PLJ 2021 Cr.C. (Note) 60
National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--
----Ss. 10(a) & 15--Criminal Procedure Code, (V of 1908), S. 265-H--Reference--Allegations--Accused with co-accused committed fraud and embezzled/misappropriated an amount of Rs. 298600 million--A ppellants faced trial before Accountability Court on charges as per framed charge and were convicted as stated above--Notably, conviction of Co-accused were pronounced under Section 10 of National Accountability Ordinance, 1999 but without imposition of fine which is mandatory as word "and" instead of "or" was used in said section--Section 10 of National Accountability Ordinance, 1999 is reproduced as under:
"10.(a) A holder of public office, or any other person who commits offences of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which extend to 14 years and with fine and such of assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to known sources of his income or which are acquired by money, obtained through corruption and corrupt practices whether in his name or in name of any of his dependents, or benamidars shall be forfeited to appropriate Government or concerned bank or financial institution as case may be. (emphasis is ours).
In paragraph 119 of said judgment an amount of Rs. 11.3 Million returned by Hameed Ghani, Sana Hameed and Israr Shah during one year proceedings in CO. No. 37/2010 cannot be considered as an amount recovered in plea bargain, particularly when such application was already disallowed by trial Court--Court has incorrectly interpreted settlement between Bank and said appellants as a plea bargain on behalf of Hameed Ghani, Sana Hameed and Israr Shah, therefore, they could not be convicted under Section 15 of Ordinance without fixing liability--Under Section 265-H, Cr.P.C. after framing of charge accused are either found guilty or acquitted but in case of Zeeshan, Sajid Masood, Tasneem Akhtar and Nargis Tayyab no findings were given in said judgment--Section 265-H, Cr.P.C. is reproduced as under:
"Acquittal or conviction. (1) If in any case under this Chapter in which a charge has been framed Court finds accused not guilty, it shall record an order of acquittal.
(2) If in any case under this Chapter Court finds accused guilty Court shall, subject to provisions of Section 265-1, pass a sentence upon him accordingly to law"--Appeal were allowed.
[Para 10, 11 & 12] A, B & C
PLD 2003 SC 837.
Mr. Nasir Khan Afridi, Advocate for Appellant (in Crl. Appeal No. 71286-2017).
Ch. Zaheer Abbas, Advocate for Appellant (in Crl. Appeal No. 70876-2017).
Mr. Asad Manzoor Butt, Advocate for Appellant (in Crl. Appeal No. 67715-2017).
Ch. Abdul Rahman Jawan, Advocate for Appellant (in Crl. Appeal No. 65791-2017).
Mr. Javed Arshad Bhatti, Advocate for Appellants (in Crl. Appeal No. 81419-2017).
Ch. Muhammad Bashir, Advocate for Appellant (in Crl. Appeal No. 71201-2017).
Mr. Arif Mahmood Rana, Special Prosecutor NAB for Appellant (in Crl. Appeal No. 73765-2017).
Syed Sada Hussain Shah, Advocate for Respondents (in Crl. Appeal No. 73765-2017).
Qazi Misbah-ul-Hassan, Advocate for Petitioner (ABL) (in W.P. No. 103319-2017).
Mr. Nasir Khan Afridi, Advocate for Petitioner (in W.P. No. 219097-2018).
Barrister Syed Zakir Hussain, Advocate for Petitioner (in W.P. No. 218755-2018).
Ch. Zaheer Abbas, Advocate for Petitioner (in W.P. No. 218155-2018).
Mr. Arif Mahmood Rana, Special Prosecutor for NAB.
Date of hearing: 6.11.2018.
PLJ 2021 Cr.C. (Note) 60
[Lahore High Court, Lahore]
Present: Ali Baqar Najafi and Masud Abid Naqvi, JJ.
versus
STATE, etc.--Respondents
Crl. A. No. 71286 of 2017, decided on 6.11.2018.
Order
This order shall dispose of Crl. Appeal No. 71286-2017 titled Abdul Mateen vs. The State, etc., Crl. Appeal No. 70876-2017 titled Shahid Tanvir vs. The State, etc., Crl. Appeal No. 67715-2017 titled Faisal Hussain Butt vs. The State, Crl. Appeal No. 65791-2017 titled Saghir Iqbal Goraya vs. The State, etc., Crl. Appeal No. 81419-2017 titled Hameed Ghani. etc. vs. The State, Crl. Appeal No. 71201-2017 titled Muhammad Tahir Awais vs. The State etc., Crl. Appeal No. 73765-2017 titled National Accountability Bureau vs. Tasneem Akhtar, etc., W.P. No. 103319-2017 titled Allied Bank Limited vs. Judge Accountability Court No. 2, Lahore, etc., W.P. No. 219097-2018 titled Abdul Mateen vs. The State etc., W.P. No. 218755-2018 titled Saghir Iqbal Goraya vs. The Chairman, NAB, etc. and W.P. No. 218155-2018 titled Shahid Tanvir vs. The State etc. as all these appeals and writ petitions have been preferred against judgment dated 26.07.2017 passed by the learned Judge Accountability Court No. II, Lahore in AC Reference No. 38/2007 titled "The State vs. Tasneem Akhtar, etc." whereby the following punishments were imposed:--
131. "For what has been discussed above the accused Abdul Mateen Khan is found to have committed the offence of corruption and corrupt practices as defined under Section 9(a) of National Accountability Ordinance, 1999 read with Para 5 of The Schedule thereto is liable to be convicted u/S. 10 of the Ordinance. He has also caused loss of Rs. 24.975 Million to ABL, Lahore Stock Exchange Branch. He is convicted and awarded rigorous imprisonment for 14 years and fine of Rs. 24.975 Million. In case of recovery of fine from him the same be given to Allied Bank Limited. In case of default the said amount is recoverable from him as arrears of Land Revenue.
132. For what has been discussed above the accused Tahir Awais is found to have committed the offence of corruption and corrupt practices falling within the mischief of Section 9(a) of National Accountability Ordinance, 1999 read with Para 5 of The Schedule thereto is liable to be convicted u/S. 10 of the Ordinance. He has also caused loss of Rs. 20 Million to ABL, Lahore Stock Exchange Branch. He is accordingly convicted and awarded rigorous imprisonment for 14 years and fine of Rs. 20 Million. In case of recovery of the said amount from him the same be given to Allied Bank Limited. In case of default the said amount is recoverable from him as arrears of Land Revenue.
133. For what has been discussed above the accused Faisal Hussain Butt is found guilty of offence of (sic) and corrupt practices as defined in (sic) National Accountability Ordinance, (sic) para 5 of The Schedule thereto is liable to be convicted u/S. 10 of the Ordinance. He is accordingly convicted and awarded rigorous imprisonment for 14 years. Since, the prosecution has not determined any amount misappropriated by him, so the Court does not award him punishment of fine.
134. For what has been discussed above the accused Shahid Tanvir is found to have committed an offence of corruption and corrupt practices falling within the mischief of Section 9(a) of National Accountability Ordinance, 1999 read with Para 5 of The Schedule thereto is liable to be convicted u/S. 10 of the Ordinance. He is accordingly convicted and awarded rigorous imprisonment for 14 years. Since, the prosecution has not determined any amount misappropriated by him, so the Court does not award him punishment of fine.
135. For what has been discussed above the accused Saghir Iqbal Goraya is found to have committed an offence of corruption and corrupt practices falling within the mischief of Section 9(a) of National Accountability Ordinance, 1999 read with Para 5 of The Schedule thereto is liable to be convicted u/S. 10 of the Ordinance. He is accordingly convicted and awarded rigorous imprisonment for 14 years. Since, the prosecution has not determined any amount misappropriated by him, so the Court does not award him punishment of fine".
2. Briefly the prosecution case against the appellants is that FIR No. 1040/2006 was registered at Police Station Civil Line, Lahore on 24.09.2006 under Sections 477-A, 471, 468, 420, 409, 408, 109, PPC by the Chief Manager, Allied Bank Limited, Lahore Stock Exchange Branch on the allegations that the accused in the said FIR in connivance with other co-accused committed fraud and embezzled/misappropriated an amount of Rs. 298.600 Million. An inquiry was thus authorized on 12.10.2006 and was converted into investigation on 10.01.2007. As per the allegations, the officers of Allied Bank Limited, Lahore Stock Exchange Branch, Lahore misappropriated a sum of Rs. 202.068 Million. Precise allegations against the appellants were as follows:
That the investigation revealed that accused namely Tasneem Akhtar, Faisal Hussain, Saghir Iqbal Goraya and Tahir Awais as officers of Allied Bank Limited (ABL) LSE Branch Lahore in connivance and collusion with one another misappropriated a sum of Rs. 202.068 M.
(i) That accused brought the accounts of various people promising them to provide false inflated bank statements for visa purposes and other ancillary matters. The needy people were clutched into the netted plan of accused namely Tasneem Akhtar, Faisal Hussain, Saghir Iqbal Goraya and Tahir Awais and they opened accounts with the bank and also gave them signed cheque books, which were subsequently utilized by the accused as instruments for the commission of fraud.
(ii) That accused Tasneem Akhtar in order to achieve his nefarious designs intentionally confirmed fake, false or fictitious KYC preforms through which succeeded in opening fraudulent pool accounts. Many fictitious debit/credit entries were ascertained from such pool accounts (Benami accounts).
(iii) Investigation confirmed that accused Faisal Hussain in connivance with accused Tasneem Akhtar used to prepare false drawing power (DP) of certain account holders, upon which accused Tasneem Akhtar would entertain the same and post them in routine bank system. The illegal act of the accused allowed huge withdrawal of amounts, which never existed in the balance of relevant account holders.
(iv) That above said four accused with mala fide and malicious intention, in order to camouflage their misdeeds and illegal practices, endorsed the flying entries in the ledgers but factually there was no cash corresponding the entries of the books.
(v) That active connivance of the said four accused is evident from the fact that they were also involved in such illegal and unwarranted business by giving money of bank to the customers unauthorizedly and illegal. The investigation reveals (relevant) said four accused besides other benefits also provided illegal pecuniary benefit of Rs. 24,975 (M) through abetment to one Abdul Mateen account holder No. 2005-1.
Thus accused committed the offence of criminal breach of trust by dishonestly and fraudulently misappropriation huge amount of the bank. The accused persons embezzled a sum of Rs. 202.068 Million by opening fake and fictitious accounts, by endorsing the flying entries in the ledgers, by conducting illegal business, by forging bank record and by falsification of accounts. The accused thus committed offence as defined u/S. 9(a)(iii)(iv)(vi) (xi) and (xii) punishable u/S. 10 (a) read with schedule thereto of NAO, 1999".
3. Consequently, the above reference was filed on 4.2.2010 in which, besides the appellants (Tasneem Akhtar, Faisal Hussain, Saghir Iqbal Goraya and Tahir Awais), other persons were also arrayed as accused. As per the reference, appellants Tasneem Aljditar, Faisal Hussain, Saghir Iqbal Goraya, Tahir Awais, Asad Raza Naqvi, Mushtaq Ahmad Bajwa, Farrukh Fahim Ansari, Usman Qazi and Syed Shuja Hassan Rizvi in connivance with appellants Shahid Tanvir, Saeed Ahmad Waheed, Abdul Mateen Khan, Sajid Masood, Hameed Ghani and Zeeshan Dar prepared forged record, falsified accounts and misappropriated an amount of Rs. 202.068 Million of the bank. On 07.07.2009 a supplementary reference was also filed and the appellants Sana Hameed, Nargis Tayyab and Israr Shah were also cited as accused persons. Copies were distributed under Section 265-C, Cr.P.C. and the charge was framed against the appellants as follows:
"That you accused Tasneem Akhtar, Asad Raza Naqvi as Customer Services Managers, Mushtaq Ahmad, Syed Shuja Hassan Rizvi, Usman Qazi as Bank Officers, Faisal Hussain Butt as Current Deposit Incharge, Saghir Iqbal Goraya as Cash Deposit Officer, Tahir Awais as Cashier, Farruk Fahim Ansari as Chief Manager of Allied Bank Ltd, Lahore Stock Exchange Branch Lahore committed criminal breach of trust as bankers to the tune of Rs. 202.068 Million as defined u/S. 409 Pakistan Penal Code in respect of the deposits of the said bank, with connivance, assistance/abetment and in conspiracy with your co-accused Shahid Tanvir, Saeed Ahmad Waheed, Abdul Mateen Khan, Sajid Masood, Hameed Ghani, Zeeshan Dar, Mst. Sana Hameed, Mst. Nargis Tayyab, Israr Shah the Account Holders of your bank on the basis of forged and fake documentation during the period ending on 22.09.2006 caused a corresponding financial loss to your bank and, thus, you all committed a offence punishable u/S. 9(a)(xi) (xii) of National Accquntability Ordinance, 1999 read with Section 10 of the said Ordinance and schedule thereto which is within the cognizance of this Court".
The appellants pleaded not guilty and claimed trial.
4. The prosecution produced as many as 40 witnesses. In the statement under Section 342, Cr.P.C. the appellants had taken the following stand:--
(i) Faisal Hussain Butt/appellant stated that he joined ABL in 1994 as Assistance, his duties were to supervise the entries made and had no interaction with cash or any other valuable security in any manner what so ever. As per rules and regulations of the ABL (Allied Bank Ltd) cashier is solely responsible for receiving and paying the cash and also receives the cheques. His version may be confirmed by perusing the written rules and regulations of ABL. He had had no access to the cash or any other valuable security therefore allegations of criminal breach of trust on me is totally out of question.
(ii) Saghir Iqbal Goraya/ appellant stated that he was innocent and was falsely been implicated in the case, under mala fide and malice of the complainant.
(iii) Tahir Awais/appellant stated that the case against him was false and he has been unduly involved in the case. All the PWs were bank employees and they were interested and biased. No loss has been caused to the bank due to my conduct.
(iv) Shahid Tanveer/appellant stated that none of the prosecution witnesses has deposed against him in support of the charge. No oral or documentary evidence could be brought against him through which the prosecution was able to connect him with the case. He was forced by the complainant bank and NAB to depose against other accused as per their wish and due to my denial of deposing falsely. He was arrayed as an accused at variance.
(v) Abdul Mateen/appellant stated that the prosecution in connivance with the bank authorities have made out this false case against him with mala fide intention in order to usurp his amount of Rs. 11,67,00,000/-. If any fraud has been committed, the same is best known to the bankers. He was falsely implicated in this case so that the bank authorities could usurp my amount.
(vi) Hameed Ghani/appellant stated that he on behalf of H.S.Z. Securities instituted a Civil Suit C.O.S. 09/2007 before Hon'ble Lahore High Court, Lahore against the complainant bank. In reaction of the said suit he was falsely implicated in this case.
5. Zeeshan Dar since acquitted produced three witnesses. Syed Nadeem Anwar, Customer Service Manager, Allied Bank Lahore Stock Exchange Branch (DW-1), Muhammad Azam Khan (DW-2) and Muhammad Usman Nasir (DW-3) and also produced some documents. After taking into consideration the evidence available on the record the judgment was pronounced which has been challenged in these appeals.
6. Learned counsel for the appellants submit that Saeed Ahmad Waheed was acquitted and the case of Abdul Mateen appellant is at par with him as he was also an employee of Sajid Mehmood and was at the most a Benamidar, therefore, he was also entitled to the benefit of doubt. It was further argued that Hameed Ghani/appellant was convicted under Section 15 of the National Accountability Ordinance, 1999 and no question was put to him under Section 342, Cr.P.C. in respect of the allegation made in the charge which is violation of law laid down in PLD 2003 SC 837 titled Syed Ali Nawaz Shah and 2 others versus The State and others). Adds that the punishment under Section 15 of the NAO, 1999 was illegally awarded, as no plea bargain was entered with NAB. It was also argued that this appeal filed by NAB was time barred.
7. Conversely the learned counsel for the NAB submits that no fine was imposed upon the appellants, namely, Faisal Hussain Butt, Shahid Tanvir, Saghir Iqbal Goraya and Israr Shah which is violation of Section 10 of the National Accountability Ordinance, 1999. Also submits that conviction under Section 15 of National Accountability Ordinance, 1999 was made without reference to Section 25(b) of National Accountability Ordinance, 1999 which is not in accordance with provisions of National Accountability Ordinance, 1999.
8. Learned counsel for the Allied Bank Limited also submits that the judgment is silent about Government loss and that Zeeshan Dar, Sajid Masood and Naeem Akhtar were neither convicted nor acquitted which is violation of Section 265-H, Cr.P.C. Refers to Para-48 under which the determination of liability was held in abeyance until the decision on the rendition of accounts by the Court. Adds that liability of the accused do not commensurate with the liability fixed by the NAB.
9. Arguments heard. Files perused.
10. The appellants faced trial before the learned Accountability Court on the charges as per framed charge and were convicted as stated above. Notably, conviction of Faisal Hussain Butt, Sahid Tanvir and Sagir Iqbal Goraya were pronounced under Section 10 of National Accountability Ordinance, 1999 but without imposition of the fine which is mandatory as word "and" instead of "or" was used in the said section. Section 10 of National Accountability Ordinance, 1999 is reproduced as under:
"10.(a) A holder of public office, or any other person who commits the offences of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known sources of his income or which are acquired by money, obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or benamidars shall be forfeited to the appropriate Government or the concerned bank or financial institution as the case may be. (emphasis is ours).
11. In Paragraph 119 of the said judgment an amount of
Rs. 11.3 Million returned by Hameed Ghani, Sana Hameed and Israr Shah during one year proceedings in CO. No. 37/2010 cannot be considered as an amount recovered in plea bargain, particularly when such application was already disallowed by the trial Court. The Court has incorrectly interpreted the settlement between the Bank and the said appellants as a plea bargain on behalf of Hameed Ghani, Sana Hameed and Israr Shah, therefore, they could not be convicted under Section 15 of the Ordinance without fixing the liability. Section 15 of the National Accountability Ordinance, 1999 is reproduced as under:-
"15.(a) Where an accused person is convicted of an offence under Section 9 of this Ordinance he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of then years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.
Provided that any accused person who has availed the benefit of sub-section (b) of Section 25 shall also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith ceased to hold public office, if any, held by him and further he shall stand disqualified for a period of then years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.
15.(b) ..................
12. Under Section 265-H, Cr.P.C. after framing of the charge the accused are either found guilty or acquitted but in the case of Zeeshan, Sajid Masood, Tasneem Akhtar and Nargis Tayyab no findings were given in the said judgment. Section 265-H, Cr.P.C. is reproduced as under:
"Acquittal or conviction. (1) If in any case under this Chapter in which a charge has been framed the Court finds the accused not guilty, it shall record an order of acquittal.
(2) If in any case under this Chapter the Court finds the accused guilty the Court shall, subject to the provisions of Section 265-I, pass a sentence upon him accordingly to law".
Here reliance can also be placed upon PLD 2003 SC 837 titled (Sved Ali Nawaz Shah and 2 others versus The State and others). Relevant extract from Para-12 is reproduced as under:
"However, the concept of plea bargain in the Ordinance is slightly different as an accused can negotiate such plea during the course of inquiry/investigation or at any subsequent stage before or after the commencement of the trial or in appeal. The plea bargain is not like a civil contract between the parties rather it contains the elements of culpability of crime as result of which a person facing accusation under the Ordinance, on entering such plea saves himself from conviction and substantive sentence but entails the penalties provided in Section 15 of the Ordinance and this is well-known principle of criminal justice system that an accused cannot be held guilty merely on the basis of probabilities rather finding of guilt should rest squarely and firmly on the evidence".
13. In view of the above referred legal lacunas and consensus developed between the parties, learned counsel for the appellants, the Prosecutor as well as counsel for the Bank, the judgment is not sustainable in the eyes of law, therefore, the appeals of the appellants are allowed, impugned judgment is set aside and the case is remanded to Accountability Court No. II, Lahore where A.C. Reference No. 38/2007 shall be deemed to be pending for its decision afresh/rewriting of judgment.
(A.A.K.) Appeals allowed
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