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Petitioner: Col. (R.) IFTIKHAR AHMAD AWAN VS Respondent: THE STATE and another
Court Name: Lahore High Court Judge(s): Rustam Ali Malik, Ali Nawaz Chohan Title: Col. (R.) IFTIKHAR AHMAD AWAN vs THE STATE and another Case No.: Criminal Appeals No,1082 992, 1076 and 2123 of 2002 Date of Judgment:2005-05-20 Reported As: 2006 MLD 580 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose of (1) Criminal Appeal No,1082 of 2002 (2) Criminal Appeal No,992 of 2002, (3) Criminal Appeal No,1076 of 2002 and (4) Criminal Appeal No,2123 of 2002, all of which have arisen out of the judgment dated 12-6-2002 passed by the learned Judge Accountability Court No,II, Lahore whereby he had convicted the accused under section 9 read with section 10 of the NAB Ordinance, 1999 and had sentenced them as under:-- Col (R.) Iftikhar Ahmad Awan and Imtiaz Elahi Johri, appellants:14 years' R.1 and a fire of Rs,25, 08,70,000 each which - will to be recovered from their properties forfeited in favour of N.A.B. Col. (Retd.) Iftikhar Ahmad Awan appellant because of his alleged special role for shifting/transferring money belonging to 35/40 thousand depositors to some unknown place was also additionally fined Rs, 50 crore. Sylvester Desouza, appellant:7 years' R.I. And a fine of Rs,20,00,000. 2. Brief facts of the case are that the accused namely (1) Imtiaz Elahi John (2) Col. (R.) Iftikhar Ahmad Awan and (3) Sylvester Desouza faced the trial in Accountability Reference No,35/2001. Their co-accused Mst. Parveen Shah Nawaz, Dr. Khalid Haroon and Ijaz after the commencement of the trial.
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3. The Chairman N.A.B. Had filed the reference under section 18(g) read with section 24(b) of the N.A.B. Ordinance, 1999, to the effect that accused Nos.1 to 7 were the Chairman, Directors, and General Manager of Service Co-operative Credit Corporation Limited respectively (hereinafter called SCCCL) which was registered on 22-8-1982. There were reports that the accused in furtherance of their common intention had dishonestly and fraudulently misappropriated the funds of SCCCL. At an early stage the matter was inquired into by the Lone Commission constituted by the Government, as well as by the Registrar, Cooperative Societies under section 43 of the Cooperatives Societies Act. Audit was also conducted by a Chartered Accountant and the said inquires disclosed that the above-mentioned accused had dishonestly and fraudulently misappropriated funds of SCCCL amounting to Rs, 1,50,52,03,656. The Anti-Corruption Department was directed to investigate the matter and which submitted an interim report. Investigation disclosed that the accused persons had caused huge loss to SCCCL and the amount which they had embezzled was Rs,1,50,52,03,656. 4. Imtiaz Elahi Johri, Col. (R.) Iftikhar Ahmad Awan, Malik Inkisar Ahmad Awan and Sylvester Desouza accused were charged by the learned Trial Court to the effect that they in furtherance of their common intention along with Mst. Parveen Shah Nawaz, Dr. Khalid Haroon and 1.02 Ahmad Awan, the absconding co-accused, had dishonestly and fraudulently misappropriated the funds of the SCCCL amounting to Rs,1,50,52,03,656 and had thus committed the offence under section read with section 10 of the N.B. Ordinance. 5. All the accused pleaded not guilty and claimed to be tried. Hence the prosecution was asked to produce its evidence. It may be mentioned here that Malik Inkisar Ahmad Awan, accused, died before P.W.1, P.W.2 and P.W.3 were cross-examined by the Defence Counsel and hence the reference to his extent had obviously abated. 6. In this case the prosecution has examined as many as 6 witnesses, of whom P.W.1 is Muhammad Iftikhar Ahmad, P.W.2 Syed Raza Haider P.W.3, Humayun Waheed, P.W.4 Sheikh Ilyas Ahmad, P.W.5 Muhammad Amin and P.W.6 is Muhammad Abbas, Inspector. A large number of documents were also produced from the side of the prosecution and a mention of which shall be made subsequently. 7. Of the prosecution witnesses examined in this case, P.W.1 Muhammad Iftikhar Ahmad stated that in April, 2000, he was acting as Executive Incharge, Services Cooperative Credit Corporation Limited (SCCCL) and he had examined the record of SCCCL and during examination of record he had found a great difference in the assets and liabilities of the said Corporation. On 6-11-1991 liability of Corporation was Rs,2,18,87,47,833 whereas its assets were Rs,68,53,44,177 and the deficit was of Rs, 1,50,52,03,656. He deposed the depositors might be ranging from Rs,35,000 to 40,000. He lodged the complaint Exh. PA which was elaborate and descriptive of the misdeeds of the accused. According to him, on 22-8-1982, the Defunct Corporation had five Directors while on 24-10-1988 it had seven. Two brothers of Zulfiqar Ahmad Awan, Chairman, were also the Director of Corporation namely Iftikhar Ahmad Awan and Inkisar Ahmad Awan, whereas Ijaz Ahmad Awan, the General Mamager of the Defunct Corporation was also his real brother and he was also a paid employee of the Corporation. Parveen Shah Nawaz and her son Dr. Haroon Khalid were also the Directors of the said Corporation. Parveen Shah Nawaz was the first cousin of Zulfiqar Ahmad Awan. Imtiaz Johri accused was the only person from outside and he was Vice-Chairman of the Defunct Corporation. After the murder of Zulfiqar Ahmad Awan, i.e, the Chairman of the Corporation every Director was liable to pay Rs,2,58,700,000 approximately in respect of the deficit faced by the Corporation. 8. P.W.2 Syed Raza Haider deposed that he had joined the investigation of this case and that on 28- 4-2001 he had produced inquiry report dated 21-1-1992 under the Co-operative Societies Act and it consisted of 15 pages. He produced certified copy of the report as Exh.P.W.2/1-15. On the same day he also produced the certified copy of the audit report dated 1-12-1997 along with its annexures as
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P.W.2/2/1139. He also produced extract of Lone Commission Report concerning SCCCL as Exh.P.W.2/3/1-2 and the Investigating Officer took all these documents into possession vide memo. Exh.P.W.2/4. On 3-8-2001 he produced copies of ledger of Account No,46 concerning Mrs. Sitara Jabeen relating to a loan of Rs,32,32,468 as Exh.P.W.2/5/1. He produced minutes of the meeting of Directors dated 5-1-1991 as Exh.P.W.2/6/1-2 and then on the same day he produced copy of the authorization certificate whereby Col.(R.) Iftikhar Ahmad Awan was authorized to collect different amounts vide Exh.P.W.2/7 and these documents were taken into possession by the Investigating Officer through the seizure memo. Exh.P.W.2/8. Similarly this witness proved the documents Exh . P. W.2/8,Exh. 2/9/1 , Exh. P. W . 2/10/1-34 , Exh.P.W.2/11/1-10, Exh. P.W .2/12/1-9, Exh.P.W.2/13/1-12,Exh. P. W .2/14 , Exh.P.W.2/15/1-8, Exh.P.W.2/16/1-4, Exh. P.W . 2/17/1-5, Exh. P . W . 2/19/1-15 , Exh. P .W.2/20, Exh. P. W . 2/21/1, Exh. P.W. 2/22/1-3, Exh. P.W .23 , Exh. P . W . 2/24/1-5 ,Exh. P . W . 2/25/1-4 , Exh. P.W. 2/26/1-4, Exh. P. W . 2/27/1-3 ,Exh. P . W . 2/28/1-5 ,Exh.P.W.2/29/1-2,Exh. P. W . 2/30/1-5 ,Exh.P.W.2/31/1-5,Exh. P . W . 2/32 ,Exh. P. W . 2/33/1-12, Exh. P. W. 2/34 , Exh. P W 2/35/1-20 and Exh. P.W. 2/36. 9. P.W.3 Humayun Waheed deposed that he had joined SCCCL in June, 1989 and remained posted there as Manager till its closure on 6-11-1991. During the investigation of the case, on different dates he had attested the recovery memos. Exh.P.W.2/4, Exh.P.W.2/14, Exh.P.W.2/23, Exh.P.W.2/32, Exh.P.W.2/34 and Exh.P.W.2/36. He deposed that he had also attested the seizure memo. Exh.P.W.3/1 relating to the inquir report under section 43 of the Cooperative Societies Act, prepared by the Investigating Officer on 16-10-2001. He deposed that A/c No,497 had been operated in the name of Riaz Ali a year before his posting (in SCCCL) but the cheques concerning this account were always received by him from Imtiaz Ali Johri accused and to whom he has been making payment. He deposed that he had never himself seen the account holder during his tenure of posting in SCCCL. 10. P.W.4 Sheikh Ilyas Ahmed deposed that he had produced the Inquiry Report Exh.P.W.2/1-15 before the Investigating Officer and who had taken it into possession vide memo. Exh.P.W.2/4 which was also attested by him. 11. P.W.5 Muhammad Amin deposed that in the year 1969 he was posted in Cooperatives Department as Inspector and that in the year 1992, the inquiry regarding the affairs of SCCCL was entrusted to him whereupon he prepared the report Exh.P.W.2/1-115. 12. P.W.6 Muhammad Abbas, Inspector deposed that investigation of this case was entrusted to him on 22-4-2001 through letter Exh.P.W.6/1.--According to him the SCCCL was incorporated on 22- 8-1982 and the certificate of incorporation is on record as Exh.P.W.6/2. He deposed that he had seen the bye-laws of the Society which are Exh.P.W.6/3 and had taken into possession the record mentioned in the seizure memo. Exh.P.W.2/4, Exh.P.W.2/8, Exh. P . W . 2/14 , Exh. P. W. 2/20, Exh. P. W. 2/23, Exh .P. W.2/32, Exh. P. W. 2/34, Exh. P. W .2/36 and Exh. P. W.3/1. 13. On the conclusion of the prosecution evidence, the statements of the accused were recorded under section 342, Cr.P.C. Col.(R.) Iftikhar Ahmad Awan accused/appellant in reply to question No,7 deposed that he had been falsely implicated in this case on account of a mala fide intention on the part of the NAB Authorities and that in fact Zulfiqar Ahmad Awan (since dead) was the sole 'Controlling Authority' in this Corporation and he was its Chairman and the names of his brother and family members were shown as Directors just to comply with the legal formalities. He deposed that he had nothing to do with the business and affairs of the SCCCL. He also deposed that after the death of Zulfiqar Ahmad Awan accused i.e, Chairman of the Corporation, he being his brother was involved in this case only to pressurize him and his family. 14. Sylvester Desouza accused in his statement under section 342, Cr.P.C. Took the plea that he had been falsely involved in this case due to mala fide intention of the NAB Authorities because Zulfiqar Ahmad Awan, who was Chairman of the Corporation, had died and that he i.e, Zulfiqar Ahmad Awan had committed irregularities.
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15. Imtiaz Elahi Johri accused, in the statement under section 342, Cr.P.C. Stated that PCBL had involved him in this case with a mala fide intention and that in fact Zulfiqar Ahmad Awan and his family members were the controlling authority and that he i.e, NAB in connivance with the SCCCL. He deposed that he was only an employee of the Corporation and was authorized to sign the documents on its behalf regarding sale and purchase but he was not authorized to receive any amount. He deposed that the assets of SCCCL were much in excess of its liabilities. He stated that an application was filed by PCBL before the learned Cooperative Judge that assets of SCCCL were much in excess of its liabilities in 1994. He deposed that after the death of Zulfiqar Ahmad Awan, the record was manoeuvred and just to save their own skin, PCBL in connivance with the NAB had initiated different references with mala fide intent but had not produced the original record. He deposed that he had been involved in this case and the P. Ws. Being employees of PCBL had falsely deposed against him. He stated that Humayun was in fact an accused and the said person being the Manager was responsible (for the irregularities) but he had become a witness against him in order to conceal his own wrong doings. He deposed that no independent witness was produced against him. 16. The learned counsel for Col. (R.) Iftikhar Ahmad Awan, appellant has argued that the prosecution had failed to place on record even an iota of evidence to show the active participation of his client i.e, Col. (R.) Iftikhar Ahmad Awan in the affairs of the Corporation or any fraudulent transaction and the prosecution witnesses in the course of cross-examination clearly stated that Zulfiqar Ahmad Awan (since dead) was the sole incharge of the affairs of the SCCCL; that P.W.1 Muhammad Iftikhar Ahmad had admitted in the course of cross-examination that Col. (R.) Iftikhar Ahmad Awan had not signed any document i.e,, sale-deed or any other document relating to any transaction in SCCCL; that P.W. i.e, the Investigating Officer admitted that neither any sale-deed nor any receipt bears signatures of Col.(R.) Iftikhar Ahmad Awan; that in order to prove the allegations of misappropriation and embezzlement, it was required that the prosecution should have established that during the period when the accused/appellant was on the Board of Directors of the Corporation, a particular loss was caused and which was directly the result of a particular act or omission on the part of the accused and the prosecution had not been able to prove as to what particular loss was caused to SCCCL during the period when Col.(R.) Iftikhar Ahmad Awan was on the Board of Directors of SCCCL, nor the prosecution has been able to prove that any act or omission of the accused had caused any loss to the orporation; that prosecution in order to prove its case had relied upon (1) the Lone Commission Report, (2) Inquiry Report prepared by P.W.5 Muhammad Amin under section 43 of the Cooperative Societies Act, 1925 and (3) Audit Report, that in fact all the said reports could not be relied upon by the prosecution because the same were not per se admissible in evidence and because the contents thereof had not been proved; that these reports were the opinions which could hardly be used as incriminating evidence without producing supporting evidence; that P.W.6 had admitted that he had calculated the liability of the Directors of the Corporation by dividing the total liability of the SCCCL to the number of Directors and he had admitted that he had not worked out separate liability of any Director but he had relied solely on the Audit; that P.W.6 had also admitted that except the above-mentioned three documents he had not looked into or attended to any other matter or book of the Corporation and neither the abovementioned three documents nor any other document including the complaint refers to any specific act or omission of any Director which had resulted in loss to the SCCCL; that the inquiry report prepared by P.W.5 Muhammad Amin suggested that a thorough probe should be made into the irregularities committed by the Corporation and had made implied observations regarding Imtiaz Elahi Johri, Ahmad Awan and Zulfiqar Ahmad Awan but had not specifically said so about Col.(R.) Iftikhar Ahmad Awan; that none of the P.Ws. Had been able to point out any instance of misfeasance, malfeasance, misappropriation or embezzlement on the part of Col. (R.) Iftikhar
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Ahmad Awan; that the prosecution was unable to prove the existence of mens rea and the conviction could not be recorded on the basis of mere presumption; that the main allegation against Co.(R.) Iftikhar Ahmad Awan in about sale of land described as Tukra Shah Alam in pursuance of an undated resolution of the Board of Directors of SCCCL and misappropriation of its property because the proceeds of sale were not deposited in SCCCL's account. However, the prosecution was unable to prove beyond reasonable doubt that had been passed authorizing Col. (R.) Iftikhar Ahmad Awan to collect sale proceeds of the aforesaid land and the only document on which the prosecution has relied upon in this respect is a photocopy of an undated resolution passed by the Board of Directors of SCCCL; the P.W.1. Had admitted during cross-examination that Col. (R.) Iftikhar Ahmad Awan had not signed any document such as any sale-deed and that lie was not in a position to say whether he had seen any record to the effect that Col. (R.) Iftikhar Ahmad Awan was receiving any proceeds or not; that P.W.6 admitted, as already submitted by him; that neither any sale-deed nor any receipt bears signatures of Col.(R.) Iftikhar Ahmad Awan; that the prosecution had failed to prove its case against Col.(R.) Iftikhar Ahmad Awan beyond reasonable doubt and that the learned trial Court had wrongly convicted and sentenced him on the basis of a mere presumption and as such he is entitled to be acquitted. 17. The learned counsel for Sylvester Desouza, appellant has argued that the learned Accountability Court had not mentioned in the charge the time, place and manner of alleged misappropriation although it was a mandatory requirement of law as such the charge as framed by the learned trial Court was defective; that Sylvester Desouza appellant was convicted by the learned trial Court on the sole ground that he was found guilty of having availed benefit of Rs,20,00,000 for his personal use and that he had never returned the said amount that the said observation/finding of the learned trial Court is against record and no charge was framed against him for the said allegation and no question to this effect was put to the appellant by the learned trial Court when his statement was recorded under section 342, Cr.P.C., nor any evidence was produced in that respect; that the appellant never played any role in the affairs of defunct SCCCL and had never signed any document nor he was a party to any transaction on behalf of the said Corporation and even according to the prosecution the appellant was a teacher of Zulfiqar Ahmad Awan and his three brothers; that the basis of the reference was a complaint lodged by P.W.1 which is on record as Exh.P.A. And wherein names of certain persons are mentioned, who were responsible for misappropriation/embezzlement of the funds of the Corporation and the name of the appellant was not mentioned in the list of those persons. Similarly in the inquiry report (under section 43 of the Cooperative Societies Act) which has been produced as P.W.2/1-15, his name has not been mentioned as one of the persons were liable for misappropriation/embezzlement; that the appellant is an old and infirm person of more than 75 years of age and is not enjoying good health; that there was no one, except his old wife, to pursue his case and the benefit of section 382-B, Cr.P.C. Has been denied to him without any lawful justification that, the prosecution has been unable to prove its case against Sylvester Desouza appellant and as such he is entitled to be acquitted. 18. The learned counsel for Imtiaz Elahi Johri, appellant, has argued that the appellant was only a paid' Director and was designated as its Vice Chairman and that it had come in evidence vide document Exh.P.W.2/1-2 i.e,, resolution dated 5-1-1991, whereby he was authorized to sign the documents and was not authorized to receive any amount or make any deal regarding the property. Besides that, no evidence has been produced and no buyer of property or witness of sale-deed or any other person was produced in the Court to show that he appellant had received any amount; that no Bank officer was produced to prove that any amount received by him was not deposited in the account; that there is no property in his name or in the name of his family
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members and they were living in the house of his father which had been purchased by him (by his father) in the year 1976. 19. The learned counsel for Imtiaz Elahi Johri appellant has also argued that the charge was framed only with respect to misappropriation of funds by the accused and there was no mention of duration within which the offence was allegedly committed, although under section 222 of Cr.P.C., the charge must specify the exact date; that even otherwise prejudice had been caused to the appellant by not mentioning the duration of the alleged misappropriation; that the audit report is stated to be for the period from 1991 to 1996, as mentioned by P.W.2 while P.W.1 in the course of his statement deposed that the period of embezzlement was from 1989 to 1991 and there is no evidence on record to show the date and period within which the misappropriation was committed by the accused; that the record and all the property of SCCCL was taken over by Punjab Cooperative Board for Liquidation on 6-11-1991 as mentioned by P.W.6, while the complaint was filed in the year 1999 and that after a lapse of almost 10 years, without being shown the originals or the attested copies, it was not humanly possible for anyone to defend the case; that no direct evidence whatsoever has been produced in this case and it is crystal clear that by not mentioning the period of embezzlement, further prejudice has been caused to the appellant as he was not in a position to defend because the charge was also ambiguous and illegal. 20. The learned counsel for Imtiaz Elahi Johri appellant, has further argued that his client had left SCCCL in the year 1991 when it was taken over by the Punjab Cooperative Board for Liquidation on 6-11-1991, so the offence cannot be said to have been committed after 1991 and at that time the sentence for the offence of dishonest misappropriation was under section 403, P.P.C. And which was imprisonment for two years; that the appellant was arrested in this reference on 6-8-2001 and he has been behind the bars since then and has already undergone the maximum sentence provided for the offence of dishonest misappropriation; that the appellant was arrested while he was working in a bank and he was detained for 90 days and during the said period of physical remand of 90 days nothing was recovered from him. The learned counsel has further argued that no original document has been produced in this case and no witness was produced to verify the signatures or the contents of the documents; that under Article 75 of the Qanun-e-Shahadat Order, every document was proved through primary evidence but in the present case no document was proved and so the same cannot be read in evidence against the appellant that besides the formal proof of documents; their contents have also be proved by direct evidence to warrant conviction against the accused persons; that a petition was filed by the Punjab Cooperative Board for Liquidation on 12-4-1994 that the assets of SCCCL were estimated in excess of liabilities by 86.06 million rupees; that the prosecution had intentionally suppressed the aforesaid piece of evidence and has not put forward the complete record before the evidence and has intentionally suppressed the aforesaid piece of evidence and has not put forward the complete record before the Court. He has argued that the document P.W.2/3/1-2 consists of only two photostat copies from the Lone Commission Report produced in the Court, although the complete report consists of several hundred pages and so the document Exh.P.W.2/3/1-2 cannot be relied upon. About the inquiry report Exh.P.W.2/1/1-15, he has argued that these are photocopies of 15 pages of this report produced in the Court while the covering letter of the report states that it consists of 108 pages; that even otherwise it does not mention any accused specifically and merely states that the correct facts can only be ascertained after complete and thorough study of account and under the circumstances, this incomplete report is of no value. About the Audit report Exh.P.W.2/2/1-39, he has argued that P.W.2 admits that it is not an audit report but merely the answers of queries and even otherwise it is for the period starting from 1991 to 1996, whereas admittedly the Cooperative Societies was taken over in the year 1991.
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21. Referring to the statement under section 342, Cr.P.C., the learned counsel for Imtiaz Elahi Johri appellant has argued that no question regarding the Lone Commission Report, Inquiry Report under section 43 or Audit Report had been asked and no question regarding the documents or the signatures of the appellant on any document were asked from the appellant and as such these cannot be used against him. He has argued that no question regarding account of wife of the appellant was asked and there was no evidence to show that the account was operated by the appellant or his wife and that they had never signed any document or cheques in this respect and even the account opening form was not signed by them; that the most important ingredient of an offence is the existence of mens rea and in the present case the petitioner had not gained anything and merely had performed his duties and so he cannot be held liable for the offence as held in PLD 2002 Lahore 233. The learned counsel for Imtiaz Elahi Johri appellant has argued that this a case of no evidence, so far as his client is concerned and that unauthentic copies of documents have been produced by the prosecution without formally proving the same and that the prosecution had miserably failed to prove its case against Imtiaz Elahi Johri appellant and he is thus entitled to be acquitted. 22. The learned counsel for Mst. Parveen Akhtar, widow of Inkisar Ahmad Awan, has argued that the husband of Mst. Parveen Akhtar i.e, Inkisar…
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