AMANULLAH KHAN YASINZAI, J.---The appellant Major Reid. Nadir Ali has assailed the judgment, dated 31-5-2002 passed by the Accountability Court-II, Quetta, whereby the appellant has been convicted under section 10 read with sections 11 and 12 of the National Accountability Bureau (NAB)
Ordinance and sentenced to suffer R.I. For five years, also imposed a fine of Rs.5,00,000 and in default of payment to further undergo R.I. For two years. The appellant has also been disqualified, to hold any public office or contest election for ten years. Further he cannot obtain any loan or any financial facility from any Bank or financial institution for ten years, under section 15 of the NAB Ordinance.
2. Facts of the case are that the complainant Major Imran-ul-Haq lodged a report with Police Station NAB, M.P.A. Hostel, Karachi on 30-12-2000 with the averments that he is posted as Deputy Director Interrogation RAB Baluchistan, Quetta. On 22-12-2000, he reached Quetta from Karachi after attending an official assignment, came out from the passenger lounge at Quetta Airport and was looking for his driver, where the appellant Major' Retd. Nadir Ali approached him and asked him about his presence at the Airport, to which he replied that he has come from Karachi and the appellant informed the complainant that he has come to see of his friend. It is averred that he handed over his luggage to his driver and went to the departure lounge to see of his friend who was going to Lahore. When he came out from the passenger lounge, appellant Major Reid. Nadir Ali was still standing near his vehicle and he (appellant/accused) asked him where will he spend Eid, on which he informed him that, if leave is granted, he will go to Karachi for Eid. The appellant asked him about the residence at Karachi and telephone number. The complainant gave him telephone number, of Karachi residence and left the Airport. On 25-12-2000 between 6-00 to 7-00 p.m. His cousin Mirza Imran Baig, informed him that a person namely Major Nadir Ali has come to visit him.
When he went outside the house, no body was present. On 216-12-2000, his son namely Mohaiz Imran came and informed him that one Nadir Ali has some to see him. When he came outside thle room, appellant Major Nadir Ali was already present inside the premises of the house. He brought him in the drawing room and asked his son to tell his mother to prepare tea but accused asked for leaving after 1 or 2 minutes and, while leaving the house, he left a black briefcase on the Sofa. He told the accused that he has left his briefcase, the accused Major Nadir Ali replied that it is for him.
The complainant picked the briefcase, and in the meanwhile accused left his house but the complainant hurriedly followed him and gave the briefcase to him, which he refused to receive back. Thus the complainant opened the lock of car from front window, he left the breiefcase on the back seat of the car and came inside the house. After about 1 or 2 minutes, his son Mohaiz who was playing cricket outside the house, came with the briefcase and said that this has been given by Major Nadir. Ali. In the meanwhile, his cousin Mirza Furqan Baig and his were came there and on opening the briefcase found four packet of fifty thousand rupees each, in total were Rs. 2,00,000 and three perfumes. He immediately tried to contact the Commander RAB Baluchistan at Quetta who was on leave. Thereafter, he informed Col. Staff Abdul Hameed, about the incident who asked him to wait and said that he will issue clearance for further action. At about mid-night, he directed the complainant to contact Col. Staff RAB, Karachi. Thus early in the morning, he informed the latter about the incident who told hint' that the Eid holidays have commenced, therefore, he should come on 30-12-2000 and on the said date, he lodged report Exh. P/1-A against the appellant Major Nadir Ali and briefcase A/1 and four packets of notes of Rs.500 denomination A/2 to A/5 and three bottles of perfumes, A/6 to A/8 were handed over to the concerned Police Station NAB. Record reveals that the investigation of the case was entrusted to P.W.8 Mal k Muhammad Akram on 30-3-2001. He recorded the statements of the witnesses, took into possession the briefcase and prepared challan Exh.P/8-A and made a reference Exh. P/8-B for transfer of the case to the Accountability Court, Baluchistan, Quetta for trial. He also produced letter Exh. P/8-C, through which the instant case was transferred from Karachi to Quetta. He conducted enquiry and prepared the detail report Exh. P/8 and submitted challan.
3. Charge was framed on 9-2-2002 under sections 9, 10, 11 of the NAB Ordinance, which was denied by the appellant. To prove its case, the prosecution produced P.W.1 Colonel Imran-ul-Haq complainant of the case. He reiterated the contents of the report Exh. P/1-A. He produced briefcase A/1, four packets. Of notes of Rs. 500 denomination A/2 to /5, and three bottles of perfumes A/6 to A/8.
P.W.2 Chaudhary Munir-ud-Din, Inspector/S.H.O. NAB Sindh, he produced seizure memo. Of the briefcase alongwith articles A/2 to A/8. He on the instructions of Colonel Akram-ur-Rehman's received the briefcase from complainant vide memo. Exh. P/A, receipt of the same containing three perfumes and notes of two lacs rupees vide Exh. P/2-A, incorporated in Roznamcha Exh. P/2-B.
P. W. 3 Muhammad Faris, A.S.-I./Duty Officer NAB, Karachi, he brought the briefcase from Karachi to Quetta and the same was handed over Major Imranul Haq vide receipt Exh. P/3-A.
P.W.4 Muhibullah, Assistant Director F.I.A., .Quetta, he received the briefcase A/1 which was brought by P.W.3. He took into possession the briefcase and issued seizure memo. Exh. P/3-A.
P.W.5 Mirza Furqan Baig, is an eye--witness of the incident and brother-in-law of the", complainant.
He stated that on 26-12-2000, Major Nadir Ali came into his house, with a briefcase, while leaving house, he left the briefcase. Thereafter, Col. Imran--ul/Haq told him that briefcase has been left by one Major Nadir Ali in the drawing room which was thrown by the complainant in his car but the same was given back by the appellant through the complainant's son namely Mohaiz telling to him that it is Eidi for him and his mother.
P.W.6 Mohaiz Imran-ul-Haq, he is the son of complainant; he has also supported the contents of complaint. He stated that Major Nadir Ali came to their house and soon left the house in a hurry and his father (complainant) carrying the briefcase followed him and left the same in the car of accused which was later on handed over to him by the accused, and he gave the said briefcase to his father. He has also identified the appellant in the Court.
P.W.7, Zaheer Iqbal is A.S.-I./Head, Muharrar Thana NAB, Karachi. He stated that on 30-12-2000, Major Imran-ul-Haq, came to the NAB Office, Karachi and handed over the briefcase containing Rs.2,00,000 and three perfumes which were taken into possession vide seizure memo. Exh. P/2-A and the same was signed by him. He further stated that he kept the briefcase in Malkhana and entry was also made in the Roznamcha. Thereafter, the briefcase was sent to Quetta through A.S.-I.
Faris vide certificate Exh. P/7-A.
P. W.8 Malik Muhammad Akram, Inspector NAB Quetta. He is Investigation Officer of the case. He investigated the case and after completion of the investigation, submitted challan before the Accountability Court-II, Quetta.
4. The appellant was examined under section 342, Cr.P.C., wherein he disputed the prosecution version and filed written statement. In his defence produced document Exh. D/A to Exh. D/H. In his statement he denied the prosecution case in toto and raised the plea that he was under treatment on the said date at Quetta. On conclusion of the trial, the learned Judge, Accountability Court-II, Baluchistan, Quetta convicted the appellant in the terms as mentioned hereinabove.
5. Dr. Babar Awan, learned counsel for the appellant contended as follows:-- (1)That the complaint has not been proved. The case against the appellant is thus not made out.
Besides, the F.I.R. Has been lodged with an inordinate delay without any plausible explanation.
(2)The motive has not been proved by the prosecution and further argued that the purpose for which the alleged amount was, given by the appellant to the complainant has not been proved.
Thus no case is made out.
(3)The venue of the occurrence has not been proved. The statement of witnesses has been recorded after inordinate delay. Hence no reliance can be placed on the same. Besides, the eye- witnesses who were produced by the prosecution were interested and not independent witnesses, therefore, on this ground also their testimony not being confidence-inspiring is liable to, be rejected. The appellant was not put to identification by the witnesses, as they did not know him before the incident.
(4)The defence plea has not been considered and the same has been discarded without giving any cogent reason.
6. Mr. Muhammad Shafi Rakhshani, learned Deputy Prosecutor-General opposing the appeal contended that the prosecution has proved its case through the statement of complainant and motive has also come on record, as the appellant wanted the favour of complainant, the delay in recording the F.I.R. And recording statement of the witnesses with delay has been explained satisfactorily. The learned trial Court has rightly rejected the defence plea, as the appellant has managed to produce fake medical certificates. Mr. M.S. Rakhshani, learned Deputy Prosecutor- General, argued regarding non-proving of the complaint, stated that the complainant produced the complaint in the Court and identified his signature. Thus no further verification was required but could not give any satisfactory reply, as to who has recorded the same.
7. We have heard the learned counsel for the parties and have perused the record with their assistance.
8. Adverting to the first contention of Mr. Babar Awan, learned counsel for the appellant regarding non-proving of the complaint, P.W.1. Complainant Col. Imran in his statement stated that soon after the incident i.e. On 26-122000, he informed the Col. Staff Abdul Hameed about the incident who directed him (the complainant) to contact Col. Staff RAB Karachi); thus on such instruction, he contacted the said Officer who informed him that the offices are closed due to Eid holidays up to 30-12-2000, asked him to come on the said date. Thus on the said date, he went to him (Col. Staff RAB) and lodged report Exh. P/1. It would be appropriate to reproduce the operative portion of the complainant, which reads as follows:-- Perusal of the complaint, reveals that the report was lodged with Col. Staff RAB, Karachi but the prosecution has not produced the said Officer of the NAB, Karachi who has recorded the report.
Inasmuch as, the S.H.O. P.W.2 in the Court has not stated that he recorded the Farad-e- Bian/complaint or lodged report on the basis of Farad-e-Bian.
9. It may be mentioned here that P.W.2 in his cross-examination admitted that he had no knowledge, whether the complaint was recorded in daily diary and the same was also not produced and further stated that no report written in the handwriting of Moharrar of Police Station, Karachi was available. Thus the contention of Mr. Babar Awan, learned counsel for the appellant has substance that the F.I.R./complaint has not been proved in accordance with law. However, the effect of non-proving the same shall be discussed later on.
10. Coming to the next contention of Mr. Babar Awan, learned counsel for the appellant that the complaint was lodged with inordinate delay which loses its significance. Admittedly, the alleged incident took place on 26-12-2000 and as per the prosecution version, the complainant himself informed the NAB, Authorities at Quetta regarding the incident who directed him to contact Col. Staff RAB, Karachi. Thus he contacted Col. Staff Akram-ul-Rehman's of RAB, Karachi (not produced) who informed him that since the offices are closed due to Eid Holidays and asked him to report on 30-12-2000. It was incumbent upon the prosecution to prove that the offices of the NAB were closed due to the Eid vacation, the Colonel Staff was a very important witness to support the said contention and further' that the report was lodged on 30-12-2000 on his direction. The prosecution has failed to produce the aforementioned officer. On the contrary P.W.2 Inspector Chaudhary Munir-ud-Din stated in his cross-examination that during the Eid holidays, the, Police Station NAB remained open. The alleged incident took place on 26-12-2000 and a report was lodged on 30-12- 2000 but the prosecution has failed to give any cogent reason for not lodging the report in time.
Therefore we are not persuaded to agree with the contention of the complainant that soon after the incident, he informed the Col. Staff at Quetta and on his directions informed the Col. Staff at Karachi, was directed him to lodge report on 30-12-2000. The said plea could have been proved by both the said Officers who were not produced. Thus the contention of learned counsel for the appellant has substance that the F.I.R. Was lodged with inordinate delay, without any plausible reason which makes the prosecution case doubtful. Thus, the F.I.R. Loses its authenticity. In this regard, reliance is placed on the following case-laws:--- 1.Ghulam Nabi Shah v. The Crown (1969 SCM R 629), wherein the following observations were made:-- "The principle of this section seems to be that such declarations as are referred to in the illustrations should be substantially contemporaneous with the act, and the interval between the act and the declaration should not be such as to allow of fabrication or to reduce the declaration to the mere narrative of a past event. "
2. Aslam Khan v. State (1995. PCr.LJ 459), wherein the follow observation were made:-- "First and the foremost point that calls for determination is whether the report lodged in this case suffers from delay and if south what effect. In this context, certain considerations arise and are to be kept in mind. For instance, the first information report, if any, always forms foundation of a criminal case; its importance is, therefore, paramount in nature. There is presumption that the first informant does not get enough time to manipulate or to conspire to bring false charge or to give slant to events having taken place' in reality. Ordinarily, people give very plain and innocent account of the occurrence in the First Information Report. But, when the lodging of report is inordinately delayed; the fabric of presumption, elaborately discussed above, is badly torn, for, in such circumstances, another counter --presumption crops up to the effect that the first informant had consulted some other persons before lodging the First Information Report. In such event, chances of adulteration of the true account become very luminous, because, every person so consulted shall have his own inkling and shall prompt and prod the first informant to narrate the occurrence exactly in the manner he likes to be. Therefore, the Courts are always pricked at the very outset when they find delay in lodging the F.I.R. Nevertheless, delay per se is not a ground to reject the prosecution case down right. Every case proceeds on its own facts and circumstances and, therefore, the adverse effect of delay cannot be made a rule of universal application.
Nonetheless, in absence of plausible and convincing explanation of any such delay, the Courts are compelled to conclude it like skid on the first step of marathon."
11. Mr. Babar Awan, learned counsel for the appellant argued with vehemence that the prosecution has miserably failed to prove the motive against the appellant, the learned counsel argued that the prosecution case is that the appellant left the briefcase in the house of the complainant containing amount of Rs.2,00,000 (two lacs) and Perfumes to bribe the complainant for seeking his favour who was conducting enquiry against the appellant in a RAB case. The prosecution version is that the complainant Col. Imran was conducting an enquiry against the appellant. The complainant in his statement did not refer to any particular case to show that an enquiry was being conducted against the appellant. Record reveals that NAB Authorities were conducting an enquiry against the appellant but during the enquiry, nothing brought on record to show that the appellant was ever involved in any sort of embezzlement during his service. In his statement, the appellant has referred two documents Exh. D/F and Exh.D/G written by Raja M. Afsar, Deputy Prosecutor-General, as then was who recommended that case against the appellant be dropped as no such case was made out against the appellant. It would be appropriate to reproduce the contents of the both the letters for reference:-- "REGIONAL ACCOUNTABILITY BUREAU, BALOCHISTAN, QUETTA (LEGAL WING)
Subject: CHALLAN AGAINST MAJOR (RETD.) NADIR ALI EX--ACS (DEV) FOR ILLEGAL AUCTION OF 2X GOVERNMENT VEHICLES.
Please refer to your I.O.N. No. 12/1&M/RAB/Quetta/2000, 915. Dated 31st October, 2000 . On the above subject.
2.No case is made out against Major (R.) Nadir Ali and the Commander RAB has approved the recommendation of this Wing that the case be dropped. In this behalf the original note and the order of the Commander RAB is enclosed.
3.The Challan paper received with your above-referred letter is returned herein.
RAJA AFSAR, D.P.G.A CASE AGAINST MAJOR (R) NADIR ALI, FORMER ADDI--TIONAL CHIEF SECRETARY.
The main case regarding disposal of 23 Pick Up/Cars and 34 Motor Cycles is directed against Qazi Siraj Ahmed, former Deputy Commissioner, Lasbella and his four accomplices. In this behalf, the note at F/A may please be perused.
2.In that case, it has been decided that Reference be filed against the then Deputy Commissioner and four others. It was also decided that the beneficiaries of the aforesaid vehicles be mentioned in Column 2 of Challan.
3.In this case, there is no direct involvement of Major (R.) Nadir Ali. Qazi Siraj Ahmed had abused .His position as a District Magistrate and the Divisional Commissioner at the relevant time i.e. Major (R.)
Nadir Ali had no control over him. The District Magistrate was answerable to Sessions Judge and High Court. The only factor available against Major (fit.) Nadir Ali is that his son was a beneficiary of one such vehicle. We have already decided that all beneficiaries are to be put in column 2 of the Challan. Thus, the son of the accused too is to be joined with another beneficiaries. This leaves us with the plain position that we do not have anything incriminating against Major (R.) Nadir Ali himself. I would, therefore, suggest that this case be dropped.
(RAJA M. AFSAR), D. P. G. A."
It may be observed here that the said letters have not been denied by the prosecution. Further even the complainant failed to refer to any case wherein enquiry was conducted by NAB Authorities. In this regard, it would be appropriate to reproduce the cross-- examination of the complainant for reference:--- "I did not produce any document of any inquiry being conducted by me wherein I could help accused. The inquiry being conducted by me wherein I would help accused. The inquiry team which was making the inquiry of the case against accused included myself, Wing Commander Retd. Sanaullah, D.S.P. Muhibullah Mandokhel and PDSP Shahzad Khalil, Akram, Investigating Officer of this case .Was not member of that team. It is correct that no other case was filed against accused in any Court except the reference in hand."
12. Thus the statement of the complainant itself shows that no other reference was tiled against the appellant. It may be pointed out that though the motive plays a very vital and important role. It is well-settled principal of law that once the prosecution sets up a motive then is duty bound to prove the same and in the case in hand, the motive set up was that since the t complainant was conducting an enquiry against the appellant, but no case has been referred to or filed in any Court.
It is pertinent to point out that the Investigating Officer in his cross-examination admitted that he did not obtain any document, showing that Major Imran was monitoring any investigation team, who was conducting any enquiry against the appellant, thus the prosecution has even failed to bring on record that the complainant was monitoring the investigation team which was conducting any enquiry against the appellant, which further makes the case of prosecution doubtful.
13. Reverting to the next contention of the learned counsel for which the alleged bribe was offered has also not been proved. The statement of the complainant and Farad--e-Bian reveal that the complainant was informed by his son Mohaiz Imran that the appellant Major Nadir Ali had come to see him, when he came out of his room, the appellant was already present in the court--yard of the house and then he was brought in the drawing room. Soon thereafter the appellant told the complainant that he is leaving and will come again and left the room while leaving the house, he left a briefcase. The appellant did not say anything about the purpose of his visit. It may be pointed out that it is very unlikely and improbable that the appellant came. To the house of complainant who made him sit in the drawing room and asked his son to bring tea. But it is very surprising that the appellant left the house without uttering a word regarding purpose of his visit. Hence the purpose for giving the money to the complainant has shrouded in mystery. The manner in which the incident has been narrated does not appeal to a prudent mind that the appellant came to the house of the complainant and soon after in a minute or two, leaving the briefcase without uttering a word or stating the purpose for which the briefcase was (brought) left. The only inference could be drawn is that some conversation took place between the appellant and complainant which has been concealed by the complainant or it can be inferred teat the appellant never visited the house of the complainant (as argued by, the learned counsel). However, in both the cases, the benefit goes to the appellant. Thus the purpose for which the money was alleged to have been offered to the complainant has not been proved. It may be pointed out that the contention of Mr. M.S. Rakhshani, learned D.P.G. Has no substance that since the complainant was conducting 'an enquiry against the appellant, the appellant to get his favour has given the money to him, merely stating that the complainant conducted an enquiry would not sufficient to prove the said fact. It is pertinent to point out here that the case which was under enquiry was dropped under the order and no other reference has been made by the NAB, in which the complainant conducted any enquiry. Thus from the above discussion it can safely be concluded that the purpose for which appellant offered the bribe to the complainant has shrouded in mystery.
14. Dilating upon the next contention of Mr. Babar Awan, learned counsel for the appellant that the venue of the occurrence has not been proved. The appellant offered the money at Karachi. Though the matter was lodged by the complainant at Karachi, as observed hereinabove. But no steps have been taken by the S.H.O., Police Station NAB to conduct the initial investigation in the case i.e. Recording of the F.I.R. Visiting to the place of incident, preparation of site plan etc. The Investigating Officer who conducted the matter at Quetta has not given any reason for not going to Karachi and preparing the site plan. It may be pointed out that the entire incident has been denied by the appellant. Inasmuch as, his going to Karachi has also been disputed. Thus in such circumstances, it was incumbent upon the Investigating Officer to have conducted the investigation in accordance with law and in such circumstances, site plan of the place of occurrence was necessary to come to a just conclusion. The same has not been done which shows that the investigation has been conducted in irregular manner, casting doubt on the prosecution case.
15. Coming to the next contention of Mr. Babar Awan, learned counsel for the appellant that since the statement of the witnesses were recorded with inordinate delay, therefore, no reliance can be placed on the same. It may be pointed out that the incident took place on 26-12-2000; the report was lodged on 30-12-2000. The investigation of the case was handed over to the Investigating Officer P.W.8 on 30-3-2001. The prosecution- has not given any satisfactory and plausible reason for keeping the tile in document for such a long period. The incident took place at Karachi but no steps were taken to conduct an enquiry or investigation at Karachi. Though at the relevant time, an investigation team was also present. At Karachi. After taking over the investigation, statement of P.Ws. Were recorded after two months. The statement of P.W.1 Major Imran (complainant) was recorded on 27-5-2001, statement of Mirza Furqan Ali was recorded on 29-5-2001, statements of Munir-ud-Din Chaudhary and Zaheer Iqbal were recorded on 4-6-2001. The Investigating Officer has not explained the delay in lodging the F.I.R. And in specifically the delay recording the statements of P. Ws. It is well settled law that though the statement of the witnesses cannot be brushed aside merely being recorded after some delay, but the prosecution has to explain the delay and is bound to give satisfactory and cogent reason for delay. In the case in hand, no such explanation has come on record. Thus the credibility of such statement creates doubt on h the prosecution case. In this regard, reference is made to Abdul Khaliq v. The State (1996 SCM R 1553) wherein the following observations were made:--- "He admitted that all the eye-witnesses were examined at the instance of the complainant. There is no explanation furnished by the prosecution for examination of Mir Qalam after 20 days of the incident and for examination of Abdul Jabbar and Muhammad Shah after one month and three days of the incident. It is a settled position of law that late recording of 161, Cr.P.C. Statement of a prosecution witness-reduces its value to nil unless there is ' plausible explanation for such delay."
16. Reverting to the next limb of the arguments of Mr. Babar Awan, learned counsel for the appellant that the appellant should have been put to identification test, as he was not known to the P. Ws.
Before the incident, as the incident was totally denied by the appellant. The identification parade should have been held and it was imperative duty of the Investigation Officer to have conducted an identification parade of the appellant as P. Ws. Were not known to him but no steps in this direction was taken which proves fatal to the prosecution case, being absolutely necessary in such circumstances. Reliance is made on 1990 PCr.LJ 368 wherein the following observations have been made:--- "It was the imperative duty of the Investigating Officer to have conducted identification parade of the accused as they were not known to the eye-Witnesses before but no step in this direction was taken. This fact proves fatal to the prosecution case as the test identification parade was absolutely necessary when the appellant was not known to the eye--witnesses before."
17. Mr. Babar Awan, learned counsel for the appellant pointed out that since no certificate was obtained regarding genuineness of the currency notes and the same cannot be linked with the appellant and further stated that even otherwise, the witnesses produced by the prosecution were not independent and were under the influence of the complainant. It may be observed here that since we have already observed that the investigation has not been conducted properly. Inasmuch as the complaint itself was not prove making the prosecution case doubtful. It can be safely inferred that the incident did not take place at Karachi or the actual facts were concealed. The genuineness of the currency notes has also' been challenged by the defence; thus in such circumstances, it was bounden duty of the Investigating Officer to have obtained certificate regarding genuineness of the currency notes from State Bank of Pakistan.
18. As far as, the next contention of the learned counsel is concerned that the witnesses were interested under the influence of complainant, thus no implicit reliance can be placed on the testimony of such witnesses. It may be observed that the complainant being interested in the conviction of the appellant, the P.W.5 Mirza Farqan Baig and P.W.6 Mohaiz Imran-ul-Haq, being his brother-in-law and son were certainly under .His influence, were interested witnesses. Besides in a case of full scrutiny of statements would show that the material improvements have been made in their statements which makes their testimony unreliable. Besides, we are not persuaded K to place implicit reliance on their statements for the reasons discussed in the foregoing paras.
19. Thus in view of the above discussion, we are of the considered opinion that the prosecution case is not free from L doubt. Thus, by giving benefit of doubt to the appellant, he is acquitted of the charge. He shall be released forthwith, if not required in any other case.