ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Appeal No. 21 of 2017

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

Appellant : Sheikh Rizwan Ahmed Jillani through Mr. Matloob Hussain advocate

Respondent : The NAB through Mr. Riaz Alam, Special Prosecutor NAB

Date of Hearing : 11.11.2021

Date of decision : 11.11.2021

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Sheikh Rizwan Ahmed Jillani (since dead) and others were tried by learned Accountability Court No.IV, Sindh at Karachi in References No.05 and 06/2004. After regular trial, vide impugned judgment dated 25.10.2017, appellant and other co-accused were convicted and sentenced as under:

(i) Convict accused (1) Qazi Muhammad Shamim S/o Qazi Zainuddin under Section 9(a)(iii)(iv)&(vi) of National Accountability Ordinance, 1999 and sentenced him under Section 10(a) of Ordinance ibid to suffer R.I for five (05) years and also pay fine of Rs.20,90,576/-. The fine shall be recoverable as arrears of land revenue in terms of Section 33-E of Ordinance ibid. In case of default in payment of fine, he shall suffer further R.I for two years. He shall be entitled to the benefit of Section 382-B Cr.P.C.

(ii) Convict accused (2) Shaikh Rizwan Ahmed Jillani S/o Sheikh Bashir Ahmed Jillani under Section 9(a)(xii) of National Accountability Ordinance, 1999 and sentenced him under Section 10(a) of Ordinance ibid to suffer R.I for five (05) years and also pay fine of Rs.10,00,000/-. The fine shall be recoverable as arrears of land revenue in terms of Section 33-E of Ordinance ibid. In case of default in payment of fine, he shall suffer further R.I for two years. He shall be entitled to the benefit of Section 382-B Cr.P.C.

(iii) The Accused (1) Qazi Muhammad and (2) Shaikh Rizwan Ahmed Jillani shall stand disqualified in terms of Section 15 of Ordinance, 1999 ibid for a period of ten years to be reckoned from the date of release after serving out sentence awarded to them and also from 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 any province and also he shall not be allowed to obtain any financial facility in the form of loan or advances from any financial institutions controlled by Government for the period of ten years.”

2. Brief facts of the prosecution case, as mentioned in the impugned judgment dated 25.10.2017 are as under:

“The brief facts of the case as alleged in the Reference and Supplementary Reference are that accused (1) Qazi Muhammad Shamim while posted as UDC/Store Incharge and holding additional charge of Cashier/ Accountant in Faisal Cantonment Board, Karachi (2) Muhammad Adil Kha, UDC/ Subsidiary Poster, Faisal Cantonment Board, Karachi, (3) Abdul Ghaffar, Accountant, Faisal Cantonment Board, Karachi, (4) absconding accused Syed Shahid Raza, Cashier, Faisal Cantonment Board, Karachi and (5) Rizwan Ahmed Jillani, Typist/ Ledger Keeper, National Bank of Pakistan, COD Branch, Karachi. Accused Muhammad Adil Khan being Subsidiary Poster was required and responsible to post the details of tax receipts i.e. book number, receipt number/ date, amount mentioned on the receipt and nature of tax, in the Subsidiary Register of Revenue Branch and then put his initial or signature on it but he deliberately and dishonestly did not do so. Accused Qazi Muhammad Shamim and absconding accused Syed Shahid Raza being Accountant and Cashiers were duty bound and responsible to take all the amounts of Subsidiary Register of Revenue Branch into the Subsidiary Register of Cash Branch and then to deposit the amounts in Current Account No.5092-1 of Faisal Cantonment Board, Karachi, maintained in National Bank of Pakistan, COD Branch, Karachi, on the same day or on very next working day through bank challan or bank deposit slip after putting their initial/ signature on the Subsidiary Register of Cash Branch but they deliberately and dishonestly failed to do so. Accused Abdul Ghaffar and Qazi Muhammad Shamim being Accountants were duty bound and responsible to ensure that the Cashier has taken all amounts of Subsidiary Register of Revenue Branch into Subsidiary Register of Cash Branch and deposited the amount I the bank on the same day or on very next working but they deliberately and dishonestly failed to perform their obligation. The tax collectors handed over the Cantt-4B Books containing duplicate copies of tax receipts and amount to the absconding accused Syed Shahid Raza and accused Muhammad Adil Khan but they both accused persons posted Cantt. 4-B books with partial amount of revenue and embezzled other remaining amount of the said receipts and they also did not post the complete amount of various receipts in the subsidiary register of Revenue Branch and embezzled the whole amounts of the said receipts. The said tax receipts, whose full amount was posted in subsidiary registers of Revenue Branch were not taken out in the subsidiary registers of cash branch by the accused Qazi Muhammad Shamim, UDC Late Ali Muhammad and the absconding accused Syed Shahid and the amounts, which were mentioned in subsidiary registers of revenue and cash branches were not taken into General Cash Book of Accountant, even the amount taken out in General Cash Book of Account, was not deposited in the Bank/ Treasury by the accused Qazi Muhammad Shamim, Abdul Ghaffar and absconding accused Syed Shahid Raza. All the above named accused persons with the common intention, in collusion, active connivance and collaboration with each other and absconding accused Syed Shahid Raza S/o Hassan Murtaza,, Cashier/ LDC, Faisal Cantonment Board, Karachi and deceased accused Ali Muhammad, UDC, Faisal Cantonment Board, Karachi committed fraud jointly and severally and misappropriated/ embezzled an amount of Rs.19.7 Million in various head of accounts during the period 1990 to 2003 in the Cantonment funds through misappropriation, forgery, tampering of official documents and fake bank statements, as specified bellows:

S#	*Name & Designation of accused*	*Posting period of accused*	*Amount taken into subsidiary register of Cash (SDRC) and General Cash Book (GCB) and deposited in Bank late i.e. within 3 days to 1 year (Temporary Embezzlement)*	*Amount of Cantt. 4-B Books was not posted or less posted in SDR (Revenue) and purely embezzled*	*Amount taken into (SDRC) (GCB) but not deposited in the Bank (purely embezzled)*
1	*a. SDP Muhammad Adil* *b (late) UDC Ali Muhammad* *c Qazi Muhammad Shamim*	*9 April 1989 to 22 May 1992*	*(Bank record for remaining period is not available)*	*Rs. 45,616/-*	*NIL*
2	*a. SDP Muhammad Adil* *b. (Late) UDC, Ali Muhammad* *c. Cashier Shahid Raza* *d. Accountant Qazi Shamim*	*23 May 1992 to 1 June 1998*	*Rs.3,943,371/-*	*Rs.233,111/-*	*Rs.12,922/-*
3.	*a. SDP Muhammad Adil* *b. Cashier Shahid Raza* *c. Accountant Qazi Shamim* *d. Accountant, Abdul Ghaffar*	*2 June 1998 to 3 December 1999*	*Rs.785,948/-*	*Rs.721,933/-*	*Rs.1,084,336/-*
4.	*a. SDP Muhammad Adil* *b. Cashier Shahid Raza* *c. Accountant Qazi Shamim* *d. Accountant Abdul Ghaffar*	*4 February 1999 to December 2001*	*Rs.918,507/-*	*Rs.2,673,665/-*	*Rs.599,766/-*
5.	*a. Cashier Shahid Raza* *b. Accountant Qazi Shamim*	*5 Dec: 2001 to 25 Jan 2002*	*NIL*	*Rs.1,080,885/-*	*NIL*
6.	*a. Cashier Shahid Raza* *b. Accountant Qazi Shamim*	*26 Jan: 2002 to 3 July 2003*	*NIL*	*Rs.2,224,616/-*	*Rs.5,463,174/-*

11. Accused Qazi Muhammad Shamim along with absconding accused Syed Shahid Raza with active connivance of co-accused Abdul Ghaffar and deceased accused Ali Muhammad of Cash Branch utilized the services of co-accused Sheikh Rizwan Ahmed Jilani, Ledger Keeper of National Bank of Pakistan, COD Branch, Karachi, and accused Sheikh Rizwan Ahmed Jilani provided illegal assistance to the above named accused persons in preparation of fake bank account statements and arranging to affix round seal stamp of bank just to show the fake bank account statements as genuine. All the above named accused person and absconding accused Syed Shahid Raza being holders of public offices, misused their authority/ official position committed forgery in tax receipts, misappropriated/ embezzled an amount of Rs.19.7 Million and thus by corrupt, dishonest, deceitful, fraudulent and illegal means obtained for themselves pecuniary advantage and corresponding loss to the Faisal Cantonment Board, Karachi, hence committed an offence of corruption and corrupt practices as defined under Section 9(a)(iii)(iv)&(vi) of National Accountability Ordinance, 1999 and sections 468/471 PPC being scheduled offences of N.A. Ordinance 1999 read with an offence as described at serial No.5 of the Scheduled Offences attached thereto, punishable under Section 10of the said Ordinance.”

3. Learned Accountability Court No. IV, Karachi framed charge against accused and others under the above referred sections at Ex.7, who pleaded not guilty and claimed trial.

4. In order to prove its’ case, the prosecution examined as many as 22 witnesses, who exhibited various documents in support of the prosecution case, where after the prosecution closed its’ side.

5. Trial Court recorded statement of deceased appellant/accused under Section 342 Cr.P.C, in which he denied prosecution allegations and claimed his false implication in this case. Deceased appellant neither examined himself on oath nor produced defence witness.

6. Learned trial Court after hearing learned advocates for the parties, Special Prosecutor NAB and after assessment of the evidence convicted and sentenced the deceased appellant as mentioned above, while co-accused were acquitted mainly for the following reasons:

“The prosecution has succeeded to prove its case against the accused Qazi Muhammad Shamim for embezzlement in funds of the Faisal Cantonment Board who being posted as Accountant in addition to his actual post of Store Keeper. The accused Sheikh Rizwan Ahmed Jillani who being ledger keeper of NBP COD Branch Karachi during the period from 26.11.1995 to 05.09.2001 had prepared fake Bank account statements in account No. 5092-1 of Faisal Cantonment Board during the embezzlement period. PW-9 Syed Majid Ali Shah retired OG-II NBP. PW-11 S. Shamim Ahmed, OG-1 NBP, head office, PW-12 Muhammad Ilyas Siddiqui, retired Bank Manager NBP and PW-15 Sheikh Syed Javed Iqbal retired OG-II NBP COD Branch have identified the handwriting and signature of accused Sheikh Rizwan Ahmed Jeelani on the Bank statements issued by him during the embezzlement period. They being his colleague are well conversant with his signature and hand writing. No doubt the prosecution has not sent the hand writing and signatures of the accused Qazi Muhammad Shamim and accused Sheikh Rizwan Ahmed Jillani to the hand writing expert but it is well settled principle of law that under Article 61 of Qanun-e-Shahadat Order 1984, the handwriting and signatures on the document can also be proved through a person who is well conversant with his signature.”

7. The evidence produced before the Trial Court finds an elaborate mention in the judgment dated 25.10.2017 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. It may be mentioned here that co-accused Qazi Muhammad Shamim also filed appeal against his conviction and sentence, however, during pendency of appeals, he expired therefore, appeal against him was abated.

9. Deceased appellant filed the instant appeal against his conviction and sentence recorded by trial court. Appeal was admitted to regular hearing. However, during pendency of this appeal, appellant expired. Investigation officer NAB submitted his death verification report and proceedings were abated against him. The learned counsel for the deceased appellant at the very outset submitted that the appellant expired during pendency of this appeal, however, leaned counsel duly instructed by widow of the deceased appellant, requested to hear the appeal on merits and assisted the Court about maintainability of an appeal of a “dead person”. Before discussing other aspects of the case for the purpose of convenience section 431 Cr.P.C is produced as under:

“Section 431. Abatement of Appeals…. Every appeal under Section 411A, subsection (2), or section 417 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.”

10. It is clear from a bare reading of above provision of law that on the death of accused during pendency of appeal against conviction, appeal finally abates except an appeal from a sentence of fine. In the present case, legal heir of deceased appellant/ wife has challenged conviction against deceased appellant to the extent of a sentence of fine. It may be observed here that Honourable Supreme Court of Pakistan in Criminal Petition No. 79-K of 2019 (Sheikh Iqbal Azam Farooqui through his legal heirs vs. The State through Chairman NAB) decided on 02.01.2020, held that financial liability of the deceased appellant, consequent upon conviction and shifted upon the estate, would certainly require the decision by Court on its merits as in the event of its failure, the liability is to be exacted from the assets devolving upon the legal heirs. A plain reading of Section 431 Cr.P.C confirms the above contemplation of law.

11. Learned advocate for the deceased appellant mainly contended that deceased appellant was not on his duty at the relevant time; he was transferred from said Branch on 04.09.2001 to NBP Malir Cantt. Branch as Typist; that job description of the deceased appellant was different and he had no access to the relevant record of the Bank; that signatures of the deceased appellant were not sent to the expert for opinion; that no forgery in tax receipts had been committed by the deceased appellant; that prosecution has failed to prove any active connivance of deceased appellant with co-accused in the Reference and no loss was caused to the Faisal Cantonment Board, Karachi due to deceased appellant; that employees of Faisal Cantonment Board were not joined as co-accused in this case and deceased appellant was malafidely joined as accused by the NAB in the Reference. Lastly, he contended that accused Muhammad Adil Khan who was attributed almost same role has already been acquitted, hence appeal filed by the deceased appellant may also be allowed.

12. Widow of the deceased appellant submitted that her husband was innocent and he was falsely implicated by the NAB in this case.

13. Special Prosecutor NAB argued that deceased appellant was typist in Bank and he was collecting property tax, the amount was not deposited by him in the bank and he prepared false bank statements with his signatures. Special Prosecutor NAB further submitted that co-accused Muhammad Adil has been acquitted by the trial court as his case was distinguishable from the case of deceased appellant. He admitted that deceased appellant was typist and he had no authority to prepare the bank statements. Lastly, Special Prosecutor NAB prayed for dismissal of the appeal on merits and submitted that liability is to be exacted from the assets devolved upon the legal heirs of deceased appellant.

14. After hearing the learned counsel for the parties, perused the evidence minutely. We have come to the conclusion that prosecution has failed to prove its’ case beyond reasonable doubt against the appellant, who expired during pendency of Appeal. Evidence of Muhammad Shafi (PW-05) Military Estate Officer (M.E.O) Quetta is material for just decision of the appeal. He deposed that in the year 2003, he was posted as Military Estate Officer (M.E.O) Quetta. In April 2003 a Committee was formed by DG Military Lands and Cantonment Department to examine, ascertain and fix responsibility in respect of embezzlement detected by the Auditors in the accounts of Faisal Cantonment Board, Karachi. The Committee consisted of three members two nominated by the DG and one nominated by Base Commander Faisal Base. Base Commander is Ex-officio President of the Cantonment Board. Meeting of the Committee was held in Faisal Cantonment Board. The findings of inquiry consisted of 4 volumes/ reports. The first report was in respect of the embezzlement from 01.07.2001 to 10.04.2003, the second report was in respect of embezzlement from 01.07.1999 to 30.06.2002, third report was in respect of embezzlement from 01.07.1999 to 30.06.1999 and fourth and final report was in respect of the embezzlement form 01.07.1989 to 30.06.1998. The Inquiry Committee detected embezzlement of Rs.10898512.03, which was committed from 01.07.2001 to 10.04.2003 out of which Rs.5636057.92 were entered in the General Cash Book but were not deposited in the bank. The Committee also found that Cantt 4-B receipts in respect of Rs.3276777/- were issued but they were not recorded in the General Cash Book nor were deposited in the bank. It was also found by the Committee that Cantt 4-B receipts in respect of Rs.1991677.11 were issued but this amount was neither entered in the General Cash Book registered or deposited in the bank. The embezzlement of Rs.3276777/- was pointed out by the auditors upon which the inquiry was initiated. It was also found by the Committee that before start of inquiry Qazi Shamim and absconding accused Shahid Raza deposited Rs.2215189/- with the bank. In the inquiry in respect of period 01.07.2001 to 10.04.2003 the Committee found Qazi Muhammad Shamim and absconding accused Shahid Raza responsible for the embezzlement of Rs.10898512.03. He further stated that inquiry report was also placed before DG for further action. On the oral directions of DG, they continued to inquire into the matter. He further stated that they also conducted another inquiry in respect of the embezzlement for a period starting from 01.07.1999 to 30.06.2001. During inquiry embezzlement of Rs.312694.42 was detected. It was further found that Cantt 4-B receipts in respect of Rs.672884/- were issued but such amount was not entered in the General Cash Book nor it was deposited with the bank. It was also found that Rs.2429810.42 were collected and entered in the General Cash Book but were not deposited with the bank. The Inquiry Committee fixed the responsibility of the embezzlement of Rs.3102694.42 upon accused Qazi Muhammad Shamim, Adil, Abdul Ghaffar and absconding accused Shahid Raza. Such report was prepared and placed before the DG. The inquiry continued on the oral directions of DG. During period from 01.07.1998 to 30.06.1999 embezzlement of Rs.545944/- was detected. It was also found that Cantt 4-B receipts in respect of Rs.534109/- were issued but this amount was neither entered in the General Cash Book nor deposited in the bank. It was also noted that Rs.11835/- were shown in the General Cash Book but were not deposited with the bank. Accused Qazi Shamim, Aadil Mirza and absconding accused Shahid Raza were found responsible of embezzlement of Rs.545944/-. Such inquiry report was also placed before DG. Inquiry in respect of period 01.07.1989 to 30.06.1999 was also conducted on the oral directions of DG. The Committee found embezzlement of Rs.5686545.13 was committed during period 01.07.1989 to 30.06.1999. The amount was shown in the General Cash Book but was not deposited with the bank. In this inquiry they found accused Qazi Muhammad Shamim, absconding accused Shahid Raza, Ali Muhammad as responsible for embezzlement of Rs.5686545.13. Accused Ali Muhammad had expired before the start of inquiry. Such report was prepared and placed before DG for further action. The Committee could not detect any embezzlement that could fix responsibility in this regard upon any person for the periods from 01.07.1989 to 31.12.19990 and 01.01.1994 to 31.12.1994 as statements of account were not furnished by the bank. The Committee detected embezzlement of Rs.20233695.58 during the inquiries as stated above, out of which Rs.2215189/- were deposited in the account of Faisal Cantonment Board by the accused as stated above and an amount of Rs.18018506.58 was short in the account of Faisal Cantonment Board.

15. From the Inquiry Report produced before trial Court by PW-05 at Ex. 18/1, wherein at Para 12, it has been specifically mentioned as under:

12(a) Some of the fake Bank statements are prepared in the hand writing of Qazi Shameem as alleged by Syed Shahid Raza. The contention of Shahid Raza prima facie appears to be correct. However this requires opinion of hand writing expert.

16. Record reflects that Bank statements were not sent to handwriting expert, the deceased appellant was posted as Typist in the NBP COD Branch and there was no office order to show that deceased appellant was working as ledger keeper in NBP COD Branch. According to prosecution case bank statements with effect from 01.02.1999 till 2003 were fake and contained signatures of deceased appellant Rizwan Jillani. I.O during his cross-examination replied that deceased appellant Shaikh Rizwan was transferred from COD to Malir Cantt Branch on 04.09.2001 thus it was not possible for deceased appellant to prepare the Bank statements for the period for which he was not posted in the said Branch of the Bank. In above circumstances, I.O should have sent the ledgers to the handwriting expert for comparison of the writing and signatures of deceased appellant, but it was not done. I.O in his cross-examination admitted that he could not collect any evidence showing that embezzled amount was transferred in the account of deceased appellant or he was beneficiary in the case.

17. It has been admitted by Special Prosecutor NAB that assignments of deceased appellant were almost same as that of co-accused Muhammad Adil, who has been acquitted by the learned trial Court mainly for the following reasons:

“The prosecution has failed to prove its case against accused Muhammad Adil. The PW-3 Kamil Khan Cashier in Faisal Cantonment Board and PW-22 I.O Muhammad Ayoub Durrani have only deposed against the accused that accused Adil was posting as subsidiary poster but they failed to produce any documentary evidence against him, whereas no other PWs have deposed against hi in their evidence but on the contrary they have deposed that accused Muhammad Adil was performing the duties as tax collects, therefore, I am of the humble opinion that no case is made out against the accused.”

18. Prosecution examined 22 witnesses, they were found to be false by the trial Court in some material aspects as discussed by the trial court in the impugned judgment reproduced hereinabove¸ could not to be relied upon to the extent of other aspects deposed by them. In the present case, no independent corroboration or confirmation of the allegations leveled against deceased appellant have been brought on record. On the other hand, Muhammad Shafi (PW-05) deposed that inquiry was conducted but involvement of co-accused came on record. Co-accused Adil attributed almost same role as stated by Special Prosecutor NAB has already been acquitted by the trial Court and NAB has not filed appeal against his acquittal. We are constrained to observe that prosecution witnesses had no regard for the truth and witnesses produced by it had been established to be untrustworthy regarding co-accused Adil who has been acquitted. It is settled law that witnesses found to be false in some material aspects are not to be relied upon to the extent of other aspects deposed by them. Reliance is placed upon the case reported as 2021 SCMR 455 (Liquat Ali and others vs. The State and others). Relevant portion is reproduced as under:

“………..In the absence of any independent corroboration or confirmation of the allegations levelled against the present appellants, particularly when some co-accused attributed the same roles have already been acquitted by the courts below, we are constrained to observe that the complainant party had no regard for the truth and the eye-witnesses produced by it had been established to be untruthful regarding many innocent persons who had been implicated by them and they had subsequently been acquitted. It has already been held by this Court in the case of Khizar Hayat (PLD 2019 SC 527) that witnesses found to be false in some material aspect are not to be relied upon to the extent of the other aspects deposed about by them.

5. For what has been discussed above these appeals are allowed, the convictions and sentences of Liaqat Ali, Mian Khan and Mehdi Khan appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case.”

19. For the above stated reasons, we have come to the conclusion that prosecution had miserably failed to prove its’ case against deceased appellant at trial. From the evaluation of evidence, we have come to the conclusion that it was a case of acquittal against deceased appellant, but since appellant has already expired and proceedings are abated against him. However, his appeal as requested by learned defence counsel, instructed by wife of deceased appellant is being contested just to set aside sentence of fine. Therefore, appeal is allowed, consequently, fine imposed by trial court vide judgment dated 25.10.2017 is set aside.

20. In the view of above, appeal is allowed in the above terms. These are the reasons for the short order announced on 11.11.2021.

JUDGE