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Petitioner: MUHAMMAD SIDDIQUL FAROOQ VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Muhammad Sair Ali, Sayed Zahid Hussain Title: MUHAMMAD SIDDIQUL FAROOQ vs THE STATE Case No.: Criminal Review Petition No,45 of 2004 in Criminal Petition No,232 of 2001 Date of Judgment:2009-09-30 Reported As: 2010 SCMR 198 Result: Review allowed
JUDGMENT
JUDGMENT ' MUHAMMAD SAIR ALI, J.--- The petitioner is former Chairman/M.D. House Building Finance Corporation. He joined the corporation on two years contract on 1-5-1998. He was arrested on 18- 10-1999. He remained in the custody of National Accountability Bureau w,e,f, 25-12-1999 and his whereabouts were not known. On a petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, and the consequent orders, the petitioner was ultimately produced before this Court on 18-5-2000 when time was sought to file challan against him in the Accountability Court. On 31-5-2000, the Chairman, National Accountability Bureau filed a reference against the petitioner before the Accountability Court No,4, Karachi. The allegations were that the petitioner recruited 88 persons without adhering to the mandatory procedure and without approval of the competent authority thereby causing wrongful loss of Rs,56,88,525 to the State exchequer. And that he criminally misappropriated the entertainment funds by sending gifts of fruit and nimco etc. Valuing Rs,1,05,000 to persons unconnected with HBFC or its business. The petitioner being holder of a public office thus, allegedly committed offences under section 9(a)(iii)(iv)(vi) read with section 10(a)(a) and (b) of the National Accountability Bureau Ordinance, 1999 and section 409, P.P.C. 2. The Accountability Court framed the charge on 16-8-2000. The petitioner pleaded not guilty and claimed trial. 3. The prosecution examined P.W.1, Muhammad Dawood, General Manager, HBFC, Karamat Ali, Chief Manager (Services), HBFC, P.W.3 Javed Ahmed Khan, Cashier HBFC, P.W.4 Abdul Qadir, General Manager (Personnel) HBFC, P.W.5 Muhammad Wasim, Assistant Manager (Audit Division) HBFC, P.W.6, Miss Nasreen Mehdi, General Manager (Audit and Instructions Division) HBFC, P.W.7
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Syed Sohail Fahmi, Manager Allied Bank of Pakistan, FTC Branch Karachi, P.W.8 Rahila Anwar, Private Secretary to Chairman HBFC, P.W.9 Muhammad Akram Tariq, Manager HBFC, P.W.10, Mian Habib Ahmed, Assistant Director FIA, Investigating Officer and P.W.11, Ghulam Farooq, Assistant Director, FIA, the second Investigating Officer. 4. The learned trial Court convicted the petitioner for commission of corruption and corrupt practices under section 9(a)(iii) and (vi) of the Ordinance and sentenced him to five years' R.I. And to pay a fine of Rs,2,00,000 or otherwise to undergo one year's R.I. Benefit of section 382-B, Cr.P.C. Was allowed. Under section 15 of the NAB Ordinance of 1999, he was also disqualified to contest election and to hold public office for a period of twenty-one years. 5. The petitioner preferred an appeal before the Sindh High Court. A learned Division Bench of the High Court partly allowed the appeal through judgment dated 17-5-2001. The petitioner's conviction and punishment for offence under section 9(a)(vi) of the National Accountability Bureau Ordinance, 1999 on the charge of making wrongful appointments was set aside. 6. On the charge of misappropriation of Rs,1,05,000 from entertainment funds, the High Court held that the entertainment funds were provided for entertainment of the guests visiting the offices and these funds were to be utilized for such guests only under some principles but fruits and nimco etc. Were sent by the petitioner to political figures and government officers who were neither visitors of HBFC nor were they concerned with the business of HBFC but all of whom. Were persons that were or could be helpful to the petitioner in retention of his job in HBFC. Petitioner's conviction for the commission of corruption and corrupt practices under section 9(a)(iii) was maintained by the High Court. While maintaining the conviction, High Court reduced the sentence of five years to the period of imprisonment already undergone by holding that ".... After his arrest on 18-10-1999, the appellant was dumped and forgotten till his production on 18-5-2000 by Prosecutor-General NAB, before the Honourable Supreme Court under the directive of the apex Court". The fine was also reduced to Rs,1,05,000 which was equal to the amount spent on the purported gifts. The period of disqualification of the petitioner to contest election and to hold public office for 21 years was maintained. 7. The High Court's judgment dated 17-5-2001 dismissing petitioner's Criminal Accountability Appeal No,18 of 2000 on the charge of misappropriation of entertainment funds was challenged before this Court by seeking leave thereagainst through Criminal Petition No,232 of 2001. The leave petition was dismissed by this Court through judgment dated 13-9-2004 but period of 21 years disqualification to contest election or to hold public office was reduced to 10 years. 8. Through the present Criminal Review Petition No,45 of 2004 the petitioner seeks review of judgment dated 13-9-2004. Mr. Muhammad Ikram Ch., Advocate Supreme Court appearing for the petitioner contends that while deciding the above petition, evidence on record particularly that of P.W.6, P.W.8 and P.W.9 and the documents produced were not taken into account. And that the depositions of P.W.6 and P.W.8 etc. Have a direct bearing upon the petitioner's culpability. Further that the petitioner was admittedly kept in illegal confinement by NAB etc. From 18-10-1999 to 18-5- 2000 when he was recovered and produced before this Court and the effect thereof on the trial was not determined. The learned Advocate Supreme Court submitted that the petitioner's illegal detention for 7-1/2 months vitiated the investigation and the reference proceedings as mala fide and coram non judice, which was enough to set aside the conviction and punishment of the petitioner. 9. In the contrary arguments Mr. Abdul Baseer Qureshi, learned Additional Prosecutor-General and the learned Deputy Attorney-General appearing for the respondents' contended that the review was barred by time and the same could only be entertained under Rule 2 of Order XXVII of the Supreme Court Rules for an error apparent on record and no such apparent error existed to justify the review as this Court had considered all the evidence in the matter.
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10. We have considered the submissions of the learned counsel for the parties as well as the record. 11. The objections of Mr. Abdul Baseer Qureshi, Additional Prosecutor-General NAB and Mr. Khan Dil Muhammad Khan Alizai, D.A.-G. That the review petition is barred by limitation is frivolous. We find the petition to be within time. We have also examined maintainability of the review petition in the present case. The findings are recorded hereinafter. 12. In the case of Managing Director SSGC, Ltd. v. Ghulam Abbas PLD 2003 SC 724 scope of review jurisdiction under Article 188 of the Constitution of Islamic Republic of Pakistan read with Order XXVI, Rule 1 of the Supreme Court Rules, 1980 was educatively defined by an Honourable five Member Bench of this Court. Numerous judgments pronouncing the principles and parameters of the exercise of review jurisdiction were analyzed. Referring to the cases of Federation of Pakistan through Secretary, Establishment Division Government of Pakistan, Islamabad v. Muhammad Tariq Pirzada 1999 SCM R 2189 and Wasim Sajjad v. Federation of Pakistan through Secretary, Cabinet Division and others PLD 2001 SC 233, the rule was reiterated that if nothing was overlooked nor had the Court failed to consider an important aspect of the matter, review petition was not sustainable. The observations in the case of Suba through Legal Heirs v. Fatima Bibi through Legal Heirs 1996 SCM R 158 were repeated that review petition would be competent if "something which is obvious in the judgment had been overlooked and that if it would have been considered by the court the final result of the case would have been otherwise". The present case directly attracts the above settled principles of law on the exercise of review jurisdiction. While passing the judgment under review this Court appears to have overlooked the all important evidence of P.W.6, P.W.8 and P.W.9 and also the absence of prosecution evidence on the culpability of the petitioner in terms of offences of section 9(a)(iii) and (vi) of the National Accountability Bureau Ordinance, 1999. 13. We are in agreement with Mr. Muhammad Ikram Ch., learned Advocate Supreme Court for the petitioner that while rendering judgment, dated 13-9-2004, evidence of P.W.6 i,e, Nasreen Mehdi, P.W.8 i,e, Rahila Anwar and P.W.9 i,e, Muhammad Akram Tariq appear to have escaped attention of this Court. The statement of P.W.6, P.W.8 and P.W.9 on the question of purchase of gifts valuing Rs,1,05,000 from the entertainment or discretionary funds, had direct bearing upon the determination of the guilt or otherwise of the petitioner. Had these depositions not escaped consideration of this Court, we feel result would have been different. 14. On the charge of misappropriation of entertainment or discretionary funds, P.W.6 i,e, Nasreen Mehdi was the main and important witness of the prosecution being General Manager (Audit and Instructions Division) and then an Executive Director, Northern Region, HBFC. ' She as P.W.6 deposed that:--- "In December, 1998 special Team for audit from State Bank of Pakistan arrived at HBFC. The specific issues on which the said team arrived were (1) sending the gift items from HBFC (2) ---I provided - --- information and documents. Prior to arrival of that inspection team of State Bank of Pakistan the gifts in shape of fruit items were being sent to the dignatories from the funds allocated under the head of M.D.'s reserved funds of the budget of HBFC. M.D. HBFC was the only competent authority to utilize the said funds. M.D.'s reserved fund has not been explained anywhere as to which sort of expenditure is included in this head and therefore, it was being utilized on the sole discretion of M.D. And if any head was not available to any expenditure it was debited from this head. Besides there is another allocation of fund under the head entertainment fund. When the said audit team of State Bank arrived in discussion they guided us that the items of gifts which are debited from the head of M.D.'s reserved fund must be debited from the "entertainment fund" of the budget of HBFC. Thereafter the gifts in shape of fruits started debiting from "entertainment fund". When the said gift items were being sent from M.D.'s fund I was not Executive Director, Personnel and Services therefore I do not know what was the procedure at that time in utilization of the funds. On 12-11-1998 I was posted as Executive Director, P&S. The procedure of sending gifts during my
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period was that M.D. Used to direct his personal staff about the names and gift items and the same were purchased and sent to the persons and dignatories and thereafter the bills were processed through Cashier and put up to me through proper channel and after my approval the same were paid to the person who had initially purchased those items. It is correct that during the tenure in the department of HBFC there was substantive improvements. .... In meeting of February, 2000 of Board of Directors there was no allegation against Siddiq-ulFarooq regarding financial irregularities. .... Besides the visit of special team of State Bank of Pakistan for audit there was an annual usual visit of Audit Team of State Bank of Pakistan in HBFC and last year the post audit was upto the period of 1997. Thereafter as usual annual post audit was done in HBFC. Payment of the gifts which were sent to the dignatories have been processed and the cheques have been issued and those bills which were put up and processed have been paid. I know that there are rules for utilization of entertainment funds and gifts in Federal Government. I cannot say if an amount of Rs,5,00,000 were allocated to the head of entertainment in HBFC budget, 2000. I remember that in the budget of HBFC for the year 1999 there was an amount of Rs,2,00,000 for head entertainment." 15. In the perspective of above quoted deposition of P. W..6, our attention was also drawn to the sequential depositions of other witnesses particularly of P. W.8 and P. W.9 whose statements remained unexamined by this Court. On reading we found that P.W.1 i,e, Muhammad Dawood, General Manager, HBFC said nothing on the charge relating to the gifts. P.W.2 i,e, Karamat Ali, Chief Manager Services only referred to dealing with some bills for the purchase of fruits. P.W.3 i,e, Javed Ahmed. Khan, a Junior Assistant dilated upon purchase of fruits etc. From the market for gifts and their dispatch to the recipients. Mr. Abdul Qadir, Chief Manager (Personnel) HBFC deposing as P.W.4 said nothing as to the gifts but admitted in the cross-examination that "over all there was improvement in the working of HBFC in all the departments. There was instructions from M.D. To us not to violate the rules and regulations in the work of HBFC". Muhammad Waseem i,e, Assistant Manager (Audit Division) appearing as P.W.5 made no statement on the gifts. Syed Sohail Fehmi, Manager, ABL, FTC Branch, Karachi (P.W.7) deposed as to the cheque transactions from the account of the petitioner. Rahila Anwar, Private Secretary to the petitioner as P.W.8 dilated upon purchase of fruits from discretionary funds of the petitioner as the. Chairman/Managing Director. In the cross-examination she admitted that Mr: Siddiqul Farooq had given some carpets to the retiring officers of HBFC as acknowledgement of their services as gifts. .. And that Mr. Siddiqul Farooq wrote a letter to State Bank to audit the accounts of HBFC and that audit team inspected the accounts. Muhammad Akram Tariq (P.W.9) Manager HBFC in his cross- examination admitted that "in connection with the payments and sanction of the gifts, there was no objection from anyone". He also said that during the tenure of Mr. Siddiqul Farooq the image of HBFC and the recoveries were boosted. P.Ws.10 and 11 were the Assistant Directors of FIA, who deposed on the investigation process. 16. Section 9(a) clauses (iii) and (vi) read as follows:--- (a) A holder of a public office, or any other person, is said to commit or have committed the offence of corruption or corrupt practices--- (iii) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use, or for the use of any other person, any property entrusted to him, or under his control, or wilfully allows any other person so to do; or (vi) .... (if he) misuses his authority so as to gain any benefit or favour for himself or any other person, or (renders to attempts to render) (or wilfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority)." 17. The allegations in the reference were for commission of corruption or corrupt practices by the petitioner under above-quoted clauses (iii) and (vi) section 9(a). The charges were also framed
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under both the above clauses. The trial Court also convicted and punished the petitioner for offences under above referred clauses (iii) and (vi). The learned Division Bench of the High Court however acquitted the petitioner of the charge under clause (vi) of section 9(a) for causing colossal loss by making wrongful appointments etc. But convicted, punished and disqualified the petitioner under clause (iii) for misappropriating discretionary funds. To maintain the conviction and punishment for the charge under clause (iii), the learned Division Bench of the High Court appears to have invoked ingredients of sub-clauses (vi) and (iii) interchangeably, without maintaining the distinction existing therein. In view thereof, both the sub-clauses (iii) and (iv) of clause 9(a) ibid are concisely examined hereinafter. 18. Analyzing clause (iii) above the proof of offence thereunder demands proof of dishonesty or fraudulent misappropriation or conversion of the entrusted property to his own use by the accused or for the use of any other person etc. Etc. It is for the prosecution to initially prove existence of dishonesty, fraud, misappropriation or conversion of the entrusted property for bringing an accused within the mischief of offence under clause (iii). It is well-settled that cases under the Ordinance are strict liability cases. Prima facie case has to be established by the prosecution before drawing a presumption or inference against the accused under the Ordinance. It must be shown that the accused committed misappropriation deceptively or fraudulently or dishonestly with some ulterior purpose. In the present case there is no evidence of appropriation or misappropriation of discretionary/entertainment funds (Rs,1,05,000) by the petitioner as Chairman/Managing Director with dishonest or fraudulent object to make some wrongful gains or to otherwise convert the said funds to his own use etc. In the absence of such proof, no offence under clause (iii) of section 9(a) (ibid) could be said to have been made out. 19. A perusal of section 9(a)(vi) above shows that holder of a public office or any other person is said to commit the offence of corruption and corrupt practices if he misses his authority in order to gain any benefit or favour for himself etc. Or for any other person. The prosecution alleged that the petitioner abusing his official position as Chairman, HBFC and misusing his authority, sent gifts valuing Rs,1,05,000 to get personal gain or benefits or fa.Our for himself from the recipients of the gifts. 20. The above rendered survey of evidence on record starkly brings out total absence of evidence on dishonesty or fraud or for his own use or of misuse of authority for gain or benefit or favour derived by the petitioner from the recipients of the purported gifts of fruits or nimco etc. The prosecution based its case on probabilities, presumptions and illogical deductions and not on evidence of any dishonesty or fraud (required under clause (iii)) or of misuse of authority for personal gains, benefits or favours for himself or anyone else (required under clause (vi)). 21. We are conscious of the presumptions under section 14(a) and (d) of the National Accountability Ordinance, 1999 against an accused in the offences under clauses (iii) and (vi) of section 9(a) (ibid) E and of his burden to prove innocence. Section 14(a) and (d) read as under:--- "(a) Where in any trial of (an offence under clauses (i), (ii), (iii) and (iv) of subsection (a) of section 9) it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person any gratification, other than legal remuneration, or any valuable thing, or any pecuniary advantage from a person or any agent of a person, for any favour shown or promised to be shown by the accused, it shall be presumed, unless the contrary is proved, that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or valuable thing or pecuniary advantage for himself or some other person, as the case may be, as a motive or. Reward such as is specified in sections 161 to 163 of the Pakistan Penal Code, 1860 (Act XLV of 1860), or, as the case may be, without consideration, or for a consideration which he believed to be inadequate. (b) ..
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(c) .. (d)any trial) of an offence under (clauses (vi) and (vii) of section 9), the burden of proof that he used his authority or issued any directive, or authorized the issuance of any policy or statutory rule or order (SRO) or made any grant or allowed any concession, in the public interest, fairly, justly and for the advancement of the purpose of the enactment under which the authority was used, directive or policy or rule or order was issued or grant was made or concession was allowed shall lie on (the accused), and the absence of such proof the accused shall be guilty of the offence, and his conviction shall not be invalid by the reason that it is based solely on such presumption: ' Provided that the prosecution shall first make out a reasonable case against the accused charged under clause (vi) or clause (vii) of subsection (a) of section 9)." ' The above quoted section 14(a) evidently places the initial burden on the prosecution to prove that an offence under clause (iii) of subsection (a) of section 9 had been committed by dishonest and fraudulent 'misappropriation or conversion for himself or any other person. It was on proof through evidence that the presumption against the accused arose thereby shifting burden on him to prove the contrary. 22. Similarly the proviso to section 14(d) obliges the prosecution to first make out a reasonable case against the accused. This Court in the case of Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC C07 held that in case the prosecution succeeded in making out a reasonable case against the accused person to the satisfaction of the court, only then would the prosecution be deemed. To have discharged the prima facie burden of proof, to shift onus on the accused to rebut the presumption of his guilt. The accused then would be required to show that he used his authority fairly, justly and in the public interest. 23. In this case no evidence whatsoever was produced by the prosecution to discharge its prima facie burden to prove the offence under clause (iii) or to first making out a reasonable case against the petitioner for offence under clause (vi) of section 9(a) (ibid). There is no evidence on record to show that:--- (i) were there any rules or regulations or policy or practices for the exercise of authority in HBFC by the Chairman/M.D. To use discretionary or entertainment funds at his disposal; (ii) were the discretionary or entertainment funds dishonestly or fraudulently misappropriated or otherwise converted for his own use etc. By the petitioner; (iii) were the recipients of gifts of fruits and nimco etc. Valuing Rs, 1,05,000 totally unconnected, or unconcerned with the Corporation or its business as political or non-political 'persons; (iv) was the authority misused by the petitioner "so as to gain any benefit or favour for himself or any other perm"; (v) did petitioner receive any gain, benefit or favour from the recipients of insignificant gifts of fruits or nimco and/or was it so intended; and (vi) was the object or motiveof sending fruits and nimco etc., to obtain gains or benefits or favours as to his person or office or retention of the office as alleged. ' In absence of any prosecution evidence on the above stated essential factors, no presumption or assumption could be drawn under section 14(a) and (d) (ibid) against the petitioner. Prosecution failed to prove or first make out a reasonable case against the petitioner under above referred clauses (iii) and (vi). The prosecution was unable to prove "unreasonableness" or colourable use of administrative discretion by the petitioner to gain pecuniary or financial advantages or accumulation of wealth or assets or position or the misappropriation or misuse of authority for personal benefits or favours. Presumption of reasonability as well as relationability thus, tilted against the prosecution. Absence of such evidence escaped the attention of this Court while pronouncing the judgment under review. From the circumstances and the evidence on record,
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what could be concluded was that during Musharraf regime, the petitioner was irrationally, unreasonably and falsely implicated in the present case because of his stated political liaison with the former Prime Minister i,e, Mian Muhammad Nawaz Sharif, his party or the government. 24. The result there._ f is that offences under section 9(a)(iii) and (vi) of the National Accountability Ordinance, 1999 are held not have been made out against the petitioner. Therefore, as recorded in the short order, dated 30-9-2009, we allow this review and set aside judgment under review passed by this Court on 13-9-2004. Criminal. Petition No,232 of 2001 is also accepted and treated as an appeal. For the reasons recorded above we accept the appeal as well. The impugned judgment dated 17-5-2001 of the High Court and judgment dated 30-10-2000 of the trial Court are set aside. 25. Petitioner is acquitted of all the charges. His disqualification to contest election and to hold any public office is also set aside. (Sd.) Muhammad Sair Ali, J (Sd.) Javed Iqbal, J ' I have added separate note. (Sd.) Sayed Zahid Hussain, J ' SAYED ZAHID HUSSAIN, J.--- This review petition had…
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