JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Accountability Appeal No.D – 54 of 2019

                                                            Present:

 

Mr. Justice Zafar Ahmed Rajput

Mr. Justice Irshad Ali Shah.

                       

Appellant:                             Suleman son of Nabi Bux bycaste Mahar.

                                                (Now confined at Central Prison Sukkur)

                                                Through Mr. Nisar Ahmed Bhanbhro,

                                                Advocate.

 

The State:                               Through M/s Mujeeb-ur-Rehman Soomro and Bahawaluddin Shaikh, Special prosecutors NAB, Sukkur.

 

                                                Mr. Karim Bux Janwari, Assistant Attorney, General, Pakistan.

 

                                               

Date of hearing:                    11-01-2023.

Date of decision:                  19 -01-2023.

 

J U D G M E N T

 

IRSHAD ALI SHAH, J-. The facts in brief necessary for disposal of instant Crl. Accountability Appeal are that the appellant being Food Inspector when was Incharge of Provincial Reserve Centre at Plot of Ghulam Mustafa, Daharki at Ghotki during year 2009/2010 and 2010-2011 dishonestly and fraudulently misappropriated 7204 bags containing 903397 Kilograms of wheat, converted the same into his own use, thereby caused loss to tune of Rs. 24,558,775/- to the Public exchequer, for that he was booked and reported upon by NAB authorities by way of filing such Reference against him on account of his default in payment relating to voluntarily return; he was charged accordingly, which he denied and prosecution to prove it, examined in all six witnesses and then closed its side. The appellant during course of his examination u/s 342 Cr.P.C, denied the prosecution’s allegations by pleading innocence by stating that he was forced to sign the blank papers relating to voluntarily return and due to un-precedent rain, the stock sustained damage and it was auctioned by the competent authority, he did not examine anyone in his defence or himself on oath. On conclusion of trial, he was convicted and sentenced by learned Judge, Accountability Court, Sukkur vide judgment dated 12th April 2019, in following terms;

“ In view of the aforementioned appraisal of evidence and decision on point No.-i, I am of the humble opinion that the prosecution has been successful to prove the indictment against accused Suleman Mahar s/o Nabi Bux Mahar, beyond shadow of reasonable doubt u/s 9(a) (iii) and (vi) of National Accountability Ordinance (XVIII of 1999), hence, the accused is convicted u/s 265-H(2) Cr.PC and sentenced u/s 10 of National Accountability Ordinance (XVIII of 1999),  to suffer R.I for 10 years and fine of Rs. 18,407,625/- (Rupees One Crore Eighty Four Lac Seven thousand Six Hundred and Twenty Five only only). In case, he fails to pay the fine it shall be recoverable as arrears of land revenue in terms of section 33-E of National Accountability Ordinance, 1999.

            Since the accused has been convicted as such he shall forthwith cease to hold public, office, if any, held by him and further he stands disqualified for a period of ten 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 of representative of any public body or any statutory or local authority or in service of Pakistan or of any province as required u/s 15 (a) of National Accountability Ordinance (XVIII of 1999). Accused Suleman Mahas son of Nabi Bux Mahar is also disallowed to apply for or be granted or allowed any financial facilities in the form of any loan or advance or other financial accommodation by any Bank of financial institution owned or controlled by the Government for a period of 10 years from the date of conviction as required u/s 15 (b) of the Ordinance.

 

2.         The above said judgment is impugned by the appellant before this Court by preferring the instant Crl. Accountability Appeal.

3.         It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the NAB authorities; the wheat stock sustained damage on account of un-precedent rains and liability of the appellant, if any was/is only to the extent of 5110 wheat bags worth Rs.1,40,52500/- for which he entered into voluntarily return, which he defaulted due to his poor financial condition and evidence of the PWs being doubtful in its nature has been believed by learned trial Court without assigning cogent reasons, therefore, the appellant is entitled to his acquittal by extending him benefit of doubt.

4.         Learned Special Prosecutor NAB and learned Assistant Attorney General, Pakistan by supporting the impugned judgment has sought for dismissal of instant Crl. Accountability Appeal by contending that the appellant by entering into voluntarily return has admitted his guilt impliedly/expressly and liability against him is to the extent of 7204 wheat bags.

5.         Heard arguments and perused the record.

6.         It was stated by PW I/O Atta Muhammad that on 08-04-2013 he was assigned an inquiry by D.G NAB, Sindh against the appellant, who at the time of incident was Food Supervisor at Provincial Reserve Centre at Plot of Ghulam Mustafa, Daharki at District Ghotki. On 24-04-2013 he visited the place of incident, checked the record for Wheat crop season 2009/2010 and 2010/2011, beside stock, shortage of 5110 wheat bags was noticed at the site, value whereof was assessed to be Rs.1,40,52500/-. The appellant appeared before him on 08-05-2013 and became ready to pay the value of the above wheat as well as the penalty of the shortage of wheat bags; thus he applied for voluntarily return by making such application; it was supported with his affidavit; it was approved by D..G NAB, Sindh. The appellant paid no response, therefore, on 28-02-2014 he was arrested, thereafter, he made down payment to the extent of 34% of total liability worth Rs. 48,000,00/- by way of Pay Orders. On payment so made, the appellant was released by Administrative Judge, Accountability Court, concerned. It was stated by PW I/O Umesh that on account of default in payment relating to voluntarily return, the enquiry against the appellant was upgraded into investigation. It was stated by PW I/O Samar Hussain that on investigation the misappropriation of the wheat bags on part of the appellant during seasons 2009/2010 was noticed to be 5835 and during season 2010/2011 was noticed to be 1369, total 7204 wheat bags, the value whereof with penalty was assessed to be Rs.24.558 million rupees. The number of the wheat bags so misappropriated by the appellant at the relevant time was confirmed to be 7204 by PW Rahul Koraj Malani, the then District Food Officer, Sukkur. The PWs so examined by the prosecution have stood by their version on all material points, there appears no reason to disbelieve them most particularly, when the appellant himself has admitted his guilt by entering into voluntarily return by filing such application, which was duly supported his affidavit; as such he could not absolve him of such liability under the pretext that he was forced to sign voluntarily return proceedings. The liability of the appellant obviously is to the extent of 7204 wheat bags which the prosecution has been able to prove against him by bringing on record cogent evidence. The appellant has failed to examine him or anyone in his defence to prove his innocence, therefore, his simple plea of innocence in circumstances of the case deserves to be ignored as an afterthought.  

              In case of M. Anwar Saifullah Khan v. State (PLD 2002 Lahore 458) it has been observed by Hon’ble High Court that;

“20. Misuse of authority means the use of authority or power in a manner contrary to law or reflects an unreasonable departure from known precedents or custom. Every misuse of authority is not culpable. To establish the charge of misuse of authority, the prosecution has to establish the two essential ingredients of the alleged crime i.e ‘mens rea” and “actus reus”. If either of these is missing no offence is made out. Mens rea or guilty mind, in context of misuse of authority, would require that the accused had the knowledge that he had no authority to act in the manner he acted or that it was against law or practice in vogue but despite that he issued the instruction or passed the order”

 

7.         In view of the facts and reasons discussed above, it could be concluded safely that no case for interference with impugned judgment is made out before this Court, by way of instant Crl. Accountability Appeal, it is dismissed accordingly.

Judge

Judge

 

 

Nasim/P.A