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Petitioner: KAKA KISHANCHAND and others VS Respondent: THE STATE and another
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Wahid Bux Brohi Title: KAKA KISHANCHAND and others vs THE STATE and another Case No.: Criminal Accountability Appeals Nos.52, 53, 54, 56 and 57 of 2002 Date of Judgment:2003-05-29 Reported As: PLD 2003 Karachi 618 Result: Order accordingly
JUDGMENT
9/13/2017JUDGMENT RAHMAT HUSSAIN JAFFERI, J.---This Judgment will dispose of the Criminal Accountability Appeals Nos.52, 53, 54, 56 and 57 of 2002, as they arise out of one and same judgment. 2. The present appeals have been directed against the judgment dated 22-6-2002 passed by the 'Accountability Court No,II, Karachi, in Accountability Reference No,10 of 2001, by which the appellants have been convicted for an offence punishable under section 10 of the National Accountability Ordinance, 1999 (herein referred to as "NAB Ordinance") and convicted each of them to suffer R.I. For 7 years and to pay fine of Rs,200,00,000 (Two Crores) or in default thereof, to suffer S.I. For 3 years with benefit of section 382-B, Cr.P.C. All the appellants were disqualified for a period of 10 years to be reckoned from the date of their release, after serving their sentence, for seeking or from being elected, chosen, appointed or nominated as a Member or Representative of any public body or statutory or local authority of Pakistan or of any Province. 3. Initially, on 11-5-2001, the Chairman NAB filed a reference against accused Iqbal Solangi, Director- General, Excise and Taxation Department Government of Sindh, Karachi, (2) Majeed Pathan, Director, Excise and Taxation Department, Government of Sindh, Karachi, (3) Niaz Baloch, Excise and Taxation Officer, Excise and Taxation Department, Government of Sindh, Karachi, (4) Agha Wazir Abbas Ex-Assistant Excise and Taxation Officer (AETO), Excise and Taxation Department Government of Sindh, Karachi, (5) Kaka Kishanchand, Proprietor of Kohistan Wine Merchant, Karachi, (6), Raj Kumar, Manager, Kohistan Wine Shop, Karachi, (7) Mehroomal Jagwani, Ex-MPA and Proprietor/Director of Messrs United Wine Merchant, Main Korangi Road, Karachi, (8) Bhagwandas, Accountant/Attorney of Messrs United Wine Merchant, and (9) Asher Jan, Manager, Sales, Messrs Murree Brewery Ltd., Rawalpindi, for offence punishable under section 10 of the NAB
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Ordinance. On 17-7-2001, a supplementary reference was filed by which the accused Ismail Rahu son of Fazal Rahu, Ex-Excise Minister, Government of Sindh, was also included in the list of the accused with additional charges. 4. All the appellants appeared or surrendered before the Court whereas the remaining accused persons did not appear, therefore, non-bailable warrants for their arrest were issued, but they returned unserved, therefore, after the required proceedings they were declared absconders and proclamations under sections 87 and 88, Cr.P.C. Were ordered to be issued against them. It was further ordered that the case against them shall proceed in their absence, as required, under section 512, Cr.P.C. 5. The facts giving rise to the present appeals, as disclosed in the References, are that the Chairman NAB had received information that in the years 1997 and 1998, a huge evasion of Excise duty and other levies in the import of wine from Messrs Murree Brewery Limited, Rawalpindi took place in the Excise and Taxation Department, Government of Sindh, therefore, he authorised the FIA Authorities to investigate the matter. After investigation, the report was submitted to the Chairman NAB who formed his opinion that the accused Iqbal Solangi, Majeed Pathan, Niaz Baloch and Agha Wazir Abbas being Government servants in the Excise and Taxation Department with active abetment and assistance of all the remaining accused being beneficiaries or associates through conspiracy and to achieve their illegal motives, by dishonest means and deceitfully made use of 33 fake or forged permits for import of wine from Messrs Murree Brewery Ltd., Rawalpindi, therefore, they all had indulged in causing toss to the public exchequer to the tune of Rs,66 millions, which have been shared by all of them. 6. Specific allegations were levelled against each accused person in the reference by alleging that all the above four officials/accused were in Excise and Taxation Department and during their respective posts, had direct or indirect control in dealing with the vend fee and other relevant matters of Excise Duty/Cess, which included, issuance of liquor (wine) licence and being holder of public office were duty bound to protect the interest of State and discharge their duties diligently and honestly, but they failed to do so. The allegation against appellant Kaka Kishanchand was that at the relevant time he was proprietor and running the business in the name cf Kohistan Wine Merchant in Karachi and was acting as Agent of co-accused, whereas appellant Raj Kumar was the Manager of appellant Kaka Kishanchand and was dealing in the illegal deals on behalf and in absence of Kaka Kishanchand. The allegation against accused Mehroomal was that he was Ex- M.P.A., in the Province of Sindh and was also Proprietor/Managing Director of Messrs United Wine Merchant, Karachi. He was dealing in wholesale/retail business of liquor, wine etc., and through fake permits received liquor from Messrs Murree Brewery, Rawalpindi. The allegation against accused Bhagwandass was that he was Manager of Messrs United Wine Merchants and was directly involved in using fake permits through which Government Duty was evaded. The allegation against appellant Asher Jan was that he was Manager Sales in Messrs Murree Brewery, Rawalpindi where the fake licences and Import Permits used to be deposited for export of wine by him and he had delivered liquour through 33 fake permits to the accused Mehroomal and accused Bhagwandass. After going through the investigation papers, the Chairman NAB had filed the above mentioned references. 7. During the investigation, 33 fake import permits and original permits were secured by the Investigating Officer. He recorded the statements of various witnesses. During the investigation a letter was received from India which was allegedly sent by accused Mehroomal which contained his admission and confession of the commission of offence and involvement of other accused. 8. On 12-9-2001, a charge for offence punishable under section 10, NAB Ordinance was framed against the appellants Ismail Rahu, and Agha Wazir Abbas as they were present on that date. On 27-10-2001, an amended charge was framed by adding the name of appellant Asher Jan as he
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was present on that date. Another amended charge was framed on 22-11-2001 against all the appellants as by that time they were present. All the appellants pleaded not guilty to the charge. 9. In support of the case the prosecution examined the following witnesses: (1) P.W. 1 Bashirudding Inspector, ACE, Karachi. (He secured Record from United Wine Shop and Kohistan Wine Shop, secured IP Slip invoices under Mashirnama Exhs. 20 and 21, respecdtively). (2) P.W. 2 Abdul Rasheed, Junior Clerk Vend Fee, Excise and Taxation Department. (He worked with appellant Agha Wazir Abbas, conversant with his signature, gave procedure of the issuance of licence and Import Permit, produced original Import Permits of United Merchant Wine Shop, original letter of licence, original challans and entries of original I.P. It outward registers). (3) P.W. 3 Raja Javed Suleman, Manager Finance, Quetta 'Distillery, Quetta (He gave the procedure for transporting the material, and produced original Import Permits). (4) P.W. 4 Altaf-u-Din Mir, Retired E.T.O. (He is one of the member of Inspection Team constituted by D.G., Excise and Taxation Department under the orders of Ex-Minister appellant Ismail Rahu to check the record of retailed arid wholesalers in respect of evasion of duties, other members were accused Agha Wazir Abbas and P.W. Ghulam Sarwar Chandio (A.E.T.0), he produced the inspection reports as Exhs. 176 to 181). (5) P.W. 5 Ghulam Sarwar Chandio, A.E.T.O., District East, Karachi (One of the member of Inspection Team). (6) P.W. 6 Muhamd Ishaque, Section Officer, Excise and Taxation Department, District East, Karam (He produced the notification of the retirement of appellant Agha Wazir Abbas, Application of appellant Agha Wazir Abbas for re-employment to C.M. On 27-8-1997 which was recommended by Secretary of Excise and Taxation Department and ex-Minister appellant Ismail Rahu, approval of Chief Minister for one year and notification of reemployment issued on 18-10-1997, another summary of reemployment, again approved by Chief Minister on the recommendations of above persons, and Notification of reemployment one year dated 29-10-1998). (7) P.W. 7 Sayed Shahid Ali, Officer Grade-I, National Bank of Pakistan, D.H.A. Branch (He produced Account No,903 opened in the name of United Wine Merchant, operated by Relomal, J. Jagwani as Chairman, Brijmal. M. Jagwani as Secretary, Gordhandas M. Jagwani as Director, Raj Kumar R. Deeqani as Director, received letters authorising accused Mehroomal to operate bank account. Mehroomal has his own Account No,1578-5. (8) P.W, 8 Sayed Shabir. Hussain, E.T.O. Excise Department (He produced the Government record containing writing of Agha Wazir Abbas to I.0 and signed Mashirnama). (9) P.W. 9 Abdul Ghani Soomro, Private Secretary to Mehroomal Jagwani Pvt. Ltd. (He gave money to appellants Ismail Rahu, Wazir Abbas and other persons, appellant Wazir Abbas prepared and delivered fake Import Permits and used to receive Rs,500,000 (Rupees Five Lacs) for each permit and 10 Lacs was received by Ismail Rahu for each permit, appellant Raj Kumar also gave fake permits to Bhagwandass). (10) P.W. 10 Manzoor Ali, Deputy District Officer, New Karachi (He collected the specimen signatures of appellant Wazir Abbas). (11) P.W. 11 Sikandar Ali, Inspector, F.I.A. (Collected specimen signatures of appellant Wazir Abbas from Excise Office and recorded statements of Shafiq Ahmed Paracha and Aftab Ahmed Qureshi. (12) P.W. 12 Haji Abdul Qadeer, Deputy Director, F.I.A. (1.0. Collected specimen signatures and sent disputed documents to handwriting expert, the said report is in positive, collected five chits from accused Bhawandass in the handwriting of Raj Kumar for receiving bribe, produced telephone record of Ismail Rahu. 10. All the appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution.
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11. The appellant Raj Kumar further stated that he was implicated without any evidence and no evidence has come on the record against him, therefore, he may be acquitted. 12. The appellant Asher Jan filed his written statement in which he denied that he was Sales Manager in Murree Brewery, Rawalpindi in the year 1996-1997 and 1997-1998. In the written statement he discussed the evidence and then stated that the witnesses had not deposed against him, therefore, he may be acquitted. He produced various documents in his support. His written statement is, in fact written arguments, which is not the requirement of law. This type of written statement should not be allowed to be brought on the record and should be discouraged. 13. The appellant Kaka Kishanchand stated that he was innocent and no evidence had been led against him, therefore, he may be acquitted. 14. The appellant Ismail Rahu stated that no witness deposed against him except P.W. Abdul Ghani, who had done so in order to save his skin and under the pressure of NAB and FIA Authorities. 15. The appellant Agha Wazir Abass in his written statement gave the details and procedure of issuing licence of import permits, transport permits and further added that according to prosecution witnesses the evasion of excise duty per permit was Rs,400,000 (Rupees Four Lacs) but the allegation is that Rs,500,000 (Rs,Five Lacs) were paid for each permit which amount is more than the legal duty and the same cannot be paid by any person as illegal gratification. He further stated that he has been involved in this case falsely. He has also produced some documents. 16. None of the appellants examined them on oath or led any evidence in their defence. 17. After considering the material available on the record, the learned trial Judge found the charge proved against all the appellants, therefore, they were convicted and sentenced, as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment; therefore, they have filed the present appeals. 18. Mr. Muhammad Illyas Khan learned Advocate for the appellant Agha Wazir Abbas has argued that the allegation against the appellant is that he was re-employed and that he had issued 33 fake and forged permits in favour of United Wines Stores, Karachi, for import of wine which was to be delivered from Murree Brewery Rawalpindi. He has further stated that after retirement of appellant he had directly applied to the Chief Minister for his re-employment as he was highly qualified and experienced person in the Department with clean record and earned rewards; that the said application was processed and approved in accordance with law; that initially he was reemployed for one year from April, 1997, thereafter he again applied for reemployment which was also processed and approved in accordance with law and then he was re-employed for a period of another year under the orders of Chief Minister; that re-employment is not an offence. He has further argued that the alleged 33 fake/forged permits were not issued by him as the blank forms of the import permits were available with licensee who used to fill in the same and they might had foreged the said documents; that the Handwriting Expert Report Exh.269 is of no value as the Handwriting 'Expert has not been examined and that at the time same cannot be brought on the record under section 510. Cr.P.C.. Because the said provision is not applicable in the case of Handwriting Expert. He has further argued that the assessment of the duty was not the concern of the appellant and that the evidence of P.W. 2. Abdul Rasheed has got no value as he is not an expert in handwriting and that he cannot distinguish the original and fake signatures of the appellant; that according to the prosecution case the duty of each permit was Rs,400,000 (Rupees four Lacs) but it has been alleged that bribe of Rs,500,000 was paid for each permit which is more than the legal duty and how anybody could pay an amount more than the actual duty as bribe; that the appellant has been involved in this case falsely and that there is no evidence against him. He has relied upon the following case-laws: (1) Nasim Ahmed v. The State (1992 MLD 620). (2) Jaffar Hussain v. Dacca Municipal Committee (PLD 1969 Dacca 927).
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19. Mr.Abdul Hafeez Pirzada, learned Advocate for the appellant Ismail Rahu has stated that the allegation against the present appellants is that he had recommended the summary of appellant Wazir Abbas for reemployment; that he had conspired with co-accused for issuance of 33 fake and foreged import permits and that he had received bribe from co-accused Mehroomal. He has argued that application for re-employment of appellant Agha Wazir Abbas was moved before Chief Minister and not before him; that the Chief Minister had directed that the application may be processed and the Secretary concerned had processed the summary by recommending the case of appellant Agha Wazir Abbas for re-employment with which he had concurred, but their recommendations were overruled by the Chief Secretary as he opposed the re-employment of appellant Agha Wazir Abbas, as such, when the summary was presented before the Chief Minister. He had overruled the observations of Chief Secretary and re-employed the appellant Agha Wazir Abbas on his own accord; that in the entire process there is no evidence that the appellant had persuaded the Chief Minister or conspired with him for re-employment but it was the independent decision of the Chief Minister after considering the opinions of various persons including the appellant and the Chief Secretary and then he had approved the reemployment; that no evidence has been led by the prosecution to attract the provisions of section 37 of P.P.C., which was relied upon by the trial Court. He has referred the illustrations of the said section and then argued that the said illustrations are not attracted to the facts of the present case. He has further argued that the prosecution have tried to connect the appellant through a letter sent by co-accused Mehroomal from India, that the said letter has not been produced or proved in accordance with law; therefore, it has no evidentiary value. He has further argued that at the most it can be termed as an extra-judicial confession of co-accused Mehroomal but the said piece of evidence has neither been supported nor corroborated by any other piece of evidence; that the person before whom the said admission/extra-judicial confession was made have not been examined, as such, it cannot be relied upon. He has further argued that the prosecution have tried to implicate the appellant through the evidence of P.W. 9 Abdul Ghani; that from his evidence it is clear that he is an accomplice of crime; therefore his evidence without any corroboration cannot be relied upon in view of Article 129 of Qanun-e-Shahadat Order. He has further argued that extra-judicial confession of Mehroomal and evidence of P.W. 9 Abdul Ghani, each require corroboration and in such situation the said pieces of evidence cannot corroborate each other, therefore, the evidence of P.W. 9 cannot be relied upon as there is no corroboration to his evidence. He has further argued that the evidence of Mobile Telephone Bills only show that the telephones were received but the prosecution has not led any evidence with regard to the conversations made thereunder, as such, the said piece of evidence is of no value. He has further argued that through the evidence led by the prosecution the involvement of the appellant has not been proved. 20. Mr.Aitzaz Ahsan learned Advocate tor the appellant Kaka Kishanchand and Raj Kumar has argued that no fake permits were issued in favour of Kohistan Wine Shop which is under proprietorship of appellant Kaka Kishanchand and appellant Raj Kumar is serving as Manager; that appellant Raj Kumar is being involved through 5 chits produced by the Investigating Officer as Exhs.273 to 277; that the said chits were not secured from the appellant Raj Kumar but the same were recovered from co-accused Bhagwandass; that the writing and signatures on the said exhibits have not been proved to be the writing and signatures of Raj Kumar as no evidence has been led by the prosecution except the evidence of Investigating Officer who allegedly identified signatures of the appellant; that the Investigation Officer never worked with the appellant Raj Kumar or expert in the field of handwriting science, therefore, through these chits the involvement of the appellant Raj Kumar cannot be established. He has further argued that the allegation against Kaka Kishanchand is that he was Agent of appellant Ismail Rahu through whom the bribes were received; that no evidence has been led by the prosecution on the said point. In respect of
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letter of co-accused Mehroomal and evidence of P.W. 9, he has adopted the arguments of Mr.Abdul Ha'eez Pirzada. Lastly he has argued that the prosecution have not led any evidence connecting the appellants with the commission of this crime. 21. Mr. Kamal Azfar, learned Advocate for the appellant Asher Jan has stated that allegation against the appellant is that he being the Manager Sales of Messrs Murree Brewery, Rawalpindi had exported wine illegally on 33 fake and forged imports permits. He has argued that the appellant was not the Manager Sales of Messrs Murree Brewery, Rawalpindi; that he has specifically denied the said allegation in his statement recorded under section 342, Cr.P.C; that the prosecution have not led any evidence to show that the appellant was serving as Manager Sales of Messrs Murree Brewery, Rawalpindi. He has further stated that the Investigation Officer had inquired about the record of all Import Permits from the appellant, and in pursuance of that he had produced the entire record of all the import permits before the Investigating Officer after obtaining the same from the company. He has further argued that the verification of import permit is the duty of Punjab Excise Department and the company had exported the wine on the transport permits which were validly issued by the Punjab Excise Department; that none of the employee of Murree Brewery, Rawalpindi has been examined to connect the appellant with the crime; that the appellant has no reason to believe or had any knowledge that the import permits were fake and forged; that the company conducted their business in accordance with rules and procedure applicable in the Province of Punjab. He has referred to rules 7.2, 7.8, 9.115, 1.117 and 9.122 of Punjab Excise Manual, Volume II and Rule 1.2 of Punjab Excise, Volume. HI in his support. He has further argued that no witness from Punjab Excise Department has been produced to show any violation made by the company; that there is nothing in the charge specifically levelled against the appellant; that no evidence has been led by the prosecution to prove that the employees of Messrs Murree Brewery, Rawalpindi had knowledge that the import permits were fake and forged; that no evidence has been led on conspiracy connecting the appellant with other accused; that the Company had adopted that legal procedure to export wine through proper documents; that no gain was received by the appellant and that the case is of no evidence. 22. On the other hand Mr.Muhammad Anwar Tariq learned Deputy Prosecutor-General has stated that 33 fake and forged import permits Exhs.22 to 47 and 49 to 55 were secured by P.W.1 Bashiruddin, Inspector, Establishment Anti-Corruption, Karachi from Murree Brewery, Rawalpindi which were handed over to him by the appellant Asher Jan: that the said permits have been proved to be false and forged as original permits have been produced through P.W. 2 Abdul Rasheed, Junior Clerk Vend Fee. Of Excise and Taxation Department, Karachi as Exhs.60 to 92 and that through this witness the original licences of import permit and import permits were also produced alongwith the copies of registers where the entries of original import permits were entered. He has further argued that the signatures on the fake import permits have been proved through P.W.2 to be the signatures of appellant Agha Wazir Abbas as he worked with the appellant for sufficient time and he has categorically stated that fake permits bear the signatures of appellant Agha Wazir Abbas; that through the Handwriting Expert Report Exh.269 the signatures of Agha Wazir Abbas have been proved; that the original permits were issued to Quetta Distillery, Quetta and through P.W. 3 Raja Suleman, Manager Finance of Quetta Distillery, Quetta, original import permits which were received by them have been produced which are corresponding with the original import permits produced by P.W.2; that the prosecution have proved that the 33 import permits Exhs.22 to 47. And 49 to 55 are forged and false import permits through which the public exchequer sustained loss of Rs,66 million. He has further argued that the evidence of P.W.9 Abdul Ghani and the letter Exh.211 sent by co-accused Mehroomal are important pieces of evidence on which the entire case of the prosecution is based; that the letter of co-accused Mehroomal Exh.211, received by the Additional Director, F.I.A., Karachi has been produced and proved through P.W.9
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who was Private Secretary of Mehroomal and that the said letter is admissible in evidence under Article 46(3) of Qanun-e-Shahadat Order that in the said letter which is the confession of co- accused Mehroomal with regard to offence of this crime, the other appellants have been involved, therefore, by virtue of Article 43 of Qanun-e-Shahadat Order the said confession can be taken into consideration as circumstantial evidence against the other appellants. He has further argued that the said confessional statement is supported and corroborated by P.W.9; therefore, the said pieces of evidence can be safely relied upon. As regards the allegation against appellant Raj Kumar, the learned DPG has stated that his involvement has been proved through 5 chits through which he has received monies from co-accused Bhagwandass. As regards the allegation against appellant Kaka Kishanchand, the learned DPG has argued that he is owner of Kohistan Wine Shop and his involvement being agent of appellant Ismail Rahu has been proved through various mobile telephone calls in between him and appellant Ismail Rahu. He has relied…
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