9/13/2017JUDGMENT RAHMAT HUSSAIN JAFFERI, J.---This Judgment will dispose of the Criminal Accountability Appeals Nos.52, 53, 54, 56 and 57 of 2002, as they arise out of one and same judgment.
2. The present appeals have been directed against the judgment dated 22-6-2002 passed by the 'Accountability Court No,II, Karachi, in Accountability Reference No,10 of 2001, by which the appellants have been convicted for an offence punishable under section 10 of the National Accountability Ordinance, 1999 (herein referred to as "NAB Ordinance") and convicted each of them to suffer R.I. For 7 years and to pay fine of Rs,200,00,000 (Two Crores) or in default thereof, to suffer S.I. For 3 years with benefit of section 382-B, Cr.P.C. All the appellants were disqualified for a period of 10 years to be reckoned from the date of their release, after serving their sentence, for seeking or from being elected, chosen, appointed or nominated as a Member or Representative of any public body or statutory or local authority of Pakistan or of any Province.
3. Initially, on 11-5-2001, the Chairman NAB filed a reference against accused Iqbal Solangi, Director- General, Excise and Taxation Department Government of Sindh, Karachi, (2) Majeed Pathan, Director, Excise and Taxation Department, Government of Sindh, Karachi, (3) Niaz Baloch, Excise and Taxation Officer, Excise and Taxation Department, Government of Sindh, Karachi, (4) Agha Wazir Abbas Ex-Assistant Excise and Taxation Officer (AETO), Excise and Taxation Department Government of Sindh, Karachi, (5) Kaka Kishanchand, Proprietor of Kohistan Wine Merchant, Karachi, (6), Raj Kumar, Manager, Kohistan Wine Shop, Karachi, (7) Mehroomal Jagwani, Ex-MPA and Proprietor/Director of Messrs United Wine Merchant, Main Korangi Road, Karachi, (8)
Bhagwandas, Accountant/Attorney of Messrs United Wine Merchant, and (9) Asher Jan, Manager, Sales, Messrs Murree Brewery Ltd., Rawalpindi, for offence punishable under section 10 of the NAB Ordinance. On 17-7-2001, a supplementary reference was filed by which the accused Ismail Rahu son of Fazal Rahu, Ex-Excise Minister, Government of Sindh, was also included in the list of the accused with additional charges.
4. All the appellants appeared or surrendered before the Court whereas the remaining accused persons did not appear, therefore, non-bailable warrants for their arrest were issued, but they returned unserved, therefore, after the required proceedings they were declared absconders and proclamations under sections 87 and 88, Cr.P.C. Were ordered to be issued against them. It was further ordered that the case against them shall proceed in their absence, as required, under section 512, Cr.P.C.
5. The facts giving rise to the present appeals, as disclosed in the References, are that the Chairman NAB had received information that in the years 1997 and 1998, a huge evasion of Excise duty and other levies in the import of wine from Messrs Murree Brewery Limited, Rawalpindi took place in the Excise and Taxation Department, Government of Sindh, therefore, he authorised the FIA Authorities to investigate the matter. After investigation, the report was submitted to the Chairman NAB who formed his opinion that the accused Iqbal Solangi, Majeed Pathan, Niaz Baloch and Agha Wazir Abbas being Government servants in the Excise and Taxation Department with active abetment and assistance of all the remaining accused being beneficiaries or associates through conspiracy and to achieve their illegal motives, by dishonest means and deceitfully made use of 33 fake or forged permits for import of wine from Messrs Murree Brewery Ltd., Rawalpindi, therefore, they all had indulged in causing toss to the public exchequer to the tune of Rs,66 millions, which have been shared by all of them.
6. Specific allegations were levelled against each accused person in the reference by alleging that all the above four officials/accused were in Excise and Taxation Department and during their respective posts, had direct or indirect control in dealing with the vend fee and other relevant matters of Excise Duty/Cess, which included, issuance of liquor (wine) licence and being holder of public office were duty bound to protect the interest of State and discharge their duties diligently and honestly, but they failed to do so. The allegation against appellant Kaka Kishanchand was that at the relevant time he was proprietor and running the business in the name cf Kohistan Wine Merchant in Karachi and was acting as Agent of co-accused, whereas appellant Raj Kumar was the Manager of appellant Kaka Kishanchand and was dealing in the illegal deals on behalf and in absence of Kaka Kishanchand. The allegation against accused Mehroomal was that he was Ex- M.P.A., in the Province of Sindh and was also Proprietor/Managing Director of Messrs United Wine Merchant, Karachi. He was dealing in wholesale/retail business of liquor, wine etc., and through fake permits received liquor from Messrs Murree Brewery, Rawalpindi. The allegation against accused Bhagwandass was that he was Manager of Messrs United Wine Merchants and was directly involved in using fake permits through which Government Duty was evaded. The allegation against appellant Asher Jan was that he was Manager Sales in Messrs Murree Brewery, Rawalpindi where the fake licences and Import Permits used to be deposited for export of wine by him and he had delivered liquour through 33 fake permits to the accused Mehroomal and accused Bhagwandass.
After going through the investigation papers, the Chairman NAB had filed the above mentioned references.
7. During the investigation, 33 fake import permits and original permits were secured by the Investigating Officer. He recorded the statements of various witnesses. During the investigation a letter was received from India which was allegedly sent by accused Mehroomal which contained his admission and confession of the commission of offence and involvement of other accused.
8. On 12-9-2001, a charge for offence punishable under section 10, NAB Ordinance was framed against the appellants Ismail Rahu, and Agha Wazir Abbas as they were present on that date. On 27-10-2001, an amended charge was framed by adding the name of appellant Asher Jan as he was present on that date. Another amended charge was framed on 22-11-2001 against all the appellants as by that time they were present. All the appellants pleaded not guilty to the charge.
9. In support of the case the prosecution examined the following witnesses:
(1) P.W. 1 Bashirudding Inspector, ACE, Karachi. (He secured Record from United Wine Shop and Kohistan Wine Shop, secured IP Slip invoices under Mashirnama Exhs. 20 and 21, respecdtively).
(2) P.W. 2 Abdul Rasheed, Junior Clerk Vend Fee, Excise and Taxation Department. (He worked with appellant Agha Wazir Abbas, conversant with his signature, gave procedure of the issuance of licence and Import Permit, produced original Import Permits of United Merchant Wine Shop, original letter of licence, original challans and entries of original I.P. It outward registers).
(3) P.W. 3 Raja Javed Suleman, Manager Finance, Quetta 'Distillery, Quetta (He gave the procedure for transporting the material, and produced original Import Permits).
(4) P.W. 4 Altaf-u-Din Mir, Retired E.T.O. (He is one of the member of Inspection Team constituted by D.G., Excise and Taxation Department under the orders of Ex-Minister appellant Ismail Rahu to check the record of retailed arid wholesalers in respect of evasion of duties, other members were accused Agha Wazir Abbas and P.W. Ghulam Sarwar Chandio (A.E.T.0), he produced the inspection reports as Exhs. 176 to 181).
(5) P.W. 5 Ghulam Sarwar Chandio, A.E.T.O., District East, Karachi (One of the member of Inspection Team).
(6) P.W. 6 Muhamd Ishaque, Section Officer, Excise and Taxation Department, District East, Karam (He produced the notification of the retirement of appellant Agha Wazir Abbas, Application of appellant Agha Wazir Abbas for re-employment to C.M. On 27-8-1997 which was recommended by Secretary of Excise and Taxation Department and ex-Minister appellant Ismail Rahu, approval of Chief Minister for one year and notification of reemployment issued on 18-10-1997, another summary of reemployment, again approved by Chief Minister on the recommendations of above persons, and Notification of reemployment one year dated 29-10-1998).
(7) P.W. 7 Sayed Shahid Ali, Officer Grade-I, National Bank of Pakistan, D.H.A. Branch (He produced Account No,903 opened in the name of United Wine Merchant, operated by Relomal, J. Jagwani as Chairman, Brijmal. M. Jagwani as Secretary, Gordhandas M. Jagwani as Director, Raj Kumar R.
Deeqani as Director, received letters authorising accused Mehroomal to operate bank account.
Mehroomal has his own Account No,1578-5.
(8) P.W, 8 Sayed Shabir. Hussain, E.T.O. Excise Department (He produced the Government record containing writing of Agha Wazir Abbas to I.0 and signed Mashirnama).
(9) P.W. 9 Abdul Ghani Soomro, Private Secretary to Mehroomal Jagwani Pvt. Ltd. (He gave money to appellants Ismail Rahu, Wazir Abbas and other persons, appellant Wazir Abbas prepared and delivered fake Import Permits and used to receive Rs,500,000 (Rupees Five Lacs) for each permit and 10 Lacs was received by Ismail Rahu for each permit, appellant Raj Kumar also gave fake permits to Bhagwandass).
(10) P.W. 10 Manzoor Ali, Deputy District Officer, New Karachi (He collected the specimen signatures of appellant Wazir Abbas).
(11) P.W. 11 Sikandar Ali, Inspector, F.I.A. (Collected specimen signatures of appellant Wazir Abbas from Excise Office and recorded statements of Shafiq Ahmed Paracha and Aftab Ahmed Qureshi.
(12) P.W. 12 Haji Abdul Qadeer, Deputy Director, F.I.A. (1.0. Collected specimen signatures and sent disputed documents to handwriting expert, the said report is in positive, collected five chits from accused Bhawandass in the handwriting of Raj Kumar for receiving bribe, produced telephone record of Ismail Rahu.
10. All the appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution.
11. The appellant Raj Kumar further stated that he was implicated without any evidence and no evidence has come on the record against him, therefore, he may be acquitted.
12. The appellant Asher Jan filed his written statement in which he denied that he was Sales Manager in Murree Brewery, Rawalpindi in the year 1996-1997 and 1997-1998. In the written statement he discussed the evidence and then stated that the witnesses had not deposed against him, therefore, he may be acquitted. He produced various documents in his support. His written statement is, in fact written arguments, which is not the requirement of law. This type of written statement should not be allowed to be brought on the record and should be discouraged.
13. The appellant Kaka Kishanchand stated that he was innocent and no evidence had been led against him, therefore, he may be acquitted.
14. The appellant Ismail Rahu stated that no witness deposed against him except P.W. Abdul Ghani, who had done so in order to save his skin and under the pressure of NAB and FIA Authorities.
15. The appellant Agha Wazir Abass in his written statement gave the details and procedure of issuing licence of import permits, transport permits and further added that according to prosecution witnesses the evasion of excise duty per permit was Rs,400,000 (Rupees Four Lacs) but the allegation is that Rs,500,000 (Rs,Five Lacs) were paid for each permit which amount is more than the legal duty and the same cannot be paid by any person as illegal gratification. He further stated that he has been involved in this case falsely. He has also produced some documents.
16. None of the appellants examined them on oath or led any evidence in their defence.
17. After considering the material available on the record, the learned trial Judge found the charge proved against all the appellants, therefore, they were convicted and sentenced, as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment; therefore, they have filed the present appeals.
18. Mr. Muhammad Illyas Khan learned Advocate for the appellant Agha Wazir Abbas has argued that the allegation against the appellant is that he was re-employed and that he had issued 33 fake and forged permits in favour of United Wines Stores, Karachi, for import of wine which was to be delivered from Murree Brewery Rawalpindi. He has further stated that after retirement of appellant he had directly applied to the Chief Minister for his re-employment as he was highly qualified and experienced person in the Department with clean record and earned rewards; that the said application was processed and approved in accordance with law; that initially he was reemployed for one year from April, 1997, thereafter he again applied for reemployment which was also processed and approved in accordance with law and then he was re-employed for a period of another year under the orders of Chief Minister; that re-employment is not an offence. He has further argued that the alleged 33 fake/forged permits were not issued by him as the blank forms of the import permits were available with licensee who used to fill in the same and they might had foreged the said documents; that the Handwriting Expert Report Exh.269 is of no value as the Handwriting 'Expert has not been examined and that at the time same cannot be brought on the record under section 510. Cr.P.C.. Because the said provision is not applicable in the case of Handwriting Expert. He has further argued that the assessment of the duty was not the concern of the appellant and that the evidence of P.W.
2. Abdul Rasheed has got no value as he is not an expert in handwriting and that he cannot distinguish the original and fake signatures of the appellant; that according to the prosecution case the duty of each permit was Rs,400,000 (Rupees four Lacs) but it has been alleged that bribe of Rs,500,000 was paid for each permit which is more than the legal duty and how anybody could pay an amount more than the actual duty as bribe; that the appellant has been involved in this case falsely and that there is no evidence against him. He has relied upon the following case-laws:
(1) Nasim Ahmed v. The State (1992 MLD 620).
(2) Jaffar Hussain v. Dacca Municipal Committee (PLD 1969 Dacca 927).
19. Mr.Abdul Hafeez Pirzada, learned Advocate for the appellant Ismail Rahu has stated that the allegation against the present appellants is that he had recommended the summary of appellant Wazir Abbas for reemployment; that he had conspired with co-accused for issuance of 33 fake and foreged import permits and that he had received bribe from co-accused Mehroomal. He has argued that application for re-employment of appellant Agha Wazir Abbas was moved before Chief Minister and not before him; that the Chief Minister had directed that the application may be processed and the Secretary concerned had processed the summary by recommending the case of appellant Agha Wazir Abbas for re-employment with which he had concurred, but their recommendations were overruled by the Chief Secretary as he opposed the re-employment of appellant Agha Wazir Abbas, as such, when the summary was presented before the Chief Minister.
He had overruled the observations of Chief Secretary and re-employed the appellant Agha Wazir Abbas on his own accord; that in the entire process there is no evidence that the appellant had persuaded the Chief Minister or conspired with him for re-employment but it was the independent decision of the Chief Minister after considering the opinions of various persons including the appellant and the Chief Secretary and then he had approved the reemployment; that no evidence has been led by the prosecution to attract the provisions of section 37 of P.P.C., which was relied upon by the trial Court. He has referred the illustrations of the said section and then argued that the said illustrations are not attracted to the facts of the present case. He has further argued that the prosecution have tried to connect the appellant through a letter sent by co-accused Mehroomal from India, that the said letter has not been produced or proved in accordance with law; therefore, it has no evidentiary value. He has further argued that at the most it can be termed as an extra-judicial confession of co-accused Mehroomal but the said piece of evidence has neither been supported nor corroborated by any other piece of evidence; that the person before whom the said admission/extra-judicial confession was made have not been examined, as such, it cannot be relied upon. He has further argued that the prosecution have tried to implicate the appellant through the evidence of P.W. 9 Abdul Ghani; that from his evidence it is clear that he is an accomplice of crime; therefore his evidence without any corroboration cannot be relied upon in view of Article 129 of Qanun-e-Shahadat Order. He has further argued that extra-judicial confession of Mehroomal and evidence of P.W. 9 Abdul Ghani, each require corroboration and in such situation the said pieces of evidence cannot corroborate each other, therefore, the evidence of P.W. 9 cannot be relied upon as there is no corroboration to his evidence. He has further argued that the evidence of Mobile Telephone Bills only show that the telephones were received but the prosecution has not led any evidence with regard to the conversations made thereunder, as such, the said piece of evidence is of no value. He has further argued that through the evidence led by the prosecution the involvement of the appellant has not been proved.
20. Mr.Aitzaz Ahsan learned Advocate tor the appellant Kaka Kishanchand and Raj Kumar has argued that no fake permits were issued in favour of Kohistan Wine Shop which is under proprietorship of appellant Kaka Kishanchand and appellant Raj Kumar is serving as Manager; that appellant Raj Kumar is being involved through 5 chits produced by the Investigating Officer as Exhs.273 to 277; that the said chits were not secured from the appellant Raj Kumar but the same were recovered from co-accused Bhagwandass; that the writing and signatures on the said exhibits have not been proved to be the writing and signatures of Raj Kumar as no evidence has been led by the prosecution except the evidence of Investigating Officer who allegedly identified signatures of the appellant; that the Investigation Officer never worked with the appellant Raj Kumar or expert in the field of handwriting science, therefore, through these chits the involvement of the appellant Raj Kumar cannot be established. He has further argued that the allegation against Kaka Kishanchand is that he was Agent of appellant Ismail Rahu through whom the bribes were received; that no evidence has been led by the prosecution on the said point. In respect of letter of co-accused Mehroomal and evidence of P.W. 9, he has adopted the arguments of Mr.Abdul Ha'eez Pirzada. Lastly he has argued that the prosecution have not led any evidence connecting the appellants with the commission of this crime.
21. Mr. Kamal Azfar, learned Advocate for the appellant Asher Jan has stated that allegation against the appellant is that he being the Manager Sales of Messrs Murree Brewery, Rawalpindi had exported wine illegally on 33 fake and forged imports permits. He has argued that the appellant was not the Manager Sales of Messrs Murree Brewery, Rawalpindi; that he has specifically denied the said allegation in his statement recorded under section 342, Cr.P.C; that the prosecution have not led any evidence to show that the appellant was serving as Manager Sales of Messrs Murree Brewery, Rawalpindi. He has further stated that the Investigation Officer had inquired about the record of all Import Permits from the appellant, and in pursuance of that he had produced the entire record of all the import permits before the Investigating Officer after obtaining the same from the company. He has further argued that the verification of import permit is the duty of Punjab Excise Department and the company had exported the wine on the transport permits which were validly issued by the Punjab Excise Department; that none of the employee of Murree Brewery, Rawalpindi has been examined to connect the appellant with the crime; that the appellant has no reason to believe or had any knowledge that the import permits were fake and forged; that the company conducted their business in accordance with rules and procedure applicable in the Province of Punjab. He has referred to rules 7.2, 7.8, 9.115, 1.117 and 9.122 of Punjab Excise Manual, Volume II and Rule 1.2 of Punjab Excise, Volume. HI in his support. He has further argued that no witness from Punjab Excise Department has been produced to show any violation made by the company; that there is nothing in the charge specifically levelled against the appellant; that no evidence has been led by the prosecution to prove that the employees of Messrs Murree Brewery, Rawalpindi had knowledge that the import permits were fake and forged; that no evidence has been led on conspiracy connecting the appellant with other accused; that the Company had adopted that legal procedure to export wine through proper documents; that no gain was received by the appellant and that the case is of no evidence.
22. On the other hand Mr.Muhammad Anwar Tariq learned Deputy Prosecutor-General has stated that 33 fake and forged import permits Exhs.22 to 47 and 49 to 55 were secured by P.W.1 Bashiruddin, Inspector, Establishment Anti-Corruption, Karachi from Murree Brewery, Rawalpindi which were handed over to him by the appellant Asher Jan: that the said permits have been proved to be false and forged as original permits have been produced through P.W. 2 Abdul Rasheed, Junior Clerk Vend Fee. Of Excise and Taxation Department, Karachi as Exhs.60 to 92 and that through this witness the original licences of import permit and import permits were also produced alongwith the copies of registers where the entries of original import permits were entered. He has further argued that the signatures on the fake import permits have been proved through P.W.2 to be the signatures of appellant Agha Wazir Abbas as he worked with the appellant for sufficient time and he has categorically stated that fake permits bear the signatures of appellant Agha Wazir Abbas; that through the Handwriting Expert Report Exh.269 the signatures of Agha Wazir Abbas have been proved; that the original permits were issued to Quetta Distillery, Quetta and through P.W. 3 Raja Suleman, Manager Finance of Quetta Distillery, Quetta, original import permits which were received by them have been produced which are corresponding with the original import permits produced by P.W.2; that the prosecution have proved that the 33 import permits Exhs.22 to 47. And 49 to 55 are forged and false import permits through which the public exchequer sustained loss of Rs,66 million. He has further argued that the evidence of P.W.9 Abdul Ghani and the letter Exh.211 sent by co-accused Mehroomal are important pieces of evidence on which the entire case of the prosecution is based; that the letter of co-accused Mehroomal Exh.211, received by the Additional Director, F.I.A., Karachi has been produced and proved through P.W.9 who was Private Secretary of Mehroomal and that the said letter is admissible in evidence under Article 46(3) of Qanun-e-Shahadat Order that in the said letter which is the confession of co- accused Mehroomal with regard to offence of this crime, the other appellants have been involved, therefore, by virtue of Article 43 of Qanun-e-Shahadat Order the said confession can be taken into consideration as circumstantial evidence against the other appellants. He has further argued that the said confessional statement is supported and corroborated by P.W.9; therefore, the said pieces of evidence can be safely relied upon. As regards the allegation against appellant Raj Kumar, the learned DPG has stated that his involvement has been proved through 5 chits through which he has received monies from co-accused Bhagwandass. As regards the allegation against appellant Kaka Kishanchand, the learned DPG has argued that he is owner of Kohistan Wine Shop and his involvement being agent of appellant Ismail Rahu has been proved through various mobile telephone calls in between him and appellant Ismail Rahu. He has relied upon the telephone bills.
As regards the allegations against appellant Ismail Rahu, he has stated that he, in connivance with appellant Agha Wazir Abbas had recommended for his re-employment in order to indulge in evasion of duties and issuance of fake and forged import permits and that the said summary has been produced in the evidence; that his involvement has also been proved from the confession of co-accused Mehroomal (Exh.211) and statement of P.W. 9 Abdul Ghani who has fully implicated the appellant from whom the appellant had directly received his share of money of more than Rs,300,00,000 (Rupees three Crores). He has further argued that the evidence led by the prosecution is sufficient to connect all the appellants with the commission of this crime. He has relied upon the following case-laws:
(1) Irshad Ahmed v. The State (2000 SCMR 814).
(2) The State v. Nisar Ahmed Khoro and others (PLD 1998 Karachi 86).
(3) Abdul Ghafoor and another v. The State (1982 PCr.LJ 1128). (4) Abdul Mansur and another v. The State (PLD 1961 Dacca 753).(5) Tariq Mehmood and another v. The State (2002 SCMR 32).
23. As regards the case of appellant Asher Jan Mr.Amir Raza Naqvi, Additional Deputy Prosecutor- General has stated that the appellant was Sales Manager of Murree Brewery, Rawalpindi from whom fake and forged import permits were secured; that two import permits of same number viz. 309 were used by the appellant which shows that he was fully involvedin the case. He has further stated that the appellant was duty bound to ascertain the genuineness of import permits and that no tax was paid on the fake import permits as no challans were attached with the said import permits, that the material was delivered without recovering taxes, as such, the public exchequer has sustained huge loss; that the import permits were issued in the name of appellants and addressed to him, therefore, the prosecution have proved the case against him.
24. We have given due consideration to the arguments and found that the first point for consideration is whether 33 Import Permits (I.Ps.) Exhs.22 to 47 and 49 to 55 are fake and forged.
25. The said import permits were secured by P.W.1 Inspector Bashiruddin from the office of United Wine Shop. His evidence reveals that A.D. Khuwaja, Additional Director, F.I.A., informed Asher Jan of Murree Brewery, Rawalpindi on telephone that they intended to see import permits. In pursuance of that telephone conversation, the P.W.1 alongwith A.D. Khuwaja went to Murree Brewery, Rawalpindi where appellant Asher Jan showed them the import permit slip invoices which the various parties had presented before them for export of wine and then the P.W. 1 collected all the record of import permits and prepared such Madhirnama. From the said record these 33 import permits were found to be pertaining to the present case, therefore, the import permits relevant for this case were produced.
26. The procedure for issuance of import permits has been given by P.W.2, Abdul Rashid, Junior Clerk, Excise Department, Vend Fee, Karachi by stating that wholesaler applies for licence to District Officer (E.T.O.) by moving an application which is forwarded by E.T.O., to Director, Excise and Taxation who forwards the same to Director-General, Excise and Taxation Department and after approval of Director-General granting the licence, the summary is returned to E.T.O., through Director, Excise and Taxation Department. One copy of the licence is sent to Assistant Excise and Taxation Officer (A.E.T.O.) Vend Fee and 2nd copy is sent to District Officer (E.T.0) for information.
Thereafter challan is filled in for the payment of Excise duty which is to be paid by the licence holder who pays the amount in the Bank and copy of the challan is received by them and thereafter import permit is issued in four parts. The number is allotted to the import permit which is mentioned on the licence after entering the same in the inward and outward registers and then initial and signature of the Excise Official is affixed on the import permit. One part of the import permit is kept in the office, second and third parts of the import permit are given to the Distillery and the fourth copy is to be kept by licence holder. The said procedure has not been denied by the appellants.
27. After giving the said procedure P.W. 2 was shown the alleged 33 import permits. He stated that the said import permits are fake and forged because with the similar numbers import permits were issued to Quetta Distillery, Quetta. He produced the original import permits as Exhs. 60 to 92. He also produced the challan paid on the import permits Exhs. 60 to 92. He also produced the copy of relevant registers where the entries with regard to Exhs.60 to 92 were maintained. In the cross- examination, he admitted that import permits are to be filled in by the licensee except the official endorsement, signature of officer and seal of Excise and Taxation Department. The appellants have not disputed the Exhs.Nos.60 to 92.
28. We have gone through the Exhs. Nos.22 to 47 and 49 to 55 and 60 to 92 and find that the serial numbers and dates are same. The quantity and the name of Distillery are different. The comparison statement is as under: S. No,I.P.
No,Date Exh Original I.P. issued to Quetta DistilleryExh. Fake I.P. issued to Murree Brewery Ltd.
1 30928-4-1988 22 United Wine Merchant 60 United Wine Mer 2 30928-4-1996 23 Uninted Wine Merchant60 United Wine Mer 3 17120-12-1997 24 United Wine Merchant 61 United Wine Mer 4 20524-2-1998 25 United Wine Merchant 62 United Wine Mer 5 39527-6-1998 26 Pioneer Wine 63 United Wine Mer 6 39 18-8-1997 27 Kohistar Wine Shop 64 United Wine Mer 7 15927-11-1997 28 United Wine Merchant 65 United Wine Mer 8 25713-5-1997 29 Azad Wine 66 United Wine Mer 9 17429-12-1987 30 Pioneer Wine 67 United Wine Mer 10 23618-3-1998 31 Uninted Wine Merchant68 United Wine Mer 11 27713-4-1998 32 United Wine Merchant 69 United Wine Mer 12 29 23-7-1998 33 Herbertson Wine 70 United Wine Mer 13 34220-5-1998 34 United Wine Merchant 71 United Wine Mer 14 1641-12-1997 35 Standard Wine 72 United Wine Mer 15 13312-11-1997 36 Kohistan Wine Shop 73 United Wine Mer 16 26918-6-1997 37 United Witte Merchant 74 United Wine Mer 17 20118-2-1998 38 United Wine Merchant 75 United Wine Mer 18 16712-12-1997 39 Pioneer Wine 76 United Wine Mer 19 10715-10-1997 40 United Wine Merchant 77 United Wine Mer 20 1842-2-1998 41 Uninted Witte Merchant78 United Wine Mer 21 21312-4-1997 42 United Wine Merchant 79 United Wine Mer 22 10815-10-1997 43 Azad Wine 80 United Wine Mer 23 11 16-7-1997 44 Pioneer Wine 81 United Wine Mer 24 11924-10-1997 45 United Wine Merchant 82 United Wine Mer 25 20912-4-1997 46 United Wine Merchant 83 United Wine Mer 26 17 22-7-1997 47 Pioneer Wine 84 United Wine Mer 27 38 15-8-1997 48 United Wine Merchant 85 United Wine Mer 28 17222-12-1997 49 Pioneer Wine 86 United Wine Mer 29 20423-2-1997 50 Pioneer Wine 87 United Wine Mer 30 47 22-8-1997 51 Pioneer Wine 88 United Wine Mer 31 64 2-9-1997 52 Azad Wine 89 United Wine Mer 32 91 24-9-1997 53 Kohistan Wind Shop 90 United Wine Mer 33 12129-10-1997 54 United Witte Merchant 91 United Wine Mer 34 60 28-8-1997 55 Azad Wine 92 United Wine Mer
29. It is further pointed out that P.W.3 Raja Javed Suleman, Manager Finance, Quetta Distillery, Que tta produced 16 import permits through which the consignments were sent to United Wine Merchant. They tally with the imports permits Exhs.60 to 92 . As such, the import permits Exhs.60 to 92 are genuine import permits, whereas with the same number and date, fake and forged import permits were issued. Thus there is no hesitation in holding that Exhs. Nos.22 to 47 and 49 to 55 are fake and forged import permits.
30. The next point for consideration is as to who has issued and signed these 33 fake and forged import permits. In order to prove this point the prosecution have relied upon the evidence of P.W.2 Abdul Rasheed and Handwriting Expert Report Exh.269.
31. The statement of P.W.2 reveals that he worked with the appellant Agha Wazir Abbas for a period of one year and was conversant with his signature. After seeing the Exhs.Nos.22 to 47 and 49 to 55, he deposed that the said import permits bear the signatures of the appellant Agha Wazir Abbas. In the cross-examination, he admitted that he was not a Handwriting Expert. He denied the suggestion of the appellant that he was not acquainted with the signature of the appellant Agha Wazir Abbas but stated the he had seen the appellant putting his signature on papers during official work for a period of one year.
32. Before this case, we had examined the various provisions of Qanune-Shahadat on the above point in a case Agha Wazir Abbas v. State reported in 2003 PCr.LJ 1353. In that case it has been observed that apart from other modes, one of the modes for proving the signature of a person is under Article 61 of Qanun-e-Shahadat Order. Under the said provision the signature on the document can be proved through a person who is conversant A with the signature and writing of the person whose signature and writing is to be proved. No further detail discussion is required in view of the above mentioned decision on the above point. The witness has clearly admitted that he worked with the appellant Agha Wazir Abbas for a period of one year and he saw him putting his signature on documents during his official work, as such, he is conversant with his signature. After going through the evidence of P.W.2, we find that his evidence has not been shaken in the cross- examination. We do not find any reason to disbelieve him as there is no enmity between the witness and the appellant nor any enmity has been suggested. He has no reason to depose falsely against the appellant. From his evidence it has been established beyond any shadow of doubt that Exhs.Nos.22 to 47 and 49 to 55 are signed by appellant Agha Wazir Abbas.
33. The prosecution have also relied upon Exh.269 which is the opinion of Handwriting Expert with regard to the signature of appellant on Exhs.22 to 47 and 49 to 55. This report was produced before the trial Court under section 510, Cr.P.C. In order to appreciate the said point, the said provision is reproduced: "510 Report of Chemical Examiner, Serologist, etc.---Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, Finger-print Expert or Fire-arm Expert appointed by Government [or of the Chief Chemist of the Pakistan Security Printing Corporation Limited,] upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may, without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under the Code:"
34. From the above provision of law it is clear that this provision is applicable in a case of report of Chemical Examiner, Assistant Chemical Examiner, Serologist, Finger-print and Fire-arm Expert appointed by Government or of the Chief Chemist of Pakistan Security Printing Corporation Limited.
If any report is issued by the above named officers in respect of various fields of sciences mentioned in it then their report can be produced in evidence without calling them and can be used as evidence in any inquiry or trial or other proceedings under Criminal Procedure Code. The Court is also empowered to examine such person if it is found necessary in the interest of justice.
35. The handwriting science is a completely different field and a different science than the above mentioned categories of sciences. As such, the provisions of section 510, Cr.P.C. Are not applicable in the case of report of officers in respect of field of sciences other than those mentioned in the section. The Trial Court has misconstrued and misinterpreted the said section. The above view is supported by cases Zamir Hussain v. Crown reported in PLD 1949 Lah.
179.
36. Thus the report Exh.269 cannot be relied upon without examining its author. As such in the present circumstances it is of no help to the prosecution. The signatures of the appellant Agha Wazir Abbas on Exhs. 22 to 47 and 49 to 55 have been adequately proved through P.W.2, therefore, it is held that the said documents were issued and bear the signatures of the appellant Agha Wazir Abbas.
37. The third point for consideration is whether the duties were not paid on the 33- fake import permits. According to evidence of P.W. 2 after issuance of required licence the licensee is required to pay the duty through Bank challan and a copy of challan is presented before Excise Department and then import permit is issued. It is pertinent to point out that the required duty had already been paid on the original permits viz. Exhs.60 to 92. No copies of challans have been produced to show that before the issuance of these 33 import permits the required duty was paid. Thus the Exhs.22 to 47 and 49 to 55 were issued without payment of duty, as such, the public exchequer have sustained loss in respect of issuance of 33 import permits.
38. Now we will discuss the evidence of P.W. 9 Abdul Ghani Soomro and letter Exh.211, allegedly issued, by co-accused Mehroomal. Through these two pieces of evidence, involvement of all the accused have been tried to be established by the prosecution.
39. The evidence of P.W. Abdul Ghani Soomro shows that he was Private Secretary to co-accused Mehroomal from 1992. He was doing all his private work and the work of United Wine Shop. He used to visit the office of Excise and Taxation Department for obtaining Wine Licences of the shop. He used to receive lacs of rupees from co-accused Mehroomal to be paid to officials of Excise and Taxation Department, including the appellant Ismail Rahu, to whom he paid Rs,30,00,000 (Rupees Thirty Lacs). The said amount was being paid for issuance of fake permits of wine and the wine used to come from Murree Brewery, Rawalpindi. In his presence these fake permits were prepared by appellant Agha Wazir Abbas, some times at his office and some times he used to bring them and gave them to co-accused Bhagwandass who was accountant of Mehroomal and the said fake permits used to be stamped with fake rubber stamps. The appellant Agha Wazir Abbas used to collect Rs,500,000 for each fake permit and the Minister, Excise and Taxation used to receive Rs,10,00,000 for each permit. He used to go to appellant Ismail Rahu at his residence to pay him the amount and co-accused Mehroomal used to talk to appellant Ismail Rahu on telephone. In his presence accused Raj Kumar also used to give fake permits to co-accused Bhagwandas and used to collect amount from him after giving him receipts. He produced the original letter sent by co- accused Mehroomal as Exh.211 and stated that it bears the signature of Mehroomal. He also produced the voucher of Fedex Courier Service as Exh.212 and envelope as Exh.213.
40. From the above statement, it is clear that he is accomplice of the crime as he used to pay illegal gratification or bribe to the appellants and co-accused persons. Under clause (b) of illustrations of Article 129 of Qanun-eShahadat, it is provided that an accomplice is unworthy of credit, unless he is corroborated in material particulars. As such the evidence of P.W. Abdul Ghani Soornro cannot be relied upon unless his statement is corroborated by other independent evidence on material particulars. The learned DPG has stated that the evidence of P.W. 9 is supported and corroborated by Exh.211 which is the confession of co-accused Mehroomal.
41. A perusal of Exh.211 reveals that it is a letter allegedly sent by co-accused Mehroomal, the Ex- Member of suspended Provincial Assembly of Sindh to the Chairman, Accountability Bureau, Islamabad, through Additional Director, FIA, Karachi. It was purported to have been sent from India on 14-11-2000, which was attested by a Notary Public of Mumbai India on 10-11-2000. The signature of Notary Public has been verified by Section Officer, Government of Maharashtra India. It transpires that this letter was in continuation of previous application sent by co-accused Mehroomal. The letter shows that an amount of Rs,9,12,51,550 is outstanding against co-accused Mehroomal on account of shortfall and fake permits. The co-accused Mehroomal took the plea that these fake permits were issued on the instructions of appellants Ismail Rahu, the then Minister of Excise and Taxation, which was delivered through appellant Agha Wazir Abbas, Assistant Excise and Taxation Officer, Vend Fee and Director-General Iqbal Solangi; that he and other Wine Stores were compelled to indulge in malpractice under threat that in case of non-cooperation they would not be allowed to carry on their legal business peacefully and false case would be registered against them, as such, due to said threats they generated the income through fake permits which was distributed among the appellants under which Rs,330,00,000, Rs,175,00,000 and Rs,30,000 were paid to appellants Ismail Rahu, Agha Wazir Abbas and co-accused Iqbal Solangi and various amounts to other high officials. In the end of the letter the co-accused Mehroomal requested that he may be allowed to dispose of all immovable assets so as to meet the shortfall and an amount of Rs,6,26,50,310 may be recovered from the appellants Muhammad Ismail Rahu, Agha Wazir Abbas and co-accused.
42. The case of prosecution, with regard to Exh.211 is that co-accused Mehroomal had sent his confessional statement from India to the Chairman NAB through Additional Director, F.I.A., which was received by them and produced through P.W.9. Though this stand has been denied by the appellants, but for the sake of arguments, if we take the stand of the prosecution as true, then in the light of said stand is to be seen whether the said statement is hit by any provisions of Cr.P.C. Or Qanun-e-Shahadat Order or not.
43. It transpires that on 10-11-2000 co-accused Mehroomal had sent letter Exh.211 which starts with "The Chairman, National Accountability Bureau, Islamabad", it has been sent through Additional Director, Investigation, Karachi and in continuation of his previous application. The contents of the statement are in respect of issuance of fake permits which are the subject-matter of this case and involve co-accused Mehroomal, himself, in the crime of this case alongwith appellant Ismail Rahu and Agha Wazir Abbas and co-accused. In the end, he requested that he may be allowed to sell his property to pay the amount. This shows that after committing the crime, on 10-11-2000, the co- accused Mehroomal sent all the facts in writing and he did so with the intention of communicating them to the Chairman NAB through Additional Director Investigation with an object of confessing his guilt and was ready to pay the loss caused. It is pertinent to point out that by virtue of section 18(e) of the NAB Ordinance the Chairman NAB has been empowered with the powers of officer-in- charge of a police station for the purpose of enquiry and investigation and he can entrust such enquiry and investigation to any Agency including F.I.A. In pursuance of said powers the investigation of this case was entrusted to F.I.A., Karachi, and Additional Director-in-Charge of such office who also investigated the case and collected fake permits alongwith P.W.
1. As such, both the officers viz. Chairman, NAB and Additional Director, F.I.A., are police officers within the meaning of section 18(e) of NAB Ordinance.
44. Thus the co-accused Mehroomal had sent his statement in writing containing confession to the police officers, with intention to be received by them. In order to achieve this object he had got Exh.211 attested from a Notary Public, Mumbai, India, got the same verified from Section Officer, Government of Maharashtra, India so as to give authenticity to the writing and document, put it in an envelope, handed it over to Fedex Courier Service India to be delivered to Additional Director, F.I.A., Karachi. The Fedex Courier Service sent the said envelope to their office at Karachi and then the same was delivered to the Addressee which was received by him and at that time the investigation of this crime was in progress. Subsequently, the said letter was produced by the prosecution as Exh.211. All these facts clearly show that the co-accused Mehroomal had made a statement in writing to a police officer during the course of investigation of this case, which contained his confession in respect of crime of this case. Thus the statement (Exh.211) is coming within the scope of section 162, Cr.P.C. Which reads as under: "162. Statements to police not to be signed--Use of such statements in evidence,---(1). No statement made by any person to a police officer in the course of an investigation under this chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police-diary or otherwise or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: ' Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination: Provided further that, if the Court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is expedient in public interests, it shall record such opinion (but not the reasons therefore) and shall such part from the statement furnished to the accused.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Evidence Act, 1872 [or to affect the provisions of section 27 of that Act].
45. According to section 162, Cr.P.C. The said statement cannot be used for any purpose except to contradict or corroborate its maker. Thus even if the case of prosecution in respect of Exh. 211 is taken as it is then Exh.211 is hit by section 162, Cr.P.C.
46. On the above subject, a detailed discussion has been made in a case Himatsingh Badharsingh v. The State of Gujarat (AIR 1965 Gujarat page 302) (D.B.). The facts of the case were that the accused was involved in a murder case. After few days he was found lying unconscious and injured with fire-arm injuries. From his personal search, the police secured a suicidal note from his pocket. The said note was addressed to D.S.P. Containing the confession of the murder for which he was charged. A point arose as to whether the said note was statement made to a police officer in the course of investigation as contemplated under section 162, Cr.P.C. Or not. It will be advantageous to reproduce paras. Nos.10 to 14 appearing at pages 306 and 307, in order to further clarify the above position and section 162, Cr.P.C. The said paras. Read as under: "10. The plain reading of section 162 of the Cr.P.C., as it stands, when analysed, extends its prohibition to all (1) statements (a) may it amount to confession or not, (b) may be in police custody or not at the time when he made the statement; but (1) the statement must be made to a police officer; and (2) must be made in the course of an investigation under Chapter XIV of the Cr.P.C. We have, therefore, no hesitation in accepting that part of the submission on behalf of the appellant that Exh.65-A is 'a statement' and is a statement reduced to writing'. We also accept the fact that, having regard to the evidence on record this statement may be said to have been made during the course of investigation of the murder of Jivi. We have also no manner of doubt that, under law, now a statement made an accused person would also be within the mischief of S.162 of the Cr.P.C. It also does not require any arguments to persuade us to hold that a statement volunteered or made to a police officer would also be hit by section 162 of the Cr.P.C. But, in our view, all these conceded propositions do not go to resolve the important problem raised for our consideration. What is most important to note is that it is only a statement that is made to a police officer, by any person, that is barred from being admitted in evidence, and no other statement.
Therefore, what we are called upon to concentrate on and decide is, what is the true construction of these words 'made to a police officer' and whether Exh.65-A can be said to a 'statement made to a police officer'.
11. Mr.Desai submitted that, under the facts and circumstances of this case and particularly in view of the contents of the writing which clearly showed that it was addressed to the District Superintendent of Police and that they were intended to be communicated or made known to the District Superintendent of Police, it must be held to amount to a statement by the appellant made to a police officer. In order to emphasise his submission Mr.Desai argued that, to bring a statement under section 162, it was not at all necessary for an accused or any other person to write the statement in the presence of a police officer and a statement written in the absence of a police officer, but which is given to him by the accused or the person writing, it latter, would all the same fall within its purview. We may not have any objection to accept this contention of Mr.Desai, But, Mr.Desai then stretched his argument to submit that, when the accused prepared written statement, kept it ready, and intended to give it to the police and it actually came to be recovered by the police officer in the course of investigation, it must be construed to have been made to a police officer and the fact of his being unconscious at that time cannot ensure for the benefit of the prosecution, nor should it take away the protection intended to be given to the accused. This is indeed a point which requires careful consideration before it can be accepted or rejected.
12. Section 162 of the Criminal Procedure Code has been one of the most controversial section in the Code which had given rise to conflicting decisions as regards its construction and effect thereof which has compelled the Legislature to amend it more than once to make its intention clearly put into effect. It is legislative history that at one stage there was a section of opinion which proposed the complete deletion of that section. But, as late as 1955, this was opposed and the Select Committee felt and, therefore, recommended that its deletion would do away with the protection intended to be given to the accused against possible resort by the police officers to undesirable pressures of tactic prejudicial to the accused in obtaining statements from persons to be witnesses in obtaining statements from persons to be witnesses in the trial Court or the accused himself by way of an admission. This made the Legislature to accept the substitution of the new section instead of its deletion. In our judgment, the words 'statement made to a police officer' necessarily connote the idea of communication or, in other words, a statement being communicated to a police officer by any person. The significant words to be noticed are 'made' and 'to' an these should be given their due weight. A statement to attract the prohibition of this section must be 'made to a police officer'. These words, in our view, also definitely imply that there should be some direct or indirect nexus or connection between the person making the statement and the police officer. A statement reduced to writing with no further steps to communicate it to the police, if recovered by the police officer himself, would not, in our judgment , amount to a statement made to a police officer. This legislative provision does not contemplate the mere making of a statement, but it contemplates the making of it to a police officer. It is difficult, therefore, to hold that the mere fact of a written statement containing a writing addressed to a police officer without anything further being done by that person or without the police having had anything to do with it would amount to 'statement made to a police officer' within the meaning of section 162 of the Criminal Procedure Code. We do not think that the words 'made to a police officer' merely connote the making of a statement in the abstract or only nationally but contemplates some positive element to connect the two; the making of a statement and the police officer.
13. But Mr.Desai contended that such a construction would be too narrow a construction and a wider construction is possible and that should be accepted. To support this contention, the learned Advocate argued that the words 'statement made by any person to a police officer' should be interpreted to mean that if it is a statement in writing, then, that writing is done by that person, or, if it is an oral statement, then it must be a statement spoken by such person, or if the statement consists of any gesture or pointing out, then it must be done by that person. Lnother words, the words 'made by' only connote, according to him, the idea as to whether the statement in writing or the oral statement of the action or gesticulation can be ascribed to that particular person or not. In the instant case, he argued, the writing is not only proved to be admitted to have done by the appellant, but it is also admitted to be so by the appellant himself. Therefore, it must be construed to have been made by him and as it is addressed to the District Superintendent of Police, that must mean that it was made to the police officer. In our judgment, in the first place, it is not correct to say that the way to which the learned Advocate wants us to interpret the words is a wider or a bolder construction. To construe the word 'made' only to connote the physical act of writing or speaking of the statement or narration is to narrow down the connotation of the bunch of words 'statement made by any person to a police officer'. If we are right in this view of ours, then also, under the acknowledged principle of law of interpretation of statutes, the Court should accept the wider construction which would be in consonance with the intent and purport of the particular enactment. Even if two interpretations are possible, then the Court will have to accept the one which would signify or be more compatible with the intention of the Legislature, in designing that section. In our view, the intention of the Legislature, as already mentioned, was only to protect the accused and the other persons from being prejudicially affected by any dishonest or questionable methods of the police officers in forcing or devising or influencing a statement from an accused from any other person. We cannot read in this provision any legislative intent to debar any statement, though it may be addressed to a police officer which is recovered by a police officer during the course of an investigation, with the making or bringing into existence whereof the police had no direct or indirect or had connection of any sort till it was so recovered. If that be the intention of the Legislature, and there is no transience in our mind about that being the legislative intent, then the only reasonable and proper interpretation of the said section would be the one which we are inclined to place.
14. It was then argued on behalf of the appellant that the words 'statement made to a police officer', given their ordinary connotation, would only indicate that the statement must be addressed or directed to a police officer and imply only an intention on the part of that person to communicate the contents thereof to a police officer and nothing further. When the appellant in this case wrote down the statement and made a clean breast of things, addressed it to the District Superintendent of Police, it clearly indicated his intention to communicate that statement to that police officer and, therefore, the statement would be hit by section 162 of the Criminal Procedure Code. Assuming for argument's sake that it is possible to adopt this line of reasoning, whether a particular statement would fall under a class of statements as contemplated by section 162 or not, would still depend on the fact as to whether that statement was definitely and unequivocally intended to be communicated to a police officer or not. In our view; even on the line of that reasoning, there must certainly be a difference to be made between the preparatory stage of the making up of the mind of the person or preparing or writing out a statement and the stages of taking of the ultimate decision by that person definitely intending to communicate the statement or its contents to the police officer and the act of actual communication, either personally or through an agent. The animus to communicate must be shown to be existent in the maker at the point of time when the statement goes to the hands of the police.
' In the present case, it cannot be said that such was the position. The learned Assistant Government Pleader, Mr. Vidyarthi, rightly pointed out that, as a matter of fact, though he wrote out this statement on the 16th, he did not do anything to communicate it to the police. He, on the contrary, had intended to commit suicide and only kept it in his pocket, so that, after his death, it may be found from him and the police may know the truth. Therefore, it would be justifiable to assume that there was no intention to make of to communicate this statement to the police during his lifetime at all. The facts, therefore, do not reveal any positive intention on the part of the accused to actually make that statement to the police. Even if, from the language used and the present tense utilized in the language, it were possible to assume that, when he wrote it out, he had an intention to go to the police and hand it over, even then the fact that he did not do either would show that he had no intention to make or communicate that statement to the police."
47. In the present case the intention of co-accused Mehroomal is very clear. He also acted upon it and sent his written confession to the police officer from India which was received by them. Thus the rule laid down in the above authority is applicable in the circumstances of the present case, as such; Exh.211 cannot be used for any purpose except as others; ise provided by section 162, Cr.P.C.
48. It is further pointed out that Exh.211 is a confessional statement of co-accused, made to a police officer, as such it is also inadmissible in the evidence in view of Article 38 of Qanun-e-Shahadat Order. In this Article same words "made to a police officer" as appearing in section 162, Cr.P.C. Are used. The same words have been interpreted in the above mentioned authority. Thus Exh.211 is also hit by Article 38 of Qanun-e-Shahadat Order therefore; it cannot be used as evidence.
49. Apart from above position, the Exh.211 has been examined from another angle.
50. The letter Exh.211 has been produced through P.W.9 who stated that it bears the signature of Mehroomal. Learned DPG has stated that this letter is confession of co-accused Mehroomal and is admissible under Article 46(3) of Qanun-e-Shahadat Order. The said confession can be used against the co-accused under Article 43 of the said Order. On the other hand the Advocates for the appellants have stated the Exh.211 is not covered by Article 46(3) of Qanun-e-Shahadat Order; that the document has not been produced 'or proved in accordance with law; that it was sent to Khuwaja, Additional Director Investigation, F.I.A. Therefore the P.W.9 was not competent to produce the document. Their contention is that the document should have been produced through A.D.
Khuwaja and then the question of its proof would have arisen but the prosecution without having proved the first aspect of the law has jumped to the second step which is not permissible under the law. Their further contention is that no proof has been produced with regard to the contents of the said statement as the confession or extra-judicial confession cannot be relied upon firstly, without the proof of its being recorded in accordance with law and, secondly, its proof through corroboration.
51. In order to appreciate the arguments it will be advantageous to reproduce Article 46 of Qanun- e-Shahadat Order, which reads as under:-- "46. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:---
(1) When it relates to cause of death.---When the statement is made by a person as to cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) Or is made in course of business.-- When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.
(3) Or against interest of maker.-- When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose or would have exposed him to a criminal prosecution or to suit for damages.
(4) Or gives opinion as to public right or customs or matters of general interest.---When the statement gives the opinion of any such person, as to the existence of any public right of custom or matter of public or general interest, of the existence, of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter has arisen.
(5) Or related to existence of relationship.---When the statement relates to the existence of any relationship by blood, marriage or adoption between person as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) Or is made in Will or deed relating to family affairs.---When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any Will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family or other thing on which such statements are usually made. And when such statement was made before the question in dispute was raised.
(7) Or in document relating to transaction mentioned in Article 26, paragraph (a).--- When the statement is contained in any deed, Will or other document which relates to any such transaction as it is mentioned in Article 26, paragraph (a).
(8) Or is made by several persons and expresses feelings relevant to matter in question.---When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question."
52. From the bare reading of Article 46, it is clear that written or verbal statement of relevant facts of a person who is dead or who cannot be found or who has become incapable of giving evidence or his attendance cannot be procurable without any amount of delay or expense are the relevant facts. In the eighth categories mentioned in the Article, the category No, three is with regard to the statement made by a person, which is, if true, would expose or would have exposed him to a criminal prosecution or suit for damages.
53. By just bare reading of clause (3) of Article 46 of Qanun-e-Shahadat Order, it is clear that first of all it is to he shown that the statement is true as the words "if true" are used, and secondly; the statement would expose its maker to a criminal prosecution, then only it will be admissible as relevant fact under the said Article.
54. A perusal of the Article shows that the eight clauses mentioned therein are exceptions to the general rule of evidence that all oral evidence must be direct, viz., if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be percived by any other sense, it must be the evidence of the witness who says he perceived it by that sense; if it refers to an opinion, it must be the evidence of the witness who holds that opinion, as provided by section 71 of Qanun-e-Shahadat Order. It is pointed out that when a person deposes a fact in a Court of law he states under the oath and is liable for prosecution for perjury, if, he states falsely and his statement can be tested through cross-examination. Thus there is some sort of guarantee of truth to the said statement. But in case covered under any clause of Article 46 of Qanun-e-Shahadat, the safeguards are absent, as the maker of the statement is riot examined as a witness at all. Thus Article relates only to relevancy of evidence and not to the manner of its proof.
55. Even in case of dying declaration which is admissible under clause (1) of section 46 of Qanun- e-Shahadat Order it is first to be proved that dying declaration is genuine and true and then it can be acted upon and some sort of corroboration is also required. The method to prove the recording of the said declaration is to examine the person who recorded the statement as to what deceased said or to examine some persons who were present at the time and heard the statement being made or if the statement was written or directed by the deceased must be proved. If the said statement is not proved in the manner then it will be inadmissible even though it may have been recorded by the Magistrate, as Article 91 of Qanun-e-Shahadat does not raise any presumption that the said statement was made by a particular person. When a person who recorded the dying declaration is called, then he is required either to repeat what the deceased had stated, refreshing memory from the record, under Article 155 of Qanun-e-Shahadat or he merely reports that the record correctly represents what deceased had stated, but in any case the record must be brought and proved in accordance with law. Reference is invited to cases Tawaib Khan v. State (PLD 1970 SC 13), Sher Bahadur v. State (1972 SCMR 651), Muhammad \ asin v. State (1978 SCMR 303), Sultan v. State (1970 PCr.LJ 751) Ayub v. State (PLD 1973 SC 609), Abdul Rehman v. State (1997 PCr.LJ 1274).
56. A comparison has been made with dying declaration in order to show that even in the case of dying declaration, normal procedure of proof is to be adopted before relying upon the dying declaration; therefore, in the case of confession admissible under Article 46(3) of Qanun-e- Shahadat Order, the required proof is essential.
57. The main objection in respect of Exh.211 is that it was neither produced or proved in accordance with law. In this connection it is pointed out that the letter, Fedex invoice and envelope have been produced by P.W.9 as Exhs.211 to 213 respectively. Admittedly, these documents were neither addressed to P.W. 9 nor received by him but at the time of evidence the document Exh.211 was shown to him for the purpose of identifying the signature of co-accused Mehroomal which he did and then he produced the said letter and remaining two documents viz. Fedex Invoice and envelope. He is not the author of these documents nor sent to him or received by him in any manner, therefore, he was not competent to produce these documents. The documents were purported to have been sent from India. The invoice and envelope must have been received by Fedex Office in Pakistan. No person has been examined from that office to prove that through Fedex invoice Exh.212 and envelope Exh.213 were received by him and that the said envelope was delivered to a delivery boy for delivering the same to the addressee. Even the addressee A.D.
Khuwaja. Additional Director Investigation, F.I.A. Has not been examined to prove that envelope Exh.213 was received by him or that it was opened by him and in that envelope Exh.211 was found. As such, it has not been proved in accordance with law that Exh.2111 was the letter which was found in Exh.213. Without the required evidence, the said letter cannot be provided or produced through P.W.9. Moreover, a perusal of Exh. 211 shows that it was attested by a Notary Public of Mumbai, India whose signature was verified by Section Officer, Home Department. Government of Maharashtra.
As such, it is not a judicial record of a foreign country, therefore, genuineness and accuracy which is attached to a certified copy of judicial record of a foreign country and further certified by any representative of Federal Government of Pakistan for such country as required under Article 96 of Qanun-e-Shahadat Order. Cannot be attached to Exh.211. Even this document has not been certified by any officer of Embassy of Pakistan in India. When a certain procedure is provided for attaching the above mentioned presumption to a judicial record of a foreign country, then how such presumption can be attached to a private document without even adopting the said procedure. Thus the presumption of genuineness and accuracy cannot be raised about the document Exh.211. Therefore, the prosecution was required to prove the document in accordance with law, which they have failed to do so.
58. A presumption of genuineness of the document is attached when the statement of witness or confession made by an accused person is taken in accordance with law as provided under Article 91 of Qanun-e-Shahadat Order. The said provision reads as under:-- "Presumption as to documents produced as record of evidence.--- Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence given by a witness in judicial proceeding or before any officer authorised by law to take such evidence or to be a statement or confession by any prisoner or accused person, taken in accordance with law, and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume," ' that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken."
59. It transpires that statement or confession of co-accused Mehroomal Exh.211 is neither recorded in accordance with section 164, Cr.P.C. As such presumption of genuineness as being true cannot be attached to Exh.211.
60. It is pertinent to point out that under section 14 of Notaries Ordinance, 1961 (Ordinance XIX of 1961) which was promulgated on 14th June, 1961 but was made applicable in the Province of West Pakistan from 5-1-1966 vide Gazette of West Pakistan. 1966 (Ext), p.33 that notarial acts lawfully done by Notary in a foreign country can be recognized within Pakistan by issuing such notification by Federal Government through a rec procal arrangements with the said country. The said section reads as under: "14. If the Central Government is satisfied that by the law or practice of any country or place outside Pakistan, the notarial acts done by notaries within Pakistan are recognized for all or any limited purposes in that country or place, the Central Government may, by notification in the official Gazette. Declare that the notarial acts lawfully done by notaries within such country or place shall be recognized within Pakistan for all purposes or, as the case may be, for such limited purposes as may be specified in the notification."
61. Exh.211 is attested by Notary Public, Mumbai, India. In order to recognize such notarial acts in Pakistan notification in terms of section 14 of Ordinance XIX of 1961 is to be issued by the Federal Government. No such notification had been produced by the prosecution. As such, without such notification, the attestation made on the Exh.211 by the Notary Public of Mumbai carries no weight.
62. No doubt the Article 46(3) provides that statement covered therein is relevant but this Article do not relate to the manner of its proof. The proof has to be provided by the prosecution, before it can be acted upon, but no such proof has been led by the prosecution to prove such statement. If Exh.211 is examined from any angle, then it is clear that the same is not helpful to the prosecution in any manner.
63. The prosecution have tried to corroborate the statement of P.W.9 through Exh.211 but the said document cannot be relied upon, therefore, it cannot furnish any corroboration to the statement P.W.9. P.W.9 being accomplice, his evidence is unworthy to credit unless corroborated on material particulars as required under clause (b) of illustration to Art. 129 of Qanun-e-Shahadat Order. It is well-settled principie of law that a piece of evidence itself requiring corroboration cannot qualify as corroborated evidence, therefore, P.W.9 and Exh.211 cannot corroborate each other. Reliance is placed on (1) Shah Ali and others v. The Crown (PLD 1954 Sindh 136), (2) Ghulam Muhammad v. The State (1976 PCr.LJ 258), (3) Wazir and others v. The State (PLD 1960 Karachi 674) and (4) Pir Bux v.
The State (1979 PCr.LJ 746). There is no evidence to corroborate the statement of P.W.9, therefore, it carries no weight, hence it cannot be relied upon or acted upon, as such, the statement of P.W.9 is of no help to the prosecution.
64. Alter discussing the points and evidence, which are generally applicable to the entire case, now we will examine the case of each accused in the light of above discussion.
APPELLANT AGHA WAZIR ABBAS
65. The allegation against present appellant is that after his reemployment he issued and prepared 33 fake and lorged permits in favour of United Wine Stores for the import of wine which was to be delivered from Murree Brewery, Rawalpindi and the tax was evaded. The said case of the prosecution has been discussed in the earlier part of the judgment wherein it was observed that 33 import permits are fake and forged permits issued and signed by accused Agha Wazir Abbas on which duty was evaded and public exchequer sustained huge losses. No further discussion is required as the matter has already been dealt with.
66. The prosecution have tried to involve the appellant from the statement of P.W.9 and Exh.211. The said piece of evidence have already been discussed in the earlier part of the judgment and it has been observed that the said pieces of evidence are of no help to the prosecution.
67. As regards the re-employment of appellant, it is an admitted position that the appellant moved the applications directly to the Chief Minister who passed appropriate orders on them and then the summaries were moved which were recommended by co-appellant Ismail Rahu, and opposed by Chief Secretary but the Chief Minister after considering the said reports re-employed the appellant.
This, by itself, is not an offence until and unless some connection is shown between the appellants for the commission of this crime. There is no evidence to connect the said employment with the commission of this crime. This point will be further discussed when the case of appellant Ismail Rahu will be considered. However, it has been established as discussed above that the appellant is involved in the matter and the prosecution have proved their case against him.
APPELLANT ISMAIL RAHU
68. The allegation against the appellant is that he had recommended the summary of re- employment of co-appellant Agha Wazir Abbas; and received illegal gratification from co- accused Mehroomal. He has been tried to be involved through the evidence of summaries moved to the Chief Minister Exhs.186 and 189, statement of P.W. 9 and Exh.211. As regards the statement of P.W.9 and Exh.211 the same have already been discussed and discarded in the earlier part of the judgment, therefore, the said pieces of evidence cannot be used against the appellant. As regards re-employment of the appellant Agha Wazir Abbas, the trial Court has relied upon section 37 of P.P.C. And held that the recommendation of the re-employment of the appellant was a cooperation with the meaning of section 37 P.P.C., therefore, the appellant was involved in the matter. In order to appreciate the said point, section 37, P.P.C. Is reproduced which reads as under: "37. Cooperation by doing one of several acts constituting an offence.---When an offence is committed by means of several acts, whoever intentionally cooperate in the commission of that offence by doing anyone of these acts either singly or jointly with any other person, commits that offence.
ILLUSTRATIONS
(a) A and B agree to murder Z by severally and at different times giving him small dose of poison. A and B administer the poison according to the agreement with intent to murder Z. Z dies from the effects of the several doses of poison so' administered to him. Here A and B intentionally cooperate in the commission of murder and as each of them does an act by which the death is caused they are both guilty of the offence though their acts are separate.
(b) A and B are joint jailors, and as such, have the charge of Z, a prisoner, alternately for an hour at a time. A and B, intending to cause Z's death, knowingly cooperate in causing that effect by illegally omitting, each during the time of his attendance, to furnish Z with food supplied to them for the purpose, Z, dies of hunger. Both A and B are guilty of the murder of Z.
(c) A, a Jailor has the charge of a prisoner. A intending to cause Z's death illegally omits to supply Z with food; in consequence of which Z is much reduced in strength, but the starvation is not sufficient to cause his death. A is dismissed from his office, and B succeeds him. B without collusion or cooperation which A, illegally omits to supply Z with food, knowing that he is likely thereby to cause Z's death, Z dies of hunger, B is guilty of murder, but, as A did not co-operate with B,A is guilty only of an attempt to commit murder."
69. From the above provisions, it is clear that when several acts are done as to result together in the commission of an offence, this doing of anyone of them, with intention to cooperate in the offence, makes the actor liable to be punished for the commission of the offence. It is further clear from the illustrations (a) and (b) that there should be an agreement between two or more persons to commit an offence and in pursuance of that agreement, they did some acts or illegally omits to do some acts in order to commit an offence and in pursuance of that agreement, they did some acts or illegally omits to do some acts in order to commit such offence then each of them will be liable to be punished for the said offence. But according to illustration (c) if two or more persons did not agree to commit an offence, nor did they cooperate with each other to commit the one and same offence but they did some act individually and ultimately an offence is committed then in such situation each person will be liable to be punished to the extent of acts done by each person for the commission of the said offence.
70. It further transpires from the reading of section 37, P.P.C., and illustrations that this section follows as corollary from section 35, P.P.C., which reads as under: "When such an act is criminal by reason of its being done with a criminal knowledge or intention.-- -Whenever an act, which is criminal only reason of its being with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention."
71. Keeping in view the above legal position, we have gone through the evidence but could not find any evidence brought on the record to show that there was an agreement between the appellant and co-appellant Agha Wazir Abbas for the commission of this offence. The moving of applications for reemployment by appellant Agha Wazir Abbas directly to the Chief Minister clearly indicates that there was no pre-consultation between both the appellants for moving the said applications.
Had there been any conspiracy or agreement between both the appellants, the applications should have been handed over to the appellant Ismail Rahu for doing the needful but they were addressed to the Chief Minister who passed the orders on the applications and then summaries were moved by Secretary which were reached to Chief Minister through the appellant Ismail Rahu who concurred with the recommendation of the Secretary, but their recommendations were overruled by the Chief Secretary who opposed the re-employment of the appellant Agha Wazir Abbas. Thereafter the summaries were presented before the Chief Minister who approved the re- employment. Thus, it was the act of the Chief Minister under which the appellant Agha Wazir Abbas was reemployed. There is also no evidence brought on the record by the prosecution to show that the appellant Ismail Rahu had influenced the Chief Minister for passing the said orders. Moving of applications and recommendations of the appellant Ismail Rahu by itself is not an offence, therefore, his acts are not coming within the scope of section 37 of P.P.C. As such, the trial Court misconstrued, ministerpreted and.Mis-applied section 37 of P.P.C. In the circumstances of the present case.
72. Other allegation against the appellant is that he had made conversation with co-appellant Kaka Kishanchand but no record of conversation has been produced, as such, it cannot be held that the said conversation was in respect of this crime. Furthermore the bills of telephone of appellant shows that telephones were made after this case as they pertain to the years 2000-2001.
73. After considering the material available on the record we are of the considered view that the prosecution have failed to connect the appellant Ismail Rahu with the commission of this crime.
APPELLANT KAKA KISHANCHAND
74. The allegation against the appellant is that he acted as Agent of co-appellant Ismail Rahu and made conversation with him on telephone and that he had connection with United Wine Store being the proprietor of Kohistan Wine Store. In support of the case the prosecution have produced the telephone bills to show that the appellant and Ismail Rahu had made conversations with each other. As we have already pointed out that no record of conversation between the 'appellants has been produced, as such, without the said record it cannot be held that the conversations were in respect of the commission of this crime. Furthermore the offence was committed in the year 1997- 1998, but the record has been produced for the years 2000-2001.
75. As regards the allegation that appellant was Agent of appellant Ismail Rahu, no evidence has been brought on the record by the prosecution on the above point. As such, without evidence on the said point it cannot be held that appellant acted as Agent of the appellant Ismail Rahu.
76. As regards the allegation that through one import permit the connection of United Wine and Kohistan Wine Stores has been established. It is pertinent to point out that both the stores are doing one and the same business. During the routine business transactions there must be some connection. Mere connection between the two stores would not prove that they shared common intention and cooperated with each other for the commission of this crime. All the 33 fake import permits were issued in the name of United Wine Stores. None of the fake import permits were issued in favour of Kohistan Wine Stores. On the contrary original import permits show that the wine was supplied to Kohistan Wine Store through Quetta Distillery, Quetta, therefore, mere production of one import permit is not by itself enough to prove the guilty conscience of the appellant. The prosecution have failed to prove the case against the appellant Kaka Kishanchand.
APPELLANT RAJ KUMAR
77. The allegation against the appellant is that he was Manager of Kohistan Wine Store; that he received payment from Bhagwandass of United Wine Stores issued five chits; that the said chits were collected from co-accused Bhagwandass were in the handwriting of the appellant for receiving bribe in cash from United Wine Store to be paid to 'M'. The allegations have been tried to be proved through the statement of P.W.9 and chits Exhs.273 to 277 produced by the Investigating Officer.
78. As regards the statement of P.W. 9, it has been observed that his statement does not carry any weight as such his evidence cannot be used against the appellant and so is the case with Exh.211.
As regards chits Exhs.273 to 277, the same have been produced by the Investigating Officer. The allegation is that the same were issued by the appellant and handed over to co-accused Bhagwandass. The appellant has denied the said fact. The prosecutions have not examined any witness to prove the authenticity of these chits. No evidence has been led to prove that the signature or writing on these exhibits are that of the appellant. The Investigation Officer in his statement deposed that the chits were in the handwriting of Raj Kumar. The Investigating Officer had not worked with the appellant Raj Kumar, as such; he is not conversant with his signature. He is also not an expert in the field of handwriting; therefore; he cannot determine that these chits are written by the appellant. From the material available on the record, it is clear that the prosecution have not tried to establish this fact from the evidence admissible under the Qanun-e-Shahadat Order, as such: these chits cannot be used against he appellant without the required proof.
79. The allegation against the appellant is that he also worked as Agent of appellant Ismail Rahu in the absence of appellant Kaka Kishanchand but in this aspect no evidence has been led by the prosecution. Thus, the prosecution have also failed to prove the case against the appellant.
APPELLANT ASHER JAN
80. The prosecution case is that the appellant Asher Jan was Sales Manager in Murree Brewery Ltd.
Who received the fake import permits and the same were recovered from him which have been produced as Exhs.22 to 47 and 49 to 55 and that two consignments were exported on import permits bearing one and the same number viz.
309. In support of the case the prosecution relied upon P.W. 1, P.W.2, P.W. 12 Haji Abdul Qadeer, Investigation Officer and 33 fake permits.
81. As regards the allegation that the appellant was Sales Manager in Murree Brewery. By alleging such fact the prosecution wanted to show that the wine was exported through Sales Department which was headed by Sales Manager who used to receive import permits and the same were recovered from his possession. Whereas, the case of the appellanfis that he was not the Sales Manager but he produced the entire record of import permits at the request of Additional Director, F.I.A. The first point for consideration is whether the appellant was Sales Manager of Murree Brewery Ltd., Rawalpindi or not. On this point the prosecution have not led any oral evidence to show that the appellant was working as Sales Manager in Murree Brewery Ltd., Rawalpindi. The prosecution have referred to Exhs. 237-B and 239-B to show that letters were sent from United Merchants Ltd. In the name of appellant of Murree Brewery Ltd., Rawalpindi for supply of material. These documents have been produced by the Investigation Officer. No author of these documents have been produced to prove the authenticity of the documents. Out of these documents Exh.239-B is a photostat copy. The production and proof of documents are two different things. It is alleged that these documents were recovered by the Investigating Officer but until and unless the author, signatory or some person from United Wine Merchant is not 'examined to prove these documents they cannot be safely relied upon. However, both of these documents show that they were addressed to Asher Jan of Murree Brewery Ltd., Rawalpindi but no designation of Asher Jan has been shown in them. Even through these documents it has not been established that the appellant was serving as Sales Manager of Murree Brewery, Rawalpindi. The prosecution have failed to prove this point.
82. The second point for the consideration is as to whether Exhs.22 to 47 and 49 to 55 were secured from the possession of Asher Jan. In order to prove this point, the prosecution examined P.W.1 Bashiruddin, Inspector Anti-Corruption Establishment, Karachi. His evidence reveals that A.D.
Khuwaja, Additional Director, F.I.A. On telephone, informed the appellant that they intended to see import permits, thereafter, P.W.1 and A.D. Khuwaja, Additional Director, F.I.A. Went to Murree Brewery Ltd., Rawalpindi, where they met with the appellant Asher Jan, thereafter the appellant had showed them the entire record of Import Permits received by their company from various parties. The entire record was secured by P.W.1 and from that record Exhs.22 to 47 ant 49 to 55 pertaining to this case have been produced in the evidence whereas the remaining import permits were with regard to other parties. From the above evidence it is clear that first the appellant was informed by Additional Director, F.I.A. About their intention to see the import permits and in pursuance of the said telephone call the present appellant being the officer of Murree Brewery showed them the entire record of import permits which were received by the company from various parties and then the P. W.1 had secured the said record. Thus, from this evidence it is clear that import permits Exhs.22 to 47 and 49 to 55 alongwith other import permits were shown by the appellant to the P.W.1. Apparently all the documents were taken from the concerned department. This, by itself does show the guilty conscience of the appellant Asher Jan.
83. It is pertinent to point out that the procedure for export of wine from Distillery is that the import permit is issued by Sindh Excise and Taxation Department, which is handed over to the licensee.
The Murree Brewery Ltd. Is situated in Rawalpindi. The verification of import permit is done by Punjab Excise and Taxation Department. The licensee dispatches the Import Permits to the Murree Brewery who receives the document. The Dispatch and Sales Office of Murree Brewery through Excise Manager forwards the application with import permits in original to Punjab Excise and Taxation Department. Then it is the Punjab Excise and Taxation Department who verify the validity of the import permit and allows or disallows any consignment. After they are fully satisfied as regards to the validity of the import permits, the Punjab Excise and Taxation Department allows the transportation of the consignment by issuing official export permit. The Excise Manager of Murree Brewery Company receives the export permits and issues Company's Sales Invoice, Tax Invoice and arranges transportation. The Excise and Taxation Officer who is posted at Murree Brewery Company physically verifies all the documents and after full satisfaction the stock is allowed to be put into the trucks and dispatched to the licensee in Karachi. This procedure has been given by the prosecution witnesses P.W.3 Raja Javed Suleman. Thus, verification of import permit is the function of Punjab Excise and Taxation Department. It is surprising to note that none from Punjab Excise and Taxation Department has been examined by the prosecution to prove any fault in the procedure before transporting the material. In the present case the documents were not secured but were produced by the company official himself. As such the prosecution have failed to prove their case against the appellant.
CONSPIRACY
84. The prosecution have alleged that all the appellants had conspired together to commit this offence. But from the evidence available on the record, as discussed above, no conspiracy between the appellant Agha Wazir Abbas and the remaining appellants have been proved or established from their conduct or otherwise, as such, no conspiracy between the appellant Agha Wazir Abbas and the other appellants has been established.
85. In the light of what has been stated above, it is clear that appellant Agha Wazir Abbas is involved in the crime whereas no involvement of other appellants has been proved, as such, the appellants Ismail Rahu, Kaka Kishanchand, Raj Kumar and Asher Jan are acquitted and set at liberty. The appellant Asher Jan and Kaka Kishanchand are on bail. Their bail bonds stand cancelled and their sureties are discharged. The remaining appellants Ismail Rahu and Raj Kumar are in custody. They should be released forthwith if not required in any other custody case.
Consequently, the appeal No,57 of 2002 filed by appellant Agha Wazir Abbas is dismissed whereas Appeals Nos.52, 53, 54 and 56 of 2002 are allowed.