Tassaduq Hussain Jilani, J.--The judgment shall dispose of Criminal Appeal No. 1982/2003 filed by Muhammad Ajmal appellant who having been tried alongwith Akhtar Ali co-accused by the Judge Accountability Court No. 5, Lahore (in Accountability Reference No. 30/2002) was convicted under Section 9(a) (III) & (IV) of the NAB Ordinance 1999 and sentenced to three years R.I as also a fine of Rs. .8,00,000/- in default whereof to further undergo R.I for six months. He was extended the benefit of Section 382-B Cr.P.C, Co-accused Akhtar Ali was declared a proclaimed offender, he was convicted under Section 31-A of the NAB Ordinance 1999 and sentenced to three years imprisonment.
2. The prosecution case as reflected in the reference and the charge framed-is as under
1. While posted as Food Grain Supervisor at P.R. Centre Haroonabad, District Bahawalpur in 1987-88 despatched wheat weighing 666 MT from P.R Centre Haroonabad to PR Centre Attock. A shortage of wheat weighing 33.400 MT worth Rs. 84,674/60 was found thereby in this connection.
2. While posted as Food Grain Supervisor P.R. Centre Haroonabad in 1987-88 despatched wheat weighing 11955.900 MT from PR Centre Haroonabad to P.R. Centre Lahore (Gulberg, Model Town, Signal Shop and Mughalpura), Islamabad, Hassanabdal and Attock and Wheat weighing 27265 MT worth Rs. 73,070/20 was found short.
3. While posted as Food Grain Supervisor P.R. Centre Haroonabad in August 1987 you were entrusted with 655 tarpaulins, which you falsely declared as useless after every one or two months and caused in this manner loss to the extent of 269 tarpaulins worth Rs. 5,83,000/-.
4. While posted as Food Grain Supervisor P.R. Centre Haroonabad declared 76881 gunny bags worth Rs. 14,96,572/-useless without the permission of the competent Authority.
5. In this way being a holder of Public Office by corruption and corrupt practices misappropriated Rs. 22.37,322/80 with a corresponding loss to the Government. You as such, committed the offence of corruption and corrupt practices U/S 9(a) (III) and (IV) of the National Accountability Bureau Ordinance, 1999 punishable u/S. 10 of the National Accountability Bureau Ordinance, 1999.
3. A breakup part of the prosecution evidence produced in Court is as under:-- NAM E SUM M ARY OF EVIDENCE 1.Maqsood Ahmad Junior Clerk/record keeper. He produced various documents, which have been duty exhibited.
2.Shamshad Ahmad, Junior Clerk/record keeper. He produced the relevant office record before the Investigating Officer, which was duly exhibited during trial.
3. Siraj-ud-Din Mazari Storage Officer, Food Department. He tendered in evidence the inquiry report Exh. PY/1-4 pertaining to 73067 gunny bags.
4. Muhammad Munir Chohan, Assistant Food Controller. He is the Inquiry Officer who carried out the investigation with regard to declassification of 10795 gunny bags pertaining to the year 1989-90 at P.R. Centre Haroonabad. He in cross-examination admitted that in the afore-referred inquiry the charge had been framed only against Akhtar Ali, the absconding accused. He conceded that the name of Muhammad Ajmal appellant had / -not been included in the charge sheet.
5.Amjad Bashir, Special Judicial Magistrate. He investigated the case.
6.Ch. Bashir Ahmad, Inspector Anti-Corruption Establishment, Lodhran.He also partly investigated the case.
7. Syed Tajammal Hussain Rizvi, Former Deputy Director Food.He is retired official of the Food Department. According to him he had written a letter for recovery of Rs, 14,95,578/- on account of misappropriation of 78,881 jute bags pertaining to Haroonabad Centre for the wheat scheme for the year 1987-88, 1988-89 and 1989-90. The recovery was imposed on Akhtar Ali Food Grain inspector and appellant Muhammad Ajmal Food Grain Supervisor.
He conceded that when he passed the order for recovery it was brought to his notice that the accused had already been dismissed from service on account of misconduct and further that while passing the order of recovery he had consulted the record.
8. Rana Zahid Sharif, the then District Food Controller. He is an authorized officer who conducted the inquiry with regard to misappropriation/damage of 459 tarpaulins pertaining to the scheme for the year 1987-88. In cross examination he conceded that the inquiry was basically against Akhtar Ali the absconding accused. He, however, added that since the appellant Muhammad Ajmal was also posted with him at P.R. Centre Haroonabad he too was made to join the inquiry. He added, the Inquiry Officer submitted report only against Akhtar Ali. My report is also titled against Akhtar Ali. Volunteered that Muhammad Ajmal at that time was not in service, therefore, he could not be directed under the rules to face the inquiry. It is correct that according to my report it is clear that charge sheet has not been served upon Muhammad Ajmal.
9. Nasir Javed Basra, the then Deputy Director Food. In his capacity as the Authority he imposed the penalty of 5,83,000/-being the cost of 269 tarpaulins upon Akhtar Ali and Muhammad Ajmal in equal proportion.
10. Qazi Muhammad Ameer, Former Asstt. Food Controller.He is a retired Assistant Food Controller he conducted the first inquiry against Muhammad Ajmal and Akthar Ali accused.
11. Imtiaz Ahmad Tajwar, Director Food Punjab Lahore. He was the Appellate Authority. He dismissed the appeal of appellant. He admitted that he had rejected the appeal by means of exparte proceedings.
12. Abdul Latif Mohal, Former District Food Controller. He was District Food Controller at the relevant time and he carried out the investigation with regard to declassification of gunny bags 73067 in numbers. He admitted that the, afore-referred declassification for relatable to the year 1986-87, 198788 and 1988-99. He admitted during cross-examination that, "the staff of PR Centre consists of Chowkidars, Supervisors and Inspectors. I had not recorded the statement of any other witness".
13. Ch. Wahid-ud-Din Ahmad, Ex- Deputy Director Food. He was the Authority who passed the order dated 9.8.1990 against Akhtar Ali Food Grain Inspector and Muhammad Ajmal Food Grain Supervisor posted at P.R. Centre Haroonabad.
4.The material documents produced by the prosecution which require specific mention are as under:-- Ex.P.C. Inquiry report conducted by Muhammad Sarwar Saleem AFC, Faqirwali.
Ex.PD. Inquiry Report conducted by Munir Ahmad Chohan AFC.
Ex. PH. Inquiry Report dated 14.11.1995 of Syed Ahmad Hassan AFC.
Ex. PJ. Inquiry Report regarding 27565 gunny bags.
Ex.PK/1-3.Inquiry Report regarding 10795 gunny bags for the year 1989-1990.
Ex.PL. Report of Authorized Officer concerning 10975 useless gunny bags PR Centre Haroonabad for the year 1989-90.
Ex.PM/1- 2.Report of Authorized Officer concerning 40521 useless gunny bags PR Centre Haroonabad for the year 1987-88.
Ex.PN. Report of Authorized Officer concerning 459 tarpaulins of PR Centre Haroonabad.
Ex.PQ. Wheat procurement policy Scheme for the year 1974-75.
Ex. PR/1- 3.Wheat procurement policy Scheme for the year 1987-88.
Ex. PU/1- 4.Letter No. ADF-III-cord-2(123)/85 dated 604-04-1985.
Ex.PV. GP-6 (Despatch Report concerning Scheme for the year P.R. Centre Haroonabad to Attock.
Ex. PW. GP-5 (Stock report).
Ex. PXM- 8.GP-7 (Despatch report) concerning Gulberg, Model Town, Signal Shop, Mughalpura Lahore and Islamabad.
Ex. PY/1- 4.Inquiry report into Godown shortage of 575.100 MT wheat Scheme for the year. 1989-89.
The accused when examined under Section 342 Cr.P.C. denied the prosecution case and with regard to the allegation of misappropriation of wheat, he submitted as under:-- "Denied it was natural loss due to intestation of wheat. The wheat stock was of scheme year 1987- 88, which was purchased in April 1987 and was dispatched on 24-7-1989 after the lapse of about two years and three months. Due to this long storage the wheat stock was infested due to susrui and Khapra. The loss was detected by the recipient and after sieving and segregation of the wheat so dispatched in the presence of Food Technologist. In answer to Question No. 2, pertaining to misappropriation of wheat bags during the year 1987-88, he submitted that the wheat shortage was on account of the fact that the wheat remains store for a longer period, that he was not Incharge of the said Centre and it was Akhtar Ali accused who was the Incharge, and got the shortage of wheat at PR Centre Signal Shop at Lahore.
In answer to the charge of declassification 667 tarpaulins in the year 1987, he replied that the tarpaulins in question were rendered D-class on account of continuous long usage before the year 1985 and further used during the subsequent Schemes at the Centre for a period of three years. In answer to the allegation of declaring 76,881 Gunny bags as useless. He replied as under:-- "Denied. The procedure regarding declassification of stock articles is that one the eve of declassification of an item as survey reports is prepared by Centre Incharge and is sent to DFC office for its verification who after physical verification declares the same as D-class and gets the approval of Authority Survey reports with regard to declassification of 32009 D Class Gunny bags were prepared and got verified by the DFC and this fact is admitted in the departmental inquiry report Survey reports of 38671 D-Class gunny bags were latter on prepared by caused Akhtar Ali and sent for verification to DFC. The preparation of survey report in respect of remaining bags was not the liability of accused official as the charge of remaining items was handed over to the Assistant Food Controller namely Ahmad Ghazali on 30.9.1989. It was the liability of that food official to prepare the survey report and got them verified".
5. Learned counsel for the appellant in support of this appeal made the following submissions:--
(i) That no oral of documentary evidence is on record to prove that the appellant had dishonestly, fraudulently or wilfully caused the wheat shortage subject matter of the first charge.
(ii) That Ex. PV, which is a despatched report from the PR Centre from where the wheat was despatched does not bear the signatures of the appellant whereas the said report as also the receipt report i.e. Ex. PX (GP-7) bears the signatures of Akhtar Ali convict, who is fugitive to law.
(iii)That Ex. PC is the order of the Deputy Director Food imposing the penalty on the appellant but this does not establish criminal liability. Ex. PQ/1-3 is the Government Policy, which does not make it a criminal liability either.
(iv)That with regard to charge-II the crucial documents are as Ex. -PX/1-8 (GP-6) which does not bear the appellant's signatures and the corresponding documents i.e. (GP-7) the receipt report also does not bear the signatures of the appellant. The appellant not being the Incharge of the Centre in question could not be held responsible for the wheat shortage. Ex. PX/1-6 is the receipt report, which is signed by Akhtar Ali and not the appellant, Ex. PP is the order of the Deputy Director Food dated 9.8.1990 in terms of which a penalty was imposed and the said Akhtar Ali had deposited the amount in question. Even with regard to his charge not an iota of evidence was led to prove criminal appropriation or of causing any wilful loss. In absence appellant could not have been convicted. In support of the submissions made learned counsel for the appellant relied -on Muhammad Yaqoob v. The State (1994 P.Cr.L.J. 1116) and Manwor Ali v. State (PLJ 1998 Cr. C. (Quetta 1463). (v) That so far as Charge No. III, i.e. declassification of tarpaulins is concerned, appellant was exonerated during inquiry report submitted by PW.1 which is exhibited PDDD.
(vi)That in the report submitted by the Authorized Officer (Ex. ?M), there is no finding against the appellant with regard to misappropriation.
(vii) That PW 4, has admitted that inquiry was not against the ' appellant and he was not served with any show-cause notice. The said inquiry was primarily against Akhtar Ali accused, who is fugitive to law.
(viii) That the appellant was acquitted on Charge-IV on the ground that the appellant was imposed major penalty pursuant to a departmental inquiry, which order was set aside by the Services Tribunal. The judgment is self-contradictory because even on Charge-III there was no evidence that the tarpaulins got damaged because of appellant's negligence but despite that he has been convicted. In support of the submissions learned counsel relied on Deputy Director Food and 2 others v. Akhtar Ali, Food Grains Inspector (1997 SCMR 343).
(ix) That the appellant was penalized under the departmental policy and the relevant penal clause contemplates a civil liability, dispensing with the requirement of a formal inquiry and the finding given under the afore-referred provision cannot be used in a criminal trial, which require recording of evidence. Burden being on the prosecution to prove the case beyond doubt.
6. Learned Special Public Prosecutor defended the impugned judgment and made the following submissions:--
(i) That the National Accountability Bureau Ordinance, 1999 is a special law wherein the civil and criminal liabilities have been merged and violation of a Government Policy per se would establish the offence of strict criminal liability.
(ii) That mens rea is not a sine qua non to prove an offence under the NAB Ordinance, 1999 in cases of strict liability.
(iii) That the evidence led squarely proved that the appellant was responsible for the wheat shortage and he could not absolve himself to the criminal liability.
(iv) That the case of the appellant in Criminal Appeal No. 1981/2003 is distinguishable as in the said case the appellant had sent repeated reminders to the competent authority to lift the wheat and on account of in action at the latter's end the wheat got damaged. In the present case he contended that the appellant raised no such plea.
(v) That the appellant did not deny in his statement under Section 342 Cr.P.C. that he was part of the staff of the Centre in question from where the wheat was despatched and the shortage was detected. He, therefore, is responsible for the loss alongwith the other accused who is fugitive to law i.e. Akthar Ali. He, however, on Court query as to whether there is any evidence to show that the appellant had despatched the wheat conceded, that there is no evidence either oral or documentary to indicate that. In answer to yet another query he admitted that Ex. PO indicated that the Departmental inquiry was against Akhtar Ali only and no Department inquiry was initiated against the appellant. He further admitted that no other staff members of centre despatched Centre was either accused of the shortage or associated with the inquiry.
7. We have heard the learned counsel for the parties, gone through the record and have given anxious consideration to the submissions made.
8. Admittedly in terms of the charges framed against the appellant it was not a case where a presumption could be raised against the appellant in terms of Section 14-A of the National Accountability Bureau Ordinance, 1999. The appellant was charged under Section 9(a) (III) & (IV), which stipulated as under:-- "9. Corruption and corrupt practices. (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:--
(i) ..........................
(ii) .........................
(iii)If he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows any other person so to do; or (iv)If he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse or dependents or any other person, any property, valuable thing, or pecuniary advantage.
9. The burden of proof was on the prosecution to show that the appellant had "dishonestly', "fraudulently", "misappropriated" or "wilfully" allowed somebody else to do the same or obtained any pecuniary advantage for himself or for anyone else by "corrupt, dishonest or illegal means".
The prosecution has not led any oral or documentary evidence to show that the conduct of the appellant reflected any element to bring his case within the a mischief of the afore-referred penal provision. With regard to charge-I the prosecution relied on Ex. PV, the despatch report and Ex. PX (GP-7) the receipt report and Ex. PX/1, the Food Department Policy regarding shortage in transit.
Admittedly neither Ex.PV nor Ex. PX is signed by the appellant. Para-VIII (Ex. PQ/1-3) of the Government Policy/instructions for dealing with en-route and storage shortages indicate that in cases of shortages official Incharge of the despatch Centre has to go or depute an official to go to the receipt Centre. It reads as under: "(viii) It will be the duty of the Food Official Incharge of the despatching Centre either to go personally or depute another responsible official under him for verification immediately on receipt of the telegraphic call. Should he fail to arrange verification and settlement of the reported transit shortage within ten days of the date of issue of the telegram from the destination, the Incharge of the receiving Center will request his own District Food Controller for check-weighment of the disputed consignment and the shortage assessed by the latter will be communicated to the despatching and though G.P. 13, under intimation to the District Food Controller of the despatching district. The stocks will be booked at the destination centre after deducting this shortage from the advised weight, and the despatching staff will have to make good the shortage".
It was the accused Akhtar Ali (who is fugitive to law) who was called to the there is nothing on record to show that the appellant was present when the .wheat stock was despatched to the Centre in question. No member of the staff posted at the despatch Centre i.e. Chowkidar, or any driver of the truck appeared at any stage to depose against the appellant. Ex. PCC an order of the Deputy Director Food does not carry a finding that the shortage was on account of appellant's dishonesty, fraud or corruption, rather it held that since Akhtar Ali Food Grain Inspector and the appellant Muhammad Ajmal Food Grain Supervisor was posted at PR Centre Haroonabad during the year 1987-88, they despatched bags of wheat to PR Centre to Attock through Rail, that since there was an en-route shortage, therefore, they were held liable to pay a sum of Rs. 84,674.00 to be shared by both in equal proportion. This is notwithstanding the fact that the despatch receipt report does not carry the signatures of the appellant. The up-dated Government Policy with regard to procedure to be adopted and action taken in cases en-route shortage of wheat and the recovery of the losses sustained is contained in letter dated 6.4.1985 which was placed on record by the prosecution Ex. PU. It stipulates as under:-- "(a) The enroute shortage, which is either verified by the despatching staff itself or it is booked into the PR documents of the recipient centre in accordance with the prescribed procedure shall be deposited by the despatching staff promptly in cash into the Govt. Treasury in the following receipt head of the account....
"810 State Trading 811-Food-Details of receipts & recoveries other Receipts Wheat".
(b) The recovery/deposit of the enroute shortage shall be automatic and no further orders of any authority will be required in this behalf. The despatching staff must, therefore, deposit the value of the enroute shortage without waiting for any orders from any authority as the question of enroute shortage attains finality both in tase the shortage is verified by the despatching staff itself or otherwise and it is not open to review in any case."
A perusal of the afore-referred provisions would show that the penalty for the shortage did not require any elaborate inquiry, that the shortage had to be made good by the despatching staff promptly and that, the recovery/deposit of the enroute shortage shall be automatic and no further order of any authority will be required in this behalf'. The competent authority in the hierarchy of the Food Department had carried out the exercise of fixing the liability in accord with the afore-referred provision, no detail evidence was recorded and the criminal liability was never a moot point. In these circumstances the findings arrived at in this inquiry cannot be a substitute for evidence in a criminal trial. The prosecution was required to prove its case beyond reasonable doubt.
10. Coming to charge-III i.e. declaring of 665 tarpaulins as useless we note. that the Departmental inquiry was carried out by PW.4, Muhammad Munir, who in cross-examination admitted that, "the charge sheet had been issued to accused Akhtar Ali only. It is correct that name of accused Muhammad Ajmal present in Court had not been included in that charge sheet. It is correct that inquiry is conducted only according to the charge sheet..........in this inquiry Akhtar Ali was held responsible for the loss. PW 8, is Rana Zahid Sharif, Special Judicial Magistrate, who conducted the inquiry with regard to 459 tarpaulins. Even he admitted that, "the inquiry was initiated only against Akhtar Ali. Volunteered that Akhtar Ali disclosed that Muhammad Ajmal was also posted with him in P.R. Centre and was co-sharer of the charge. On this allegation Muhammad Ajmal was made to joint inquiry...........Inquiry Officer submitted report only against Akhtar Ali..........Volunteered that Muhammad Ajmal at that time was not in service, therefore, he could not be directed under the rules to face the inquiry. It is correct that according to my report it is clear that charge sheet has not been served upon Muhammad Ajmal".
11. A finding in a Departmental inquiry or a penalty imposed therein per se would not be enough to establish a criminal liability and cannot be substitute for evidence to prove criminal intact. The argument of the learned Special Public Prosecutor that it was a case of strict liability, that absence of )1-tens rea would not be fatal to the prosecution case is not a correct exposition of law. In M.
Siddique-ul-Farooq v. The State (PLD 2002 Karachi 24) at page 44, a Division Bench of the said Court was pleased to hold that, "The prosecution must establish misuse of authority coupled with the intention to gain any benefit or favour for himself or any other person or to render an attempt to do so". In Hakim Ali Zardari v. The State (PLD 2002 Lahore 369) this Court held as under:-- "So far as the argument of dispensing with requirement of mens rea in the class of cases like the one in which appellant was tried is concerned, we may observe that in criminal law the existence of mens rea is a sine qua non. However, there could be statutory exceptions. For instance in offences where certain acts are forbidden by law and entail a penalty, imprisonment or fine and if such acts are committed then the offender would be punished irrespective of the fact whether there was any mens rea or not. These kinds of offences can be classified as offences of strict liability".
12. The enquiry reports with regard to the shortage of wheat & for declassification of tarpaulins were summary in nature which sought to establish a civil liability i.e. for making good the loss.
These reports stand on a 'much weaker footing than the judgment of a Civil Court. Even the judgments of a Civil Court cannot per se be used to establish facts constituting an offence before a Criminal Court. This is in line with the law laid down by the August Supreme Court in Mst. Naseer Begum v. Sain and 6 others (1972 SCMR 584) wherein at page 585 it was held as under:-- "Learned counsel appearing in support of this petition reiterates the contention that the judgment of the Civil Court should have been taken into account, before arriving at a decision in the criminal case. We are unable to agree, because, as pointed out by the Privy Council in the case of Kumar Gopika Raman Roy v. Atal Singh (1) "the Evidence Act does not make a finding of fact arrived at on the evidence before the Court in one case evidence of that fact in another case." Thus, a judgment in a Civil Court, as pointed out by M. Munir in his Law of Evidence, "is not admissible in a criminal proceeding to establish the truth of the facts upon which is rendered. In a criminal trial it is for the Court to determine the question of the guilt of the accused and it must do so upon the evidence before it".
13. For what has been discussed above, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt to sustain conviction on charges under Section 9(a)(III) &
(IV) of NAB Ordinance, 1999. Resultantly, this appeal is allowed, the impugned judgment is set aside and the appellant shall be released forthwith unless required in any other case.