ANWAR ZAHEER JAMALI, J.---The above captioned four Accountability Appeals Nos.71, 72, 73 and 74 of 2002 arise from References Nos.48-A of 2000, 22 of 2002 and 23 of 2002, which originated on separation of case of some of the accused from single Reference No,48 of 2000. These appeals, challenging the judgments dated 3-12-2002 passed by Accountability Court No,1 Sindh at Karachi in References Nos.48-A of 2000, 22 of 2002 and 23 of 2002, were heard togetiJer and allowed vide our short order dated 5-6-2003. Common reasons for such short order are recorded hereunder.
1. Briefly stated the relevant facts of the case are that a scam about misappropriation of Rs, 17,771,553.69 from the exchequer during the wheat procurement process for the year 1998-99 at Ahmedpur and Hadal Shah Wheat Procurement Centres, Khairpur. Was unearthed, upon which Director of Food Sindh vide his letter dated 6-6-1999 directed the Vigilance Officer (Food) to conduct an enquiry in this regard and furnish his report. The said officer visited District Kahirpur on 8th/9th June, 1999 and after enquiry furnished his detailed report dated 16-6-1999, stating therein that Samiullah Mehesar was Icharge of Ahmadpur and Hadal Shah Wheat Procurement Centres for the year 1999. At Ahmedpur Centre he made payment of Rs,17,655,410 for 29410 wheat bags out of which he dispatched 9505 wheat bags up to 8-6-1999 and the balance of 19905 wheat bags were not available and misappropriated. At Hadal Shah, Mr.Samiullah Mehesar made payment of Rs,6,180,294.40 for 10295 wheat bags out of which he dispatched 3470 bgs and balance of 6825 wheat bags costing Rs,40,97,184 were misappropriated. In his report Inquiry Officer gave the details of grand total of Rs,17,771,553 misappropriated in this scandal. The Vigilance Officer (Food) in his report further opined that the conduct of Muhammad Siddiqui Gakhar was suspicious as he did not take proper steps to stop advance payments-to traders by Samiullah Mehesar nor he bothered to go to bank branches for verification of payments after he had withdrawn the powers of payment from Samiullah Mehesar on 20-5-1999.
2. On receipt of above report, vide office order dated 28-7-1999, the Director Food Sindh appointed Mr.Mushtaq Ahmed G. Lashari, Additional Director (Food), as Inquiry Officer to conduct inquiry against Muhammad Siddique Gakhar the then District Food Controller, Khairpur and Samiullah Mehesar, Food Supervisor, who were allegedly found involved in advance payments/misappropriation of wheat and Bardana costing Rs,17,771,553 at Ahmadpur and Hadal Shah Wheat Procurement Centres, and to probe into the matter on the basis of Report No,24 dated 16-6-1999 furnished by the Vigilance Officer (Food). The Inquiry Officer after serving charge-sheet on Muhammad Siddiqui Gakhar and Samiullah Mehesar on 27-8-1999 and receipt of their reply, visited Khairpur in the second week of February, 2000 and conducted inquiry whereupon he came to know that Samiullah Mehesar made payments to his relatives Messrs Nazeer Ahmed Mehesar, Naseer Ahmed Mehesar, Inamullah Mehesar, Masood Mehmood Mehesar, Athar Ali Mehesar, Yasin Sharif Mehesar and others at Khairpur Centre and at Hadal Shah Centre he made payments to Messrs Muhammad Malook Mahesar, Athar Ali Mahesar, Naseer Ahmed Mehesar, Nizakat Ali Mehesar and others. The inquiry officer further mentioned in his report that vide statement dated 8-2-2002, 43500 jute bags were supplied at Ahmedpur and Hadal Shah Centres out of which 13307 wheat bags and 9000 empty jute bags were deposited at Khairpur godowns, therefore, balance 21193 empty jute bags are still outstanding against Samiullah Mehesar. The inquiry officer- in his report recorded his opinion as under:- "(i) Samkullah Mahesar, Food Supervisor is mainly responsible for misappropriation of 26398 wheat bags for which an amount of Rs,15,847,247 was paid to growers/sellers in- advance without procuring wheat stocks. If above stock would have been issued to Flour Mills/Chakkies at Rs,700 per bag. Thus the cost of above misappropriated quantity of 26398 wheat bags at Rs,700 per bag works out to Rs,18,478,600. In addition to this, 21193 empty jute bags costing Rs,1,059,650 at Rs,50 per bag are also outstanding against him.
(ii) Mr. Muhammad Siddique Gakhar the then DFC, Khairpur has shown gross negligence in performing his official duties as narrated vide para.12/n which prove his connivance in the above misappropriation."
3. On the basis of above inquiry report and further investigation in the matter, on 20-11-2000, Chairman, NAB filed a reference under section 18-g and 24-b of the National Accountability Bureau Ordinance 1999 (hereinafter referred to as NAB Ordinance) against accused Muhammad Siddiqui Gakhar and Samiullah Mehesar, which included names of 48 other accused, including all the appellants in the capacity of growers/suppliers, This reference was admitted by the Accountability Court No,III, Sindh, Karachi, and assigned Reference No,48 of 2000. As at that time all other accused, except Muhammad Siddique Gakhar and Samiullah Mehesar, were absconding, therefore, for the purpose of trial reference of absconding accused was bifurcated and assigned separate number as Reference No,48-A of 2000, while Reference No,48 of 2000, which proceeded only against above named two accused persons ended in their conviction vide judgment darted 31-1-2001 passed by the Accountability Court No,III, Karachi. Later on, some of the absconding accused were arrested and some of them surrendered before the trial Court after obtaining bail from the High Court. In these circumstances, Accountability Court No,III, Karachi, further separated cases of such accused and assigned them separate reference numbers as References Nos.2 to 6 of 2002. In these references accused were charged under section 409, P.P.C. Only and after trial they all were acquitted by separate judgments dated 30-3-2002. In these references proceedings against two accused Ghulam Muhammad and Rab Dino were abated due to their death and such order was passed on 31-8-2001. Two other accused Bashir Ahmed Mehesar and Muhammad Malook Mehesar were later on arrested and for trial their cases were separated from Reference No,48-A of 2000 and assigned References Nos.22 and 23 of 2002 respectively. In these references, after trial, both the accused were convicted by separate judgements dated 3-12-2002 passed by Accountability Court No, I, Sindh Karachi against which accused/appellants Bashir Ahmed and Muhammad Malook have preferred separate Appeals N.Os.73 and 74 of 2002 respectively. The nine other accused nominated in the original Reference No,48 of 2000, were separately tried in the proceedings of Reference No,48-A of 2000 by the same Accountability Court No, I, Sindh, Karachi, and after trial convicted by judgment dated 3-12-2002 passed in Reference No,48-A of 2000. Out of these 9 accused, eight have jointly preferred Criminal Accountability Appeal No,72 of 2002, while the remaining one accused, Ghulam Qadir Mehesar, who had entered into plea bargain during pendency of the case, preferred separate Criminal Accountability Appeal No,71 of 2000.
4. Prior to transfer of Reference Nos.48-A of 2000, 22 of 2002 and 23 of 2002 to the Accountability Court No,I, Karachi, on 7-9-2002, 22 other accused shown absconding in the case entered into plea bargain under section 25 of the NAB Ordinance on different dates. These pleas were accepted and they were accordingly released. Another accused, Ghulam Akbar Khoso, surrendered before the Accountability Court during the proceedings of Reference No, 48-A of 2000 and he was released under plea bargain vide order dated 17-9-2002.
5. During the proceedings of Reference No, 48-A of 2000, on 17-9-2002, following charge was framed against all the 8 accused, who are appellant before this Court in Criminal Accountability Appeal No,72 of 2002: "That in between 17-4-1999 to 19-5-1999, convicted accused Muhammad Siddique Ghakkar, Ex- District Food Controller. Khairpur, without approval of competent authority appointed another convicted accused Sarniullah Mahesar, Ex-Supervisor Food Department, as Incharge for procurement of wheat at Ahmedpur and Hadel Shah Centre, District Khairpur, pursuant to the Government Policy for procuring wheat from the growers for the season 1998-1999. Both the above named accused in connivance and abatement with each other issued you above named accused fake Part-A bills for amount for supply of wheat bags details of which are given below.
Name of accusedAmount received For No. of Bags Number of Begs receivedRemaining Balance No. of BagsAmount Mis- apprpriated/ recoverable Riaz Ahmed son of Hazoor BuxRs.6,66,355.20 1110 Nil 540 Rs.3,24,172.80 Inamullah Mahesar son of SanaullahRs.5,88,313.60 980 Nil 980 Rs.5,88,313.60 Yaseen Sharaf son of SharfuddinRs.9,60,512.00 1600 Nil 1600 Rs.9,60,512.00 Masood Mehmood Mahesar son of Mehmood Khadim.Rs.1,20,0640.00 2000 Nil 2000 Rs.1,20,0640.00 Muhammad Ashraf son of Abdul SattarRs.2,40,128.00 400 Nil 400 Rs.2,40,128.00 Allah Dino Rs.6,00,320.00 1000 Nil 1000 Rs.6,00,320.00 Son of Muhammad Siddique Naseer Ahmad son of Haleem UllahRs.4,80,256.00 800 Nil 800 Rs.4,80,256.00 Hussain Bux Son of Abdul QadirRs.3,06,163.00 510 Nil 510 Rs.3,06,163.00 Muhammad Ali sonof Suhrab KhanRs.2,43,129.60 405 Nil 405 Rs.2,43,129.60 To the above charge the accused/appellants pleaded not guilty and claimed to be tried.
6. At the trial, from the prosecution side, prosecution examined 14 witnesses as detailed and discussed hereinafter.
7. Thereafter 342, Cr.P.C., statements of all the accused were separately recorded, wherein they (except Masood Mehmood) also placed on record several documents including the receipts regarding their respective supply of wheat at the Food Procurement Centres and judgments dated 30-3-2002 passed by Accountability Court No,III, Sindh, Karachi, in References Nos.4 of 2002 and 5 of 2002. On behalf of accused Masood Mehmood such receipts were produced by the defence counsel, vide statement (Exh. 51) dated 27-11-2002.
8. In the other two References Nos.22 and 23 of 2002 following charge was framed against the accused/appellants on 17-9-2002:-- "That in between 17-4-1999 to 19-5-1999, convicted accused Muhammad Siddique Ghakkar, Ex- District Food Controller, Khairpur, without approval of competent authority appointed another convicted accused Samiullah Mahesar, Ex-Supervisor, Food Department, as Incharge for Procurement of Wheat at Ahmedpur and Hadel Shah Centre District Khairpur, pursuant to the Government Policy for procuring wheat from the growers for the season 1998-1999. Both the above accused in connivance with each other issued you fake Part-A bills for an amount of Rs,3,60,192 for supply of 600 wheat bags but you did not supply the wheat bags in conspiracy and abatement with the above convicted accused person, despite of received said amount. Thus you caused grave loss to the public exchequer and unlawful gain to yourself and thereby committed an offence of corruption and corrupt practices as defined under section 9 (a) of the NAB Ordinance, 1999, punishable under section 10 of the NAB Ordinance, 1999."
(In Reference No,23 of 2002 the quantity of wheat bags involved was 500 bags and amount involved was Rs,3,00,160, accordingly such figures were shown in the charge)
9. Both the above accused pleaded not guilty and claimed to be tried.
10. In Reference No,22 of 2002 prosecution examined same witnesses as in the other Reference No,48-A of 2000, except P.W. Muhammad Qasim Dayo. In the other Reference No,23 of 2002 also prosecution examined same witnesses as in Reference No,48-A of 2000, except P.W. Hafeezullah.
11. After hearing the arguments of learned counsel for the parties in all the above references, by a common judgment dated 3-12-2002, learned Judge Accountability Court No, I, Karachi, convicted all the 9 accused in Reference No,48-A of 2000, who are now before this Court as appellants in Criminal Accountability Appeals Nos.71 and 72 of 2002. In the other two References separate judgments were passed on the same date viz. 3-12-2002, whereby both the accused in References Nos. 22 and 23 of 2002 were convicted. These accused are now appellants in Criminal Appeals Nos.73 and 74 of 2002.
12. We have heard Mr.Ali Ahmed Junejo, learned counsel for the appellants in all the four appeals and Mr.Muhammad Anwar Tariq, DPGA, NAB.
13. At the very outset of their arguments both the learned counsel jointly submitted that the conviction of appellant Ghulam Qadir Mehesar in Criminal Accountability Appeal No,71 of 2002 on the basis of discussion made in the impugned judgment is unjustified and unwarranted by law as after acceptance of his plea bargain by the Chairman, NAB, Accountability Court was moved for withdrawal of prosecution against him, while in the case of several other co-accused, who were earlier acquitted in the crime, acceptance of their plea bargain was subject to their disqualification under section 15 of the NAB Ordinance. As regards the case of other appellants, Mr. Junejo vehemently contended that there was no iota of evidence available with the prosecution to prove their guilt in these References but the learned Accountability Court Judge was influenced by such considerations, which were either not borne from the case record or were not warranted by law. He, therefore, prayed for acquittal of all the appellants.
14. Conversely, Mr. Muhammad Anwar Tariq, DGPA, NAB, contended that in such cases of white collar crime it is difficult to prove the guilt of accused beyond reasonable doubt at the same standard as in the ordinary criminal cases and it is for this reason that Legislature has incorporated section 14 in the NAB Ordinance to meet such situation. He further contended that import of this provision of law is that burden to prove their innocence has been shifted on accused persons. He placed reliance upon Abdul Aziz Memon v. The State (2003 YLR 617) to add force to this submission, learned counsel, however, failed to show that in these cases there was any reliable and confidence-inspiring evidence brought on record by the prosecution to discharge the initial burden to prove the guilt of the appellants, which rested upon prosecution. Learned counsel also failed to show from the impugned judgment any valid or cogent reason, which may justify awarding conviction to the appellants.
15. We have carefully considered the arguments advanced by the learned counsel and perused the case record, which reveals that in Reference No,48-A of 2000 prosecution had examined 14 witnesses out of whom evidence of 13 witnesses was again recorded/taken on record in the other two References Nos.22 and 23 of 2002. A bare reading of deposition of these prosecution witnesses show that; P.W.1 Allah Wariyo Mallah was entrusted, and had conducted initial enquiry against two accused Muhammad Siddique Gakhar and Samiullah Mahesar, who have already been convicted in Reference No,48 of 2000. He did not name or mention involvement of any of the accused/appellants either in his report (Exh.13/1) or in his deposition. Rather in his cross- examination he stated that during enquiry nobody complained against the present appellants and that his enquiry was only confined to Government officials namely Muhammad Siddique Gakhar and Samiullah Mahesar in respect of misappropriation; P.W.2 Mushtaq Ahmed G. Lashari again did not utter a single word in his deposition against the accused/appellants. Further in his cross- examination he stated that he was examined in References Nos.5 'and 6 pending against other accused Athar Ali and Nazir Ahmed wherein he had deposed that parties were issued bills after procurement of wheat; P.W.3 Ghulam Nabi Moughal also did not utter a single word against any of the accused/appellants; P.W.4 Muhammad Qasim Dhayo, who was Manager, National Bank of Pakistan, Pirjo Goth Branch, deposed about the payments made to various parties on the basis of Part-A bills received by him in the bank. His total deposition was with reference to documents received by him at his bank as he had no personal knowledge about misappropriation of Government money or alleged involvement of accused/appellants in the crime; P.W.5 Khadim Hussain, Clerk in Food Department, District Khairpur also did not state a single word against the accused/appellants; P.W.6 Hafizullah, Cashier at Muslim Commercial Bank, Gizri Road Branch, deposed about the payments made at their bank on the basis of Part-A bills received by them. He confirmed this fact by stating in the cross-examination that he was neither signatory nor author of documents produced by him. About the procedure of payment this witness stated that whenever Part-A bill is produced by the person they verify the amount and signature of the concerned officer and then the said person opens account in the bank and amount of Part-A bill is credited to his account wherefrom the said person can subsequently withdraw the amount as from his personal account; P.W.7 Sikandar Ali Shah, Assistant Food Controller at Sukkur District did not name any of the accused/appellants in his deposition but made reference to a list provided by him which contained the name of the parties and quantities of wheat to whom advance payments were made for procurement of wheat but such quantity of wheat was not supplied at the Hadal Shah and Ahmed Pur Centres by them. This witness in his cross-examination admitted that names of present accused persons were not disclosed in his statement recorded under section 161, Cr.P.C.
About the procedure of procurement of wheat and payment this witness deposed that wheat is first received at the centre then Part-A bill is issued and payment made to the parties through cheque. The party then opens account in the bank and after deposit of cheque can withdraw the amount from his account as his personal account; P.W.8 Muhammad Sulleman Soomro deposed about the procedure and practice of shifting of wheat received at the Procurement Centres on the basis of GP-13 Form. He did not utter a single word against the present accused/appellants. This witness in his cross-examination further stated that he does not know anything about the present accused, whether they had sent the wheat to the concerned centres or not; P.W.9 Shabbir Ahmed'also did not utter a single word against the accused/appellants; P.W.10 Abdul Karim, who was contractor for transportation of wheat again did not state anything against the present accused/appellants; P.W.11 Ghulam Shabbir Lakho the alleged private Chowkidar of accused Samiullah Mahesar deposed against some of the accused/appellants regarding short supply of wheat. This witness in his cross-examination admitted that he had not named the present accused/appellants in his deposition recorded in Reference No,48 of 2000 and that he was private servant of accused Samiullah Mahesar whereas official Chowkidar posted for both the centres was Rasool Bakhsh. This witness further admitted that GP-13 Form was singed by Samiullah Mahesar which shows the wheat received and transported to the Government Godown; P.W.12 Rasool Bakhsh, Chowkidar in Food Department stated that he and Muhammad Ayoob were the two Chowkidars posted at the Hadal Shah and Ahmed Pur Centres while Ghulam Shabbir Lakho was private Chowkidar of accused Samiullah Mahesar who used to receive wheat at the Procurement Centres and used to maintain record of GP-13 Form of both centres. This witness in his cross- examination stated that earlier he was examined in the references of Samiullah Mehesar and Ali Hayder. He was posted at Ahmed Pur Centre but on. The directions of Samiullah Mahesar used to go to Hadal Shah Centre and that most of the wheat used to be received by Abdul Hakeem Memon; P.W.13 Himmat Ali Chandio, Circle Officer Anti-Corruption Department Ghotki deposed about the investigation of the incident resulting in lodging of F.I.R. Nos. 50 and 51 of 1999 against Samiullah Mahesar, Inamullah, Naseer Ahmed, Masood Mehmood, Abdullah and Abdul Rehman and submission of interim challan before the Special Judge Anti-Corruption, Sukkur. He further stated that P.W.10 Abdul Karim examined in this crime was shown as one of the accused in that interim Challan; P.W.14 Syed Aftab Ali Shah, Investigating Officer of this crime deposed on the basis of material collected by him during investigation. This witness in his cross-examination admitted that P.W. Allah Wariyo Mallah, P.W. Mushtaq Ahmed G. Lashari, P.W. Ghulam Nabi and P.W. Ghulam Shabbir had not stated anything against the accused/appellants in their 161, Cr.P.C., statements recorded by him. Referring to his deposition in the other reference against Ali Haider and others, who were later on acquitted by another Accountability Court, he stated that in that Reference Ali Haider, Nazir Ahmed, Muhammad Nawaz and Athar Ali were growers whereas two other accused were bankers. This witness further admitted that he had shown Ghulam Haider, Cashier and Ghous Bux, messenger, as accused in the challan from whom accused Ghulam Haider was also acquitted by Accountability Court No,III, Karachi.
16. From the gist of prosecution evidence reproduced above it is evident that there was no substantive and reliable evidence against the present accused/appellants to show their involvement in the commission of crime for which they have been charged. As regards the evidence of P.W.10 Ghulam Shabbir Lakho the trial Court further failed to note that this witness examined by the prosecution was alleged private Chowkidar of Samiullah Mahesar at the two centres and seems to be set-up witness. This fact finds support from the enquiry reports Exh.13/1 and Exh.14/1 respectfully submitted by P.W.1 and P.W.2, which are totally silent about the role of such private Chowkidar or his presence at the two centres at any time. Further these two witnesses and other prosecution witnesses, except P.W. Rasool Bakhsh, also did not make any reference of this Chowkidar in their evidence. Thus, it is evident that the B availability of such private Chowkidar was concocted by the prosecution to improve their case. The trial Court while convicting the appellants on such shabby evidence failed to consider well-settled principle of law that for weighing the evidence of witnesses in a criminal case it has to see whether the witness is a natural witness, a chance witness or a stranger and whether the facts deposed by him are from his personal knowledge or merely hearsay. This failure, in our view, resulted in gross miscarriage of justice.
17. Besides, the observations of the learned trial Court in its impugned judgments that; (a) since some of the accused facing same nature of allegations entered into plea bargain and made the loss of exchequer good, which amounts to admission of their guilt, such evidence/fact can be used as a strong peace of evidence against the present accused; (b) production of receipts by the accused in their 342, Cr.P.C. Statements showed that connivance between accused Samiullah Mahesar and the present accused/appellants has not yet ended; (c) some of the accused/growers/appellants stood surety for Samiullah Mahesar when he was appointed as Centre Incharge showed their connivance are also arbitrary, fanciful, and conjectural, and cannot justify awarding conviction to the appellants. In our view, acquittal of many other accused, who were charged with the same role in separated References Nos. 2 to 6 of 2002, arising from the same crime (Reference No, 48 of 2000), on the basis of evidence of same prosecution witnesses and production of same documents/record was a factor which deserved due consideration by the trial Court before passing of impugned judgment. Mere sweeping observation of the trial Court that such judgment was not binding on it, overlooking the reasons assigned by another learned Judge, Accountability Court for recording acquittal, was improper and cannot be approved. It will be useful to reproduce here some of the reasons assigned by the Accountability Court No, III Sindh, Karachi for ordering acquittal of other accused, who were tried separately in the other connected references, which read thus:-- "From the above evidence, it is clear that during the Wheat Procurement Season of 1999 there was shortage of in 26,398 wheat bags from both the above-mentioned wheat procurement centres.
Samiullah Mahesar made the payments to the growers and for that official accused Muhammad Siddique Gakhar and Samiullah Mahesar were tried and convicted by this Court. The allegation against the present accused is that he had received the payments of 1490 wheat bags through Part A Bills but he did not supply the wheat bags to the Food Department. The accused has admitted the receipt of payment of 1490 wheat bags but has stated that he had supplied the wheat bags for which the Part A Bills were issued. The procedure for issuing Part A Bills as given by the witness Hafizullah is that Part A Bills are issued after the receipt of wheat bags. Thus, the stand taken by the accused is fully supported and corroborated by Part A, Bills which prima facie shows that the accused had supplied the 1490 wheat bags for which Part A Bills were issued. In such situation, the prosecution is required to prove that the accused had not supplied the 1490 wheat bags. However, it is surprising to note that not a single witness examined by the prosecution has deposed that the accused had not supplied the wheat bags. Without any direct or indirect evidence showing that 1590 wheat bags were not supplied by the accused it cannot be held that the accused is responsible for not supplying the 1490 wheat bags. According to law, the prosecution is required to prove their ease beyond any reasonable doubt against the accused but in this case, no evidence whatsoever has been led by the prosecution to show that the accused had not supplied the wheat bags.
The best evidence on these points would have been the evidence of convicted accused Samiullah Mahesar as he was the person who had issued the Part A Bills in favour of the accused. It is alleged by the prosecution that Samiullah Mehesar had issued the Part A Bills without receiving the wheat bags. The prosecution had called him to be examined in the case by moving an application under section 540, Cr.P.C. Which was allowed by the Court and the witness was called from the jail to give evidence and he appeared before the Court. When the convicted accused Samiullash Mahesar appeared before the Court the S.P.P. Did not examine him on the ground that he was won over by the accused. Thus it is clear that Samiullah Mahesar was not supporting the prosecution case.
Without his supporting evidence on the points it cannot be held that the accused had not supplied the wheat bags. The prosecution has produced the judicial confession of the convicted accused Samiullah Mahesar through the Magistrate. The said confession without the examination of the confessor has got no value at all as it is not a substantial piece of evidence. The learned S.P.P., when confronted with the above position has frankly conceded that without the examination of Samiullah Mahesar the confession has no evidentiary value. Even otherwise I have gone through the confessional statement Exh.57 and find that no role has been assigned to the present accused for taking any part in the commission of this crime. The convicted accused has not taken the name of the present accused in any connection in his confessional statement. Thus Exh.57 is of no help to the prosecution.
Even the prosecution has not led any evidence to show any conspiracy or abetment of the present accused with the convicted accused Muhammad Siddique Gakhar and Samiullah Mahesar.
No doubt, no direct evidence can be possible in respect of conspiracy but it can be established through any action of the present accused. The prosecution has also not led any evidence to show any actions or steps taken by the accused which can suggest that he had conspired with the convicted accused persons or he had abetted with the commission of this crime. As such the prosecution has failed to establish both the points in this case."
17. If the applicability of above reasons is seen with reference to the facts of present case, it is apparent that same reasons also hold good here. In the instant case too the claim of the accused/appellants regarding supply of required quantity of wheat, consequent issuance of Part- A Bills in their favour duly signed by authorized officer and thereafter receipt of payment for such supply of wheat through their bank accounts is proved from the documentary evidence produced from the prosecution side. In such circumstances mere hearsay evidence of some prosecution witnesses to the contrary was not enough to record conviction of accused/appellants.
18. In the facts and circumstances, discussed above, when the basic burden of proof, which was on the prosecution, was not discharged satisfactorily, no adverse presumption could have been drawn against the appellants as argued by Mr. Muhammad Anwar Tariq, DPGA, NAB,with reference to the interpretation of section 14 of the NAB Ordinance. In the case of Abdul Aziz Memon v. The State (2003 YLR 617), when the question of interpretation and applicability of section 14-C of the NAB Ordinance came up for consideration before a, Division Bench of this Court, it was held that in respect of offence of corruption and corrupt practices defined in section 9(a)(v) and the presumption in law as contained in section 14(c) of NAB Ordinance the prosecution is initially required to establish their case whereafter onus will shift to the accused to prove the contrary.
More recently, when in a NAB case similar point came up for consideration before the Honourable Supreme Court of Pakistan in the case of Syed Ali Nawaz Shah v. The State (PLD 2003 SC. 837), the Court in its judgment dated 8-1-2003 observed as under:-- "12 .... ... ...This is well-known principle of criminal justice system that an accused cannot be held guilty merely on the basis of probabilities rather finding of guilt should rest squarely and firmly on the evidence. It is the fundamental rule of criminal administration of justice that basic onus always rests on the prosecution to prove the quilt of the accused and the special provision can neither be construed to mean that the onus of the prosecution to prove the guilt is shifted to the accused to prove his innocence or a presumption of guilt can be raised against an accused without discharge of initial burden by the prosecution. The only exception to the above rule in special law can be that on the discharge of the initial burden of proving guilt by the prosecution through the evidence, the onus is shifted to the accused to disprove the allegation and if he fails to discharge his burden satisfactorily, a presumption of guild can be raised against him
19. In the instant case, we have invited learned DPGA, NAB to show us from the record any material to prove that the required quantity of the wheat was not supplied by the appellants at the Wheat Procurement Centres in terms of their commitments or as per the payments received by them through Part A Bills. The appellants have even placed on record the receipts for supply of such wheat at the Wheat Procurement Centres to negate the case of prosecution.
20. As regards the case of accused Ghulam Qadir, who was absconder and had surrendered before the trial Court on 30-11-2002, it may be observed that his case was distinguishable to the case of other accused who earlier entered into plea bargain with NAB, as in those cases acceptance of 'plea bargain by NAB was subject to their disqualification under section 15 of the NAB Ordinance while in the instant case Accountability Court was moved for withdrawal of prosecution against accused as contemplated under section 31-B, which impliedly indicated that with him such were the terms agreed on return of loss of Rs,24,012 to the exchequer. In such situation, if the terms for withdrawal of prosecution were not acceptable of any reason, the Accountability Court could have dismissed the application moved by NAB for withdrawal of prosecution and could have proceeded against accused on merits and in accordance with law.
Disposal of application in any other manner was not warranted by law. Thus, it is clear that in this case for valid reasons his conviction has even not been supported by the learned DPGA, NAB.
21. In our view, if Government officers are found corrupt and dishonest then for their corruption and malpractice, others, against whom no involvement is proved, cannot be made scapegoat or penalized.
22. The net result of above discussion is that the conviction awarded to the appellants in the References Nos. 48-A of 2000, 22 and 23 of 2002 cannot be sustained, which are accordingly set aside.