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Official Citation: 2024 PCRLJ 1321
Court / Jurisdiction: Sindh High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Jawed Aftab Tanweri and others vs The State through National JUDGMENT
Ruling Summary: This decision was rendered by the Sindh High Court on 2023-12-31, officially reported as 2024 PCRLJ 1321. In this matter between Jawed Aftab Tanweri and others and The State through National 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 2024 PCRLJ 1321
Court Name: Sindh High Court Judge(s): Muhammad Faisal Kamal Alam, Amjad Ali Sahito Title:Jawed Aftab Tanweri and others vs The State through National
JUDGMENT
Reported As: 2024 PCRLJ 1321 Result: Appeals allowed Judgment
JUDGMENT AMJAD ALI SAHITO, J. By this common judgment, we intend to dispose of the above captioned Crl. Appeals filed by the appellants Jawed Aftab Tanweri, Nizamuddin Mangnejo, Mukhtiar Ali Gilal, Syed Shayan Ali Shah, Rajib Ali Shah, Amanullah Ghanghro, Nisar Ahmed Shaikh, Aijaz Ali Memon, Roshan Ali Kandhro, Muhammad Nawaz Buriro, Sajjad Ali Mirani, Rameez Rajab Abro, Abdul Ghani Mangi, Mushtaque Hussain Sarki, Agha Faiz Rasool, Nabi Bakhsh Mahar and Ameer Bakhsh Mahar against the Judgment dated 20.11.2017 whereby they have been convicted and sentenced by the Accountability Court, Sukkur in Reference No.24/2015 "Re. The State v. Rajab All Shah and others" as under:- 1. Accused Jawed Aftab is sentenced to suffer R.I for five years and fine of Rs. 100,000/- (Rupees one lac only). 2. Accused Nizamuddin Mangnejo is sentenced to suffer R.I for five years and fine of Rs. 360,000/- (Rupees three lac and sixty thousand only). 3. Accused Mukhtiar Ali is sentenced to suffer R.I for five years and fine of Rs.600,000/- (Rupees six lac only). 4. Accused Syed Shayan Ali Shah is sentenced to suffer R.I for five years and fine of Rs.260,000/- (Rupees two lac and sixty thousand only). 5. Accused Rajab Ali Shah is sentenced to suffer R.I for five years and fine of Rs.25,00,000/ (Rupees Twety five five lac only). 6. Amanullah Ghanghro is sentenced to suffer R.I for five years and fine of Rs. 150,000/- (One lac fifty thousand only). 7. Nisar Ahmed Shaikh is sentenced to suffer R.I for five years and fine of Rs. 200,000/- (two lacs only). 8. Aijaz Ali Memon is sentenced to suffer R.I for five years and fine of Rs.650,000/- (Rupees six lac fifty thousand only), 9.
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Roshan Ali Kandhro is sentenced to suffer R.I for five years and fine of Rs. 700,000/- (Rupees seven lac only). 10. Muhammad Nawaz is sentenced to suffer R.I for five years and fine of Rs. 75,000/- (Rupees seventy five thousand only). 11. Sajjad Ali is sentenced to suffer R.I for five years and fine of Rs.280,000/- (Rupees two lac and eighty thousand only). 12. Rameez Rajah Abro is sentenced to suffer R.I for five years and fine of Rs. 70,000/- (Rupees seventy thousand only). 13. Abdul Ghani Mangi is sentenced to suffer R.I for five years and fine of Rs. 170,000/- (Rupees one lac and seventy thousand only). 14. Mushtaque Hussain Sarki is sentenced to suffer R.I for five years and fine of Rs.13,00,000/- (Rupees thirteen lac only) and 15. Agha Faiz Rasool is sentenced to suffer R.I for five years and fine of Rs. 70,000/- (Rupees seventy thousand only), 16. Nabi Bakhsh Mahar is sentenced to suffer R.I for five years and fine of Rs. 75.000/ -(Rupees seventy five thousand only) and 17. Ameer Bakhsh Mahar is sentenced to suffer R.I for five years and fine of Rs. 4,10,000/- (Rupees four lacs and ten thousand only). In case, accused fail to pay the fine it shall be recoverable as arrears of land revenue in terms of section 33-E of National Accountability Bureau Ordinance, 1999. 2. Since accused Jawed Aftab, Nizamuddin Mangnejo, Mukhtiar Ali Gilal, Syed Shayan Ali Shah, Rajab Ali Shah, Amanullah Ghanghro, Nisar Ahmed Shaikh, Aijaz Ali Memon, Roshan Ali Kandhro, Muhammad Nawaz Buriro, Sajjad Ali Mirani, Rameez Rajab Abro, Abdul Ghani Mangi, Mushtaque Hussain Sarki, Agha Faiz Rasool, Nabi Bakhsh Mahar and Ameer Bakhsh Mahar have been convicted, as such they were directed by the Trial Court that they shall forthwith cease to hold public offices, if any, held by them and further they stand disqualified for a period of ten years, to be reckoned from the date they are released after serving the sentences, for seeking or from being elected, chosen, appointed or nominated as a member of representative of any public body or any statutory or local authority or in service of Pakistan or any Province as required under section 15(a) of NAO, 1999. The accused are also disallowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the government for a period of 10 years from the date of conviction as required under section 15 (b) of the Ordinance. All the above named accused persons were present on bail except accused Agha Faiz Rasool; therefore, they were taken into custody and remanded to Superintendent Central Prison Sukkur along with conviction warrants to serve out the aforesaid sentences. True copies of the judgment provided to all accused as well as learned Special Prosecutor NAB, Sukkur free of costs. 3. The relevant facts, as set out in Reference No.24/2015, are that a complaint was lodged with NAB Karachi against officers and officials of Tube Well Division Khairpur Mirs on allegations of embezzlement of funds amounting to Rs. 190 million during the period of 2011, 2012 and 2013. Procedural irregularities were being practiced in the office of Tube Well Division, Khairpur Mirs. After the verification of the complainant at NAB Karachi, the competent authority converted the case into inquiry. The inquiry was transferred to NAB, Sukkur due to territorial jurisdiction and subsequently inquiry was authorized to vide letter dated 19th January 2015. 4. During the inquiry, accused Nos. 1 to 8, 10 to 14 along with Mr. Amir Bux Bozdar, the then Executive Engineer, Mr. Aftab Ali Talpur, the then Executive Engineer, Mr. Muhammad Siddique Memon, the then Assistant Executive Engineer, Mr. Mukhtiar Hussain Mahar, Government Contractor, Mr. Farman Ali Shah, Government Contractor and Mr. Nisar Ahmed Siming, Government Contractor, applied for Voluntarily Return (VR), on simple plain paper without fulfilling the Codal formalities, therefore their VR application did not proceed. 5. On the basis, of oral evidence as well as documentary evidence the inquiry was converted into investigation vide letter of authorization dated 25th June 2015 and consequent thereto warrants of arrest were issued against the accused persons. The role and liability assigned against accused/appellants are as under.
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6. Appellant Jawed Aftab Tanwri being Ex-XEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 02-12-2011 till 23-01-2012, in connivance with officers/officials and Government Contractors, caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of issuing fake work orders and by signing final bills for illegal payment for repair and maintenance of Tube Wells amounting to Rs. 260, 578/- his liability is Rs. 78,174/- (which is 30% of liability) and gains upon the embezzled amount following KIBOR charges were amounting to Rs. 21,080/- total amounting to Rs.99,254/-. 7. Appellant Nizamuddin Mangnejo being Government Contractor, (Proprietor of M/S Nizamuddin and Co.) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 951,696/- and his liability is Rs. 588,350,- (which is 50% of liability) and gains upon the embezzled amount under KIBOR charges were amounting to Rs. 59,953/- total amounting to Rs. 354,128/-. 8. Appellant Mukhtiar Ali Gilal being Government Contractor, (Proprietor of M/S Mukhtiar Ali and Co.) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 95151,696/- and his liability is Rs. 475,848/- (which is 50% of liability) and gains upon the embezzled amount per KIBOR charges were amounting to Rs. 105,121/- total amounting to Rs. 580,969/-. 9. Appellant Syed Shayan Ali Shah being Government Contractor, (Proprietor of M/S Shayan Ali Bukhari) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 442,922/- and his liability is Rs. 221,461/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 37, 286/-; total amounting to Rs. 258,747/-. 10. Appellant Rajab Ali Shah being Ex-XEN, Tube Well Division District Khairpur Mir's during his incumbencies viz. from (i) 23-01-2012 to 26-03-2013 and (ii) 26-03-2013 to 19-04-2013, in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of issuing fake work orders and by signing final bills for illegal payment in repair, and maintenance of Tube Wells amounting to Rs. 70,00,355/-and his liability is Rs.2,100,100/- (which is 30% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 391,749/-; total amounting to Rs. 24, 91,849/-, 11. Appellant Amanullah Ghanghro being Government Contractor, (Proprietor of M/S Mukhtiar Ali and Co) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 260,582/- and his liability is Rs. 130,291/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs, 15,551/-; total amounting to Rs. 145,842/-. 12. Appellant Nisar Ahmed Shaikh being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 18-10-2010 till 23-0:5-2022 and 07-12-2012 till 29-12-2013, in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs.834,262/- and his liability is Rs. 166,853/- (which is 20%
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of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 29,713/-: total amounting to Rs. 196,566/- 13. Appellant Aijaz Ali Memon being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 31-03-2010 till 30-06-2014, in connivance with officers/officials and Government Contractors, caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 26.35,778/- and his liability is Rs. 527,156/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 103,390/-; total amounting to Rs. 630,546/-. 14. Appellant Roshan Ali being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 31-03-2011 till 07-12-2012 in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 834,68,097/- and his liability is Rs. 5,73,620/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 16.836/-; total amounting to Rs. 690,456/- 15. Appellant Muhammad Nawaz being Government Contractor (Proprietor of M/S Mukhtiar Ali and Co.) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of payments in repair and maintenance of Tube Wells amounting to Rs. 126,019/- and his liability is Rs. 63,010/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 7,083/-; total amounting to Rs. 70,093/-. 16. Appellant Sajjad Ali Mirani being Government Contractor, (Proprietor of Al-Sajjad Enter Prizes) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 466,200/- and his liability is Rs. 233,100/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 42,080/-; total amounting to Rs, 275,180/-. 17. Appellant Rameez Rajab being Government Contractor, (Proprietor of P.R Enterprises) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 108,143/- and his liability is Rs. 54,143/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 11,024/-: total amounting to Rs. 65,177/-. 18. Appellant Abdul Ghani being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 02-12-2012 till 30-06-2014 in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 711.689/- and his liability is Rs. 142, 338/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 18,461/- total amounting to Rs. 160,799/-
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19. Appellant Mushtaq Hussain Sarki being Government Contractor, (Proprietor of M/S Sarki Brothers Enterprises) in connivance with officers/officials of Tube Well Division, District Khairpur Mir's managed to encash illegal payments and caused loss to the National exchequer and involved in embezzlement of funds on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 20,50,243/- and his liability is Rs. 10,25,122/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 219,352/- total amounting to Rs. 12, 44,474/-. 20. Appellant Agha Faiz Rasool being Ex-AEN, Tube Well Division District Khairpur Mir's, during his incumbency viz. from 25-08-2011 till 02-02-2012 in connivance with officers/officials and Government Contractors caused loss to the National exchequer by misuse of authority and embezzlement of funds on account of recording fake MBs and forwarded demands and estimates of tube wells/pumps with his signature on account of illegal payments in repair and maintenance of Tube Wells amounting to Rs. 260,578/- and his liability is Rs. 52, 116/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges were amounting to Rs. 14,053/; total amounting to Rs. 66,169/-. 21. Appellant Nabi Bakhsh being EX-AEN, Tube Well Division, District Khairpur Mirs, during his 'incumbency from 01.07.2009 to 25.08.201.1, 16.07.2012 to 28.03.2013 and 19.02.2014 to 06.06.2014 he in connivance with officers/officials and Government Contractors caused loss to National Exchequer by misusing his authority and embezzlement of funds in account of recording fake MB's and forwarded demands and estimates of Tube Wells/Pumps with his signature in the account of illegal payments in repair and maintenance of Tube Well amounting to Rs. 2,79,524/- and his liability is Rs. 55,905/- (which is 20% of liability) and gains upon the embezzled amount in accordance with KIBOR charges amounting to Rs. 15,112/-; total amounting to Rs.71,017/-. 22. Appellant Amir Bakhsh being Government Contractor (Proprietor of Habib Enterprises) he in connivance with officers/officials Tube Well Division, District Khairpur Mirs, managed to encash illegal payment and caused loss to the National Exchequer and involved in embezzlement of funds in account of illegal payments in repair and maintenance of Tube Wells amounting to Rs, 6,97,232/- and his liability is 3,48,616/- (which is 50% of liability) and gains upon the embezzled amount in accordance with KIBOR charges amounting to Rs. 56818/-; total amounting to Rs. 40, 54,34/-. 23. Thereafter it was concluded that accused Nos. 1 to 09 in the Reference being officers/officials in furtherance of common intention and in connivance with each other misused their authorities to gain benefits and willfully misappropriated the government funds and converted to their own use and the property lawfully entrusted to accused Nos.01 to 09 was willfully allowed to be misappropriated by accused Nos. 10 to 20 on account of payments concerning fake bills of maintenance and repair in Tube Well Division District Khairpur Mir's. All the illegal payments caused loss to the Government Exchequer to the tune of Rs. 9,077,765/-actual Rs.7,589,928/- + KIBOR Rs. 1487,837/-) thus accused Nos. 01 to 20 committed an offence of corruption and corrupt practices as provided in Section 9 (a) (vi) and, (vi) of NAO, 1999 (National Accountability Ordinance) and schedule thereto punishable under section 10 of NAO, 1999. 24. In compliance with Section 265-C, Cr.P.C, a complete set of case papers was supplied to the accused, then charge Ex. 18 was framed against them, to which they pleaded not guilty and claimed to be tried. To prove the case, the prosecution examined PW/1 Faiz Muhammad Senior Clerk, Tube Well Division Khairpur Mir's, who produced seizure memorandum along with documents; PW/2 Shamsu. Rehman Executive Engineer, Tube Well Division Khairpur Mir's, who produced seizure memorandum along with documents containing 18 leaves and attested Photostat copies of incumbency period of AENs and XENs for the period from 2009 until 2014; PW/3 Talib, Senior Clerk, Tube Well Division Khairpur Mir's; PW/4 Ashraf Ali Shaikh, Head Draftsman, Tube
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Well Division Khairpur; PW/5 Muhammad Saadullan Deputy Commercial Manager SEPCO Sukkur. PW Jawed Ahmed was given up. 25. Thereafter accused Mukhtiar Ali Gilal joined the trial, as such, case papers were supplied to him and then amended charge Ex. 44 was framed. Because of the amended charge, PWs Faiz Muhammad, Shamsu Rehman, Talib, Ashraf Ali Shaikh and Muhammad Asadullah were again examined. PW Muhammad Asadullah produced the original, seizure memorandum along with documents containing 23 leaves. PW Jawed Ahmed and Zaheer Ahmed were given up. PW Kashif Noor, the Investigating Officer was examined, who produced a complaint containing 12 leaves, letter of authorization of enquiry, application of 18 accused of acceptance of VR, letter of incumbency period of the accused, letter for authorization of investigation as well as an investigation report. Ultimately learned Prosecutor NAB, Sukkur closed its side. The statements of accused under section 342 Cr.P.C, were recorded, to which they denied embezzlement, misuse of authority, managing to encash illegal payments and causing loss to the National Exchequer. They further pleaded their innocence, how they declined to examined themselves on oath under section 340 (2) Cr.P.C, as well as to adduce or produce any evidence in their defence. 26. The learned Trial Court, after hearing learned counsel for the parties and appraisal of the evidence, convicted and sentenced the appellants/accused vide judgment dated 20-11-2017, which is impugned by the appellants/accused before this Court by way of filing instant Appeals. 27. Learned counsel for the appellants argued that PW/1 namely Faiz Muhammad who exhibited Works Orders, Estimate, Form-24 and other documents deposed that the demand and estimate of work which he produced in his evidence are also marked to the Head Draftsman and further he admitted in his cross that the work order which are produced in his evidence were passed after fulfillment of cordial formalities; that the Head draftsman, namely, Ashraf Ali Shaikh deposed in his cross-examination that the work order as well as demand and estimate of work are genuine, as such draftsman was endorsed by PW/1 Faiz Muhammad; that PW/2 Shams Rehman, Executive Engineer of Tube Well Division Khairpur deposed in cross that Tube Well Division Khairpur has Kotdiji, Gambat and Ranipur Sub-Divisions, but the same were not controlled by him and the same were controlled by another XEN and he further deposed in cross-examination that the Tube wells have incharge as well as Sub-Engineer; that the said witness has deposed in cross that the Tube wells are getting electricity from Rohri SEPCO Division and no record of the SEPCO sub-Division Rohri is produced in Court; that PW/5 Muhammad Asadullah from SEPCO Sukkur has deposed in his cross- examination that there is a particular department to deal with 51 Tube Wells as the Commercial Branch did not deal the same as XEN Rohri deals with 51 Tube Wells while no report was called from him; that he further deposed in his cross-examination that the Tube Wells in question are not included in the list of permanent disconnection even after filing of Reference; that the prosecution has failed to establish the case as serious doubtful circumstances have come on surface, therefore he prays for acquittal of appellants. 28. On the other hand learned Special Prosecutor NAB argued that accused Nos. 01 to 09 being officers/officials in furtherance of their common intention and in connivance of each other misused their authorities to gain benefits and willfully misappropriated the government funds and fails to exercise their authorities to prevent grant renditions to the accused Nos. 10 to 20, therefore, all accused dishonestly, fraudulently misappropriate the government funds and converted to their own use and the property lawfully entrusted to accused Nos. 01 to 09 were willfully allowed to be misappropriated by the accused Nos. 10 to 20 in the account of payments with regard to fake bills of maintenance and repair in Tube Wells Division District Khairpur Mirs; that all illegal payments caused loss to the government exchequer to the tune of Rs. 9,077,765/- (Rs.75,89,928/- + Rs.1,487,837/-), thus the accused Nos. 01 to 20 cited in the impugned judgment have committed an offence of corruption and corrupt practice as provided in -Section 9 (a) (iii, iv and vi) of NAO and
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scheduled thereto punishable under section 10 of the said Ordinance; that after framing of the charge, all the PWs have been examined who established the case against all the accused persons and produced the documentary evidence in support of their version and it has been established that the work orders have been issued during the tenure of accused Rajab Ali shah and the then. executive engineer, whereas the demand measurement sheet/abstract Sheet and form No. 24 have been established that he same have been signed by the accused Aijaz Ali Memon and it has also being established that all the payments on the part of all known official accused/Government contractors have never been denied either in the course of cross- examination on it the statements; that the prosecution has successfully proved the indictment in respect of misappropriation of government funds against accused Rajab Ali Shah; Jawed Aftab, Aijaz Ali Memon, Nisar Ahmed Shaikh, Nahi Bux Mahar, Abdul Ghani Mangi, Roshan Ali Kandhro, Agha Faiz Rasol, Syed Shayan Ali. Shah, Mukhtiar Ali Gilal, Mushtaque Husain Sarki, Nizamuddin Mangnejo, Sajjad Ali, Muhammad Nawaz, Fawad Ahmed Amir Bux Mahar Amanullah Ghanghro and Rameez Rajab Abro, beyond shadow of reasonable doubt under section 9 (a) (iii) (iv) of NAO 1999, hence, they have rightly been convicted and are sentenced under section 10 of NAO, 1999. 29. We have heard learned counsel for the parties and have gone through the material on record. 30. The accusation against the appellants is/was that they by misusing their authority, committed an offence of corruption and corrupt practices…
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