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Petitioner: Tanveer Ahmed Tahir VS Respondent: The State and 2 others
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Zulfiqar Ali Sangi Title: Tanveer Ahmed Tahir vs The State and 2 others Case No.:Criminal Accountability Appeal No. 34, Criminal Accountability Acquittal
JUDGMENT
Reported As: 2020 YLR 2661 Result: Appeal allowed Judgment JUDGMENT MOHAMMAD KARIM KHAN AGHA, J.---The appellant Tanveer Ahmed Tahir son of Zafaryab Ahmed Tahir was convicted by the Accountability Court No.III, Sindh Karachi, by Judgment dated 31.07.2018 for acts of corruption under section 9 of the National Accountability Bureau Ordinance 1999 (NAO ) and was sentenced to suffer R.I. for 10 years and fine of Rs.2,50,00,000/- and in case of non-payment of fine, the appellant was to undergo R.I. for one more year (the impugned judgment). The accused Tanveer Ahmed Tahir shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of 10 years to be reckoned from the date he is released after serving the sentence for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any province so also shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances from any bank or Financial Institution in the public sector for a period of 10 years from the date of conviction. However , accused is entitled for the benefit of Section 382(B), Cr .P.C. 2. Hence the appellant has filed this appeal against conviction. 3. The National Accountability Bureau (NAB) has also filed an appeal against acquittal in respect of the impugned judgment which acquitted the Respondent Fida Hussain Shah. By this common Judgment we intend to dispose of both of the appeals. 4. The brief facts of the case as narrated in the Reference are that on receipt of a complaint an inquiry was authorized by DG NAB against police officers/of ficials during the course of which it was established that an amount of Rs.50 Million had been withdrawn illegally by the officers/ officials of Sindh Police through fake bills, hence an investigation was authorized by NAB against Tanveer Ahmed Tahir, the then AIGP Logistics, Syed Fida Hussain Shah, the then AIGP Finance, officers/of ficials of Sindh Police and others. It was found that Finance Department
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Government of Sindh released advice for funds amounting to Rs.50 Million in respect of Petrol Oil and Lubricants (POL) charges in favour of Sindh Police Department for extra ordinary duties and security arrangements during Muharram duties. 5. That out of the said amount of Rs.50 Million an amount of Rs.30 Million was drawn in the name of Messrs Standard Service Station having dealership of Pakistan State Oil (PSO ) but the bills of Messrs Standard Service Station do not mention any address or location on the face of bills and there is only one outlet by the name of Messrs Standard Service Station in the Province of Sindh including Karachi which is situated at Plot No.17-A, Block-VI, PECHS Shahrah-e-Faisal Karachi whereas dealership of the said station is in the name of Moharram Ali Shaikh son of Haji Gohram. It was also found that neither any POL item was issued to Sindh Police Department during the year 2014 nor any bill was issued for any payment to the Sindh Police Department from the said Standard Service Station situated at Shahrah-e-Faisal, Karachi and the cheque No.1888928 dated 16.12.2014 for an amount of Rs.30 Million issued in the name of vendor/contractor Standard Service Station was processed in National Bank of Pakistan, Nadir House Branch, Karachi which has been credited in the account of DDO of the Inspector General of Police Karachi havin g account No.001 1959 on 19.12.2014 despite the fact that said cheque was issued in the name of Messrs Stand ard Service Station. It was further found that in addition to withdrawal of the above said Rs.30 Million, an amount of Rs.20 Million has been withdrawn in the name of Messrs Quick Filling Station, Race Course Road Sukkur havin g dealership of Shell Pakistan, but one Abdul Wahid Khoso son of Hafiz Shafi Muhammad who is the owner of Messrs Quick Filling Station and CNG Station, Race Course Road Sukkur denied issuing bills to Police Department and also denied receipt of any payment from Police Department and an Account No.1000014 in the name of Messrs Quick Filling Station and CNG Station, Race Course Road, Sukkur is being maintained by Muhammad Rafiq son of Qurban Ali and the payment of above said Rs.20 Million pertaining to Sindh Police POL, bills has been credited into the above said account. It was also found that reverse side of bills of Messrs Quick Filling Station and CNG Station, Race Course Road, Sukkur bears the certification of Police official/ MTOs of Larkana and Sukkur Region regarding expenses of POL, however , these police officials stated that bills of Messrs Quick Filling Station Sukkur passed for payment were not issued from their offices and no fuel/ POL was obtained by their offices from the above said service station. the cheque No.1890961 dated 05.12.2014 for Rs.20 Million issued by AG Sindh office for Inspector General of Police Sindh Department in favour of Quick Filling Station and CNG Station Sukkur was credited into the bank account of Muhammad Rafiq, Head Constable, Special Branch Sukkur who had withdrawn cash through cheque signed by him despite the fact that he was not the owner of said filling station, who subsequently admitted his guilt by entering into a plea bargain with NAB whereby he returned the ill gotten gain and was deemed convicted of the of fense under section 25(b) NAO. 6. It is alleged by the prosecution that accused Tanveer Ahmed Tahir the then AIGP Logistics and DDO Accounts Branch, CPO, Sindh, Karachi processed 5 bills for Rs.10 Million each on account of POL expenses and sent to Accountant General Sindh, Karachi for release of payment in the name of Messrs Standard Service Station and Messrs Quick Filling Station, Race Course Road, Sukkur and he verified said bills whereas attacked invoices with these bills were found to be fake and no fuel was obtained from the said filling stations and as per signature specimen card and as per order dated 15.7.2014 in respect of account bearing No.001 1959 he was authorized to exercise the power of Drawing and Disbursing Officer of the Central Police Office, Karachi. It is also alleged that accused Syed Fida Hussain the then AIGP Finance, CPO, Sindh Karachi sought a general approval on note sheet from the IGP Sindh to incur the POL and other expenses, he had specifically issue d financial sanction orders in the name of Messrs Quick Filling Station, Sukkur and Messrs Standard Service Station. As such, both accused named above in connivance with each other have embezzled an amount of Rs.50 Million through fake invoices on account of POL, expenses and caused loss to the National Exchequer and have committed an offence of corruption and corrupt practices, hence this reference. 7. To prove its case the prosecution examined 26 witnesses and exhibited numerous documents and thereafter closed its side. Statements of the accused were recorded under section 342,Cr .P.C. The accused persons claimed that they had acted in accordance with the law, that there had been no wrong doing on their part and they had been falsely implicated with the main culprit being IGP sindh and other police officials who were let off the hook by the 10
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due to his lack of understanding of how police financial matters are dealt with and for other extraneous reasons best known to himself. Neither of the accused called any witnesses in support of their defense. 8. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 31.7.2018 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 9. Learned counsel for appellant Tanvir Ahmed contended that the evidence on record had not proved that the appellant had engaged in any corruption; it may be that Muhammad Rafiq, Head Constable had entered into a plea bargain but this was because the ill-gotten gains had been found in his personal bank account so his involvement in the Quick service station illegal payments was undeniable however the appellant had no link to Muhammad Rafiq and Quick service station; that he was not responsible for requesting the funds as this should have come from the motor transport division which he had nothing to do with and as such he had nothing to do with any invoices received from petrol stations, or preparing them and it was ,not his job to verify such invoices; that the sanction of the funds had been given by the IGP; that financial approval had been given by AIGP Finance and his role was simply in disbursing the funds as DDO on the instructions of the IGP and AIGP Finance; that no one had alleged that he had taken any money let alone any money had been recovered from him; that since the funds that were meant to be paid to Standard service station had been paid into the police secret service fund no loss had been caused to the Government of Sindh; that there was no mens rea on his part and for one or all the above reasons he was entitled to be acquitted of the charge by being given the benefit of the doubt . In support of his contentions he placed reliance on The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118), Malik Munir Hussain and others v. National Accountability Bureau and othe rs (2016 PCr.LJ 1896), Wahid Bakhsh Baloch v. The State (2014 SCMR 985), National Accountability Bureau through Prosecutor General Accountability , Islamabad v. Khalid Ahmad Khan Kharral (PLD 2013 (sic) 849), Rehman and others v. The State (PLD 1968 Lahore 464 ) and Nasima Bibi v . The State (2008 PCr .LJ 613). 10. On the other hand, Khalid Mehmood Awan and R.D Kalhoro, Special Prosecutors NAB fully supported the impugned judgment against appellant Tanvir Ahmed and contended that the prosec ution had proved it case against him beyond a reasonable doubt: They contended in particular that the invoices were fake, that the invoices had been illegally approved by the appellant and that the appellant had personally gained from the scam by paying the funds into the secret account of the police and then withdrawing the same for his benefit and as such his appeal should be dismissed. In support of their contentions they placed reliance on Farhat Azeem v. Waheed Rasul and others (PLD 2000 Supreme Court 18), Ch. Muhammad Riasit and another v. Muhammad Asghar and another (PLD 2010 Supreme Court (AJ&K) 29), Malik Din v. Chairman National Accou ntability Bureau and others (2019 SCMR 372), Ali Ahmed Baloch and others v. The State through NAB Authorities and others (2013 PCr.LJ 1089), Khadim Hussain Kutrio and another v. The State and others (2019 P.Cr.LJ 1001) and Firdous Khan v . The State (2015 PCr .LJ 697). 11. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant, the impugned judgment with their able assis tance and have considered the relevant law . 12. At the outset we would like to point out that we are both surprised and disappointed that NAB is still utilizing its precious resources in pursuing cases of a relatively lesser value. National Account ability Bureau being the premier Anti Corruption Body in Pakistan is expected to pursue mega corruption cases which have caused loss of billions of rupees and should not tie up its valuable and limited resources in cases which do not involve mega corruption. In this respect reliance is placed on Amjad Hussain v. NAB (2017 YLR 1) where according to NAB's own SOP it would not proceed with cases which caused loss of less than Rs. 10 crore. Even now the Government has proposed a bill seeking to increase the minimum amount to not less than Rs. 50 crore 13. In our view the prosecution has not been able to prove its case beyond a reasonable doubt against Tanvir Ahmed for the following reasons; (a) that there appears to be a lack of specificity in both the reference and the Charge which is a potential violation of S.221, Cr.P.C. in that the appellant is charged under S.9(a) NAO. S.9(a) NAO contains 12 sub-sections being (i)
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to (xii) and in all fairness to the accused the particular subsections to which the appellant had to mount a defense against ought to have been named in both the reference and the charge so that he could properly prepare his defense. Although in our view this defect in the charge is not by itself sufficient to acquit the appellant it is a factor which we must give some weight to as it is a settled principle under criminal law that the accused should know the specific charge against him so that he can adequately prepare his defense. In our view it appears that the reference and charge against the appellant is under S.9(a)(vi) NAO which concerns a misuse of authority/failure to exercise authority which will lead to benefiting himself or some other person. Such view is fortified by typed P.26 of the impugned judgment where the learned trial judge refers to an illegal exercise of authority which failed to protect government funds . Even otherwise there is no evidence of embezzlement or misappropriation on his part. (b) No prosecution witness has given any evidence against him. (c) That it has not been proven that he was the originator of the requests for payment on account of POL and the 10 carried out no investigation to find out who initiated such requests. Such request should have come through the motor and transport Division over which the appellant had' no command and control. No evidence has also come on record that he had any influence over the motor transport division or had anything to do with them. (d) From the evidence it appears that the appellant had a limited role in process ing the bills (certainly less than AIGP Finance and the Finance Departme nt who was acquitted by the trial court) and was more akin to a post box whilst the primary responsibility rested with other persons as set out below: is received every month through AIG Finance office along with sanction order s there in authorizing expenditure to be incurred and disbursement to concerned vendor from CPO budget. This is routine way of working prior to the appellant's posting and after my posting and is still being continued. After issuance of Financial Sanction Orders by the IGP, duly authenticated by AIG Finance, bills were prepared by the accounts branch of CPO after due process and scrutiny on Form TR 30. (i) PW-1 Mr. Zafar Iqbal in his cross-examination has stated that Motor Transport Wing bills are passed after approval by IGP. These bills along with covering letters of SSP's are sent to Finance Wing of IGP, who prepare note sheet for sanction from IGP and note sheet is always prepared after complete description of bills and no bills are passed without the approval of IGP and signature of IGP Finance. (ii) PW-2 Mr. Qamar Raza in his cross-exa mination state that there is no Motor Transport Wing under the command of AIG Logistics. Due to this reason Logistic Branch do not prepare any POL bills. Every month POL bills are received in the office of AIG Logistics from the office of AIG Finance along with sanction order for payment. We only annex Form TR 30 on it. The POL bills of main MT Sindh is received every month through AIG Finance office along with sanction orders therein authorizing expenditure to be incurred and disbursement to concerned vendor from CPO budget. This is routine way of working prior to the appellant' s posting and after my posting and is still being continued. After issuance of Financial Sanction Orders by the IGP, duly authenticated by IGP, Finance, bills were prepared by the accounts branch of CPO after due process and scrutiny of form TR 30. (iii) The veracity and sanctity of POL bills being submitted lies with unit generating those bills and AIG Finance office issuing sanction of expenditure for disbursement. It is pertinent to mention that no bills are passed by AG Sindh until and unless sanction is issued by AIG Finance. (iv) The bills in question were received from AIG Finance office along with Sanction Orders B-V 3247/3248 dated 28.11.2014, 3427/3428 dated 4.12.2014 and vide Sanction No.B-V 3630 dated 9.12.2014 of Rs. 10 million each. The same routine procedure was followed; accountant prepared the bills on form TR 30 and after signature of DDO deposited in AG Sindh for issuance of cheque. (v) PW-2 Mr. Qamar Raza has endorsed in his cross-examination that subject bills were received from the office of AIG Finance along with the Sanction Order and Form TR 30 was annexed on these bills and sanction and were submitted to AG Sindh. (e) That since the invoices come from the relevant petrol stations no evidence was produced that the appellant had anything to do with either the petrol stations or their owners or that he had prepared or connived with others in preparing fake petrol invoices.
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(f) That the appellant did not sanction payment of any of the bills. The sanction was made by the IGP and approved by AIGP Finance and there is no evidence on record that the appellant was involved in any illegal sanction . The impugned judgment has found no illegalities in the note which led to the authorization of the sanction by the IGP who the impugned judgment has found was the proper sanctioning authority but surprisingly was not even interrogated by the IO let alone being made part of the reference and we have found no evidence to contradict this finding of the trial court judge. (g) It appears that a number of the documents which were relied upon to convict the accused were photocopies and the originals were not produced despite this being objected to by the accused's counsel with the judge noting that this will be decided at the final stage but the judge failed to decide this issue and as such these photo copy documents used to convict the accused are, inadmissible in evidence and cannot be relied upon to convict him. The objection by counsel which remained undecided is at P.185 of the paper book. Significantly some of these documents were important being office copies and copies of bills which were denied by the appellant as being processed by him in his S.342, C r . P. C statement. (h) The only role which the appellant appears to have played from the evidence is in disbursing payment of the bills on the instructions of AIGP Finance after the sanction had already been made by the IGP. The impugned judgment has not found any illegality in the sanction. There is no evidence on record that it was the appellant's function/role/duty to verify the bills. In our view the responsibility of checking the veracity of the bills lay on the most senior officers of the Motor transport Division or the Finance section of the police prior to the bills being sanctioned by the IGP. Once the bills have passed through finance and been sanctioned by the IGP it was too late to expect the DDO to verify the same. Such verifica tion process had to have taken place prior to the sanctioning of the bills. It is also noted that the appellant was under pressure to disburse payment by AIGP Finance as the police feared legal action if the bills were not paid promptly . In P.321 of the paper book there is a certificate issued with AIG Finance which reads as follows, "It is requested that the bills may kindly be cleared/ passed as the dealers also pressing hard for payment, in case of non-payment they will go to the court of law". We also note that according to PW 2' once the bills have been sanctioned and there is sufficient funds in the relevant account the appellant had no authority or power to stop payment and in this case, as observed, the dealers were pressing for payment. Even if we choose to take a harsh approach of any non-verification by the appellant as DDO it seems that he was following usual practice in the department which the IO failed to inquir e into by his own admission and did not even look into the financial rules and SOP's regarding finance at the CPO. In our view this would only amount to gross negligence/ irregularity at the most and not corruption falling under the purview of the NAO especially since the appellant was following the practice then in vogue and remains in vogue today . The Supreme Court as well as various DB's of this court in a number of authorities have held that negligence/irregularities performed by a Government official does not amount to corruption but rather misconduct which may appropriately be dealt with under the relevant laws of the organization especially if there is no mens rea discernible from the evidence on record. In the case of Mansur Ul Haque v. Government of Pakistan (PLD 2008 SC 166) it was held as under in this respect at P .176. "Learned counsel for the petitioner has not been able to convince us from the evidence on the record that essential elements of mens rea and intention to commit an offence under section 9(A) (vi) of NAB Ordinance were traceable in the transaction or the accused acted for their personal gain at the cost of causing financial loss to the organization (PNSC) or the ships in question were not of viable technology and were not that of international standard and specification. The mere procedural irregularities in the transaction, would not be sufficient to constituted an offence under section 9(a)(vi) of the ibid Ordinance. This is essential to draw distinction between procedural irregularities and violation of substantial provisions of law to determine the question of criminal liability in the transaction. The procedural irregularities may bring an act done in the official capacity within the ambit of misconduct which is distinguishable from criminal misconduct or an act which may constitute an offence and thus unless it is established through the evidence that an act or series of acts done in the transaction constituted an offence, the criminal charge would be groundless. We may
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point out that notwithstanding the special provisions contained in the NAB Ordinance regarding shifting of the burden of proof, the fundamental principle of the law of criminal administration of justice that basic onus is always on the prosecution to establish the commission of an offence is not changed and in the present case, we find that the respondents having negotiated with the seller company abroad in the official capacity entered into the contract of purchase of ships and in the process certain procedural irregularities constituting an act of misconduct in the contemplation of law applicable to their service were probably committed but the same may not constitute a criminal offence under Section 9(a)(vi) of NAB Ordinance punishable under section 10 of the said Ordinance or under any other law without proof of the existence of element of dishonest intention of personal gain. The prosecution in the present case has not been able to bring on record any evidence to substantiate the allegation of dishonest intention to cause financial loss to the organization for personal gain to bring the case within the purview of National Accountability Bureau Ordinance, 1999. This is settled law that unless prosecution discharges the initial burden of proving the charge no presumption of guilt can be raised and in the present case, the prosecution except pointing out certain irregularities committed by the respondents in the transaction of purchase of ships for the use of PNSC, has not been able to bring on record any evidence oral or documentary to show that either the price for which the ships were purchased, was exorbitant or the respondents while acting for their personal gain have caused financial loss or any other damage to the organization. In the light of the facts of prosecution case and the circumstances leading to the completion of transaction it is evident on record that the view of the evidence taken by the High Court was unexceptional ." (bold added) In the later case of State v . Anwar Saifullah (PLD 2016 SC 276 ) in this respect held as under at P .298 Para 10. "10. With reference to the precedent cases mentioned above the law appears to be settled by now that in a case involving a charge under section 9(a) (vi) of the National Accountability Ordinance, 1999 the prosecution has to make out a reasonable case against the accused person first and then the burden of proof shifts to the accused person to rebut the presumption of guilt in terms of section 14(d) of the said Ordinance. It is also apparent from the same precedent cases that a mere procedural irregularity in the exercise of jurisdiction may not amount to misuse of…
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