State Versus Lt. Gen. (Retd.) SABEH QAMRUZZAMAN

NAIMATULLAH PHULPOTO, J.--- Respondents/accused Lt. Gen. (Retd.) Sabeh Qammaruzzaman, Habibullah Siddiqui and Mohammad Ehsanullah Sharif were tried by learned Judge, Accountability Court No.II, at Karachi in Reference No.32 of 2001. After full-dressed trial, respondents/accused by judgment dated 10.08.2002 were acquitted.

2. Brief facts of the prosecution case are that respondent/accused. Lt. Gen. (Retd.) Sabeh Qammaruzzaman was appointed as Chairman Pakistan Steel Mills Karachi in the year 1992-93. It is alleged that in collusion with Habibullah Siddiqui Director (Procurement) fraudulently and with criminal intention manipulated the purchase of 3rd convertor which was not required by the Steel Mill. It is alleged that respondents/accused invited services of M/s Mercury Corporation owned by Asif with whom it is stated that respondent/accused Lt. Gen. (Retd.) Sabeh Qammaruzzaman established contact during his visit of Russia and contract was awarded to him, contrary to the rules and procedure. A sum of Rs.135 Million was paid to M/s. Mercury Corporation as mobilization advance amount bank guarantee in three installments with effect from 30.08.1993 to 12.10.1993, but the contractual commitment was not fulfilled and amount was misappropriated. It is alleged that accused Asif of M/s. Mercury Corporation was not dealing in machinery and being the sole garment dealer exported from Pakistan to Russia on barter system and was facing some problems with the realization of their export bills and the Russian Government was inclined to make payment in the shape of machinery/hardware. According to NAB, respondent/accused Lt. Gen. (Retd.) Sabeh Qammaruzzaman facilitated co-accused Asif of M/s. Mercury Corporation by placing order of 3rd Converter for realizing his outstanding export bills from Russia. Subsequently, accused Sajjad Hussain during his posting as Chairman Pakistan Steel Mills corporation also availed the opportunity and facilitated him in the same manner by extending advance payment of Rs.40 Million without legal justification with connivance of the Director (Finance) S.N. Abbasi and other officers of Pakistan Steel Mill Corporation and for the advantage of accused Asif of M/s. Mercury Corporation. Thus, it is alleged that total loss caused to the Pakistan Steel Mill Corporation is more than 175 Million and thus committed offences under sections 409/109/34, P.P.C. read with section 5(2), Act-II of PCA, 1947.

3. After usual investigation, challan was submitted before learned Special Judge, Anti-Corruption Central-II, Karachi against accused (1) Lt. Gen. (Retd.) Sabeh Qammaruzzaman, (2) Sajjad Hussain, (3) Syed Mazhar Alam, (4) Habibullah Siddiqui, (5) Mohammad Israil Khan, (6) Ehsanullah Sharif and (7) Mohammad Asif. Accused Muhammad Asif was declared proclaimed offender on 03.09.1997.

4. A formal charge was framed against accused on 16.02.1998 under sections 409/109/34, P.P.C. read with section 5(2) Act-II of P.C.A., 1947 against accused Sajjad Hussain, S.N. Abbassi, Lt. Gen. (Retd.) Sabeh Qammaruzzaman, Habibullah, Mohammad Ihsanullah and accused Syed Mazhar Alam, to which accused pleaded not guilty and claimed to be tried.

5. On 28.05.1998, Trial Court allowed application under section 233, Cr.P.C. filed by the Special Prosecutor praying for the separate charges for the commission of the alleged misappropriation in the year 1992-93 from the case of misappropriation committed in the year 1995, as such the cases were bifurcated in order to avoid misjoiner of the charges and the present case No7/96 fresh charge under sections 409/109/34, P.P.C. read with section 5(2) Act-II P.C.A., 1947 was framed against accused Lt. Gen. (Retd.) Sabeh Qammaruzzaman, Habibullah Siddiqui and Mohammad Ihsanullah Sharif at Ex. No.22. Accused Lt. Gen. (Retd.) Sabeh Qammaruzzaman, Habibullah Siddiqui and Mohammad Ihsanullah Sharif did not plead guilty to the charge and claimed to be tried.

6. The prosecution in support of its case examined P.W-1 Uzair Ahmed Shaikh son of Nazir Ahmed, Dy. Gen Manager Finance. PSM his deposition bears Ex.26. P.W-2 Abdul Latif Siddiqui son of Salahuddin Siddiqui Dy. Gen. Manager Audit P.S.M his deposition bears Ex.30. P.W-3 Mirza Tarique Baig son of Mirza Waheed Baig, acting Director production, his deposition bears Ex.

34. P.W-4 Shafiullah Baig son of Mirza Mehboob Baig, G.M. Corporate Planning Pakistan Steel Mills his deposition bears Ex.52. P.W-5 Syed Mohammad Gufran son of Syed Mohammad Usman Manager (Weigh Bridge Department) PSM his deposition bears Ex.61. P.W-6 Syed Jalaluddin son of Syed Nehaludin, Director Research, his deposition bears Ex.66. P.W-7 Akhtar Hussain son of Mohammad Hussain Shaikh, Dy. Manager Spares Management and Development PSM. His deposition bears Ex.72. P.W-8 Shahnawaz son of Ch. Abdul Karim Rajput, Manager Audit PSM. His deposition bears. Ex.80. P.W.9 Asadullah Khan son of Habibullab Khan, Employee of Uffaz Seameiss Pipe Inds. His deposition bears Ex.83. P.W-10 Illah Bux Tunio son of Mohammad Perial Tunio Inspector FIA/I.O.

Thereafter, the prosecution side was closed vide statement at Ex.99.

7. Case was transferred to the Accountability Court No.II, Karachi under the provisions of section 16-A of the NAB Ordinance, 1999 for disposal according to law.

8. The statements of accused Habibullah Siddiqui, Lt. Gen. (Retd.) Sabeh Qammaruzzaman and Mohammad Ehsanullah Sharif were recorded under section 342, Cr.P.C. at: Ex.100 to 102. Accused denied the prosecution allegations. All the accused did not lead any defence and declined to give statement on oath in disproof of the prosecution allegations.

9. Learned Trial Court framed the following point for determination:

'Whether the accused misused authority in causing loss to the Steel Mill which they could have prevented by exercising their authority?'

10. After hearing learned counsel for the parties trial Court answered above point in negative and acquitted respondents/accused namely Lt. Gen. (Retd.) Sabeh Qammaruzzaman, Habibullah Siddiqui and Ehsanullah Sharif were acquitted by judgment dated 10.08.2002, mainly for the following reasons:

'The record candidly signifies the lapses deviation in procedural proceedings and finalization of the case as thus. The case of procurement of 3rd convertor was processed without specific approval of Government of Pakistan. There was no approval obtained from competent authorities Ministry of Production and Board of Directors before signing of the contract with M/s. Mercury Corporation. The process of post tendering negotiations was chaired by the Chairman Sabeeh Qammaruzzaman himself which was arranged on extraordinaraly basis without any schedule with accused M. Asif of Mercury Corporation and the liberty was extended only to the Mercury Corporation while processing the matter the Director Production, Director Finance. Engineering Contract Department and Central Design Bureau were kept away the stage of signing of the contract. The Chairman Pakistan Steel was not competent to accord the approval for awarding the contract. The case was never processed before the Board of Directors for approval. 10% Performance Bank guarantee has not been mentioned in the contract. The contract was missing clause of 0.25% Stamp duty. There was no provision for mobilization advance in the contract. Premium of CR insurance was to be paid by the Steel Mills instead amount was 5% while normally it is 10%. The procurement of the 3rd convertor was not in the approved PC-1. There was no specific provision in the budget for the 3rd convertor in the 1993-94. The case required approval of the Board before awarding the contract and issuing the purchase order.

At this stage the NAB has struct a deal with absconding accused M. Asif s/o (sic.) M/s. Mercury Coporation. The application under section 31-B of the NAB Ordinance, 1999 filed through Mr. Abdul Rehman Chana Special prosecutor and D.P.G. Mr. Anwar Tariq signed by Raja Mohammad Bashir Prosecutor General Accountability is reproduced as thus:

IN THE COURT OF JUDGE ACCOUNTABILITY

COURT No. II KARACHI

In the matter of Ref No.32/2001

(FIR No.17/96 dated 11-12-96 of FIA SBC Karachi)

State v.

Lt. Gen. Retd. Sabeeh Qamaruzzaman and 7 others

Application under section 31-B, NAB Ordinance for consent of this Hon'ble Court for withdrawal of prosecution against Muhammad Asif of Mercury Corporation.

Respectfully submitted,

1. That the above titled Reference is pending in this Hon'ble Court. Originally the case was pending before the Special Judge (Central-II) Karachi. But no (sic.) an application by the Chairman NAB the said case was transferred for trial to this Hon'ble Court.

2. That Muhammad Asif of Mercury Corporation is an accused person in the above titled case. The said Muhammad Asif of Mercury Corporation has made good the loss caused by him to the Pakistan Steel Mills.

3. The said Muhammad Asif has made good the loss caused by him to the Pakistan Steel Mills, therefore, I consider it to be in the interest of justice to withdrew from the prosecution of the said Muhammad Asif.

It is therefore respectfully prayed that this Hon'ble Court please grant consent to withdraw from the prosecution of the said Muhammad Asif and after the grant of consent this Hon'ble Court may be pleased to delete the name of Muhammad Asif from the array of the accused persons.

National Accountability Bureau

Islamabad

Dated 18.7.2002 Sd/-

(Raja Muhammad Bashir)

Prosecutor General Accountability

Stamp of Office

As per the content of the application para No.2, accused M. Asif of Mercury Corporation has made good the loss caused by him to the Pakistan Steel Mills. Accused M. Asif is absconding. The proceedings of the recording of the evidence against the accused Mohammad Asif had taken place under section 512, Cr.P.C. Now I would like to reproduce section 312, Cr.P.C. which runs as thus:

512 RECORD OF EVIDENCE IN ABSENCE OF ACCUSED ---(1) If it is proved that the accused person has absconded and that there is no immediate prospect of arresting him the Court competent to try or (send for trial to the Court of Session or High Court) such person for the offence complained of may, in his absence examined the witnesses (if any) produced on behalf of the prosecution and record their depositions. Any such deposition may on the arrest of such person, be given in evidence against him on the inquiry into, or trial for giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) Record of evidence when offender unknown. If it appears that an offence punishable with death or (imprisonment for life) has been committed by some persons, unknown, the High Court may direct that any Magistrate of the first class shall hold an inquiry and examine any witness who can give evidence concerning the offence. Any deposition so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of Pakistan."

In the light of the section 512, Cr.P.C. the accused cannot be convicted or sentenced in absence on the basis of the evidence recorded under section 512, Cr.P.C. as the accused has to cross-examine the witnesses on the arrest of the accused such evidence is given on the trial but it is nowhere written in the section that the plea in the favour of the accused cannot be accept in his absence so this application filed under section 31-B of NAB Ordinance, 1999 can be read with section 17, clause (c) of the NAB Ordinance, 1999 and cannot be rejected merely in absence of the accused when the parties has settled their dispute amicably therefore this application for withdrawing the prosecution against the accused M. Asif by NAB is accepted. Now the responsibility and liability of the official accused is to be discussed with, I would like to reproduce the definition of the word 'offence' defined in NAB Ordinance, 1999 which runs as thus:

'OFFENCE' means the offences of Corruption and corrupt practices as defined in this Ordinance and includes (the offences) specified in the Schedule to this Ordinance.'

So also in section 4, clause (1) sub-clause (o), Cr.P.C. it is reproduced which runs as thus:

'OFFENCE' 'offence' means any act or omission made punishable by any law for the time being in force, it also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871.

There is an essential distinction between an offence and the prosecution for an offence. The former forms part of the substantive law and the later of procedural law an offence is an aggregate of acts of omission punishable by law while prosecution signifies the procedure for obtaining an adjudication of the Court in respect of such acts or omission, it is the act and not the transaction that constitutes an offence, the act or omission is an offence only, if it is punishable by any law for the time being in force. But where the act is not made punishable, as such though it becomes punishable, after a prohibitory or mandatory order is passed in that connection, it will not be an offence to do that act, it will not be an offence only when the order passed is disobeyed, but a breach of such an order or disobedience there of being punishable with imprisonment is an offence. Mere lapses attributed to officials in the absence of any gain, benefit or favour obtained for themselves or any other person do not fall in the ambit of offence or corruption but irregularities which could be dealt through departmental action as there is no link between the absconding accused Mohammad Asif and the officials accused receiving any undue benefit, gain or favour from him as the prosecution has not brought such evidence on record so also the Steel Mills had been compensated the loss caused by accused Mohammad Asif by the accused M. Asif therefore. This application moved by the Deputy Prosecutor General Accountability Mr. Anwar Tariq under section 31-B of NAB Ordinance, 1999 along with the settlement deal signed and executed on 13th June, 2002 by the parties is accepted consequent whereupon this point is adjudicated in negative the accused Lt. Gen. (Retd.) Sabeeh Qammaruzzaman Khan son of Qammaruzzaman Khan, accused Habibullah Siddique son of Saeedullah Siddiqi and accused Ehsanullah Sharif son of Late Latifullah are acquitted they are on bail their bail bonds stand cancelled so far absconding accused Asif is concerned he is fugitive from the Law and absconding to avoid the service from the process issued by the court of Law being declared P.O. on 03.09.1997 even after the deal the accused did not bothered to appear before the court and had screen himself from the proceedings therefore, I find the accused M. Asif guilty under section 31-A of the NAB Ordinance, 1999 and convict sentence him to 3 years' R.I.'

11. Being aggrieved and dissatisfied with the judgment of the trial Court, learned Special prosecutor NAB filed instant Accountability Appeal against acquittal. By this judgment, we intend to dispose of the aforesaid appeal against acquittal.

12. The evidence produced before the Trial Court finds an elaborate mention in the impugned judgment passed by the Trial Court dated 10.08.2002, therefore the same may not be reproduced here so as to avoid duplication and unnecessary reproduction.

13. Mr. Muhammad Altaf, ADPG, NAB argued that learned Accountability Court while acquitting the accused had not appreciated the evidence available on record, which had established the case of corruption and corrupt practices. It is argued that absconding accused Asif in collusion with Lt. Gen. (Retd.) Sabeh Qammaruzzaman had committed corruption and trial Court has wrongly observed that payments were made by the absconding accused Asif and respondents/accused were no more guilty to the charge. It is also argued that acts/omissions of the respondents for not seeking approval from the Board of Directors was a criminal act and such act on the part of Lt. Gen. (Retd.) Sabeh Qammaruzzaman was an offence under the provision of section 9(a)(vi) of the NAB Ordinance, 1999. He has also argued that findings of the Trial Court were based upon conjectures and surmises. There was sufficient evidence for recording convictions against the appellants. He has prayed that acquittal may be converted to the conviction.

14. Mr. Amer Raza Naqvi learned Advocate for Respondent No.1 argued that judgment of the trial Court is based upon sound reasons. Absconding accused Asif has made good loss caused by him to the Pakistan Steel Mills. He has argued that in evidence nowhere it is mentioned that respondents/accused had gained any benefit. Mr. Naqvi further argued that respondents had obtained approval for 3rd convertor from the Board of Directors and he referred to the Minutes of the Meeting and argued that it was duly approved. He has argued that there was no lapses/omissions on the part of Lt. Gen. (Retd.) Sabeh Qammaruzzaman and during his period, Pakistan Steel Mill was running in profit. Lastly, he has argued that consideration for appreciation of evidence in the appeal against conviction and appeal against acquittal are entire different. After acquittal it is submitted that accused/respondents have earned double presumption of innocence.

15. Heard learned counsel for the parties and perused the evidence minutely.

16. Learned trial Court in its judgment after assessment of the evidence came to the conclusion that no offence is proved against respondents/accused but there were lapses on the part of the respondent Lt. Gen. (Retd.) Sabeeh Qammaruzzaman. Learned ADPG, NAB also admitted that the then Chairman/respondent Lt. Gen. (Retd.) Sabeh Qammaruzzaman did not gain any benefit by awarding contract for 3rd Convertor to Asif.

17. From close scrutiny of the evidence we have come to the conclusion that prosecution has failed to bring on record that respondent Lt. Gen. (Retd.) Sabeh Qammaruzzaman misused his authority as Chairman Pakistan Steel Mill and gained any benefit in his favour. However, learned ADPG, NAB argued that respondent Lt. Gen. (Retd.) Sabeh Qammaruzzaman did not exercise his authority to prevent loss caused to the Pakistan Steel Mill through absconding accused Asif. Learned Trial Court after assessment of the entire evidence had also arrived at the conclusion that there was no link between absconding accused Muhammad Asif and official accused receiving any undue benefit, gain or favour. It has also been found by the trial Court that Pakistan Steel Mill has been compensated by absconding accused Asif, which resulted in moving of application by Deputy Prosecutor General Accountability Mr. Anwar Tariq under section 31-B of the NAB Ordinance, 1999 along with settlement deal, signed and executed on 13th June 2002 by the parties which was accepted. Consequently, point under adjudication was answered by the trial Court in negative. Trial Court also arrived at conclusion that mere lapses were attributed to officials accused/respondents in the absence of any gain, benefit or favour obtained for themselves or any other person such lapses did not fall in the ambit of offence or corruption but irregularities which could be dealt with by Departmental action. From the scanning of the evidence and findings of the trial Court, we have come to the conclusion that no direct or circumstantial evidence was brought on record by prosecution to satisfy the Court that respondent/accused Lt. Gen. (Retd.) Sabeh Qammaruzzaman misused his authority so as to gain any benefit or favour for himself or for absconding accused Asif. We have no hesitation to hold that the charge of misuse of authority i.e. mens rea and actus reus of the crime has also not be established. As such, case against respondent/accused General (Retd.) Sabeh Qammaruzzaman would not qualify the test of section 9(1)(6) of NAB Ordinance, 1999 for criminal prosecution against them as held by the Honourable Supreme Court in the case of The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118), relevant para is reproduced as under:

12. The charge against the appellant was that he by misuse of his authority, committed an offence of corruption and corrupt practices within the meanings of section 9(a)(vi) punishable under section 10(a) of the Ordinance. The misuse of authority in general, means wrong and improper exercise of authority for the purpose not intended by law, therefore, in order to prove the charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus reus of the crime have to be necessarily established and in case anyone of these two elements is found missing, the offence is not made out. Mens rea in context to the misuse of authority means to act in disregard of the law with the conscious knowledge that act was being done without authority of law and except in the case of strict liability, the element of mens rea is necessary constituent of crime. The offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance, is not an offence of strict liability, therefore, the use of authority without the object of illegal gain or pecuniary benefit or under favour in any other person with same ulterior motive, may not be a deliberate act to constitute an offence. The mens rea for an offence under section 9(a)(vi) of the Ordinance, is found in two elements i.e. conscious misuse of authority and illegal gain or undue benefit and in absence of anyone of these basic components of crime, the misuse of authority is not culpable, therefore, the prosecution must establish mens rea and actus rens of the crime to establish the charge, at without proof of these elements of crime, mere misuse of authority, has no penal consequence. The offence of corruption and corrupt practices has not been as such defined in the Ordinance but in general terms, the corruption is an act which is done with intent to give some advantage in consistent with law and wrongful or unlawful use of official position to procure some benefit or personal gain, whereas the expression corrupt practices is series of depraved/debased/morally degenerate acts, therefore, as contemplated in section 14(d) of the Ordinance, unless the prosecution successfully discharges the initial burden of proving the allegation in a reasonable manner, the accused cannot be called to disprove the charge by raising a presumption of guilt. In the present case, the NAB authorities on the basis of order passed by the appellant by virtue of which land was allotted to the offences of Lal Sobanra Park, launched prosecution against the appellant for the charge of committing an offence under section 9(a)(iv) of the Ordinance whereas the appellant in his defence plea asserted that he having found that the rights of allottees were acknowledgeable in law, exercised the powers of Collector in a good faith with bona fide intention and perusal of record would show that no direct or circumstantial evidence was brought on record to suggest that appellant exercised the power of Collector for the consideration of an illegal gain or an undue benefit for himself or for any other person and consequently, the case would not fulfil the test of section 9(a)(vi) of NAB Ordinance to justify the criminal prosecution.

18. Regarding another contention of Mr. Naqvi, learned Advocate that respondent/accused Lt. Gen. (Retd.) Sabeh Qammaruzzaman the then Chairman Pakistan Steel Mill had not accorded approval for 3rd convertor. Trial court has recorded findings that there were lapses on the part of officials/Accused in absence of any gain. Moreover prosecution has failed to bring on record that respondent/accused used authority for illegal gain or pecuniary benefits or extended undue favour to absconding accused with some ulterior motive. As such act of the accused did not constitute an offence.

19. In our considered view, learned Special Prosecutor NAB could not point out from evidence that impugned judgment of acquittal suffers from legal infirmities. Findings of acquittal can only be upset if the same are found perverse, arbitrary, foolish or based on misreading or non-appraisal of the evidence. In the present case, findings of the trial Court have been based upon sound reasons. There was no gross misreading of evidence resulting in miscarriage of justice.

20. In the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice as held in the case reported as State/Government Sindh through Advocate General Sindh, Karachi v. Sobharo (1993 SCMR 585). Relevant portion is reproduced as under:-

"14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from curriculum and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed."

21. For what has been discussed above, we are of the considered view that impugned judgment dated 10.08.2002 is based upon valid and sound reasons and is entirely in consonance with the law laid down by the honourable Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, the appeal is without merit and the same is dismissed.

MH/S-43/Sindh Appeal dismissed.