ORDER SHEET
Criminal Accountability Appeal No.09 of 2013
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Date Order with signature of Judge
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Present: Mr.Justice Muhammad Ali Mazhar Mr.Justice Farooq Ali Channa
Date of hearing 10.10.2013
Mr. Nisar Ahmed Abro, Advocate for the appellants.
Mr. Noor Mohammad Dayo, D.P.G (NAB)
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Muhammad Ali Mazhar, J: The appellants have brought these Misc. Applications. No. 6627 and 6788/2013 for suspension of their sentence and grant of bail pending adjudication of their appeal filed under Section 32 of the National Accountability Ordinance 1999.
2. The brief facts of the case are that through this appeal, the appellants have challenged the conviction awarded to them in Reference No.12/2004 by the Accountability Court No.IV, Sindh at Karachi. The charge was framed on 23.11.2010 against six accused persons namely Sikandar Fayyaz, Inayatullah Ansari, Barkat Ali, Muhammad Ibrahim, Sham Lal and Liaquat Ali Khalid. The case of the prosecution is that an audit was conducted in Cantonment Board Malir for the year 2001-02 through which, it revealed that sum of Rs.1,38,753/- was received by the cashier Sikandar Fayyaz in different accounts, but the same was not deposited into the Cantonment funds. Further scrutiny was made to different accounts and it was revealed that the cashier Sikandar Fayyaz with employees of Cantonment Board Malir, Liaquat Ali Khalid, Accountant, Cantonment Board Malir, Bank employees Barkat Ali Abro and Mohammad Ibrahim with the active connivance with each other committed embezzlement as the bank officers arranged and provided fake and fictitious manual bank statements to the cashier Sikandar Fayyaz. It was further stated that all the accused knowingly and intentionally caused the financial loss to the Government exchequer in the sum of Rs.23,03,843/- and committed embezzlement. It was further stated in the charge that accused cashier Sikandar Fayyaz filed the deposit slip of Rs.34,85,325/-, later on handed over the remaining portion of the deposit slips to accountant Liaquat Ali Khalid, who had manually entered Rs.34,85,325/- with his own writing as evident from the register maintained by the cashier Liaquat Ali Khalid. The accused Sikandar Fayaz and Liaquat Ali Khalid have been convicted vide order dated 26.09.2013 and sentenced to suffer R.I for 7 years with fine while the present appellants Mohammad Ibrahim, Inayatullah and Barkat Ali (bank officials) have been sentenced to suffer R.I for 3 years with fine of Rs.2,00,000/- each. The main allegation and or charge against the present appellants was that they acted in collusion and in connivance with the co-accused, abetted the offence and caused colossal loss to the Government exchequer.
3. The learned counsel for the appellants argued that there are various discrepancies and contradictions available in the evidence. He pointed out the deposition of P.W 7 Riaz Din, Exh.31, in which he deposed that his statement was recorded in the year 1998 when he was working on daily wages as Assistant and further stated that F.I.A Inspector had already prepared a statement and directed him to sign but he did not know what was written in the statement. The said witness was declared hostile and the prosecution was allowed to cross examine him but he again stated that certificates dated 03.03.2003 and 05.05.2003 were not shown to him by F.I.A at the time of recording statement. Learned counsel further pointed out the cross examination of another P.W.10 Sheikh Ziauddin Zia, Ex.37, who also stated in his cross examination that exhibits shown to him in court were not shown to him by the investigating officer during his statement or the same were not available with him at the relevant time. During cross examination he further admitted that the documents which were brought before the cashier i.e. challans and subsidiary books etc. were not signed by him. The learned counsel for the appellant referred to an order reported in 2012 P.Cr.L.J 387 (Ghulam Mustafa v/s. State), authored by one of us (Mohammad Ali Mazhar, J), in which also in the case of short sentence the bail was granted to the appellant and while referring to the dictum laid down by the honorable supreme court, it was held that it is not mandatory, obligatory and bounden duty of the court to examine the case on merits and should dilate upon the contentions as agitated in depth while deciding application under Section 426, Cr.P.C. for the simple reason that appraisal of evidence in depth is neither warranted nor desirable while deciding such application. Court should confine itself to the judgment assailed before it. A thorough scrutiny of evidence and its evaluation should be made while adjudicating upon the appeal as it would be opportune moment for doing so and not while deciding the application moved under Section 426 Cr.P.C. as it would be a premature stage. A conviction cannot be set aside while exercising jurisdiction as conferred under Section 426, Cr.P.C. on the grounds with reference to evidence and merits of the case which certainly require a thorough probe and deeper scrutiny of evidence which should be avoided. The discretion has to be exercised judiciously and while considering the relevant contention raised requires consideration on merits, the appellate court would refrain from entertaining such contentions. At this stage, the court cannot enter into a reappraisal of evidence which should be considered at the time of hearing of the appeal.
4. Though this appeal has been admitted to regular hearing in the month of September, 2013, and it is also a ground reality which cannot be ignored that due to backlog of pending cases, it will certainly take some time to decide. During pendency of appeal, the learned counsel for the appellant prays that since the appellants have been awarded short sentence of 3 years only and they were also on bail during trial, therefore, they may be released on bail and their sentence may be suspended. The learned counsel has also referred to another unreported bail order passed in Criminal Accountability Appeal No.22/2012, in the NAB case, which was authored by one of us (Farooq Ali Channa, J), while sitting in another division bench and in the said case also, the punishment of 7 years was awarded and after tentative evaluation of the evidence led in the case, his Lordship was pleased to grant bail to the appellants. The learned counsel further referred to another unreported bail order passed in Criminal Accountability Appeal No.7/2012 in which another learned division bench granted the bail in the case of short sentence.
5. The learned D.P.G (NAB) opposed the bail on the ground that other appellants convicted through the same impugned judgment have also filed their separate appeals and if the bail is granted in this case they will also claim the same treatment on the ground of rule of consistency. He further argued that appellants have been rightly convicted as they have caused colossal loss to the national exchequer hence they are not entitled to be enlarged on bail.
6. We are fully conscious and cognizant to the rule of consistency which can be claimed by the accused persons/other appellants only where they had been assigned similar role and on the same role and charge, conviction was awarded to them. In the case in hand, It is an admitted fact that during trial, the appellants were on bail and on conclusion of trial, they have been awarded 3 years punishment/sentence on the ground that they have acted in conspiracy, collusion, and in connivance with the principal accused while the principal accused/convicts who had played major role in the offence and or found directly involved or guilty in the case have been awarded 7 years punishment which makes abundantly clear that there were two sets of accused persons and they were treated and punished differently on different charges, hence we are of the firm view that if other convicted persons who have filed their separate appeal will also apply for any concession of bail, their application will be decided separately on its own merits.
7. At this juncture we would like to point out that the under Clause (b) of Section 9 of National Accountability Ordinance, 1999. It is provided that notwithstanding anything contained in sections 426, 491, 497, 498, 561-A or any other provision of the code, or any other law for the time being in force no Court shall have jurisdiction to grant bail to any person accused of any offence under this Ordinance and all offences under this Ordinance shall be non-bailable. It is pertinent to point out that before the word “Court” the words “including the High Court” were inserted by Ordinance IV of 2000 dated 3.2.2000 and subsequently the same words “including the High Court” were omitted by the Ordinance XXXV of 2001 dated 10.8.2001. The definition of court provided under the NAB Ordinance means an Accountability Court. After omission of the words “including the High Court” it makes obvious that the purpose of mentioning Section 426 Cr.P.C. or 561-A Cr.P.C. has become redundant or superfluous as according to definition of court provided under the Ordinance it means an Accountability Court, which is a trial court and the trial court cannot exercise powers under Section 426 Cr.P.C. which powers are only vested in the appellate court. Similarly, 561-A Cr.P.C. are the inherent powers of the High Court which also cannot be exercised by the accountability court or any other court except the High Court. Even otherwise, the grant of bail and or suspension of sentence during pending adjudication of appeal is an ancillary or incidental power of the appellate court and this court being an appellate court while hearing the appeal under the NAB Ordinance, can exercise the powers under Section 426 Cr.P.C. read with 561-A Cr.P.C. and suspend the sentence and enlarge the appellant on bail keeping in view the facts and circumstances of case.
8. For the foregoing reasons the sentence awarded to the appellants Inayatullah Ansari, Barkat Ali and Muhammad Ibrahim by the trial court is suspended. The appellants are released on bail subject to furnishing solvent surety in the sum of Rs.5,00,000/-(Five Lacs only) each and P.R Bond in the like amount to the satisfaction of the Nazir of this court. Both applications are disposed of accordingly.
Judge
Judge