Pakistan Case LawDost Muhammad Nasir Versus State
Sardar Ahmad Haleemi, J .--- Since, both the Criminal Ehtesab Appeals were filed against the judgment dated 17.06.2022 passed in Reference No.03 of 2015, as such, the same are disposed of by this common judgment.
2.The Criminal Ehtesab Appeal No.20 of 2022 is directed against the judgment dated 17.06.2022 (hereinafter the impugned Judgment ), whereby, the appellant was convicted under section 9 subsection (iii), (iv), and (vi) of the National Accountability Ordinance, 1999 (hereinafter the Ordinance, 1999 ) and sentenced to undergo R.I of 05 years and fine of Rs.60 Million; also seized to hold public office and was disqualified for period of 10 years to be reckoned from the date he was released after serving the sentence for seeking or from being elected, chosen, appointed or nominated as member of representative of any public body, or in statuary or local authority or in service of Pakistan or of any province. The amount of fine shall be recovered as arrears of Land Revenue provided under section 33(E) of the Ordinance, 1999.
Whereas, the Chairman National Accountability Bureau through Prosecutor General Accountability NAB filed Criminal Ehtesab Appeal No.23 of 2022 for the enhancement of awarded sentence in the impugned judgment.
3.Succinct facts of the instant case are that on the written complaint of Raheem Afridi, Zonal Chief UBL Quetta and Badaruj Duja Staff Officer, UBL Quetta FIR No.02 of 1996 dated 03.09.1996 was registered at the FIA(Economic Crime Circle), Quetta, with the allegations that accused Dost Muhammad Nasir was found involved in the illegal practice of parallel banking by depriving the account holders of the bank of their hard-earned money; accused was transferred from Quetta to Loralai, but when newly posted Manager Khalid Khan took charge on 25th August 1996, the accused was found absent; upon checking the record, it was found that fictitious credits had been given in different accounts. Meanwhile, the management of UBL also registered the second FIR No. 5 of 1997 dated 20-08-1997, against the appellant and his brother Shah Muhammad for encashed payments of clearing cheques UBL Mezan Chowk Branch Quetta of various account holders accounts of others backs in Quetta. After the merger of the FIA s Economic Crime Wing with NAB in 2005, the cases were transferred to NAB, whereafter, 65 account holders submitted claims for reimbursement, and after verification, 37 claims were approved, with Rs. 10,383,322/- paid. The bank also initiated a departmental inquiry against the appellant Dost Muhammad Nasir, which culminated in the dismissal of his service. Besides, the Bank also filed a civil suit to recover Rs. 39,408,978/- with a significant portion of the amount deposited in Shah Muhammad s account. In addition to the claim payments, the bank adjusted the loss from forced overdrafts in 25 accounts linked to the appellant s actions. Further reimbursements of Rs. 6,263,000/- were made after the claimants verification, hence Reference No.03 of 2015.
4.In pursuance of the FIR, the appellant was arrested and investigated and on completion of investigation, the challan of the case was submitted before the trial Court and the trial commenced.
5.The trial Court framed the charge against the appellant, to which he pleaded not guilty and claimed trial.
6.The prosecution in order to bring home guilt of the appellant produced fourteen (14) witnesses. At the conclusion of the prosecution evidence, the appellant was examined under Section 342, Cr.P.C, wherein he denied the allegations leveled against him. The appellant did not examine himself on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in his defence.
7.The trial Court heard the arguments of learned counsel for the parties and convicted and sentenced the appellant vide impugned judgment.
8.Learned counsel for the appellant inter alia contended that the prosecution has failed to substantiate the allegations against the appellant beyond a reasonable doubt; the charges of fraudulent banking activities, such as fake postings, incorrect credit voucher postings, un-posted vouchers, and unauthorized adjustments in account balances, are based solely on circumstantial evidence and do not establish a direct link with the appellant; there is no concrete proof that the appellant personally executed or authorized the transactions alleged in the FIR; the prosecution s reliance on the fact that the appellant had given fictitious credits in different accounts was not proved through credible, even otherwise, these actions could have been carried out by other individuals, and no direct evidence has been presented to demonstrate that the appellant was responsible for such allegations; that the appellant's absence from his duties at the time when the new manager, took charge cannot be construed as an admission of guilt; that the records of the bank were found to contain irregularities, but these anomalies alone do not implicate the appellant in the commission of alleged offence; the mere fact that the accused was transferred remained absence is not adequate to constitute a fraudulent activities, rather, it is equally plausible that the discrepancies arose from mismanagement, clerical errors, or actions by others employees within the bank, which the prosecution has failed to conclusively prove. The claimants reimbursements were a result of the bank s internal procedures and could have been made based on the verification of claims rather than as a direct result of the appellant s fraudulent conduct. The bank s adjustments for forced overdrafts in 25 accounts, as mentioned in the case, do not directly link the appellant to the financial losses suffered. Moreover, the verification of only 37 out of 65 claims, and the subsequent reimbursement of Rs. 10,383,322, fails to establish a definitive connection between the appellant s actions and the financial discrepancies; that these payments could have been processed due to administrative errors or mismanagement, and there is no solid evidence proving that the appellant was the sole cause of these issues and lastly prayed for acquittal of the appellant.
9.Conversely, learned Special Prosecutor NAB controverted the contentions of learned counsel for the appellant and argued that the prosecution had established its case through trustworthy and confidence-inspiring evidence; that the appellant s fraudulent banking activities severely impacted the financial wellbeing of numerous account holders and these activities, including the creation of fictitious credits and unauthorized adjustments in account balances, deceived individuals, causing financial losses and undermining public trust in the banking system; that the trial Court while appreciating the evidence, convicted and sentenced the appellant but keeping in view the significant financial damage caused, the Special Prosecutor argued that the sentence should more accurately reflect the severity of the crime, which not only resulted in direct harm but also damaged the reputation and trust in the banking sector and prayed for enhancement of sentence awarded to the appellant.
10.We have heard the arguments advanced by the learned counsel for the parties and have perused the record with their able assistance.
11.It appears from the record that the complainant, Rahim Afridi Zonal Manager and Badaruj Duja Staff Officer, UBL Quetta reported the incident to FIA Quetta through a written application Ex.P/1-A, with the allegations that Ex-Manager Dost Muhammad (appellant/convict) indulged in parallel banking by misusing his authority cheated with account holders transaction and caused a financial loss amounting to Rs.56.055 Million to the UBL Meezan Chowk Branch, Quetta. As per record, the appellant/convict as second officer remained posted at UBL Meezan Chowk Branch, Quetta w.e.f. 19.09.1987 to 21.04.1993 and was promoted to Officer Grade-1 (OG-1) on 22.04.1993 and served as Manager in the same branch till August 1996. In the instant matter, 65 persons submitted their claims while 37 claimants were verified and an amount of Rs. 10,383,322/- was paid to 37 account holders. Subsequently, after scrutiny, 11 other claimants were paid an amount of Rs.6,263,000/-, besides, the branch adjusted loss of Rs.39,408,978/- from the bank box in lieu of forced overdrafts credits in 25 banks.
12.Before parting with merits of the case, it has been observed that that in respect of the occurrence, FIR No.02 of 1996 was registered against the appellant/convict and another FIR No.5 of 1997 was also registered against the appellant and others. The FIA authorities on the same allegation arrested co-accused Shah Muhammad (beneficiary/brother of the appellant) in FIR No.05/1997. Later on, he was released on bail. After merger of the Economic Crime Wing of FIA with NAB in the year 2005, the inquiry of the said case was entrusted to PW-10 Bahadur Khan (Investigating Officer). Further inquiry was carried out by PW-11 Syed Shah Jahan and PW-14 Muhammad Fayyaz Afzal, who conducted the investigation and submitted the final investigation report as Ex.P/14-C. It is a matter of record that co-accused Shah Muhammad, Ashraf Khan, Khalid Javed, and Abdul Waheed have been exonerated from the accusation on account of lack of original cheques as the State Bank of Pakistan allows to destroy the record after ten years, as such, this aspect creates dent in the prosecution version. It is a cardinal principle in criminal jurisprudence that an accused is always presumed to be innocent unless the prosecution succeeds in proving the accusation against the accused, therefore, the prosecution is under the obligation to discharge the initial burden to prove the allegations. Reliance in this regard is placed in the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607), wherein it has held as under:
"Be that as it may, the prosecution has to establishthe preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption; This is also the consistent stand taken by Mr. Abid Hassan Minto as well as the learned Attorney-General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. We are also of the view that the above provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set-up, we deem it necessary to issue the following directions for effective operation of section 14(d).
13.Moreover, the prosecution relied upon the documents Art.P/1 to Art.P/98 pertaining to factitious credits and debits tendered by Fayyaz Muhammad PW-2. The said witness in his cross-examination replied as under:
14.Likewise, PW-3 Arsalan Ali, Incharge General Bank, Askari Bank Alamdar Road, Quetta produced the record Art.P/96 to Art.P/7233 through seizure memo Ex.P/3-A to Ex.P/3-B. The witness in his cross-examination replied as under:
15.Needless to note that the Investigating Officer has failed to produce the alleged ledgers of credits and debits as well as the original documents on record. Mere production of the photocopies of the documents is not sufficient. The moot of proving the documents is provided under Articles 2 and 78 of Qanun-e-Shahadat Order, 1984, and the prosecution is bound to prove the documents as per the settled procedure laid down by the law, whereas merely placing the photocopies of the documents on record does not preclude them from their obligation. Reliance in this regard is placed in the case of Khan Muhammad Yousaf Khan Khattak v. S.M. Ayub and others (PLD 1973 SC 160), wherein it has been held as under:
I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them, unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act. If instead of the copy Exh. P.E the original form "E" which formed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signature of the appellant without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it."
16.Moreover, the testimony of the witnesses depicts that internal and external audits of the concerned bank of UBL branch were carried out twice in the year, but the prosecution did not record the statement of the Audit Officers nor brought on record the audit report of the alleged years in which misappropriation was alleged. It is the prime obligation of the Investigating Officer to build up a case and to bring the truth on surface. Meaning thereby that the purpose of an investigation is to collect all the relevant material regarding the accusation and facilitate the Court to administer justice. In the present case, the investigation has not been conducted properly and the defective investigation also creates dent in the prosecution version.
17.In addition to this, the prosecution also relied upon the testimony of PW-9 Muhammad Umar, handwriting expert, who produced the report Ex.P/9-A. The said witness in his crossexamination replied as under:
18.It may be noted that in order to compare different handwriting signatures, the handwriting expert is required to examine different characteristics of both signatures, suc as, pen hold, pen pressure, slant, speed, sizing, alignment, spacing, line quality, tremors, curves, connections, rhythm, momentum, pulse, position in the cheque in question and also other cheques signed by the appellant and thereafter if founds similarity therein, then he has to give positive findings. Whereas, in the instant case, the expert has not stated anything about the similarity of the characteristic between the question signatures and admitted signatures, as such, the prerequisites for the determination of signature are lacking in the expert report Ex.P/9-A. In this regard, the provisions of Qanun-e-Shahadat Order, 1984, make the opinion of an expert irrelevant in the evidence on account of glaring discrepancies, thus it could not be relied upon. Reliance in this regard is placed on the case of Allah Dino and others v. Mohammad Umar and others (1974 SCMR 411).
19.The reappraisal and reassessment of all the material available on record depict that there are glaring contradictions in the testimony of prosecution witnesses and the prosecution has failed to prove the accusations leveled against the appellant/ convict through trust-worthy, confidence-inspiring, and tangible evidence, whereas, the defence has succeeded to shake the credibility of witnesses. It is settled proposition of law that if a single doubt arises in the prosecution case, the benefit of the same must be extended in favour of the accused, not as a matter of grace, but as a matter of right. Reliance in this regard is placed in the case of Saghir Ahmed v. The State and others (2023 SCMR 241), wherein it has held as under:
.It is well settled principle of law that for the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner .
20.As a sequel to the above discussion, we are of the considered view that the prosecution has miserably failed to prove the charge against the appellant/convict beyond shadow of reasonable doubt. The trial court did not appreciate the available material and evidence in line with applicable laws, therefore the findings are based on misreading and non-reading of evidence, as such, the impugned conviction and sentence passed vide impugned judgment is not sustainable.
For the above reasons, Criminal Ehtesab Appeal No.20 of 2022 is allowed, consequently, the impugned judgment dated 17.06.2022 passed by Accountability Court-III, Balochistan Quetta is hereby set aside. The appellant namely Dost Muhammad Nasir son of Haji Dur Bilal is acquitted of the charge under section 9 subsection (iii), (iv), and (vi) of the National Accountability Ordinance, 1999. The appellant is on bail, his bail bonds stand discharged.
Resultantly, Criminal Ehtesab Appeal No.23/2022 filed for enhancement of sentence is hereby dismissed.
MH/158/Bal. Order accordingly.
Judges on this bench
- Muhammad Ejaz Swati310 judgments
- Sardar Ahmed Haleemi62 judgments