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Petitioner: ASHFAQ KHALID VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed, Akhter Zaman Malghani Title: ASHFAQ KHALID vs THE STATE Case No.: Criminal Ehtesab Application No,81 of 2001 Date of Judgment:2004-08-09 Reported As: PLD 2005 Quetta 1 Result: Appeal dismissed
JUDGMENT
JUDGMENT AKHTAR ZAMAN MALGHANI, J.--- The judgment dated 4-12-2001, rendered by Accountability Court No, II, Quetta in reference No,29 of 2001 has been assailed in the instant appeal, whereby; the appellant was found guilty under section 10 read with sections 11 & 12 of the National Accountability Ordinance, 1999 and sentenced to five years R.I. With fine of Rs,1,56,36,856. Assets/properties of the appellant were also forfeited as set off against the amount of fine and in case of non-recovery/non-payment of amount/fine appellant was directed to further undergo two years' R.I. The appellant was also disqualified for 10 years to hold any public office or contest election and was not allowed to apply for or allow any financial facility in from of loan or advance from any bank or financial institution for a period of 10 years. 2. Briefly stated, facts of the case are that Chairman NAB filed a reference under sections 18(g) and 24 against the appellant and co-accused Pervaiz Zaki wherein it was alleged that the appellant while posted as Senior Accounts Officer, Revenue Office PTCL, Quetta and co-accused Pervaiz Zaki as cashier, withdrew an amount of Rs,1,06,71,000 during the period from July, 1992 to June, 1999 for payment towards fare of vehicles hired for the purpose of disconnecting telephones, however; on investigation and enquiry it was revealed that the registration numbers of the vehicles which were shown to have been hired and to which owners payment was made, were to be of trucks, tractors, scooters etc. It was further alleged that the appellant and co-accused Pervaiz Zaki drew Rs,17,04,140 in the name of Masoom and Company, Quetta for supply of furniture but in fact furniture of only Rs,100,000 was purchased and the remaining amount misappropriated. According to the reference appellant and co-accused also drew Rs,7,24,800 by showing purchase of Digital Computer, Rs,26,83,715 for payment to Butt and Company, Quetta and Nabi Enterprises, Quetta and Rs,3,99,046 in the name of Classic Business Net Work, Quetta on fake receipts and misappropriated the same. Similarly Rs,53,193 were drawn in the name of Universal Equipment Quetta on fake receipts. 3. At the commencement of trial charge under section 9 (iii) and (iv) punishable under section 10 read with sections 11 & 12 of NAB Ordinance, 1999 was read over to the appellant and co-accused, to which they pleaded not guilty. Thereafter prosecution produced 15 witnesses in support of accusation. The appellant denied all the incriminating pieces of evidence during his examination under section 342 Cr.P.C. He also filed written statement in his defence besides giving statement on oath as provided under section 340(2) Cr.P.C. Wherein he claimed innocence and alleged that the record was re-placed by co-accused Pervaiz Zaki in order to prevent Investigating Officer from tracing out the original parties from whom the alleged supply was received to conceal kick-backs received by co-accused Pervaiz Zaki.
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4. The appellant also produced five witnesses in his defence. The learned Accountability Court after evaluating the evidence on record, considering the plea of appellant and co-accused and hearing the arguments of the parties found the appellant guilty and sentenced him as mentioned above. 5. We have heard the learned counsel for the appellant as well as learned ADPG. The learned counsel for the appellant made following submissions:- (i) According to rules the appellant cannot incur expenditure without sanction of G.M. The prosecution failed to bring on record any evidence suggesting that the expenditure as shown in the cash registers and vouchers were sanctioned by the G.M. (ii) There was no evidence that the cheques were en cashed by the appellant or he had received the cash. (iii) It was a case of no evidence and prosecution has miserably failed to prove misappropriation or embezzlement by the appellant. (iv) The trial Court has wrongly relied upon the confessional statement of co-accused which was recorded after a considerable delay and by pressurizing him. Under such circumstances the same was inadmissible against the appellant. (v) Even otherwise the confessional statement of co-accused is neither a substantive piece of evidence against the appellant nor conviction could be based on its strength. (vi) The appellant was only Drawing and Disbursing Officer and there was no evidence on record that the amount was received by the appellant. According to the SRO the appellant was empowered for drawing an amount of Rs,1000 only in respect of contingent bill, therefore, allegation of the prosecution that he withdrew lacs of rupees are not correct. (vii) The case was registered and investigation was carried out after the transfer of appellant from the post of Senior Accounts Officer and all the vouchers/receipts produced in evidence were fake and fabricated and did not bear signatures of the appellant which has also been proved by the evidence of D.W.I Zaka A. Malik Handwriting Expert of well repute who has confirmed that the disputed vouchers/bills receipts etc. Did not bear signatures of the appellant. (viii) The Investigating Officer has admitted that the amount was drawn through cheques signed by the appellant and P.W.1 Muhammad Rafiq but surprisingly only appellant was involved in the case and Muhammad Rafiq was let off without any reason. (ix) The prosecution referred the signatures of comparison to the expert but withheld the report with mala fide as same was against the prosecution. Therefore, adverse inference has to be drawn against the prosecution. (x) The best evidence available to the prosecution was stock register showing receipt of the Furniture and computer etc. But it was not produced by the prosecution calling for adverse inference. (xi) There are several vouchers which bear no signature and substantiate the plea of the appellant that fake record was prepared later on and original record available in the office was destroyed. (xii) The Investigating Officer was directed to investigate into the allegations of corruption or corrupt practices. He investigated the same as one case as is evident from the fact that the remand of the appellant as well as of the co-accused was in one case and thereafter they were sent to judicial lock-up but three references were sent to the Court in clear violation of section 403 Cr.P.C., and Article 13 of the Constitution of Pakistan. The substance of all the three references was not only identical but the same, therefore, second and third reference was not competent. To reinforce his submission the learned counsel referred to the judgments reported in PLD 2002 SC 572, PLD 2003 SC 891, and 2002 SCMR 93. (xiii) It was a fit case for exercising powers under section 397, Cr.P.C. (xiv) The perusal of reference signed by Chairman NAB shows that he has not applied his mind before sending reference to the Accountability Court No, II. No material or evidence was placed before him and the reference was signed by him in mechanical manner. In support of his contention the learned counsel placed reliance on the judgments reported in PLD 1976 S.0 6 and PLD 1977 Karachi 636. 6. In support of his contentions the learned counsel also referred to judgments reported in PLD 1963 Lahore page 411, PLD 1982 SC (AJ&K) 89, 1968 PCr.L.J 1177, 1989 CLC page 2287, PLD 1995 SC page 381 and 393, PLD 2003 SC page 704, PLD 1991 SC page 898, PLD 1991 F.S.0 page 53, 1982 SCMR page 321, PLJ 1999 SC 264 and AIR 1999 SC page 2640. 7. On the other hand learned D.P.G. Urged that delay simplicitor is not sufficient to discard confessional statement of the co-accused which is otherwise found voluntarily and true, corroborated by the fake and forged vouchers, bills etc. Taken into possession during investigation from the office. He further contended that the appellant has not denied that the bills and vouchers produced during trial were forged and fake, according to his plea the same were substituted by co-accused Pervaiz Zaki in other to save his skin but he failed to produce any evidence to substantiate his claim. According to learned D.P.G the amount misappropriated was drawn in the names of different firms and companies which on investigation were found non-existing and in this regard prosecution
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produced evidence of the persons who went to trace out these firms but could not find any. As regards report of D.W.1 Handwriting Expert, the learned D.P.G. Urged with vehemence that the same was procured by the appellant in order to absolve himself of the charge and no reliance could be placed on such report which having been furnished without any reason. The learned D.P.G. In support of his contentions relied on the judgments reported in 1999 SCMR page 2203, 1992 PCr.L.J. 1304 and 2000 PCr.L.J page 865. 8. Before dilating upon the respective contentions of the parties learned counsel we deem it expedient to reproduce brief resume of the evidence produced during trial. P.W.1 Muhammad Rafiq Kakar, Senior Accounts Officer deposed that on 2-11-2000 he received a letter from NAB Authorities for handing over the record to Investigating Officer. In pursuance whereof co-accused Perviaz Zaki handed over the record to Manzoor Ahmed I.0 vide seizure memo. Exh.P/1-A signed by him. He also. Produced the relevant record as Exh.P/1-A-1 to Exh.P/1-A-451. In cross-examination he denied the suggestion that the record was taken away by the NAB Authorities much earlier than shown in the recovery memos. He also denied the suggestion that the record was seized when the appellant and co-accused were already in custody. P.W.2 Muhammad Farooq Malik Manager Muslim Commercial Bank, Jinnah Road Quetta deposited that on 25-7- 2000, he was posted as Manager Muslim Commercial Bank and on the said date "statement of account" pertaining to Masood and Company was provided to the NAB Authorities. He produced statement of account as Exh.P/2-A-I. P.W.3 Abdul Wahab produced Form "F" along with Computer Prints to the NAB Authority exhibited in the Court as Exh.P/3-A-I to Exh.P/3-A-480. P.W.4 Victor George deposed that NAB Authorities through letter dated 30-7-2001 asked for furnishing particulars of certain vehicles, registration number whereof were provided and on checking it was found that the said registration numbers did not belong to their record which was communicated to the NAB Authorities through letter Exh. P/4-A. P.W.5 Syed Muiaffar Hussain Shah ETO deposed that on demand of NAB Authorities he prepared list of vehicles and forms "F" as Exh.P/5-A-I to Exh.P/5-A-15. P.W.6 Ghulam Raza ETO, Khuzdar also provided forms "F" of vehicles to NAB Authorities produced in the Court as Exh. P/6-A-1 to Exh.P/6-A-13. P.W.7 Nadeem Mashi is witness to recovery memo. Exh.P/1-A through which vouchers Exh.P/1-A-1 to Exh.P/1-A-451 were taken into possession which according to him were produced by co-accused Pervaiz Zaki to the Investigating Officer on 2-11-2000. P.W.8 Ulfat Hussain deposed that on 27-7-2001 he was posted as ETO, Lasbela at Hub and on the same day he received a fax from NAB Authorities asking for particulars of the vehicles mentioned in the said fax whereupon he prepared forms "F" from the record and sent to the NAB Authorities. He produced those forms as Exh.P/8-A-1 to Exh. P/8-A-27. P.W. 9 Masoom Ahmed deposed that in the year 1992 he was doing business of Furniture at Quary Road in the name and style of Masoom Ahmed and Company. He supplied furniture to the PTCL and bills were prepared on the basis whereof cheques of Rs,5,00,000, Rs,2,00,000 and Rs,2,80,000 were issued to him. He further deposed that he had only supplied furniture worth Rs,1,00,000 whereas remaining amount was taken back in cash from him. In cross examination he denied the suggestion that he also received cross cheque of Rs,7,00,000 which was deposited in his account on 23-2-1994. He further stated in cross-examination that after withdrawal of the amount the same was paid to PTCL through Pervaiz Zaki explaining that the amount was returned in cash because no supply was made against the same and the appellant Ishfaq Khalid told him that the amount would be paid to him after supply is received as he could not trust him. P.W.10 Haji Ahmed Khan, Senior Clerk, High Court of Balochistan produced photo stat of confessional statement of co-accused consisting of three pages as Exh.P/10-A which according to his statement was correct as per record Exh.P/10-A-1. P.W.11 Syed Shabahat Ali Shah, District Revenue Officer, Quetta deposed that on 12-2-2001 he was working as Magistrate Ist Class/E.A.C-IV, Quetta and on the said date Manzoor Ahmed Investigating Officer produced co- accused Pervaiz Zaki for recording his statement under section 164 Cr.P.C. He further deposed that after introducing himself and providing time for reflection as well as observing formalities, he recorded the statement of co-accused and thereafter transferred him to Judicial custody. He produced the statement as Exh.P/10-A-1 in the Court. In cross-examination he admitted that at the time of recording confessional statement of co-accused he did not call appellant Ishfaq Khalid, explaining that co-accused gave statement as accused in the case and not as a witness, therefore, he did not call appellant at the time of recording statement. He denied suggestion that co-accused informed him about torture. He also denied the suggestion that at the time of recording confessional statement Investigating Officer was present. P.W.12 Nasir Ali deposed that in the year 1996/1997 he was doing business in the name and style of Digital Computer. He further deposed that payment was made to him through cheque by co-accused Pervaiz Zaki for the
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Computers purchased from his firm by Farooq and Zabit, Employees of PTCL. According to his statement he was called by Manzoor Ahmed Investigating Officer in NAB Office and confronted him with 37 vouchers issued for an amount of Rs,7,59,000 but those vouchers were neither in his handwriting nor were signed by him. He further stated that no amount was received by him against those vouchers. In cross-examination he stated that he was sole proprietor of his business. Further stated that his firm was doing business which PTCL from the years 1995 to 1997. According to him he received amount of Rs,3 to 4 lacs during such dealing. He further stated in cross-examination that it was in his knowledge that Farooq and Zabit were under direct subordination of the appellant Ishfaq Khalid. He also admitted that all the cheques issued to him were signed by the appellant. P.W.13 Abdul Aziz deposed that on 17-4-2001 he was handed over notices in the name of Electric Store at Prince Road, Quetta for service and of another shop situated at Shahra-e-Iqbal, Quetta but he found some other persons doing business therein whereupon he made report on the back of the notices which he produced as Exh.P/13-A and Exh.P/13-B. P.W. 14 Muhammad Shareef produced "statement of account" pertaining to Account No,5500-6 of Accounts Officer PTCL, Quetta as Exh.P/14-A-1 to Exh.P/14-A-72. P.W.15 Manzoor Ahmed was entrusted with the investigation of the case. He deposed that during investigation he seized vouchers and record from accused Pervaiz Zaki through seizure memo. Exh.P/1-A. He further deposed that during search for the companies the names whereof were mentioned in the vouchers, he was unable to trace out those companies. In cross-examination he admitted that the record was produced by co-accused Pervaiz Zaki. 9. The appellant in his statement on oath stated that he was D.D.O for Nushki and Loralai from 1992 to mid of 1994 and from December, 1998 to July, 1999 for the whole province. He further deposed that all the cheques were issued under the joint signatures of appellant and Muhammad Rafiq Kakar whereas amount was drawn by the Cashier. He further stated that all the equipments/articles were factually purchased as per vouchers. According to him the original vouchers were destroyed to prevent the Investigating Officer to contact the original parties from whom cashier received kick back and commission and the vouchers produced in the Court were forged one. He further deposed that vehicles were hired from bazaar and Shereen Khan Peon used to contact the vehicle owners and after accomplishment of the job the payments were made by the Cashier in cash. He further stated that the bills were signed by Accounts Officer and Divisional Accounts Officer before finally signed by him. According to his statement each year Audit was carried out. During his posting in Quetta his performance was appreciated and he was granted reward in this regard. He denied his signatures on the bills, vouchers produced in prosecution evidence. He also denied to have moved any application for bargaining to the NAB Authorities. According to him the said application was filed by his counsel on his own. D.W.1 Zaka A. Malik Handwriting Expert deposed that he examined the questioned signatures of accused Ishafq Khalid on the payment vouchers marked as Exh.P/1-A-1 to Exh.P/1-A-451 and Exh.P/7-A-1 to Exh.P/7-A-864 by comparing the same with the specimen and admitted routine signatures of accused Ishfaq Khalid and in his opinion all the questioned signatures were not executed by the accused Ishafaq Khalid. In this regard the produced his report as Exh.D/1-A in the Court. In cross-examination he admitted that the questioned as well as admitted documents were not sent to him by the Court. He also admitted that Exh.D/1-A-3 was not original. He further admitted that the original record of the Court was not examined by him. He also admitted the suggestion that when a person is guilty and his signatures are obtained, he tried to make different signature. He also admitted that in the instant case he was engaged by the accused and fee was paid by him. To Court question he admitted that Exh.D/1-A-1 and Exh.D/1-A-3 were apparently dissimilar to the nacked eye. D.W. 2 Abdullah Jan, Record-Keeper DCO Officer Quetta produced letter dated 29-3-2001 as Exh.D/2-A in the Court. D.W.3 Muhammad Jameel produced ACRs of the appellant for the years 1993 to 1997 as Exh.D/3-A-1 to Exh.D/3-A-6. D.W.4 Rafiq Kakar produced two letters dated 22nd August, 1995 and 18-11-1998 as Exh.D/4-A and Exh.D/4-B. D.W.S. Fida Hussain produced copy of monthly "Teli-general News" for the month of August, 1994 as Exh.D/5. 10. We have carefully considered the contentions put forth by the parties' learned counsel in the light of above discussed evidence as well as impugned judgment. Before going into the merits of the case, we; would like to deal with the arguments of the learned counsel regarding double jeopardy being a question of paramount importance. It may be seen that section 403 Cr.P.0 is based on the ancient maxim nemo debts vexari (a person cannot be tried a second time for an offence which is involved in the offence with which he was previously charged).. The same principle is prevailing in autrefois acquit autrefois convict. Before this section can be invoked the following conditions have to be satisfied:- (i) the accused has already been tried for the offence charged against; (ii) the trial was held by a Court of competent jurisdiction and, (iii) there was a judgment or order of acquittal or conviction.
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11. Rule against the autrefois acquit finds place in section 403 (1) Cr.P.0 and the counterpart of the said rule "autrefois convict" has received recognition in the Constitutional guarantee embodied in Article-13(a), Constitution of Pakistan, 1973. 12. In order to get benefit of section 403, Cr.P.0 or provisions of Article-13 of the Constitution it is necessary for an accused person to establish that he has been tried by a Court of competent jurisdiction for an offence and was convicted or acquitted of the offence and the said conviction or acquittal remains in force and the second trial is again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237, Cr.P.C. Here distinction is required to be drawn between "same facts" and "similar facts". The protection clearly does not extend to those offences which are completely distinct or those which arise out of facts not at all alleged at the previous trial. In case of criminal breach of trust where allegations of misappropriation against accused are not in respect of any single amount but relating to different specific amounts received by him on different dates from different persons, each one of these alleged acts of misappropriation is a distinct and independent offence, that is why the legislature conscious of such fact introduced section 222(2) in Criminal Procedure Code which provides that when accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234 Cr.P.C. Provided that the time included between the first and the last of such dates shall not exceed one year. This section as well as section 234, Cr.P.0 are exception to the general provisions of section 233 Cr.P.0 providing that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. It may also be further observed that section 234 Cr.P.0 also contains similar provision namely if a person is accused of more offences than one of the same kind committed within a period of one year, he can be charged with and tired at one trial provided the number of such offences is not more than three. Thus, while there is limitation of maximum three offences which can be combined under section 234, Cr.P.C, there is no such limitation with regard to offence of criminal breach of trust in view of subsection (2) of section of 222. Therefore, if a person is charged with having committed several offences of criminal breach of trust within a period of one year those can be combined at one trial. 13. However; the question arises as to whether non-compliance of sections 222 and 234 Cr.P.0 would render the trial illegal. The answer is certainly in "no" provided that no prejudice has been caused to the accused person because these sections are exception to the general rule embodied in section 233, Cr.P.0 which is clear enough and a joint trial in these provisions by no means compulsory. The provisions of sections 234 to 239, Cr.P.0 are merely enabling provisions and do not make it incumbent upon the criminal Courts to hold a joint trial of each offence in view of curing provisions contained in section 537, Cr.P.C. The legislature never intended that the errors committed in stating either the offences or particulars required to be stated in the charge or omission in that behalf be treated as material unless the accused was in fact misled by such errors or omissions and further it also occasioned a failure of justice. 14. In the judgment reported in PLD 1969 Supreme Court 158 it was held that sections: 234,235,236 and 239 Cr.P.0 are merely enabling provisions and do not make it incumbent upon the Court to hold a joint trial in every case. It would be instructive to reproduce the relevant observations:-- "Under the Code of Criminal Procedure the rule laid down in section 233 is that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in sections 234, 235, 236 and 239, Cr.P.C. These sections are the exceptions to the general rule. The general rule is clear enough. A joint trial under these provisions, by no means compulsory. Nor can it be said that if several accused persons charged for committing the same offence in the course of the same transaction are tried separately then the trial will, irrespective of any question of prejudice, be illegal. The provision of sections 234, 239, Cr.P.C., are merely enabling provisions and do not make it incumbent upon the criminal Courts to hold a joint trial in every case. Notwithstanding these provisions, a joint trial may not be held if it bewilders or prejudices. a particular accused. If this be the position under the procedure prescribed for an ordinary criminal trial, can there be…
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