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Official Citation: 2025 PCRLJ 853
Court / Jurisdiction: Sindh High Court
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Niaz Muhammad Jalbani and another vs The State through Chairman NAB JUDGMENT
Ruling Summary: This decision was rendered by the Sindh High Court on 2024-12-31, officially reported as 2025 PCRLJ 853. In this matter between Niaz Muhammad Jalbani and another and The State through Chairman NAB JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2025 PCRLJ 853
Court Name: Sindh High Court Judge(s): Muhammad Saleem Jessar, Abdul Mobeen Lakho Title:Niaz Muhammad Jalbani and another vs The State through Chairman NAB
JUDGMENT
Reported As: 2025 P Cr. L J 853 Result: Order accordingly Judgment
JUDGMENT MUHAMMAD SALEEM JESSAR, J. By this single judgment we propose to dispose of above said two appeals as both appeals arise out of same judgment being impugned herein. 2. By means of Cr. Accountability Appeal No.D-42/2017 appellant Niaz Muhammad Jalbani son of Muhammad Bux has assailed his conviction and sentences awarded to him vide Judgment dated 31.03.2017 passed by learned Accountability Court Sukkur in Reference No. 20/2015 under sections 9 and 10 of National Accountability Ordinance 1999, whereby accused/appellant was convicted under section 10(a) of NAO, 1999 and sentenced to undergo R.I for 05 years and to pay fine of Rs.908,647/- (Rupees Nine Lacs Eight Thousand Six Hundred and Forty Seven Only) in terms of section 11 of NAO, 1999 and in case of default, the fine was ordered to be recovered as arrears of land revenue in terms of section 33-E of Ordinance ibid. It was also ordered by the trial court that since the accused Niaz Muhammad Jalbani has been convicted, as such he shall forthwith seize to hold public office, if any, held by him and the accused was further disqualified for a period of 10 years to be reckoned from the date he is released after his serving out the sentence from seeking or from being elected, chosen, appointed or nominated as member or representative of any public body or any authority or local authority or in service in Pakistan or any province as provided under section 15(a) of NAO, 1999. The accused was also prohibited to apply for or to be granted or allowed any financial institution in the public sector for a period of 10 years from the date of
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conviction as provided under section 15(b) of NAO, 1999. However, benefit under Section 382-B Cr.P.C was extended to him. 3. By the same judgment, accused Azizullah son of Abdullah Panhwar was acquitted by the trial court while extending him benefit of doubt. Through above said Cr. Accountability Acquittal Appeal No. D-74 of 2017, The State through Chairman National Accountability Bureau has challenged his acquittal. 4. Brief facts of the case, as disclosed in the reference, are that a pseudonymous complaint was received against accused No.1 Abdul Naeem Soomro and others, as shown in the reference. Accused Abdul Naeem Soomro was subsequently discharged through Plea Bargain. It was alleged that said accused and other officials of Highways Division Kambar-Shahdadkot and government contractors, as shown in the reference, in connivance with each other, were involved in misuse of their authority and misappropriation of Government funds. 5. Upon receiving complaint and verification report, an inquiry was authorized by DG NAB Sukkur vide letter No. 720012/IW/COT/T-2/NABSK/2015/41 dated 1st April 2015 and during inquiry accused No. 3, 6, 8 and 10 (as shown in the reference) applied for VR for an amount of Rs.1,33,55,505/-. It is further stated that competent authority rejected the VR on the ground that it was made a practice that Government Officials used to opt for VR after committing embezzlement of huge amount. Subsequently, inquiry was converted into an investigation vide letter No.720012/IW/CO/NAB Sukkur/2015/382 dated 25th June, 2015 and after filing of reference, all the accused persons entered into Plea Bargain and they were discharged through PB except accused Niaz Muhammad Jalbani and Azizullah Panhwar, whereas two other accused namely Qurbnan Ali and Muhammad Saleem were shown as absconders. During investigation, it revealed that accused Nos.1 to 14 (as shown in the reference) including absconding accused persons and accused persons discharged through PB were involved in misuse of their authority and misappropriation of funds amounting to Rs.15.913 Milli9n of Highway Division, District Kamber-Shahdadkot. 6. A formal charge against accused persons was framed at Ex. 10, to which they pleaded not guilty and claimed to be tried vide their pleas recorded at Ex. 11 to Ex. 13. 7. In order to prove its case, prosecution led evidence and examined PW-1 Abdul Jabbar Shah at Ex.14, who produced seizure memo in all 3 leaves as Ex.14/1 along with the vouchers in all 50 leaves. PW-2 Muhammad Saleem, Accounts Clerk was examined at Ex, 15, who produced seizure memo in all 18 leaves along with the record which is in all 250 leaves as Ex.15/1.PW-3 Amir Hussain, Bank Manager was examined at Ex. 16, who produced seizure memo along with the bank document as Ex. 16/1 in all 56 leaves and one leave of seizure memo. PW-4, Sajjad Ali was examined at Ex.17: PW- 5, Qudratullah, .Bank Manager, UBL was examined at Ex.18, who produced the seizure memo along with the attested P.S. copies of bank documents in all 22 leaves as Ex. 18/1. PW-6, Abdul Muqeem XEN, Highway Division was examined at Ex. 19, who produced documents as Ex.19/2 in two leaves. PW-7 Abdul Hafeez, Manager, Bank Al Islami was examined at Ex.20, who produced seizure memo along with 128 leaves of Bank record as Ex.20/1. PW-8 Kashif Noor, Investigating Officer, NAB Sukkur was examined at Ex.21, who produced Athorization letter of the inquiry as Ex.21/1, Original complaint along with P.S. copies of its enclosures as Ex.21/2 and other relevant documents as Ex.21/3 to Ex. 21/9. 8. Accused Niaz Muhammad Jalbani and accused Azizullah Panhwar in their statements under Section 342 Cr.P.C at Exs.24 and 25 respectively denied allegations levelled against them by prosecution and professed innocence. However, neither they got examined themselves on Oath, as provided under Section 340(2) Cr.P.C, nor produced any witness in their defense. 9. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing learned Advocates for the accused persons as well as Special Prosecutor NAB, trial Court, vide impugned judgment, convicted and sentenced appellant Niaz Muhammad Jalbani, as
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stated above while other accused namely Azizullah son of Abdullah Panhwar was acquitted of the charge. Appellant/convict Niaz Muhammad Jalbani has challenged his conviction and sentence by filing above Criminal Accountability Appeal while The State through Chairman NAB has filed above noted Cr. Accountability Acquittal Appeal against the acquittal of accused Azizullah son of Abdullah. 10. We have heard the arguments advanced by learned counsel for the parties and have perused the material made available before us on the record. 11. Learned Special Prosecutor NAB submitted that respondent Azizullah Panhwar in Crl. Accountability Acq. Appeal was working in the department as senior clerk; therefore, alleged vouchers were prepared and duly signed by him; hence, he was responsible for the misappropriation as well as misuse of his authority, as such the trial Court has wrongly acquitted him of the charges. However, he could not controvert the fact that besides respondent Azizullah Panhwar, one Ahmed Raza and Riaz Hussain were also working as senior clerks; however, Ahmed Raza was not arrayed as accused or witness in this case. However, he insisted that trial Court has wrongly acquitted the respondent of the charges. He; therefore, submitted that by allowing the appeal against his acquittal, respondent Azizullah Panhwar may be convicted for alleged offences. He placed reliance on the cases reported in 2020 MLD 1676 (Altaf Ahmed v. National Accountability Bureau) and 2018 PCr.LJ 797 (State through Prosecutor-General Accountability, NAB v. Ghulam Mustafa Randhawa and another). 12. Learned counsel for appellant Niaz Muhammad Jalbani submitted that appellant was Divisional Accounts Officer and his duty as well as role in the office was to forward the vouchers, so also the bills duly submitted before him by the subordinates and consequently the same were to be approved by the Executive Engineer. They further submitted that nowhere prosecution has produced any single document, showing the transfer of funds from Government account to his personal account and even no evidence was produced, showing that his existing properties were beyond his means or the income. They further added that some of the vouchers have been adduced pertaining to the year 2011; though he was posted as Divisional Accounts Officer in the month of April 2013. As far as bills or vouchers are concerned, learned counsel submitted that he was not Sanctioning Authority nor was "competent to visit the construction work, purportedly assigned to the contractors and even measurement was made and the bills were prepared and recommended by the Assistant Engineer and the Engineer was required to submit the bills as per directions of Executive Engineer. They further pointed out that out of eight (08) PWs, PWs Nos. 1, 2, 3, 5 and 7 have not deposed against appellant Niaz Muhammad Jalbani; therefore, entire evidence adduced by the prosecution -against him has become doubtful. In the circumstances, he should have been acquitted by the trial Court but the trial court has wrongly convicted him. They further referred to page No.467 of the paper book, where the witness has clearly deposed in cross- examination that the vouchers printed over form No.28 either were forged, fictitious or bogus and most of these forms did not contain original signature of accused Niaz Muhammad Jalbani. The witness has also admitted that the vouchers adduced in evidence were of the year 2012. They further submitted that prosecution has adduced secondary evidence as most of the documents were Photostats copies; therefore, secondary evidence has no evidentiary value and conviction cannot be based on the same. They placed reliance on the cases reported as 2021 SCMR 408 (Utility Store Corporation of Pakistan, through Managing Director Islamabad and another v. The State and others), 2016 PCr.LJ 643 (Mansoor Ahmed v. The State), 2021 PCr.LJ 99 (Masood Alam Niazi and others v. The State, through Chairman NAB), 2022 PCr.LJ Note 67 Gul and another v. The State), and AIR 1994 SC 591. Learned counsel for the appellant have also referred the Sindh Delegation of Powers under the F.R, and the Powers of Re-appropriation Rules, 1962 and submitted that appellant was not Sanctioning Authority to sanction the bills or issue cheque at his own;
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therefore, finding of trial Court that the appellant allegedly had issued cheques in favour of the contractors, was immaterial and cannot be made basis for maintaining the conviction against him. Learned counsel further submitted that on same set of evidence co-accused Azizullah Panhwar was acquitted while appellant has been convicted which is contrary to the well settled principle enunciated by the Superior Courts. Learned counsel finally submitted that by allowing instant appeal, appellant Niaz Muhammad Jalbani may be acquitted of the charges. 13. In the first instance, we would like to deal with Crl. Accountability Appeal No.D-42 of 2017 filed by accused Niaz Muhammad Jalbani. 14. PW-1 Abdul Jabbar Shah, who was Head Clerk, Highway Kambar-Shahdadkot at the relevant time, in his entire evidence has not nominated appellant Niaz Muhammad Jalbani in the commission of alleged offence, rather he has named other accused persons who were discharged on the basis of plea bargain. It would be appropriate to reproduce herein the relevant portions from his evidence: "...The vouchers which I produced were prepared by accused Riaz Hussain Kalhoro who was the Store Keeper and Tender Clerk in Highway Division Kamber Shahdadkot. The vouchers which I produced bear the initials of accused Riaz Hussain Kalhoro. The vouchers which I produced also bear the signatures of Divisional Accountant, Altaf Hussain Memon and XEN Abdul Naeem Soomro....... . This illegal payment was made by accused Abdul Naeeem Soomro, Altaf Hussain Memon and Riaz Hussain Kalhoro......... I know the accused Azizullah and Niaz Hussain present in the court but they are not involved in the vouchers which I produced in court." 15. PW-2, Mohammad Saleem, Accounts Clerk, has deposed that above said Abdul Jabbar has produced record/relevant documents to the 1.0 in his presence. 16. PW-3 Amir Hussain, who was Bank Manager of SUMMIT Bank, "Larkana has deposed to the extent of opening the bank accounts by accused Qurban Ali and Mohammad Saleem wherein the son of acquitted accused Azizullah namely Asif Ali was shown as their next of kin. In his entire evidence, this witness has, not named accused Niaz Muhammad Jalbani. 17. PW-4 Sajjad Ali deposed in his evidence that at the relevant time he was working as Sub- Accountant in Highway Division. According to him, his function while posted in DAO Kambar- Shahdadkot was to subtract from the budget of Highway Division Kambar-Shahdadkot, the amount bills which were used to be placed before him by Division Accounts Officer Highway Division Kambar-Shahdadkot. He further deposed that he used to punch the bills of Highway Division into the SAP system on the zero level and thereafter level one was used by Divisional Accounts Officers namely Altaf Hussain and Niaz Jalbani as IDs were allotted to them directly by the Accountant General Sindh into the SAP System. He further deposed that the contractors were paid through the bills for Highway Division Kambar-Shahdadkot during the tenures of the then Divisional Accounts Officers namely Altaf Hussain and Niaz Jalbani. In his cross-examination, he admitted, "it is correct to suggest that I have not stated in my 161 Cr.P.C. statement regarding the usage of level one by the then divisional accounts officers namely Altaf Hussain and Niaz Jalbani. I do not know that as to who used to prepare the bill of highway division Qamber Shahdadkot. It is correct to suggest that firstly the ID is applied by the office of DAO and thereafter the divisional accounts officer used to apply his ID. 18. PW-5 Qudruttalh Shah, who was Manager of UBL, Jealous Bazar, Larkana at the relevant time, has only produced the bank record of two contractors namely Munawar Ali and Riaz Ahmed before the IO. 19. PW-6 Abdul Muqeem, who was Chief Engineer, Works and Service Department, Karachi at the relevant time has deposed in his evidence about the procedure relating to payment in respect of contracts regarding the work of different categories and payment of security deposit. He; however, admitted in his cross-examination, "It is correct to suggest that the vouchers of 28 are forged and
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fictitious. Majority of these forms do not contain the original signatures of accused Niaz.... It is correct to suggest that accused Niaz taken over the charge as Divisional Accounts Officer in 2013. It is correct to suggest that form 28 vouchers are of 2012". 20. PW-7 Abdul Hafeez, who was Hub Operation Manager, Bank Al-Islami Latifabad Branch, Hyderabad, at the relevant time, has only produced the bank record of five contractors namely Mumtaz Ali, Riaz Ahmed, Junaid Ahmed, Nabi Bux and Maqbool Ahmed before the I.O. 21. PW-8 Kashif Noor, Deputy Director/Investigating Officer NAB Sukkur in his evidence has stated in detail about the entire investigation conducted by him in instant case. His evidence is not direct but is based on the information given to him by other prosecution witnesses. 22. From the perusal of evidence of the prosecution witnesses, as narrated above, it seems that out of eight witnesses, in the evidence of four witnesses viz. PWs Nos.2, 3, 5, and 7, nowhere the name of accused/appellant Niaz Muhammad Jalbani finds mention, whereas PW No.1 namely Abdul Jabbar and PW No.6 namely Abdul Muqeem have made certain statements/admissions which are against the prosecution version and go in favour of the accused. 23. PW-1 namely Abdul Jabbar, who was working as Head Clerk in Highway Division, Kambar- Shahdadkot at the relevant time, does not say anything about accused Niaz Muhammad Jalbani, rather he has nominated three other accused namely Riaz Hussain Kalhoro, Abdul Naeem Soomro and Altaf Hussain Memon, who were discharged on the basis of plea bargain. According to him, the Illegal payment was made to the contractors by accused Abdul Naeem Soomro, Altaf Hussain Memon and Riaz Hussain Kalhoro. He has not named the present appellant/accused Niaz Muhammad Jalbani. He has clearly stated that the vouchers, which he had produced during his evidence, contained the signatures of accused Altaf Hussain Memon and Abdul Naeem Soomro. So far as the preparation of the vouchers in question is concerned, in this context, he has named accused Riaz Hussain Kalhoro who was store Keeper and Tender Clerk in Highway Division Kamber- Shahdadkot, the said vouchers also bear the initials of said Riaz Hussain. Not only this, but he has specifically exonerated appellant Niaz Muhammad Jalbani by deposing, "I know the accused Azizullah and Niaz Hussain present in the court but they are not involved in the vouchers which I produced in court." 24. Likewise, PW-6 Abdul Muqeem, who was Chief Engineer, Works and Service Department, Karachi has categorically stated in his cross-examination that the forms 28 vouchers in question were forged and fictitious. He further deposed that majority of the said forms did not contain the original signatures of accused Niaz. He also deposed that accused Niaz Muhammad Jalbani had taken over the charge in the year 2013 as Divisional Accounts Officer, whereas the said form 28 vouchers related to the year 2012. 25. In this view of the matte', it can safely be observed that the above said two witnesses i.e. PW-1 Abdul Jabbar and PW-6 Abdul Muqeem have not supported the case of prosecution so far as the allegations against appellant Niaz Muhammad Jalbani is concerned. Rather their evidence supports the version of the accused/appellant. 26. So far as the evidence of PW-4 Sajjad Ali, who was working as Sub-Accountant in Highway Division at the relevant time, is concerned, although in his evidence he has stated that level one was used by Divisional Accounts Officer namely Altaf Hussain and Niaz Jalbnani as IDs were allotted to them by the Accountant General Sindh into the SAP System. However, in his cross- examination this witness has admitted in clear terms that firstly the said ID was used to be applied by the office of DAO and thereafter the divisional accounts officer used to apply his ID, meaning thereby that said ID was also being in the knowledge and used of other persons working in the office of DAO. In this view of the matter, appellant Niaz Muhammad Jalbani alone, without inclusion of others, cannot be held to be responsible for using the said ID for any illegal purpose as alleged. This witness has also improved/exaggerated his statement recorded under section 161, Cr.P.C. as
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he has himself admitted in his cross-examination that he did not state in his 161 Cr.P.C. statement regarding the usage of level one by the then Divisional Accounts Officers namely Altaf Hussain and Niaz Jalbani, whereas such fact has been stated by him in his deposition, which is also fatal to the prosecution case. 27. So far as the evidence of PW-Kashif Noor, I.O, is concerned, it may be observed that neither he was an eye-witness, nor was he working in the Highway Division but his evidence is based on the information given by the officials of Highway Division or bank employees. Furthermore, the trial court while dealing with the case of acquitted accused Azizullah, has disbelieved the evidence of this witness and has not given any weight to the same. In this view of the matter, suffice it to refer to the well settled principle of law that once the prosecution evidence is disbelieved with respect to a co-accused then it cannot be relied upon with regard to the other co-accused. In this connection, reference may be made to the cases reported as Muhammad Asif v. The State (2017 SCMR 486) and Umar Farooque v. State (2006 SCMR 1605). 28. It is also worthwhile to point out at this juncture that the trial court while convicting the present appellant, on the basis of same set of the evidence, has acquitted accused Azizullah who was working as Senior Clerk in the Highway Division at the relevant time and against whom the allegation was that he has misappropriated government funds and his liability was calculated to be more than the liability of accused Niaz Muhammad Jalbani. Needless to emphasize here that rule of consistency demands that if the trial court has disbelieved the evidence in respect of a co- accused, the same cannot be relied upon for convicting other accused. However, before referring to the dictum laid down by the Superior Courts on this point, it would be appropriate to examine the evidence of prosecution witnesses with a view to see as to whether aforesaid acquitted accused has also been assigned any role in the commission of alleged offence or not? The allegations against acquitted accused Azizullah Panhwar is that he in connivance with other accused persons prepared security deposit vouchers and illegal payment in fake schemes for payment to the contractors who are accused Nos.7 to 14 as shown in the reference amounting to Rs. 12,763,210/-. It is further alleged that he also appended his initial on the security deposit vouchers which formed basis of payment to contractor which resulted loss to government exchequer. It is also alleged that he facilitated the fake contractors in withdrawing the amount of security deposit. For that purpose he also used his son namely Asif who according to the evidence of PW-3 Amir Hussain Bank Manager, Summit Larkana was shown as next of kin of accused Qurban Ali and Muhammad Saleem who both were Government Contractors, in the documents at the time of opening their Bank accounts. PW-3 Amir Hussain also deposed that accused Azizullah also accompanied accused/contractor Qurban Ali in the bank at the time of opening his bank account. The relevant portion from the evidence of PW-3 Amir Hussain is reproduced as under: "One Asif Ali son of Azizullah is shown as next of kin in the bank account of accused Qurban Ali and the supporting documents viz, bill of electricity is in the name of Azizullah inthe bank account of accused Qurban Ali. The next of kin shown in the bank account of Mohammad Saleem is shown as Asif Ali son of Azizullah and the bill of Sui Gas is provided by accused Mohammad Sakem is of Azizullah with his bank documents". 29. The fact that the said Asif Ali, son of accused Azizullah, was used by accused Azizullah himself in order to facilitate illegal payment to contractors, is also supported by the fact that at the time of opening bank account of the contractor, accused Azizullah was accompanying them in the bank, which is evident from the admission of PW-3 Amir Hussain, to the effect, "Accused Azizullah himself came to the bank and produced the SSGC Bill. I stated that account holder viz. accused Qurban Ali and Azizullah both came to the bank together". 30. From above, it is clear that even acquitted accused namely Azizullah was also implicated by the prosecution witnesses. On the point of 'rule of consistency,' it would be advantageous to refer to
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a judgment of Honourable Supreme Court passed in the case of Muhammad Asif v. The State reported in (2017 SCMR 486), wherein it was held as under:- "It is a trite of law and justice that once prosecution evidence is disbelieved with respect to a co- accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case." 31. In another case reported as Umar Farooque v. State (2006 SCMR 1605), Honourable Supreme Court has held as under: "On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted." 32. Yet in another case reported as Muhammad Akram v. The State (2012 SCMR 440), the Apex Court while holding that same set of evidence which was disbelieved qua the involvement of co- accused could not be relied upon to convict the act. used on a capital charge, acquitted the accused. In view of this legal position, applicant/convict/accused should also have been extended same benefit as given to the acquitted accused which was not done. 33. It is now well settled that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused.In the instant case, prosecution does not seem to have proved…
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