PLJ 2024 Cr.C. (Note) 235
[Lahore High Court, Lahore]
Present: Zafar ullah Khan Khakwani and Mahmood Maqbool Bajwa, JJ.
SHER MUHAMMAD etc.--AppellantS
versus
STATE etc.--Respondents
Crl. A. Nos. 594, 656 & 801 of 2013, heard on 3.3.2015.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 9(a)(iii)(iv), 10 & 14--Prevention of Corruption Act, (II of 1947), Ss. 5(2)--Pakistan Penal Code, (XLV of 1860), Ss.409, 420, 468 & 471--The appellants were tried, under National Accountability Ordinance, 1999 held guilty u/S. 9(a)(iii)(iv) and punished u/S. 10 of Ordinance and in view of Section 14 of Ordinance, there is presumption that if an accused does not prove to contrary, it shall be presumed that he is involved in corruption and corrupt practices within meaning of Section 9 of said Ordinance--However, perusal of Section 14 of Ordinance would reveal that at trial first it is to be proved by prosecution and then it shall be presumed that accused is involved in corruption or corrupt practices if he does not prove to contrary--Thus first of all it was obligation of prosecution to prove its case and then accused was presumed to defend-- At cost of repetition without fear of contradiction, it may be mentioned that prosecution has failed to prove at trial that appellants committed fraud or misappropriated any amount or were involved in corruption or corrupt practices within meaning of Section 9 punishable u/S. 10 of National Accountability Ordinance, 1999--The prosecution is not proved and is replete with doubts--Even a single doubt is sufficient to create dent in prosecution case--The net result is that prosecution has failed to prove its case against appellants beyond reasonable doubts and Court hold accordingly--Appeal accepted. [Para 16, 17 & 18] A, B & C
2011 SCMR 136 and 2009 SCMR 790.
Mr. Muhammad Ahsan Bhoon, Advocate for Appellant (in Crl. A. No. 594/2013).
Ch. Muhammad Sharif Arain, Advocate for Appellant (in Crl. A. No. 801/2013).
Mian Ahmad Mahmood, Advocate for Appellant (in Crl. A.
No. 656/2013).
Mr. Muhammad Ali Chatha, Senior Legal Consultant (N.A.B.) for Complainant/Respondents.
Date of hearing 3.3.2015.
Judgment
Zafarullah Khan Khakwani, J.--By way of this single judgment, we propose to decide Crl. Appeals No. 594 of 2013, 656 of 2013 and 801 of 2013 as all three of them emanate from common judgment dated 16.4.2013 passed by learned Judge Accountability Court No. V. Lahore in A.C.R. Reference No. 59 of 2008.
2. Sher Muhammad, Assistant Education Officer (appellant in Crl. Appeal No. 594 of 2013), Niaz Ahmad, Junior Clerk/Cashier (appellant in Crl. Appeal No. 656 of 2013) and Mehr Abdur Rasheed, Senior Clerk/Cashier (appellant in Crl. Appeal No. 801 of 2013) of Distt. Education Office, Muzaffargarh alongwith their co-accused, namely, Amjad Hameed Maharvi, Ahmad Bukhsh Jaskani, Kaleem Ullah, employees of Distt. Account Office, Muzaffargarh, Muhammad Siddique Akhtar, Muhammad Saeed Asghar, employees of Distt. Education Office, Muzaffargarh, Munir Akhtar, Maqbool Ahmad, employees of Union Council, Muzaffargarh and Muhammad Siddique, a private person were facing trial before the learned Special Judge, Anti-Corruption, D. G. Khan camp at Muzaffargarh. However, during trial, the case was transferred and they were tried by the Accountability Court No. V, Lahore in A.C.R. No. 59 of 2008 based on case F.I.R. No. 49 of 2001 under Sections 409/420/ 468/471, P.PC. read with Section 5(2) of The Prevention of Corruption Act, 1947 registered at Police Station Anti-Corruption Establishment, Muzaffargarh. At the conclusion of trial all the accused except Sher Muhammad, Niaz Ahmad and Mehr Abdur Rasheed appellants, were acquitted and the appellants were convicted under Sections 9(a)(iii)(vi) of National Accountability Ordinance of 1999 read with Section 10 of the Ordinance and each one of them was sentenced to suffer four years R.I. and also to pay fine of Rs. 12,00,000/-recoverable as arrears of land revenue. It was also ordered that the convicts shall forthwith cease to hold public office held by them and also disqualified for a period of ten years to be reckoned from the date of their release after serving 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. They were also held ineligible to apply for or be granted or allowed any financial facility in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the government for a period of 10 years from the date of conviction. Benefit of Section 382-B, Cr.P.C. was, however, granted to the convicts. Feeling aggrieved of the above said conviction and sentences, the convicts have filed instant appeals as detailed above.
3. Bashir Ahmad Qamar, Account Officer of A.G. Office, Lahore (PW-1) made a complaint to the Director General, Anti-Corruption, Panjab Lahore regarding preparation of fake vouchers of G. P. Fund and fraudulent withdrawal of G. P. Fund to the tune of Rs. 64,59,222/-in the Distt. Education Office, Muzaffargarh. An inquiry was conducted by the Anti-Corruption Establishment which divulged into registration of criminal case bearing F.I.R. No. 49 of 2001 under Sections 409/420/468/471, P.P.C. read with Section 5(2) of The Prevention of Corruption Act, 1947 against 11 accused comprising officials/officers of Distt. Education Office, Distt. Account Office and of Union Council, Muzaffargarh alongwith a private person.
4. Investigation was carried out and as a result thereof the accused were found involved in the commission of crime as such challan under Section 173, Cr.P.C. was submitted against them before the learned Special Judge, Anti-Corruption, D.G. Khan. Charge was framed against the appellants as well as acquitted accused persons. In the meanwhile, the Chairman N.A.B. filed an application under Section 16-A(a) of the National Accountability Ordinance, 1999 for transfer of case to the Court constituted under the National Accountability Ordinance, 1999 which was accepted and the case was transferred. Thereafter the trial was conducted by the learned Accountability Court No. 1, Lahore. On denial of the accused-persons being guilty, the prosecution produced evidence. At the close of prosecution evidence the same was put to the accused persons under Section 342, Cr.P.C. who denied and dismissed each piece of prosecution evidence. They, however, did not produce defence evidence except Niaz Ahmad, appellant who produced four witnesses in defence. The accused persons did not enter the witness box under Section 340(2), Cr.P.C. The learned trial Court also examined three persons as Court witnesses. At the conclusion of trial, the learned Judge Accountability Court No. V. Lahore convicted and sentenced the appellants and acquitted their co-accused as noticed above.
5. Learned counsel for the appellants have contended that on the same charge and on the same set of evidence the learned trial Court acquitted the co-accused whereas the appellants were convicted and sentenced without distinguishing their case from the acquitted accused and without specifically assigning them responsibility of withdrawing the amounts; that the prosecution alleged that huge amount had been mis-appropriated but only a few documents for a meager amount were produced at trial as such the prosecution has failed to prove its case against the appellants; that the officials of different departments were prosecuted but the learned trial Court did not specifically fix the responsibility on any chief executive of department responsible for the affair of department; that the prosecution has failed to produce bank employees from where the bills were encashed and the treasury officers to whom bills were sent by bank for completion of record and that it has not come on record that the appellants were the beneficiary. Likewise there is no evidence that there was any fake document prepared by the appellants or that the appellants had misused their authority in any manner as mentioned in Section 9(a)(vi)(vii) of N.A.O. By referring to evidence earned counsel argued that the appellants did not figure anywhere in the hierarchy of sanctioning or disbursing authority of the G.P. Fund and they have only been made scapegoats. Learned counsel further contended that signatures of Sher Muhammad appellant were never verified by any prosecution witness nor were sent to handwriting expert for comparison. It was also argued that Mehr Abdur Rasheed and Niaz Ahmad, appellants are clerks/ cashiers and it has not been established through evidence that they had mis-appropriated the amounts rather it has come on record that all the alleged victims had received their G. P. Fund and not a single person was produced to show that his G. P. Fund amount had been mis-appropriated. Likewise not even a single fake document was produced alleged to have been prepared by any of the appellants rather it was admitted in the evidence that all the sanction letters/bills had been prepared and sanctions were made according to the prescribed procedure as such the appellants have neither committed any fraud nor prepared fake record nor had mis-appropriated any amount in absence of which case of the prosecution falls to the ground and he appellants deserved to be acquitted. It was further argued that the learned trial Court had observed that Muhammad Siddique was the main accused who had illegally been appointed by Amjad Hameed Maharwi, Ahmad Bukhsh Jaskani and Kaleem Ahmad of Distt. Accounts Officer and has been allowed access to Ledger Record but all of them have been acquitted and the appellants have been made scapegoats and thus the impugned conviction and sentences are liable to be set aside and the appellants are liable to be acquitted.
6. On the other hand, learned Law Officer representing the N.A.B. has supported the conviction by submitting that it has come on record by way of evidence of P.W. 2 that it was Sher Muhammad appellant who was working as Assistant Education Officer in Shehar Sultan during the period in which bogus bills were prepared and he had signed the sanction letters being D.D.O. on the basis of which amounts were drawn and it was confirmed even by DW. 2 who deposed that the amount of his G. P. Fund was withdrawn with the signatures of Sher Muhammad AEO/DDO; that after the inquiry when they were found involved they returned the payments which fact fully establishes their involvement in the commission of crime that it has been proved through prosecution evidence that Mehr Abdur Rasheed and Niaz Ahmad appellants used to draw amounts of G.P. Fund from the bank on behalf of D.D.O. but the same were not disbursed to the subscribers and as such they were among the mischief mongers who had committed fraud. It is also argued that Abdur Rasheed, appellant while under examination under Section 342, Cr.P.C. admitted that he being Head Clerk in connivance with co-accused managed to withdraw the sum of Rs. 64,59,222/-through fraud, misuse of authority from G.P. Fund of the officials of Education Department and thereby misappropriated the said amount and as such the learned trial Court has rightly convicted and sentenced the appellants.
7. We have heard learned counsel for the parties and have also gone through the record in the light of submissions made by them.
8. In order to prove its case the prosecution produced 11 witnesses.
Bashir Ahmad Qamar, Account Officer/O.S.D. of A.G. Office, Punjab appeared as PW. 1 and deposed that a fraud was unearthed in the G. P. Fund of Distt. Education Office, Muzaffargarh to the tune of Rs. 64,59,222/-in which the appellants were also involved alongwith other accused. During cross-examination he deposed that neither he witnessed the occurrence nor had conducted inquiry in this case.
Basit Maqbool, Distt. Accounts Officer, Bahawalpur (PW.2) had conducted inquiry in the matter under the orders of the D.G. Anti-Corrupt on, Punjab. He deposed that during inquiry he collected a number of bills for G.P. Fund, sanction letters and other documents relating to fraud which he produced before the investigating officer. During cross-examination he explained that the bills were received in the Distt. Accounts Office through prescribed channel which bear signatures of the D.D.O. and sanction letters carry signatures of competent authority and thus were genuine. He further conceded that Pay Orders carried genuine signatures of Distt. Accounts Officer and that payments were made through scroll. He also admitted that G. P. Fund payments were drawn from Distt. Account Office correctly. However, claimed that the same were not given to the subscribers. He disclosed that payments were in fact misappropriated by the D.D.Os and cashier and that after payments Ledger Cards were removed. He conceded that Saeed Akhtar and Munir Akhtar (both acquitted accused) had drawn G. P. Fund from their own account against genuine sanction and genuine bills. He informed that after the inquiry the misappropriated amount was disbursed to he concerned Teachers which was about Rs. 25,22,841. He claimed that cash recovery was affected from Mehr Abdur Rasheed which was Rs. 1,59,000/-out of pension benefit and Sher Muhammad accused also got adjusted Rs. 1,90,666/-. He maintained that the balance misappropriate amount was to be recovered from Malik Siddique Akhtar, Mehr Abdur Rasheed, Maqbool Ahmad, and Niaz Ahmad, Junior Clerk which was calculated to be Rs. 35,96,714/-He informed that he had assessed the said amount on the basis of sanction bills and ledger cards which were available. He stated that according to his inquiry since the amount was not given to the subscribers, therefore, this was a case of misappropriation. He disclosed that Ledger Cards are kept in safe custody (lock and key). The P.W. disclosed that he had involved Sher Muhammad appellant on the basis of Bank certification which certified that the amount of six bills drawn by the said appellant was deposited in his official account and the cash of four bills was received by himself. He claimed that after inquiry the accused made payment to subscriber and produced their disbursement certificate duly verified by the D.D.O. The witness stated that Niaz Ahmad was Junior Clerk/ Cashier in these days in the office of Deputy Distt. Education Office, Sher Sultan. However, he conceded that he did not check the cash book as well as acquaintance role written by Niaz Ahmad. He, however, stated that Niaz Ahmad used to disburse the amount from the bank under the authority of D.D.O./Education.
Muhammad Boota Tahir, Asstt. Accounts Officer Distt. Muzaffargarh from the year 1999 to 2004 appeared as PW. 3. He proved the report (Ex.PW.3/1) made by him regarding loss of G.P. Fund Ledger Card of Distt. Accounts Office Muzaffargarh. In cross-examination he claimed that the Ledger was in the custody of auditor, namely, Kaleem Ullah. He disclosed that during the days of occurrence G P. Fund was paid through cash which was permitted by rules. He maintained that cashier of the concerned department used to receive cash under the authority of DDO concerned. He stated that after receipt of bill from the concerned department, the same was checked regarding name, account number and the amount to be drawn. He further stated that in case of wrong payment after checking, the D.D.O. is held responsible and not the Account Officer. He further informed that it was responsibility of office of Distt. Account Officer to check whether the sanction received in the office was given by the real D.D.O. or not and in case the sanction is given by any other authority than D.D.O., then the payment should not have been made. He disclosed that Distt. Education Officer was the Drawing and Disbursing authority in Education Department. He further claimed that the D.D.O. cannot delegate his authority to any other officer. He conceded that the disputed bills were received in the Account Office according to the rules and procedure prescribed by the government and the said bills were passed according to the rules and procedure of the government. He further admitted that scrolls were sent to the National Bank of Pakistan for payment of these bills. He, however, claimed that the payments were received from N.B.P. by the D.D.O. or his nominees. He further claimed that as per his information this amount was not disbursed and remained with the cashier or the nominees of the D.D.O. The witness admitted that G.P. Fund sanction was given by the competent authority and the bills were signed by the D.D.O. He also claimed that Malik Siddique Akhtar (accused) was also Drawing and Disbursing Officer as well as head of the department at that time. By producing copy of the Punjab Financial Rules (Ex.PW.3/D-1) the witness stated that without the authority of D.D.O. no one can draw the cash from the Bank. He stated that the cash book was not written as the amount was not disbursed to the concerned officials.
Muhammad Hussain, Abdul Khaliq, Muhammad Shafi and Abdul Ghafoor Khan, PWs. 4 to 6 and 10 respectively were the affectess of the alleged fraud. Muhammad Hussain deposed that fraud regarding his G. P. Fund to the tune of Rs. 50,328/-had been committed with him. However, during cross-examination he informed that he had subsequently received his G.P. Fund. He did not name any person who had committed the fraud or from whom he received his G.P. Fund. Abdul Khaliq, PW. 5 stated that in order to draw his G.P. Fund he contacted the Distt. Account Office but was informed that his G.P. Fund had already been drawn. He approached the Disst. Accounts Office and was given a bill by Muhammad Boota Tahir, Superintendent of said office which showed that his G.P. Fund had been drawn by Mehr Abdur Rasheed, appellant. He made an application to the high ups and an inquiry was held as a result of which he received his G.P. Fund. During cross-examination this witness showed his inability to produce copy of the bill allegedly given to him by Muhammad Boota Tahir on the pretext that the same has been lost. He further disclosed that he had received his G.P. Fund from the Account Office. He also did not name the person from whom he received the amount. Muhammad Shafi also claimed that his G.P. Fund was drawn on the basis of forged documents. He claimed that he came to know about the fraud through newspaper and when he inquired about this fraud from the Accounts Office he came to know that this fraud had been committed by Niaz Ahmad and Maqbool Ahmad LC of Education Department alongwith Sher Muhammad AEO. He claimed that his particulars were wrongly given in the bill but the amount had been drawn from his G. P. Fund account. He also claimed that he had received his G.P. Fund from the Account Office. He maintained that on the sanction letter names of Ghulam Akbar or Siddique Akhtar are mentioned. He admitted it as correct that District Accounts Officer makes the payment after receiving the sanction advice and the cash is given. He informed that with the intervention of A.G. Office he has received his G.P. Fund. He also did not name any person from whom he received the amount. Abdul Ghafoor Khan deposed that after retirement he wanted to draw his amount of G. P. Fund but was told that the same had already been withdrawn by Mehr Abdul Rasheed appellant. He, however, disclosed that he had later on been paid his G. P. Fund.
Maqbool Hussain PW.7 is witness of recovery memo of Photostat copies of ledger cards and other documents of advance G.P. Fund. He also witnessed recovery of photo copy of challan form of Rs. 1,50,000/-Mark PW.7/A allegedly produced by Mehr Abdur Rasheed, appellant to the investigator.
Haji Abdul Ghafoor, Asstt. Director Anti-Corruption Establishment PW.9 also conducted inquiry in the case and recommended for registration of criminal case. After registration of the case he also partly investigated the case.
Muhammad Aslam, Circle Officer Anti-Corruption Establishment, Muzaffargarh (PW.11) investigated the case. He collected incriminating material against the accused. He arrested Mehr Abdur Rasheed and Niaz Ahmad, appellants alongwith Muhammad Siddique private person and considered the other eight accused as on bail. After completion of investigation he found the accused persons involved in the case and accordingly prepared challan and committed them to Court. Under cross-examination this witness stated about prescribed procedure according to which for obtaining G.P. Fund advance, an application is made by the applicant to the D.E.O. Thereafter sanction is granted by D.E.O. then bill is prepared which is signed by the drawing and disbursing officer. Thereafter bill with its sanction is submitted in the Distt. Account Office where after pre-audited the bill is passed by the Distt. Account Officer and scroll is prepared and sent to National Bank of Pakistan for payment. He maintained that the amount of bill passed is either withdrawn by the D.D.O. or by agent authorized by him. When the amount is withdrawn the bill is entered in the cash book in the office of D.D.O. The payment is made through acquaintance role. He further deposed that during investigation it came to his knowledge that ledger cards of different applicants had been lost and that he made efforts to recover lost ledgers card/day books but the same could not be recovered as the accused were on bail. He, however, stated that he had joined the officials in investigation who had lost the record that is ledger day book etc being in the custody. The official from whose custody ledger was lost had been implicated in this case and that some ledgers were taken into custody by him. He also disclosed that attested photo stat copies were taken into possession vide recovery memo Ex.P.W.2/29 and that original were not available. He also admitted as correct that drawing and disbursing officer of every Tehsil of the District was different. He admitted it as correct that no signature were got verified by the hand writing expert which were on the record.
After completion of prosecution evidence, Niaz, appellant produced defence evidence. DW.4. disclosed in his cross-examination that he had made complaint against Niaz Clerk. He stated that his amount had illegally been withdrawn. However, he verified that he had received G.P.Fund and nothing remained in this regard.
Allah Ditta one of the affectees was examined by the Court as CW.1. He deposed that he was posted as PTC Teacher in Education Department and that an amount of Rs. 40,680/-was withdrawn from his G.P. Fund Account without his consent and he contacted to ΑΕΟ Markaz Shehar Sultan and it was disclosed to him that Niaz Ahmad, appellant had fraudulently withdrawn his G.P. Fund. He claimed that on his query Niaz Ahmad Clerk admitted that he had withdrawn his G. P. Fund fraudulently but ultimately returned the same to him. However, he did not name any person as witness in support of his allegation. During cross-examination he admitted that he did not make any complaint against any one and that he did not appear before any inquiry committee or investigation or Court of law. He also disclosed that whenever G.P. Fund was needed Niaz Ahmad Clerk was contacted and he even used to collect his salary and other amount from Niaz Ahmad, Clerk. He, however, informed that Niaz Ahmad Clerk has not committed any fraud with him and he never made complaint against said accused. During cross-examination by learned Special Prosecutor this witness once again took a somersault and refuted his earlier claim by stating that it was incorrect to suggest that he never made complaint against Niaz Ahmad accused. He however stuck to the stand that it is incorrect to suggest that Niaz Ahmad Clerk has committed fraud with him or that Niaz Clerk returned his amount of G.P. Fund.
C.W. 2 Zafar Iqbal deposed that after his retirement from service he applied for his G.P. Fund but was told that his G.P. Fund had already been withdrawn fraudulently without his consent upon which he contacted with Niaz Ahmad, Clerk who returned the G.P. Fund. During cross-examination this witness disclosed that whenever G.P. Fund was needed Niaz Clerk was contacted. He further disclosed that the amount of G.P. Fund drawn from his account has been received by him from Niaz Clerk. He stated that Niaz Ahmad clerk had not committed fraud with him. He admitted that he never made any complaint against this official nor appeared before the inquiry committee or investigation. Same was the position of C.W.3.
9. The unshared purpose to write important parts of the evidence of the witnesses is to ascertain as to what was the individual role of the appellants before us in the commission of alleged offence and to what extent they were liable.
10. It was claim of PWs. 4 to 6 as well as CWs. 1 to 3 that their G.P. Fund amounts had been withdrawn although they had not applied for G. P. Fund. It appears that someone had made fake applications on behalf of these witnesses/employees of the Education Department. However, keeping in view the evidence of the prosecution mentioned above, we see that neither the prosecution produced a single witness to prove nor has it been established from record that any such application had been written/submitted by any of the appellants.
11. What can be gathered from the evidence produced by the prosecution, referred above, is that after the applications were made for withdrawal of G.P. Fund, sanction for G. P. Fund amounts was accorded, bills were prepared and they were scrutinized by the Account Office and even passed according to the prescribed procedure. P’Vs. 3 and 11 admitted that the applications were duly processed, sanctions were made, sanction letters were written and bills were prepared which were passed and the Distt. Accounts Officer issued scroll to the bank for issuance of the said G.P. Fund amounts as per prescribed procedure. Thus the allegation remains only to the extent of submitting fake applications. It was further claim of the prosecution through the inquiry officer/investigator that the amounts of G.P. Funds were not disbursed to the scribers and the same were mis-appropriated. However, this was not the case of PWs 4 to 6 and C.Ws. 1 to 3.
12. The evidence against Sher Muhammad, appellant was provided by P.W. 2 who stated that the sanction letters were issued under the signatures of this appellant. He however, admitted during cross-examination that the signatures of this appellant were not verified by any other prosecution witness nor the same were got verified/ compared with his admitted signatures by the hand-writing expert. He also claimed that he involved the said appellant on the basis of bank certification that he had deposited six bills in his own account and had also drawn four bills. But we see that the prosecution did not produce any official of the bank to certify this fact. Thus the assertion of this P.W. remains only an allegation not proved on record. There is also evidence in shape of statement of Muhammad Boota Tahir. Asstt. Accounts Officer, PW3 who disclosed that it is duty of the Account Office to check whether the sanction received in the office was given by the real D.D.O. or not and in case the sanction is given by any authority other than the D.D.O., then the payment is not made. The D.E.O. is the Drawing and Disbursing Authority in the Education Department. He also admitted that the D.D.O. cannot authorize any other officer his authority. There is also evidence of CW. 3 available on the record that his G. P. Fund was withdrawn and on probe he came to know that the sanction letter carried signatures of Sher Muhammad, appellant. He did not disclose as to how he knew that the same were genuine signatures of Sher Muhammad or that the same were got compared from any hand-writing expert. Even otherwise there is no evidence that this witness had made fake sanction letter. In absence of any such evidence it is not possible to hold that this appellant was privy to the commission of offence especially in the light of admission of the inquiry officer and investigator that the sanction letters were genuinely issued after sanction was made by the D.E.O.
13. With respect to Mehr Abdur Rasheed, (appellant), the prosecution evidence was brought on record in shape of evidence of P.W.5 who sated that having come to know about the fraud he contacted Distt. Account Office where Muhammad Boota Tahir, Superintendent informed that his G.P.F. had been drawn by Abdur Rasheed, appellant and also gave him the relevant bill. However, this witness did not produce said bill in evidence on the pretext that the same had been lost. In absence of any documentary proof his statement is nothing more than hearsay. Although Abdul Ghafoor Khan, PW.10 claimed that his G.P. Fund had been illegally withdrawn by Abdur Rasheed, appellant but he did not disclose as to how he came to know this fact. He also did not claim that the said amount was returned to him by Abdur Rasheed, appellant. Even otherwise it has come on record that this appellant was cashier and in the course of events may be said amount had been withdrawn by the appellant being cashier but the same was received by P.W. 10 and there is no allegation that the same had been mis-appropriated.
14. Muhammad Shafi, PW.6 was produced against Niaz Ahmad, appellant. This witness stated that someone had withdrawn his G. P. Fund and even his particulars were wrongly mentioned on the bill and that he came to know that fraud had been committed by Niaz Ahmad, appellant in connivance with Maqbool Ahmad L.C. and Sher Muhammad, appellant. However, this witness neither disclosed source of his information nor produced any witness to corroborate his stance. He stated that he had received his G.P. Fund from the Account Office. Likewise C.Ws. 1 and 2 also stated that their amounts had been drawn by Niaz Ahmad, appellant but during cross-examination they stated that Niaz Ahmad, appellant had not committed any fraud and that he had given them their amounts. They also conceded that this appellant was a cashier and earlier even for the purpose of any cash and salary this appellant was contacted. It was not case of any witness that the alleged G. P. Fund amount had been used by this appellant.
15. Analysis of the above evidence would reveal that the evidence produced by the prosecution is sketchy and is insufficient to bring the appellants to book and that there is no direct evidence available with the prosecution to establish its case against the appellants for commission of fraud or preparation of fake documents or even for their involvement in corruption or corrupt practices within the meaning of Section 9(a)((i)(iv) of the National Accountability Ordinance 1999. No specific proof has come on record that Sher Muhammad, appellant had signed the sanction letters on the basis of fake documents or that Abdur Rasheed and Niaz Ahmad, appellants had mis-appropriated any amount. Keeping in view statement of Basit Maqbool P.W.2 Inquiry Officer that during inquiry it was found that bills were received in the Distt. Accounts Office through prescribed channel which contained signatures of D.D.O. and sanction letters also contained signatures of competent authority coupled with the fact that the bills carried signatures of the Distt. Accounts Officer and pay orders were genuine, it cannot be held that some fraud had been played by the appellants. The P.W. had even admitted that the payment was made through scroll and also that G.P. Fund payments were drawn from Distt. Account Office correctly. A though it was claim of the prosecution that certain ledger cards were removed from the bills and that even certain ledger books had been lost but no evidence has been brought on record to show that any of these appellants was custodian of the said record the was responsible for the loss of said record. Although it was prosecution case that payments drawn by the appellants were not given to the subscriber but the prosecution did not produce a single witness/employee to establish that G. P. Fund was drawn from his account but he had not been made payment thereof. The prosecution tried to build up a case of misappropriation but the inquiry officer or the investigator did not check cash books of these appellants as to whether the amounts were entered in the same or not. The prosecution has not brought on record any sanction letter/bill to establish that the same was a fake one and had not been processed except through proper channel. It has also come on record that the sanction was given by the competent authority and even the bills were signed by the D.D.O. Perusal of prosecution evidence would reveal that it was not case that these appellants had prepared any fake bill. It was claim of P.W. 3 that G.P. Fund amount was not disbursed to the concerned officials and remained with the cashier or the D.D.O. but he did not mention name of any appellant. Thus we see that there is no corroboration to the evidence of the witnesses from any independent source/document in order to bring the appellants to task. None of the witnesses claimed that he saw the appellants committing the fraud. Even the amount of G.P. Fund has been disbursed to the alleged affectees. The investigator did not associate any other employee of Education Department or Accounts Office in whose presence the accused prepared documents with fake entries. It may also be mentioned that drawing an amount is a complicated procedure and it is not possible for only one person to draw an amount as per Punjab Financial Rules. As per investigator Muhammad Siddique (private acquitted accused) was the main accused but strangely no prosecution witness deposed against him that he was working in the account office. It has also come on record that photostat copies of ledgers had been taken in custody vide memo Ex.PW.2/29 as according to PW.11 the original were not available. We also see that although CWs. Claimed that Niaz Ahmad, appellant had withdrawn their G. P. Fund but at the same time it was their case that he had not committed any fraud and that they had received the amount of G. P. Fund. While deciding this case, we are also mindful of the fact that co-accused of the present appellants whose case were on similar footing as that of the appellants have been acquitted by the learned trial Court while evaluating same set of evidence.
16. We are also mindful of the fact that the appellants were tried, under the National Accountability Ordinance, 1999 held guilty under Section 9(a)(iii)(iv) and punished under Section 10 of the Ordinance and in view of Section 14 of the Ordinance, there is presumption that if an accused does not prove to the contrary, it shall be presumed that he is involved in corruption and corrupt practices within the meaning of Section 9 of the said Ordinance. However, perusal of Section 14 of the Ordinance would reveal that at trial first it is to be proved by prosecution and then it shall be presumed that the accused is involved in corruption or corrupt practices if he does not prove to the contrary. Thus first of all it was obligation of the prosecution to prove its case and then the accused was presumed to defend. In arriving at this conclusion we are fortified by the dictum laid down by the Hon’ble Supreme Court in Khalid Aziz v. The State (2011 SCMR 136) and Syed Qasim Shah v. The State (2009 SCMR 790).
17. At the cost of repetition without fear of contradiction, it may be mentioned that the prosecution has failed to prove at trial that the appellants committed fraud or misappropriated any amount or were involved in corruption or corrupt practices within the meaning of Section 9 punishable under Section 10 of the National Accountability Ordinance, 1999.
18. The accumulative effect of the above discussions and observations is that the case of the prosecution is not proved and is replete with doubts. Needless to mention that even a single doubt is sufficient to create dent in the prosecution case. The net result is that the prosecution has failed to prove its case against the appellants beyond reasonable doubts and we hold accordingly.
19. Resultantly, these appeals are accepted, conviction and sentence of Sher Muhammad, Niaz Ahmad and Mehr Abdur Rasheed, appellants are set aside and they are acquitted of the charge. They are in jail and be set at liberty if not required to be detained in any other case.
(A.A.K.) Appeal accepted
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