ALI NAWAZ CHOWHAN, J.---This judgment shall dispose of Criminal Accountability Appeal No,15 of 2003 as well as Writ Petition No,957 of 2003.
2. Appeal is filed under section 32 of the NAB Ordinance (Ordinance No,XVIII of 1999) which calls in question the judgment dated 7-1-2001 handed down by Mr.Munir A. Sheikh, Judge of the Accountability Court, Lahore. Whereby he convicted the appellant under section 9(a)(vi) read with section 10 of the NAB Ordinance, 1999, and sentenced him to 5 years' R.I., and sentenced him to 5 years' R.I. And to a fine of Rs,20 millions (2 crores), or in lieu thereof, to suffer 1 year's R.I. He was given the benefit under section 382-B of the Cr.P.C., while he was disqualified to hold a public office as envisaged under section 15 of the Ordinance.
3. Precisely, the allegations against the appellant was that being holder of a public office he in connivance with the deceased accused Zulfiqar Ahmad Awan, Chairman of the defunct Services Cooperative Credit Corporation Limited (SCCCL) and his son Ijaz Ahmad and while misusing his authority took huge amount of unsecured loan. Which act of his was covered as an offence designated as corruption and corrupt practices defined under section 9(a) of the NAB Ordinance.
4. A Reference No,21 of 2001 was submitted by the Chairman, NAB before the Accountability Court and the indictment precisely was in the following words:-- "(3) That on 24-2-1987, accused had opened an Aam Account No,260 with Main Branch SCCCL, 10- Commercial Zone, Liberty Market, Gulberg-II, Lahore without any initial deposit. Withdrawal slip book containing leaves from Sr.Nos.258831 to 258845 was issued to him on the same date.
Accused Syed Javed Iqbal Bukhari was Secretary to Government of Punjab, Cooperative Department from 2-5-1988 to 23-2-1991.
(4) That a complaint was filed by Executive Incharge SCCCL/PCBL regarding misuse of authority by Ex-Management of SCCCL in sanctioning/disbursement of financial facility to accused No,1 without proper security. An investigation was authorized. Mr.Basharat M.Shahzad, Assistant Director, F.I.A., SBC, Lahore after investigation has submitted the report.
(5) That the investigation report shows that accused made first withdrawal of Rs,1,00,000 and last withdrawal of Rs,40,000. On 18-12-1990 after these withdrawals, the total liability of Syed Javed Iqbal Bukhari was Rs,23.986 million. This entire loan was granted by the Ex-Management of SCCCL without any security or even personal guarantee of the loanee. The accused No,1 has not deposited even a single penny to retire his liabilities.
(6) That a recovery suit was filed against accused No,1 and on 24-4-1993, an award of Rs,28.263 million was announced against accused Syed Javed Iqbal Bukhari. An appeal against this award was filed by him before the Secretary, Cooperatives, Punjab, Lahore. On 21-5-2001, this appeal was decided in favour of PCBL. The liability of Syed Javed Iqbal Bukhari up to 30-11-2000 is Rs,91.262 million.
(7) That during investigation in June, 2001, accused No,1 agreed to pay back his liability to the extent of Rs,15.5 million and paid first instalment of Rs,2.5 million in July, 2001. Part payment of second installment was made in November, 2001. Accused has expressed his inability to pay the remaining amount."
5. Annexure V-II dated 19th June, 2001 is a letter from the appellant to the Chairman, NAB undertaking to repay the amount which was calculated at Rs,15.5 million, obtained from the aforementioned Society in accordance with the schedule which was given by him and it was stated in this letter that this would make a full and final payment of the amount. Alongwith which, a cheque of Rs,25,00,000 was also sent which was encashed.
6. Vide Annexure V-IV, letter of 31st October, 2001, the appellant made modifications in the schedule and asked for the acceptance of the modified schedule and also forwarded the second instalment of Rs,1 million through a cheque against the money under reference.
7. In his statement under section 342, Cr.P.C. The case of the appellant was not of complete denial.
He admitted having opened the account and having withdrawn the amounts. He only disputed the final amount being demanded. In answer to question No,9: "Is it a fact that the amount withdrawn by you accumulated to Rs,91.262 Millions on 30-11-2000?", his reply was: "It is incorrect. There was no rate of interest applicable to the amount withdrawn by me. Nothing has been brought in evidence to show that any rate of interest was applicable. There is no question of any ' accumulation' ."
Besides stating that this was a case of obtaining loan in a normal way without exercise of any influence or misuse of authority.
8. So it is an admitted fact that the account under reference was opened by the appellant and he withdrew money from it from time to time. The only thing denied by him is the accusation of malpractice or misuse of authority. It was also his case that against this loan that he had mortgaged his property behaving like an ordinary customer while availing the facility provided by the defunct Society and there was nothing criminal about it, and, as such offence was not covered by section 9 (a)(vi) of the NAB Ordinance.
9. Learned counsel appearing on his behalf also vehemently argued that this was a case of a civil nature and there was no abuse of authority. Because the account was opened by him in an ordinary capacity and at a time when the appellant was on an Ex-Cadre Post working as an OSD in the Qaid-eAzam Library destitute of any glamour of office or influence or authority. It was also argued that NAB having agreed to accept the repayment could not retract from that position as this had become an agreement in terms of sections 7, 8, 9, 63 and 72 of the Contract Act and took support from thecase of Karachi Gas Company Ltd. v. Dawood Cotton Mills Ltd. (PLD 1975 SC 193) and AIR 1973 Gauhati 111.
10. Whereas, the witnesses produced by the prosecution came forward with the version that the loan was unsecured and that there was a strong element of misuse of authority. Syed Raza Haider (P.W.1) was the Executive Incharge of the SCCCL, who joined the investigation and delivered the record. Some excerpts from his examination-in-chief are re-produced below:-- "The accused agreed to pay interest at the rate of 24% per annum. The accused started operating his said account from 12-8-1987 and continued till 18-12-1990. Total liability of about Rs,23 millions stood against the said accused on 18-12-1990."
"Ejaz Ahmad Awan was General Manager of the said Corporation. He did not seek any security from the accused. Accused did not repay any amount till 6-11-1991, to retire his liabilities. Recovery suit was accordingly filed against him in the year 1993, for a sum of Rs,28 millions. Award and judgment was given against the accused as seen in Exh.PW-1/14. The appeal filed by the accused against the award and the judgment was dismissed on 21-5-2001. Cumulative liability of the accused, including interest, on 30-11-2002 was a little more than Rs,91 millions."
"As per by-laws Exh.PW-1/81, SCCCL was not authorized to extend loan to anybody. As per record, withdrawals were made through more than 115 withdrawal slips but only 66 have been placed on record. I do not know about the existence or otherwise of the remaining withdrawal slips, because I left the job of PCBL on 15th November, 2001."
11. Nizam-ud-Din Qureshi (P.W.2) gave the following information:- "Zulficiar Ahmed Awan was Chairman while Imtiaz Ilahi Johri was Vice-Chairman-cum-Director.
Inkisar Ahmad and Iftikhar Ahmad were Directors of the Society. Ejaz Ahmed Awan was General Manager of the Society. All the said four persons were real brothers out of which Zulfiqar Ahmad Awan is now dead while Ejaz Ahmad Awan is absconding. Legal formalities were not observed while granting loan facilities to the accused. In the year 1990 numerous complaints were received regarding malpractice committed in the SCCCL. The said Board of Directors operated the SCCCL till 6-11-1991, when it was taken over by PCBL. A Commission was formulated in the year 1992 to scrutinize the affairs of the said Corporation under the Chairmanship of Mr.Justice Muhammad Afzal Lone. The report of Commission was submitted in March 1992."
12. Amjad Javed (P.W.4) was a Junior Officer when he joined the said Society and he worked there even as a Second Officer during the crucial period i,e, during 1987 to 1991. He gave important information about the affairs of the account of the appellant in the following words:-- "Ejaz Ahmad Awan, General Manager (absconding accused) had introduced the accused as customer in SCCCL. Account of the accused was No,260. Accused did not give any initial deposit nor any collateral security was received from him at the time of the opening of account. Accused made huge withdrawals with connivance of absconding accused Ejaz Ahmad Awan. Accused was posted as Secretary, Cooperative Societies Department in the year 1988. The ledgers, copy of which is Exh.PW-1/3, confirm that the accused made such withdrawals. On receipt of some of complaints, a Commission was constituted which was headed by Mr. Justice (Retired) Muhammad Afzal Lone.
He had given award in the year 1991. During the proceedings of the said Commission, the accused in collaboration of absconding accused Ejaz Ahmad Awan got some of the record SCCCL removed and destroyed."
"Absconding accused Ejaz Ahmad Awan was a friend of the accused. Accused had been coming to see Ejaz Ahmad Awan, where he introduced him to us."
"No collateral security was obtained from the accused till I left SCCCL. Di.PW-1/5 is personal guarantee of the accsued and not a guarantee of any third person. Exh.PW-1/8 is guarantee of a third person for the account of the accused. Volunteered that Exh.PW-1./8 is blank, which does not contain the amount etc. Copy of registered sale-deed Exh.PW-1/9 was submitted in the same account as security. Volunteered that simply Exh.PW-1/9 was filed but no mortgage deed or pledge agreement was executed. Exh.PW-1/5, Exh.PW-1/8 and Exh.PW-1/9 were given when I was still in the service of SCCCL."
13. Basharat Mehmood Shahzad, Deputy Director. F.I.A (P.W.5) had investigated the case. The following excerpt from his statement is being reproduced below:-- "I did not examine Imtiaz Ilahi Johari, Col. Iftikhar Ahmad and Inkisar Ahmad during investigation, because the amount advanced to the accused was not on formal application nor such fact was brought to the notice of Board of Directors nor their approval was obtained. I did not make efforts to trace Imtiaz Ilahi Johari. I had mentioned in my report that Zulfiqar Ali Awan, Imtiaz Ilahi Johari and Ijaz Ahmad Awan also misused their authorities."
14. The appraisement of the evidence reveals that the loan in question was not properly secured.
We have also learnt that before the appellant took over the charge as a Secretary of the Cooperative Department, Government of the Punjab i,e, between the period 24-2-1987 to 22-5-1988 he had withdrawn, according to the slips, a sum Rs,3.68.000 only. Whereas, according to the ledgers (Exh.PW-1/3) a sum of Rs,8,19.447. But during his tenure as the Secretary and between the period 23-5-1988 to 3-2-1999 he withdrew a sum of Rs,2,31,06,144 as per ledgers (Exh.P-1/3) and Rs,1,16,53,750 as per the withdrawal slips. We also find that after he was removed from the office of the Secretary, there was hardly any withdrawal.
15. Another important aspect of the case is that the property mortgaged was in fact a house which also belonged to the Society under reference (Exh.PW-1/9) and was not appellant's property which implies that a Director/the Chairman of the Society went a step further in facilitating him by even providing him with a property belonging to the Society for purposes of security against the money withdrawn.
16. Amjad Javed (P.W.4) who has furnished the information of the appellant's account, went on to say that after the Lone Commission was constituted, the appellant in connivance with Ijaz Ahmad Awan, the absconding accused, got some of the record of the Society removed and destroyed. It is perhaps for this reason that we find that the available withdrawal slips and the amounts reflected in the ledgers are at variance because obviously all the withdrawal slips were not available. There is nothing to suggest as to why the P.Ws. Appearing on behalf of the prosecution would depose against the appellant for any prejudice or malice. Whatever they stated was supported by the corresponding record along with the additional evidence reflecting the inter action between the appellant and the Chairman and the absconding Director of the Society.
17. The appellant belonged to the Superior Civil Services and even when he was not working in the Cooperative Department and was elsewhere. He had a clout. We, anyway, find that when he was away on Ex-Cadre job, the withdrawals from this account were substantially low and these were proliferated during the period when he was the Secretary of the Society. It should not be forgotten that during the crucial period when he was the Secretary Cooperative, a general loot was going on in these Societies and the Government had to appoint the Lone Commission for purposes of bringing to an end the malpractice complained during the period the appellant was the incumbent of the highest office in the Province dealing with the Societies. But we find that he used his job for advancing his personal greed rather than for rendering service to the Government for checking the malpractice which had attained a zenith during his black saga. The evidence brought on record reflects his conduct and which can even otherwise be taken judicialnotice of for all the ills which were prevailing then when he was the controller of affairs of the Cooperative Societies.
18. It will be too simple to think that he acted as an ordinary loanee acting bona finely. If that were so, he ought to have mortgaged his own property of the value which would have matched with the amounts withdrawn. So this was an unsecured loan and he knew about.
19. Obviously, his official character which was his status gave him the opportunity to commit the wrong complained of and this act of a public servant was indictable.
20. Anyway, it is said that having offered to repay the money he was acting bona finely and his plea ought to have been accepted especially when he made two payments and suggested a schedule.
21. It was the counsel for the NAB who said that he had no intention of paying any more and a reference had to be filed. That when he paid the first amount and suggested a schedule, the cheque was encashed and the schedule may have been followed but he then modified the same retracting from it himself and consequently giving the impression that he was not serious about his plea.
22. The appellant disputes the total amount being demanded by the Society and he provides the justification while answering Question No,9, reproduced above, and while taking the plea that no interest was due on this account. Whereas, Syed Raza Haider (P.W.1) in this testimony states that he had agreed to pay interest at the rate of 24% per annum. Anyway the loan is without interest and if we go on the reply furnished by the appellant, this was a loan carrying no interest. And if that was so, it could not have been agreed upon by the Society ordinarily. Which in terms establishes the case of the prosecution about the use and abuse of official authority.
23. We have realized that cases under the NAB Ordinance are one of strict liability. And a prima facie case has to be established before a presumption and inference under the NAB Ordinance could be drawn. NAB had established a prima facie case after establishing the factum of the withdrawals and, therefore, the onus was shifted on to the appellant to establish whether a case was made out under the provisions of section 9 or not particularly when he was holding a public office and more offices which directly %kali with the affairs of the loan granting society.
24. It was further argued that even if he was a Secretary of the Cooperative Societies, he had no power to authorize a loan and as he had not authorized a loan to himself, the case had no merits with respect to the accusation that he abused the authority.
25. We are, therefore, confronted with the proposition as to the meaningof the word 'authority' as reflected in section 9(a)(vi). Authority is defined by the Black's Law Dictionary as follows:-- "Permission. Right to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge. Control over; jurisdiction. Often synonymous with power. The power delegated by a principal to his agent. The lawful delegation of power by one person to another.Power of agent to affect legal relations of principal by acts done in accordance with principal's manifestations of consent to agent."
26. Authority may be expressed or implied. It is expressed when it is actual viz. When a master tells his servant to do a certain thing. Whereas, it is implied when it is used from the position of influence or a position where the party against whom it is used feels that obedience may be beneficial or its disobedience may entail wrath or would be disadvantageous compared to the results otherwise.
27. In his capacity as a senior civil servant and later as the Incharge of the Cooperative Societies, during the crucial period, he could exact obedience and in return he allowed malpractice to take place with impunity, and we have seen the destruction of the Cooperative movement in this part of the world because of the complicity of the corrupt private sector and the corrupt official sector and which resulted in the bankrupting of the Societies after the general loot. People are to this day crying for refund of their dues. In case the Cooperative Department during the crucial period had taken the steps of at least warning the people of the malpractice of the Cooperative Societies and had proceeded with taking actions against the undesirable Societies under the Societies Act, 1925, this would not have shaped into destroying of homes and the institutions. We thus find that as a Cooperative Secretary he failed in his duty grossly.
28. When we read the history of corruption--which according to one statement--began with the huge scandal called as the grand embezzlement from the ' Abbondanza', we today find its modus operandi taking a more subtle and complex shape which is now known as White Collar Crime.
Requiring lot of skills and perceptions for discovering facts and for collecting evidence for purposes of establishing a criminal case particularly of abuse of power and authority.
29. We also find the Accountability Ordinance infirm in several ways and, therefore, it cannot meet the multiple situations arising in White Collar Crimes. But we are not disturbed at this because this is a growing law and it shall improve through legal realism. But we do recommend a recurring study of the Ordinance and dissemination of its purpose as per the promise made in its section 33(c). We were also unable to lay hands on any report about NAB's performance as required under section 33(d) of the Ordinance for updating our own information.
30. It is also strange to see in the Ordinance the demeaning of the statuts of an Honourable Judge of the Supreme Court/an Honourable Chief Justice of the High Court in connection with the eligibility of a person for the office of a Chairman. Inasmuch as these offices are equated with a grade 22 officer. Which is a poor reflection on the draftsmanship of the Ordinance. Curative measures are, therefore, required for removing such anomalies.
31. Corruption, anyway, was always thought of to be a serious offence. We remember the book Tractatio de Barattaria (Jena, 1684), pp. 3-4, where J.P. Lynckerius said, anyone who receives gifts, jeopardizes the health of the Republic, conspires against its liberty and integrity, neglects justice, perverts judgment, corrupts the just cause of honest men, the innocent and defenceless, and he went on to talk about lese-majesty and murder, the only crimes he felt fit to follow the abomination he had just denounced.
32. We have no direct evidence as to the benefit which the appellant may have extended to the Society under reference except that his omissions, inaptitude and inaction while he acted as the Provincial Secretary for Cooperative Societies, were catalysts towards the general loot which took place during his tenure and of course with impunity.
33. Obviously, he allowed this for monetary benefit which is reflected in the case in hand, otherwise there is no reason, why would he be extended the financial advantage.
34. In a White Collar Crime, there is planning for a considerable time where people are cultivated and are bribed indirectly and often obliquely so that they would be of use at a time when they were needed.
35. The ostensible shape of the benefits may be anything, but we have to see its reality.
36. What else is than a bribe? To answer the question, this Court is reminded of the following case- law. In the case of Western Mut. Ins. Co. v. Baldwin, Iowa, 137 N.W.2d 918, 924, it was held to be an act of influencing action of another by a bribe. In the case of State v. Greer, 77 S.E. 2d 917, 920, 238 N.C.
325, it was said that the essence of bribery is prostitution of a public trust, betrayal of public interests, debauchment of public conscience. And in case of Hutchinson v. State, 36, Tex. 293, 294, bribery is defined as bestowing of some gift, advantage or emolument on an officer for the purpose of inducing the latter to do a particular act in violation of his duty or in inducing to favour or in some manner to aid the person offering the same or some other person, in a manner forbidden by law.
37. In the area of White Collar Crime, there will hardly be a different sense of the words 'bribe and abuse or misuse of authority', where the motive is to gain any benefit or favour. Any circumvention howsoever subtlewould not take it out from the ambit of criminal law on the basis of any casuistic reasoning.
38. Do we see a mens rea in what happened? We do. Because from the very day of the opening of the account, the defiling and violation of the trust was initiated through opening of a loan account contrary to the purpose for which the Society had been created. When the appellant became the SecretaryCooperatives, he plundered the public money in connivance with the other Directors of the Society without pledging any corresponding security or collateral and without qualms of conscience and the desire to return the money.
39. Incidentally it may be mentioned that during the course of arguments it was said that the money was in fact misspent by his brother-in-law. We do not know how and where, but from the statement it is inferred that this money was squandered without remorse as it was pilfered, otherwise, the appellant would have acted as a prudent man using it. It is also because he knew, it would be hard for the Society to recover the same and he nourished this thought while making each withdrawals. This reflects a criminal intention. So he committed the crime and abused the authority and took these favours as a bribe or gratification or call it by whatever name.
40. Another argument advanced is that this made a case of civil liability. We find that the NAB Law came into being as a measure for recovering State money and for checking corruption and corrupt practices and for taking actions against those who misused their power and authority while enriching themselves at the cost of the Society. People had obtained loans but had no desire to repay these as they did not cover the loan with the matching collaterals. This was purposeful and the desire was to defraud.
41. NAB Ordinance has an overriding effect over other laws as we see section 3 of the Ordinance.
This is a special law which came into being for purposes reflected in the preamble. As it had an overriding effect, all cases involving abuse of power, default in payment of outstanding amounts due to financial institution were brought within its ambit for proceeding in a criminal Court.
Therefore, to say that this was a civil liability under the circumstances is no good argument for a case covered by the NAB Ordinance.
42. The arguments advanced by the learned counsel for the petitioner that he just took loan from friends was a casuistic reasoning. Which is often a useful tool for corrupt officials and according to Jean--Claude Waquet,Professor of History at University of Strasbourg "it is just like putting the naive off the scent, silencing the inquisitive, falsifying entries, these were useful techniques used by defrauders to evade prosecution and escape the censure of public opinion".
43. We are also reminded of Savelli, who in his book Summa Diversorum Tractatuum III, p. 786ff, wrote:- "Any officer or public minister who by reason of his office or ministry accepts money or the promise of money, or any advantages other than his due fixed salary, in exchange for carrying out or neglecting to carry out one of his duties, even if the donation or offer is spontaneous, or does not infringe on the law, or...Even if it is given in the aim of quickening the proceedings..., he is, in all cases, guilty of prevarication [in Italian baratteria], which derives its name from barter [in Italian Baratto], by using Holy Justice iniquitously for money or other gain"
44. We after hearing the arguments from both sides feel that this was a case of misuse of authority although indirectly and we further feel, after -appraising the evidence, that the prosecution has been able to establish its case against the appellant. We, therefore, uphold the order of conviction.
45. However, we feel that as the appellant did acknowledge his liability against the principal amount and even took steps in making two payments aforementioned and did offer a schedule which he later changed, besides he is a Government servant and the results of this case are going to have many negative repercussions on his career, are some of the facts which persuade us in taking a somewhat lenient view regarding his sentence. We, therefore, reduce his sentence to three years' R.I., but we enhance it (in case he defaults. In paying the fine of Rs,2 crores awarded by the trial Court) from one year to two years' R.I. From the fine awarded by the trial Court, it will be proper to deduct the amount paid already by the appellant before commencement of the Reference. The disqualification under section 15 of the NAB Ordinance is maintained.
46. The connected Writ Petition had been filed with a prayer for grant of bail to the petitioner/appellant until the disposal of the appeal. But as the appeal has been disposed of, this is rendered infructuous. It is dismissed.