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Petitioner: Ch. ABDUL MAJEED VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Rustam Ali Malik, Ali Nawaz Chohan Title: Ch. ABDUL MAJEED vs THE STATE Case No.: Criminal Appeals Nos.1511, 1355, 1391, 1393 and 1394 of 2002 Date of Judgment:2003-07-10 Reported As: 2004 YLR 747 Result: Order accordingly
JUDGMENT
JUDGMENT ' RUSTAM ALI MALIK, J.-- ' Through this judgment we intend to dispose of (1) Criminal Appeal No, 1511 of 2002 titled Chaudhry Abdul Majeed v. The State, (2) Criminal Appeal No, 1355 of 2002 titled Makhdoom Salah-ud-Din Gillani etc. v. The State, (3) Criminal Appeal No, 1391 of 2002 titled Mujahid Zia Butt v. The Chairman, National Accountability Bureau and others, (4) Criminal Appeal No, 1393 of 2002 titled Chaudhry Ghulam Rasool v. The Chairman, National Accountability Bureau and (5) Criminal Appeal No, 1394 of 20021 titled Sheikh Muhammad Munir v. The Chairman, National Accountability Bureau. 2. The brief facts are that Accountability Reference No, 40 of 2002 was filed in the learned Accountability Court on 5-11-2001 by the Chairman, N.A.B. Under sections 18(g) and 24 of the N.A.B. Ordinance, 1999 against (1) Chaudhry Tajamal Hussain son of Chaudhry Nazir Ahmad, (2) Chaudhry Abdul Majeed son of Chaudhry Khair Din, (3) Major (Rtd.) Barkat Ali Khan son of Chaudhry Muhammad Khan, (4) Mehr Khuda Dad Khan Luk son of Muhammad Yar Khan Luk, (5) Sheikh Muhammad Munir son of Sheikh Muhammad Hussain, (6) Chaudhry Ghualm Rasool, Advocate son of Khan Muhammad, (7) Mujahid Zia Butt son of Zia-ud-Din Butt, (8) Syed Makhdoom Salahuddin son of Syed Muhammad Ramzan Shah Gillani, (9) Muhammad Ejaz son of Muhammad Younas, (10) M.A. Hamid Faizi son of Haji Muhammad Din, (11) Syed Muhammad Usman Khan Abbasi son of Muhammad Daud Khan, (12) Muhammad Hafeez Abbasi son of Haji Mehboob Khan, (13) Syed Ali Ashgar Shah son of Syed Bilawal Shah. 3. The reference was filed on the plea that the National Industrial Cooperative Finance Corporation Limited (N.I.C.F.C.) was registered by the Registrar, Cooperative Societies, Lahore Region Lahore, under the Cooperative Societies Act, 1925 and that respondents Nos.1 to 13 were the President,
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Executive Director and Directors of the said Corporation respectively. There were reports that the management of N.I.C.F.C. Had caused grave loss to the N.I.C.F.C. Through fraud and embezzlement of funds. It was also reported that the Lone Commission which was constituted to make detailed inquiries in defalcation of funds in the N.I.C.F.C. Had prepared a report and had placed the responsibility of loss on the management of the N.I.C.F.C. Besides that, the Registrar, Cooperative Societies had also instituted special audit and inquiries and as a result of which it was revealed that the aforesaid accused persons had dishonestly and fraudulently misappropriated funds of N.I.C.F.C. Thereby causing a loss of approximately 1.8 billion rupees to the Corporation. Considering the gravity of allegations and inquiry reports it was deemed proper and appropriate to refer the matter for formal investigation under the N.A.B. Ordinance. Accordingly the Anti-Corruption Establishment, Punjab, was directed to investigate the matter. The Investigating Officer submitted his interim report and it revealed that a loss of an approximate amount of rupees 1.8 billion had been caused by accused Nos.1 to 13 to the It was further stated in the reference that the investigation was in progress and on the conclusion of which a complete reference would also be filed. The Chairman, N.A.B./Referring Authority observed that he had appraised the evidence placed before him and was of the opinion that the accused persons had committed a scheduled offence under the N.A.B. Ordinance and so he had decided to refer the matter to the Accountability Court. Hence the reference. 4. The accused aforesaid were formally charged by the learned trial Judge. Accountability Court, Lahore, to the effect that in furtherance of their common intention they had caused a loss of Rs, 1.8 billion to N.I.C.F.C. By indulging in corruption and corrupt practices fraudulently and had thus committed an offence under sections 9 and 10 of the N.A.B. Ordinance, 1999 and the Schedule thereof. All the accused pleaded not guilty and the prosecution was thus asked to produce its evidence. 5. It may be mentioned here that Mehr Khuda Dad Luk and Ch. Tajamal Hussain were released on 15-12-2001 and 15-1-2001 respectively on the basis of plea bargain while proceedings against Syed Asghar Ali Shah abated on account of his death. 6. In this case the prosecution has examined P.W.1 Syed Zawar Hussain Zaidi who in April, 2000 was Executive Incharge of N.I.C.F.C. (Defunct) Punjab, P.W.2 Mian Ahmad Sher, P.W.3 Muhammad Javed Iqbal Khan, Chartered Accountant and P.W.4 Shehzada Rasool, Inspector/ Circle Officer, Kasur who had conducted the investigation in this case. 7. On the conclusion of the prosecution evidence the statements of the accused were recorded under section 342, Cr.P.C. None of the accused appears to have produced any evidence in defence nor any of them made statement on oath under section 340(2), Cr.P.C. On the conclusion of trial the learned trial Court convicted and sentenced the accused under section 9(a) (vi) read with section 10 of the National Accountability Bureau Ordinance, 1999 as under:-- (1) Ch. Abdul Majeed 14 years' R.I. And a fine of Rs,50 crores. (2) Major (Rtd.) Barkat Ali Khan, (3) Sheikh Muhammad Munir, (4) Ch. Ghulam Rasool, (5) Mujahid Zia Butt, (6) Makhdoom Salahuddin, (7) Muhammad Ejaz, and (8) M.A. Hamid Faizi 3 years' R.I.. And a fine of Rs, one crore each. (9) Hafeez Abbasi and Sahabzada Muhammad Khan Abbasi were ordered to be released, if they pay the agreed amount mentioned in the last para. Of the judgment (on the basis of their plea bargain).
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8. Aggrieved of the aforesaid judgment, the present appeals were filed by the appellants and the same are being disposed of through this judgment. 9. So far as the prosecution evidence is concerned, P.W.1 Syed Zawar Hussain Rizvi stated that in April, 2000 he was the Executive Incharge of N.I.C.F.C. (Defunct), Punjab Cooperative Board for Liquidation, Lahore. He had scrutinized the record of the Defunct Cooperative Society and had also checked the record of N.I.C.F.C. And had prepared the complaint Exh. P.W. 1/1-C. He had also joined the investigation of this Reference. He had prepared the report about the assets and liabilities of N.I.C.F.C. Which is Exh.P.W. 1/2/1-3. He had handed over to the Investigating Officer the inquiry report under section 43 of the Punjab Cooperative Societies Act, 1925 (Exh. P.W. 1/3) and had also handed over to him the audit report alongwith its annuxure (Exh. P.W.1/4). He had handed over to him the extract from Justice Lone Commission Report relating to N.I.C.F.C. (Exh.P.W.1/5) as well. He had also signed the seizer memo. Exh. P.W. 1/6 which was attested by the Investigating Officer He stated that according to the record of N.I.C.F.C. The following persons were the Directors of the Defunct Corporation:-- (1) Ch. Abdul Majeed, Executive Director; (2) Makhdoom Salahuddin, Director; (3) Mr. Mujahid Zia Butt, Director; (4) Major (Rtd.) Barkat Ali, Director; (5) Mr. M.A. Hamid Faizi, Director; (6) Ch. Ghulam Rasool, Director; (7) Sheikh Muhammad Munir, Director; (8) Mehar Khuda Dad Khan Luk, Director; (9) Mr. Muhammad Usman Khan Abbasi, Director; (10) Mr. Muhammad Hafeez Abbasi, Director; (11) Syed Ali Asghar Shah, Director; (12) Haji Rehmat Khan, Director; (13) Mr. Muhammad Ejaz, Director; and (14) Ch. Tajamal Hussain (President of the Defunct Corporation). ' He i.e, P.W.1 stated that according to the record the total liabilities of the Defunct Corporation were Rs,5,40,83,19,628 while the assets of N.I.C.F.C. Were of the value of Rs,3,35,31,17,448 and the deficit comes to Rs,2,05,52,02,180. When cross-examined by the learned counsel for Major (Rtd.) Barkat Ali, Mujahid Zia Butt, Muhammad Ejaz and M.A. Hamid Faizi, he stated that he was not fully aware of all affairs of the N.I.C.F.C. And he knew only those decisions relating to N.I.C.F.C. Which were conveyed to him and that he had not been the decision making authority. He stated that he had not consulted any other document/record except the record of the report under section 43 of the Punjab Cooperative Societies Act. 1925, Lone Commission Report and latest audit report. In the cross-examination, he further stated that the contents of the complaint were correct and complete according to the record which was finalized and approved by the officers of the Board. He admitted that in paras. Nos. 6 to 13 Major (Rtd.) Barkat Ali Khan, Mujahid Zia Butt, Muhammad Ejaz and M.A. Hamid Faizi do not figure and no role is specifically assigned to them., He also admitted that the aforesaid four persons were elected as Directors of N.I.C.F.C. On 29-7-1991. He did-not know if any of the aforesaid four persons had participated in any meeting in their capacity of Directors of N.I.0 C.F.C. After their election on 29-7-1991. He stated that only Recovery Section could positively explain whether there were some outstanding dues against the aforementioned four persons and only Property Cell could explain whether the aforesaid four persons were ever concerned in any type of transaction of the property of N.I.C.F.C. Or not. He did not remember if any property was purchased by N.I.C.F.C. After the election a above mentioned four persons (as Directors) and he did not know if the Board had sanctioned any loan or not after 29-7-1991. He stated that he was not
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aware if Punjab Cooperative Board for Liquidation (P.C.B.L.) after holding an inquiry in 1992 had found that the aforesaid persons were not liable and consequently had recommended the withdrawal of orders under section 44-E of the Cooperative Societies Act, 1925 and their names from the Exit Control List (E.C.L.). In his cross-examination P.W.1 further stated that in his knowledge there was no specific instance of misfeasance, malfeasance, embezzlement, fraud, misappropriation, dishonesty, illegal means, pecuniary advantages, corruption and corrupt practices against the aforesaid persons. He did not know if there was any evidence of providing any benefit to himself or to any other person by the said four persons. He did not know if there was any evidence of breach of trust by the aforesaid four persons. He also did not know if any of the aforesaid four persons had indulged in any corruption or corrupt practices. 10. When cross-examined by the learned counsel for Makhdoom Salahuddin appellant, P.W.1 admitted that in the inquiry report it was held that the Directors were responsible/liable but therein their names were not specifically mentioned. He also admitted that the separate and distinct roles of all accused were not assigned in the report. He admitted that in para. 10 of the report, only seven persons were shown as directly involved for misappropriation and embezzlement of funds of the Corporation and wherein the name of Makhdoom Salahuddin did not figure. P.W.1 also stated that he did not collect any evidence except considering Lone Commission Report and report under section 43 of the Punjab Cooperative Societies Act, 1925. 11. In his cross-examination P.W.1 further stated that Makhdoom Salahuddin became the Director of the Corporation on 5th of October, 1989 and he had not specifically mentioned in the complaint submitted by him about attending/ participation of Makhdoom Salahuddin in any General or Special Meeting of the Board of Directors. He did not know if he i.e, Makhdoom Salahuddin had arranged loan for any member of this family, any of his relatives or friends. He, however, added that Makhdoom Salahuddin had himself availed loan and although its principal amount was paid, its interest was still outstanding. He admitted that in his report as well as the inquiry report he had not mentioned the same but he then added that the complaint was concerning the irregularities and corruption by the Corporation. He stated that he had not mentioned about other Directors and, hence he had not mentioned about Makhdoom Salahuddin as well. During cross-examination he also stated that he had not associated Makhdoom Salahuddin in his inquiry before submitting the report. He admitted that in the case of Makhdoom Salahuddin as well there was no specific instance of misfeasance, malfeasance, embezzlement, fraud, misappropriation, dishonesty, illegal means, pecuniary advantages, corruption and corrupt practices. He admitted that concerning outstanding interest against Makhdoom Salahuddin he had not made mention in his report. 12. During cross-examination by the learned defence counsel on behalf of Sheikh Muhammad Munir, he stated that he did not know if P.C.B.L. Had sought permission for prosecution of 14 Directors. He admitted that his complaint/Reference appears different from audit report. He further admitted that the name of Sheikh Muhammad Munir was not mentioned (in his report) concerning corruption, corrupt practices and financial affairs and that his name did not figure in para. 7-A, para. 8-A or in paras. Nos.9 to 14 of the complaint. When cross-examined by the learned counsel for Ch. Ghulam Rasool, P.W.1 admitted that the name of Ch. Ghualm Rasool did not figure in paras.Nos.6-A to 13 of the complaint. He further admitted that his name did not appear in para. No,5 of the inquiry report. He did not know if any of the Directors was associated in proceedings of those inquiries, as a result whereof audit report and report under section 43 of the Punjab Cooperative Societies Act, 1925 had been prepared. 13. P.W. 2 Mian Ahmad Sher stated that he had conducted inquiry in the affairs of N.I.C.F.C. Under section 43 of the Punjab Cooperative Societies Act, 1925 and had submitted report to the Registrar, Cooperative Societies on 23-1-1992 which is Exh. P.W.1/3 and that he had prepared the report after consulting relevant record whichever was available at that time. During cross-examination by the
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learned defence counsel for Ch. Ghulam Rasool accused, he stated that he had never joined Ch. Ghulam Rasool in his inquiry and he had nowhere specifically fixed his liability and specifically the name of Ch. Ghulam Rasool does not figure for corruption and malfeasance, etc. During cross- examination by the learned defence counsel for Makhdoom Salahaduddin admitted that Makhdoom Salahauddin became the Director of the Corporation on 5th of October, 1989 and on 6- 11-1991 the Registrar sealed this Company. He admitted that in para. No,10 of his report Makhdoom Salahauddin does not figure as one of the seven persons responsible for misappropriation/ embezzlement. He admitted that he had not associated any of the Directors in the inquiry and he had not issued any notice to Makhdoom Saladhauddin to join the inquiry. He stated that he did not mention any Meeting, Annual Meeting, General Meeting, Special Meeting or any other Meeting in which Makhdoom Salahauddin had participated. He admitted that Makhdoom Salahauddin never operated/maintained the accounts of the Company. He admitted that he had not appended any documents with his report to the effect that Makhdoom Salahauddin had obtained any monetary gain. During cross-examination by the learned defence counsel for Mujahid Zia Butt etc. He admitted that Major (Rtd.) Barkat Ali etc. Became the Directors of N.I.C.F.C. On 29-7-1991 as the earlier Directors of the Corporation had either resigned or had been removed. He admitted that he had not made any.Specific allegation against the said four persons i.e, Major (Rtd.) Barkat Ali, Mujhaid Zia Butt, Muhammad Ejaz and M.A. Hamid Faizi. He stated that the aforesaid four persons do not fall in the category of persons against whom he had recommended prosecution for criminal act of embezzlement and fraud. He stated that he was not aware of any proceedings under any law taken against the aforesaid four persons to determine their liabilities as Directors of N.I.C.F.C. During the cross-examination, he stated that the aforesaid four persons had no role whatsoever to play regarding the transactions of sale and purchase of properties referred to his report and he had not specifically determined any loss after 29-7-1991 in the affairs of N.I.C.F.C. 14. P.W.3 is Muhammad Javed Iqbal Khan, a Chartered Accountant affiliated with Javed Tariq & Co., Chartered Accountants, He stated that Punjab Cooperative Board for Liquidation had appointed their firm for the audit of N.I.C.F.C. For the period ending up to 30th June, 1998 and their firm had prepared audit reports, one for the period ended on 31-5-1992 and the second for the period ended on 30-6-1998. He stated that the report Exh.P.W.1/4 had been prepared by this firm. 15. P.W.4 is Shahzada Tariq Inspector/ Circle Officer who had conducted the investigation in this case. During cross-examination he stated he had not considered any book of accounts except the three reports i.e, Lone Commission Report, report under section 43 of the Punjab Cooperative Societies Act, 1925 and Audit Report. He had not considered any other account book. During the investigation he had not examined the Register of Members, shareholders and Register of Directors of N.I.C.F.C. And in his report he had not mentioned the date of elections and resignation of any Directors. He stated that he had not mentioned in his report about any of the Directors availing of any loan or about any amount outstanding against them or their near and dear ones. He admitted that according to the report under section 43 of the Punjab Cooperative Societies Act, 1925 the date of election of Makhdoom Salahauddin as Director of N.I.C.F.C. Is 5-10-1989. He admitted that he had not mentioned in his report that the date of election as a Director of N.I.C.F.C. On 5-10-1989 was erroneous. He was not aware of the resignation of Mujahid Zia Butt on 13-10-1991. During cross- examination, he also stated that during the investigation he had not recorded the statements of any of the Directors under section 161, Cr.P.C. And he had not interrogated any of the Directors of N.I.C.F.C. And he did not know if the Registrar of Cooperative Societies had ever proceeded against any of the Directors of N.I.C.F.C. While invoking any provision of Cooperative Societies Act. He stated that he had made Ch. Ghulam Rasool, Advocate and Sheikh Muhammad Munir as accused in this reference on the basis of the complaint of Syed Zawar Hussain and not on the basis of any specific material.
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16. On the conclusion of the prosecution evidence, the statements of the accused under section 342, Cr.P.C. Were recorded and wherein they denied all the incriminating circumstances. However, none of the accused appears to have made statement on oath under section 340(2), Cr.P.C. Nor any of them appears to have produced any evidence in defence. 17. We have heard the arguments. The learned counsel for Ch. Abdul Majeed appellant took the plea that the charge in this case has not been properly framed and that in the charge it had not been mentioned anywhere as to when the offence in question had been committed. He has argued that in case the offence in question had been committed prior to 1985, the provisions of N.A.B. Ordinance, 1999 could not be pressed into service. He has argued that the charge was clearly vague and the accused did not understand the nature of allegations and hence the trial could not proceed on its basis. The second objection raised by him was that the statement of Ch. Abdul Majeed accused/ appellant was legally never recorded under section 342, Cr.P.C. And that no such statement exists on record. In this respect there exists on record a statement on which the name of none of the accused is written. However, at the end of the statement there are signatures resembling those of Ch. Abdul Majeed and on the basis of which it can be inferred that the said statement can be that of Ch. Abdul Majeed, but it is surprising that the learned trial Court did not bother to write the name of Ch. Abdul Majeed accused as well as his other particulars on the said statement. In the absence of the name of a particular accused on a statement, how it can be presumed that the said statement was of that particular accused. Furthermore, the prosecution evidence recorded in this case which was considered by the learned trial Court as incriminating was not put to him. While we do not agree with the argument of the learned counsel for Ch. Abdul Majeed accused/appellant that the charge had been framed in such a way that the accused did not understand the nature of offence, but we do agree with him that there is no statement on record which can be legally considered as a statement of Ch. Abdul Majeed accused/appellant under section 342, Cr.P.C. It is correct that the charge in this case is also not properly worded but we feel that the accused fully understood the nature of charge/allegation against them and had it not been so, an objection to that effect could have been raised during the trial. Therefore, we feel that although there was hardly any justification for remanding the case to the learned trial Court for framing a fresh charge and thereafter recording evidence afresh, we feel that to the extent of Ch. Abdul Majeed accused/appellant there is every justification for remanding the case to the learned trial Court for recording his statement under section 342, Cr.P.C. Afresh in accordance with law and thereafter to decide the case afresh after completion of proceedings from the stage of the statement of the accused/appellant (Ch. Abdul Majeed) under section 342. Cr.P.C. The question arises whether the case can be partially remanded i.e, to the extent of any particular accused. The answer is certainly in affirmative and which finds support from the authority reported as Muhammad Nawaz alias Muhammad and 6 others v. The State (1991 PCr. U 156 Lahore) wherein it was held that Appellate Court can make an order for retrial of a particular accused from a particular stage in proceedings of a case and it is not obliged to make order for retrial of the case as a whole. 18. Now we come to the cases of (1) Makhdoom Salahauddin, (2) Major (Rtd.) Barkat Ali, (3) M.A. Hamid Faizi, (4) Muhammad Ejaz (appellants in Criminal Appeal No, 1355 of 2002), (5) Mujahid Zia Butt (appellant in Criminal Appeal No,1391 of 2002), (6) Ch. Ghulam Rasool (appellant in Criminal Appeal No, 1393 of 2002) and (7) Sheikh Muhammad Munir (appellant in Criminal Appeal No, 1394 of 2002). The learned counsel for the aforesaid appellants have not objected in this case to the form of charge as was done by the learned counsel for Ch. Abdul Majeed nor they have taken the plea that the statement of any of the aforesaid appellants under section 342, Cr.P.C. Was not recorded in accordance with law. The learned counsel for all the said appellants have submitted that the case of none of the aforesaid accused/appellants was prejudiced due to the fact that the
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charge was not properly worded. The learned counsel for the aforesaid appellants request that the appeals of the said accused be decided on merits rather than remanding the case as a whole to the learned trial Court. They have argued that in case the statement- of one of the accused i.e, Ch. Abdul Majeed under section 342, Cr.P.C. Was not recorded in accordance with law, only to his extent matter could be sent back to the learned trial Court for recording his statement under section 342, Cr.P.C. And not for a fresh trial as a whole. As already mentioned above, we do agree with the arguments of the learned counsel for the appellants in that respect. 19. The learhed counsel fore the aforesaid appellants i.e, Makhdoom Salahauddin, Major (Rtd.) Barkat Ali. M.A. Hamid Faizi, Muhammad Ejaz, Ch. Ghulam Rasool, Mujahid Zia Butt and Sheikh Muhammad Munir have all taken the plea that during the course of inquiry, liability of individual Directors had not been determined. It was pointed out that M.A. Hamid Faizi, Muhammad Ejaz, Mujahid Zia Butt and Major (Rtd.) Barkat Ali had been elected as Directors of the Corporation on 29- 7-1991 while Makhdoom Salahauddin had become the Director on 5-10-1989. The Company was sealed by the Registrar on 6-11-1991. The learned counsel for the aforesaid appellants have referred to the statement of P.W.1 who stated that he did not collect any evidence except considering Lone Commission Report and report under section 43 of the. Punjab Cooperative Societies Act, 19252 They have referred to the statement of P.W. 4/Investigating Officer who had stated in the course of cross-examination that he had not considered any other book of accounts except three reports i.e, Lone Commission Report, report under section 43 of the Punjab Cooperative Societies Act, 1925 and the audit report, all of which are exhibited and that he had…
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