that the evidence cannot be safely relied upon. Thus, the prosecutions have failed to establish that the appellant Abdul Hameed was Manager of Messrs Standard Wine Stores and that he had sent the import permits.
36. After considering the material available on the record we are of the considered view that the prosecution have failed to prove the case against both the appellants.
37. Above are the reasons of our short order dated 11-12-2002, by which we had allowed the appeals in the following manner:--' "For reasons to be recorded separately, both these appeals are allowed and the appellants are acquitted of charges and they may be released if not required in any other case" revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.