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Petitioner: Nisar Ahmed Morai son of Dr. Muhammad Bachal Memon VS Respondent: National JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Iqbal Kalhoro, Shamsuddin Abbasi Title:Nisar Ahmed Morai son of Dr. Muhammad Bachal Memon vs National
JUDGMENT
Reported As: 2021 SHC 1054, 2022 YLR 544 Result: Accordingly dismissed Judgment JUDGMENT SHAMSUDDIN ABBASI, J:- Nisar Ahmed Morai, Sultan Qamar Siddiq ui, Haji Wali Muhammad, Imran Afzal and Shaukat Hussain, appellants, alongwith four others namely , Abdul Saeed Khan, Riaz Ahmed, Gul Munir and Abu Bakar , were tried by Accountability Court No.I {Sindh}, at Karachi, in Reference No.02 of 2018. By a judgment dated 20.02.2021 all appellants were conv icted under Section 10 of National Accountability Ordinance, 1999 (NAO, 1999) for commission of offences of corruption and corrupt practices under clauses (vi)(xii) of Sub-section (a) of Section 9 of NAO, 1999, and sentenced to undergo imprisonment for seven years each and to pay a fine of Rs.10 million each as well as to suffer a further imprisonment for two years each in lieu of fine while accused Abdul Manan, who was absconder and declared proclaimed offender at trial, was also convicted in his absentia under Section 33-A of NAO, 1999, and sentenced to imprisonment for three years. Nisar Ahmed Morai, appellant No.1 was also convicted under Section 10 of NAO, 1999 for commission of misuse of authority through illegal appointments in FCS as defined under Section 9(a)(vi) of NAO, 1999 and sentenced to imprisonment for four years and to pay a fine of Rs.500,000/- as well as to undergo imprisonment for a further period of five months in lieu of default while appellants No.2 Sultan Qamar Siddiqui and accused Abdul Saeed Khan were acquitted on the same charge. As the charges of embezzlement of funds of trash-fish through auction without gate-pass were not proved against appellants Nisar Ahmed Morai, Sultan Qamar Siddiqui, accused Abdul Saeed Khan, Riaz Ahmed, Gul Munir and accused Abu Bakar , the learned trial Court acquitted them of the charge. The sentences awarded to Nisar Ahmed Morai, appellant No.1, in both counts were ordered to run concurrently and the benefit in terms of Section 382-B, Cr .P.C. was extended in favour of all convicted accused.
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2. Short but relevant facts of the case are that on 21.12.2017 the Director Genera l, NAB, Karachi, filed Reference No.02 of 2018, nominating 13 accused persons including appellants, stating therein that they being holders of public office have misused their authority and caused a colossal loss to the tune of Rs.343.796 million to Fishermen Cooperative Society {FCS}, which constitute an offence of corruption and corrupt practices as defined under Section 9(a) of NAO, 1999 punishable under Section 10 of the Ordinance and Schedule thereto. 3. Based on an information regarding misuse of authority , embezzlement of funds and illegal appointments in FCS, an inquiry was initiated against Nisar Ahmed Morai, Ex-Chairman FCS and Sultan Qamar Siddiqui, Ex-V ice Chairman FCS, which was upgraded into investigation. It was revealed that Nisar Ahmed Jan Memon {Nisar Morai}, appellant No.1, was appointed as Director in FCS vide Sindh Government Notification dated 31.12.2013 and then elected as Chairman FCS on 09.01.2014 in the meeting of Board of Directors and despite his appointment in FCS on 31.12.2013 he drew salary of his earlier post as Medical Officer {BS-18} in Health Department, Government of Sindh till May 2015 in addition to his post as Chairm an FCS from January 2014 to June 2015. During such period he appointed 343 persons in FCS on different posts without following the prescribed procedure as provided in Recruitment Rules. The investigation further revealed that Sultan Qamar Siddiqui, appellant No.2, got appointed his brother-in-law Asad Zaman {BS-17}, father-in-law Mazhar-ul-Islam as Assistant Manager {Market} and his friend Abdul Manan as Personal Assistant without fulfilling the requisite criteria for appointment. Besides, 343 illegal appointments appellant No.1 also appointed eight legal consultants against retainer-ship fee of Rs.100,000/- per month without following the proper procedure and requisite criteria. He also appointed 14 advisors and one coordinat or against a monthly salary of Rs.35,000/- each without adopting proper prescribed procedure and requisite criteria. In 2014, he created posts of Special Task Force and Security Guards and appointed five persons in Special Task Force and 30 Security Guards. Nisar Ahmed Morai and Sultan Qamar Siddiqui, appellants No.1 and 2, in connivance with appellants Haji Wali Muhammad {Manager FCS}, Imran Afzal {Contractor}, Shaukat Hussain {Manager Audit FCS} and accused Shahid Hussain {Manager Finance FCS} {now deceased} awarded contracts in millions of rupees to non-existed fake companie s, which neither applied for any contract nor participated in any bidding process and even never carried out any construction work in FCS. All these contracts were awarded in violation of the prescribed rules and regulations and the entire amount was paid to fake companies through open cheques, which were withdrawn by appellant Imran Afzal, accused Abdul Manan and other anonymous persons. All contracts of Rs.22.35 million were awarded to appellant Imran Afzal {Contractor} against fake and forged documents in the name of Syed Muhammad Rehang Abbas {owner of M/s Bright Associates}, who being close aide of appellant No.1 was also awarded the post of Special Task Force in FCS. He also showed himself as owner of M/s Pak Corporation and obtained fake contracts of Rs.16.23 million. On verification one Riaz Ahmed Awan was found to be the owner of M/s Pak Corporat ion, who stated that Imran Afzal was residing in his colony and once he took his CNIC and letter-head of his company on the pretext of filing a quotation and estimated cost to construct a room and thereafter never came back. The said Riaz Ahmed Awan also denied to have visited the office of FCS and obtained any kind of contract from FCS. He also denied his signatures and stated that Imran Afzal got printed forged letters-head of his company and used the same in obtaining fake contracts. The investigation further revealed that Nisar Morai, Sultan Qamar Siddiqui and Haji Wali Muhammad, appellants No.1 to 3, showed Imran Afzal as their front man to award fake contr acts and withdrew money from bank through open cheques. The appellants No.1 and 2 in connivance with accused Riaz Ahmed {Manager Market FCS}, Amjad Iqbal Warraich {Assistant Manager Market FCS}, Gul Munir Shaikh {Assistant Manager Market FCS}, Abubakar Mariwala {Assistant Manager} and Zulfiqar Ali {Assistant Manager Market FCS} embezzled the funds of trash-fish in the shape of commission, FCS charges 3.25% commission on all its sales done through auction in terms of gate pass. 4. Para-16 of the reference relates to accusation against Abdul Saeed Khan, the then Chairman of FCS, who during his tenure of posting accommodated 155 persons in FCS through fake appointments. He also embezzled the funds of FCS through commission, FCS charges 3.25% commission on all sale through auction in terms of gate pass and awarded a contract to carryout trash-fish to a suspicious company M/s Moon International against monthly charges of Rs.300,000/-. Appellants Haji Wali Muhammad {Manager FCS}, Shaukat Hussain {Manager
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Audit} and accused Shahid Hussain {now deceased} aided and abetted the Chairman and Vice Chairman in awarding contracts in millions of rupees to fake companies. It is, thus, established that all accused persons being holders of public office misused their authority and caused a colossal loss to the FCS, which constitute an offence of corruption and corrupt practices as defined under Section 9(a) of NAO, 1999 punishable under Section 10 of the Ordinance and scheduled thereto. 5. The learned Accountability Court, on taking cognizance of the matter , charged the appellants and other co- accused for the offences of corruption and corrupt practices as defined in clauses (iii), (iv), (vi) and (xii) of Section 9(a) punishable under Section 10 of the Ordinance, who pleaded not guilty and claimed a trial. 6. The gist of evidence adduced by the prosecution in support of its case is as under:- 7. Abdul Nasir {Assistant Manager (Recovery) FCS appeared as witness No.1 Ex.21. He deposed about the agreement of trash-fish executed between FCS and Moon International and provided relevant record to investigating officer, who seized the same, and also exhibited the same in his evidence. Syed Tanveer Akhtar {Proprietor of M/s Moon International} appeared as witness No.2 Ex.22. He has given the details of awarding contract for carrying trash-fish to his company by Abdul Saeed Khan, the then Chairman FCS. Faisal {Supervisor Admin Department FCS} appeared as witness No.3 Ex.23. He provided relevant record pertaining to appointment of Nisar Ahmed Morai and Sultan Qamar Siddiqui, Chairman and Vice Chairman to investigating officer, who seized the same under a memo prepared in his presence. He also exhibited the same in his evidence. Muhammad Abid Arifeen {Secretary Board of FCS} appeared as witness No.4 Ex.25. He provided byelaws of the Society and relevant record to investigating officer, who seized the same under a memo prepared in his presence. He also exhibited the same in his evidence. Abdul Mateen {Admin Officer FCS} appeared as witness No.5 Ex.26. He provided relevant record relating to appointments during the tenure of Abdul Saeed Khan, the then Chairman to investigating officer, who seized the same under a memo prepared in his presence. He also exhibited the same in his evidence. Anwar Hussain Umeri {Manager Administration FCS} appeared as witness No.6 Ex.27. He provided relevant record pertaining to appointments during the tenure of Nisar Ahmed Morai and Sultan Qamar Siddiqui, the then Chairman and Vice Chairman FCS to investigating officer, who seized the same under a memo prepared in his presence. He also exhibited the same in his evidence. Abdul Ghaffar {Proprietor of M/s Venus Enterprises} appeared as witness No.7 Ex.28. He deposed about misusing of his company name in obtaining contract works in FCS. Abdul Rab {Accounts Officer FCS} appeared as witness No.8 Ex.29. He provided relevant record relevant record relating to salaries of staff employed on contract in FCS during the tenure of Nisar Ahmed Morai and Abdul Saeed Khan, the then Chairmen FCS to investigating officer, who seized the same under a memo prepared in his presence. He also exhibited the same in his evidence. Muhammad Rehan Abbas {Private Contractor} appeared as witness No.9 Ex.30. He deposed about managing fake letter head of his company "Bright Associates" for construction work in FCS. Rafiq Hassan Jindani {Manager Pioneer Protein (Pvt) Ltd} appeared as witness No.10 Ex.31. He provided relevant record relating to purchase of fish from FCS for the period from 01.01.2015 to 31.12.2015 to investigating officer and exhibited the same in his evidence. Inayat Ali {Manager Kanpa International Sale} appeared as witness No.11 Ex.32. He has given the details of purchasing trash-fish during the period of 2013-2014 and 2014-2015 and exhibited the same in his evidence. Gul Nabi {Supervisor Master Poultry Proteins} appeared as witness No.12 Ex.33. He has given the details of purchasing trash-fish during the period of 2014 and 2015. Naveed {Manager M/s Abideen & Company} appeared as witness No.13 Ex.34. He has given the details of purchasing trash-fish during the period of 2013 to 2015 and provided relevant data to investigating officer and also exhibited the same in his evidence. Riaz Ahmed {Proprietor of M/s Pak Corporation} appeared as witness No.14 Ex.35. He has given the details of quotation given by him for construction work in FCS through Imran Afzal and deposed that he never carried out any construction work in FCS. He exhibited the relevant record in his evidence. Mukesh Kumar {Manager A-One Fish Meal} appeared as witness No.15 Ex.36. He has given the details of purchasing trash-fish during the period of 3013 to 2015. He delivered relevant data to investigating officer and exhibited the same in his evidence. Syed Akhtar Ali {Manager (Coordination) FCS} appeared as witness No.16 Ex.37. He deposed
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about preparation of daily landing sheet containing details of receiving fish in FCS and furnished relevant record to investigating officer, who seized the same under a memo prepared in his presence and also exhibited the same in his evidence. Mazhar Ali Azhar {Manager M.A. Proteins} appeared as witness No.17 Ex.38. He has given the details in respect of purchase of trash-fish during the period of 2013 to 2015. He provided relevant data to investigating officer and also exhibited the same in his evidence. Asif Iqbal {Manager Inter Market International} appeared as witness No.18 Ex.39. He has given the details in respect of purchase of trash-fish during the period of 2013 to 2016. He provided relevant data to investigating officer and also exhibited the same in his evidence. Aijaz Ali {Proprietor of Sahil Enterprises & Builders} appeared as witness No.19 Ex.40. He deposed that his company never done any work in FCS. Abdul Qadir {Manager Operation Summit Bank Fish Harbour Branch} appeared as witness No.20 Ex.41. He provided bank statement of FCS for the period of 2014 2015 and other relevant documents to investigating officer, who seized the same under a memo prepared in his presence. He also exhibited the same in his evidence. Tanzeel-ur-Rehman {Manager Poultry Protein Products} appeared as witness No.21 Ex.42. He provided relevant data with regard to purchase of trash-fish for the period of 2013-2015 to investigating officer and also exhibited the same in his evidence. Tariq Kamal {Assistant Market Officer FCS} appeared as witness No.22 Ex.43. He was declared hostile and cross-examined Special Prosecutor and defence counsel. Faheemuddin {Forensic Handwriting Expert} appeared as witness No.23 Ex.44. He verified the signatures of Syed Muhammad Rehan Abbas and issued report. Abdul Latif {Operation Manager NBP Fish Harbour Branch} appeared as witness No.24 Ex.45. He provided relevant record relating to cheques of FCS account to investigating officer, who seized the same under a memo prepared in his presence. He also exhibited the same in his evidence. Syed Iqbal Ahmed {Senior Auditor/Superintendent, Accountant General Office Sindh} appeared as witness No.25 Ex.46. He has given the details relating to salaries drawn by Nisar Ahmed Morai from Health Department and furnished relevant documents to investigating officer, who seized the same under a memo prepared in his presence. He also exhibited the same in his evidence. Dr. Hafeez-ur- Rehman {Medical Officer Health Department} appeared as witness No.26 Ex.47. He provided relevant record relating to posting of Nisar Ahmed Morai as Medical Officer in Health Department, who seized the same under a memo prepared in his presence. He also exhibited the same in his evidence. Irfan Ali {Assistant Director NAB} appeared as witness No.27 Ex.50. He verified whole investigation being completed by him and on completion thereof filed a reference in Court on the recommendation of the competent authority. All of them were subjected to cross-examination by the defence. Thereafter, the prosecution closed its side vide statement Ex.51. 8. The appellants were examined under Section 342, Cr.P.C. at Ex.52, Ex.54, Ex.55, Exc.56 and Ex.58 respectively . All of them have denied the allegations imputed upon them by the prosecution, professed their innocence and stated their false implication by the witnesses being interested and inimical to them and to save the real culprits who actually were the beneficiaries of the scam. They opted not to make a statement on Oath under Section 340(2), Cr.P.C. nor produce any witness in their defence. According to Nisar Morai, appellant No.1, all appointments were made by the Board of Directors {BoD} under Article 43(c) of FCS By-laws, 1969, which cannot be termed as Government Service and the main consideration for the BoD was the welfare of the fishermen. All appointments were made on contract basis for which no written tests were required, however , before appointments the interviews were conducted. He further stated that all contracts were awarded after completing due procedure and record of each contract was placed before BoD and after approval of BoD the contracts were awarded. No violation of any rule or regulation was made while awarding contracts. It is also stated that FCS is an independent Organization, which worked for the welfare of the fishermen and is not getting any fund from Government. Sultan Qamar Siddiqui, appellant No.2 has stated that all contracts were awarded with the approval of BoD and the cheques were signed by him after following the process of verification and audit record. Haji Wali Muhammad, appellant No.3 has stated that awarding of contract and holding bidding process did not fall within his domain and it pertain to maintenance section. He denie d to have prepared any minute sheets relating to the award of contract, which was the job of Secretary BoD. He further stated that landing report was signed by him on the basis of data
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furnished by Manager Market FCS. Imran Afzal, appellant No.4 has stated that he was appointed by Manager FCS as security guard and not as officer of special task force and his appointment was made on the recommendation of Director FCS on contract basis for one year only. He denied to have obtained any contract from FCS on furnishing forged documents. He further stated that investigating officer forced him to becom e a witness and on his refusal, the I.O. involved him in this false reference. Shaukat Hussain, appellant No.5 has denied to have rendered any help or aided and abetted Nisar Morai and Sultan Qamar Siddiqui in awarding fake contracts and being Manager Audit he had no concerned with the contracts and awarding contract is the job of Chairman or BoD. 9. The trial culminated in conviction and sentence of the appellants as stated in para-1 {supra}, hence necessitated the filing of listed appeals, which are being disposed of together through this single judgment. 10. It is jointly contented on behalf of the appellants that they are innocent and have falsely implicated in this case with malafide intention and ulterior motives as otherwise they have nothing to do with the alleged offence and have been made victim of the circumstances. It is next submitted that prosecution has failed to discharge its legal obligation of proving the guilt of the appellants as mandatory requirement of Section 14 of the NAO, 1999, and the appellants were not liable to prove their innocence. Per learned counsel, appellant Nisar Ahmed Morai earlier was arrested in a murder case, which is pending adjudication before a Court of competent jurisdiction since 1995 wherein co-accused have already been acquitted, which shows clear malafide on the part of prosecution. Per him, the reference has wrongly been filed against appellant Nisar Ahmed Morai, who was an officer in BPS- 20 and Director General NAB was not competent to file a reference against officers of BPS-20 and above. The appellant acted in accordance with bye-laws of FCS and all appointments were approved and endorsed by the Board of Directors. He further submitted that such kind of offences cannot be committed without the active connivance of others, but here in this case only the appellant as Chairman FCS and Vice Chairman FCS have been made victim of the circumstances and none else from the Directors has been arrayed as accused, hence it is a clear case of pick and choose. Per learned counsel, the specimen signatures of appellant Imran Afzal were taken before a Magistrate, but the same were not sent to forensic test for matching with his signatures available on the documents allegedly seized during investigation, which shows clear malafide on the part of the investigating officer. It is jointly contended that all steps taken by the appellants were in accordance with law and they have not done any illegal and unwarranted act, which could saddle penal consequences on them. The case against the appellants lacked mens rea and in absence thereof no criminal liability could be penned down on them. The prosecution has failed to produce any iota of evidence against appellants to prove essential ingredients relating to offence of corruption and corrupt practices coupled with the intention to gain any benefit or favour for them or anyone else. The prosecution has failed to place on record any evidence against appellants relating to money trail or accumulation of assets beyond their known source of income. The witnesses being interested and inimical to the appellants have falsely deposed against the appellants as such their evidence is neither trustworthy nor confidence inspiring and the same has wrongly been relied by the learned trial Court. The witnesses did not ascribe any direct or indirect role to the appellants with regard to their involvement in the commission of alleged offence or receiving any amount directly from them. They were inconsistent with each other rather contradicted on crucial points benefit whereof must go to the appellants. The learned trial Court while passing the impugned judgment has deviated from the settled principle of law that a slightest doubt is sufficient to grant acquittal to an accused. The investigating officer has conducted dishonest investigation and let off real culprits involving the appellants in a case with which they have no nexus, hence it is a case of clear discrimination. He also did not send the disputed cheques to handwriting expert to check the veracity of second signatures under which appellants alleged to have converted the payees' A/c cheques into open cheques. The learned trial Court did not appreciate the evidence in line with the applicable law and surrounding circumstances and based its findings on misreading and non-reading of evidence and arrived at a wrong conclusion in convicting the appellants merely on assumptions and presumptions. The impugned judgment is devoid of reasoning without specifying the incriminating evidence against each appellant. The learned trial Court totally ignored the plea taken by the appellants in their defence. Per learned counsel, the appellants have not done any illegal act and in their Section 342, Cr.P.C. statements too they have denied the
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whole allegations leveled against them by the prosecution. The learned trial Court did not consider the pleas taken by the appellants in their Section 342, Cr.P.C. and recorded conviction ignoring the neutral appreciation of whole evidence. The prosecution has failed to place on record any strong evidence against the appellants which could justify their conviction for the offences charged with. Thus, the conviction and sentence awarded to the appellants is illegal and liable to be set-aside. Finally, the learned counsel for the appellants have submitted that the appellants did not derive any financial gain for personal benefit from the acts for which they were charged, tried and convicted, thus the conclusion drawn merits reversal. 11. Strongly opposing the contentions of the learned counsel for the appellants, the Special Prosecutor NAB has contended that the appellants were lawfully proceeded against under the enabling provisions of the Ordinance, which were strictly in accordance with the settled principles of the criminal justice system of providing the appellants with complete opportunity of defending them. The appellants in connivance with other accused maneuvered the whole scam for personal gain and caused a colossal loss to FCS through illegal appointments and awarding fake contracts. The prosecution in support of its case produced oral as well as documentary evidence, which was rightly relied upon by learned trial Court. Per him, the witnesses were subjected to lengthy and taxing cross-examination but nothing favourable to the appellants could come out from their mouth. The findings recorded by the learned trial Court in the impugn ed judgment are based on fair evaluation of evidence and documents brought on record, to which no exception could be taken. The plea taken by the appellants in their defence has no nexus with the scam hence it does not carry weight vis--vis providing help to the defence. He, therefore, prayed for dismissal of appeals as being devoid of any merit. 12. We have given our anxious consideration to the submissions of learned counsel for the appellants and the learned Special Prosecutor NAB and gone through the entire material available on record with their able assistance. 13. What we understand from the record is that Reference No.02 of 2018 was filed pursuant to an inquiry followed by an investigation, nominating thirteen…
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