IN THE HIGH COURT OF SINDH AT KARACHI

Crl. Accountability Appeal No. 55 of 2002

 

Present:

Mr. Justice Ahmed Ali M. Sheikh &

Mr. Justice Syed Muhammad Farooq Shah.

 

J U D G M E N T

 

For Appellant     :         Mr. Suhail Muzaffar, Advocate.

 

For State/NAB   :         Mr. Muhammad Altaf, ADPG NAB.

 

Date of hearing  :         18.11.2015.

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Syed Muhammad Farooq Shah, J.:- Captioned appeal has been directed against the impugned judgment dated 25.06.2002, thereby the appellant Mansoor Ahmed was convicted and sentenced to suffer R.I. for a period of 7 years and to pay fine of Rs. 2 Million, in default of payment of fine to suffer R.I for a period of 2 and half years more; he was seized to hold public office and disqualified for a period of 10 years to be reconcked from the date he is released after serving sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or legal authority or in service of Pakistan or of any province. Benefit under Section 382-B Cr.P.C was extended to him. However, remaining two accused namely Feroze Ahmed and Ayoob Tahir were acquitted and set at liberty. The appellant has prayed for his acquittal from the charged offence.

 

2.      Story of the prosecution case as narrated in the Reference filed by the Chairman NAB in nutshell is that appellant Mansoor Ahmed alongwith acquitted accused Muhammad Feroze Ahmed and Ayoob Tahir was allegedly involved in removal/theft of Silver from the Warehouse No.1, located at Custom House, Karachi. It is alleged that co-accused Ayoob Tahir, a goldsmith aided and abated, rather facilitated the appellant and M. Feroze Ahmed, both Superintendents, Preventive Services in misappropriation of Silver viz. 1087 Kgs., valued of Rs. 9.7 millions.

 

3.      On filing Reference by the NAB, charge was framed by the Accountability court under Section 409 PPC, to which all the three accused persons pleaded not guilty and claimed to be tried. To substantiate its case, prosecution examined 18 witnesses and thereafter the statement of accused persons were recorded under Section 342 Cr.P.C. From perusal of record it appears that the case was challaned in the Custom Court on 23.08.2002, in which five persons were nominated including the appellant. Subsequently,  Reference in the instant case was filed only against three accused persons in the NAB Court, on 08.12.2002, without any application have been made under Section 16 of the NAB Ordinance, for transfer of the case. Record further shows that other two co-accused became prosecution witnesses in this case, though they were booked in the case subjudice before the court of Customs and Taxation at Karachi. It appears that total quantity of Silver, which was missing from the state Warehouse during the period 1980-2000, was 1087 KGs, however, the tenure of appellant for holding the charge of Warehouse was for a very short period of three months i.e. August, September and October, 2000.

 

4.      The points which require determination for disposal of instant appeal may be as under:-

 

(i)           As to whether stock taking in shape of handing over/taking over the Warehouse was held during the period of joining/relinquishment of charge by the appellant for the period of two and half months?

 

(ii)         Whether the appellant had misappropriated the Silver weighing 1087 Kgs?

 

(iii)       As to whether whole stock of the Warehouse was ever checked during the period from 1980 to 2000?

 

(iv)        What offence, if any, had committed by the appellant?

 

         

5.      Arguments advanced by Mr. Sohail Muzaffar, learned Counsel for the appellant and Mr. Muhammad Altaf, learned ADPG NAB on the above points are considered and record has also carefully been perused with their able assistance. The aforementioned points are interconnected to each other, hence taken together.

 

6.      Cursory evidence of 18 examined prosecution witnesses reveals that PW-1 Abdul Aziz, a constable in Warehouse No.1 in his examination-in-chief stated that on directions of the appellant he used to take the Silver from the canteen and put it in his car who used to pay him handsome amount of Rs. 5000/- and sometime less or more. However, in his cross-examination, he deposed that his statement was recorded by investigating officer, Bashir Ahmed Bhutto, who told him that if he will not give statement before the Magistrate then he would be involved in this case, otherwise he will be saved. He has further stated that he had never complained to any officer of Customs about the activities of accused (Appellant). PW2 Muhammad Inam Khan, a Preventive Officer, Custom House, Karachi, stated in examination in chief that when he detected misappropriation of Silver by the appellant, the appellant Mansoor Ahmed had given him to Rs.30,000/- and told him that he should not disclose anything about his activity to anyone and after about seven days of his transfer, the accused Mansoor Ahmed had given him Rs.70,000/- and told him that he should not disclose anything about his activities to anyone and he assured to the accused Mansoor that he should not be worried. In cross-examination, he stated that some of the officers were transferred after the transfer of accused Mansoor Ahmed, who remained posted in the State Warehouse No. 1, Karachi from August 2000 to October, 2000. He further stated in cross that he found one slab of one kg lying on the rack inside the grill and he informed the accused about the said slab but he had not complained to any officer of the custom house about the said fact. He has further stated that amount of Rs.30,000/-+ Rs.70,000/- received by him was neither part of his salary or reward but it was accepted by him as an illegal gratification, hence he had not informed any higher official about receipt of such amount. Further stated in cross-examination that in his statement before the Magistrate, he told the Magistrate about receipt of Rs.30,000/- and Rs.70,000/- as illegal gratification; further stated that he do not remember that whether he has stated in his statement before the Magistrate that the accused Mansoor Ahemd had informed him that Silver was sold, therefore, it could not be returned; that Nazeer Ahmed Abro and Naseem Ahemd were the inspectors Preventive Services in the Warehouse No. 1 during the period from August 2000 to October, 2000. PW3, Senior Preventive Officer (SPO), Custom House, Karachi, deposed that during the month of August 2000 to October 2000, he was attached with accused Mansoor Ahmed, who used to take out some shopping bags out of Warehouse and also bring shopping bags inside the Warehouse. He used to bring shopping bags when he entered in the Warehouse in the morning and to take out shopping bags at about 10:00 am or 10:00 am. He had specifically stated that “ I had not seen anything with my own eyes with regard to the incident of this case”. PW4 Syed Muhammad Sagheer, Inspector Preventive Officer, stated that in the month of October, 2000 he was asked to take stocktaking of Silver of State Warehouse No.1, immediately on the same date, it was 24.10.2000; that he went to the Warehouse No.1, where accused Mansoor Ahmed was in charge and told him to handover the Silver and all files; that they both signed the inventory of five cases. In cross, he admitted that inventory is the joint report of signatories and that he had not verified the stock in the warehouse personally as official working in the warehouse was done by Inam Khan. He further admitted that a case is pending before the Custom Court in respect of Silver in question, in which he is one of the accused in that case. PW-5, Mazhar Ali, a Senior Preventive Officer, deposed that accused/appellant Mansoor Ahmed used to go out of Warehouse holding bags in both the hands, however in cross he admitted that periodically stock taking report of Warehouse are being prepared by the Senior Officers and that he had never taken Silver to Mint Lahore from Warehouse Karachi; that in the year 1998, he saw 9 tons of Silver being taken to Mint Lahore by M. Inam Khan, Preventive Officer. He has further clarified in cross-examination that he did not see what was inside the shopping bag carried by accused Mansoor Ahmed from the Warehouse.

 

7.      PW-6 namely Arif Shah, who is a constable in Custom Department, stated that on direction of Commander Monitoring Team Abid Haider Kazmi, he recorded conversation of accused Mansoor Ahmed in audio cassette. He exhibited the audio cassette, however, in cross, he admitted himself to be an accused in the case pending before Special Judge, Custom and Taxation, Karachi and alongwith himself accused Mansoor Ahmed and others are also co-accused. He has also admitted his arrest on 08.08.2001 and stated that the alleged audio cassette was recorded before his arrest. He has also admitted that the case in which he was arrested, was being investigated by Bashir Ahmed Bhutto. He admitted himself to be one of the accused in the case, which was investigated by Bashir Ahmed Bhutto. He has also admitted that about 3 or 4 years back, the FIR under Section 13-D Arms Ordinance was registered against him at Maripur Police Station, Karachi, in which he was acquitted and that he had also lodged the report to the police at Maripur police Station. He has admitted that he was not initially appointed as a driver of accused Mansoor Ahmed. He has categorically admitted of his arrest in this case as an accused person and that he was remained in custody for about 14 days and released after recording of his statement. Further stated that his statement as a witness in this case was recorded after his release; that conversion in audio cassette was recorded in the month of August, 2001, when the matter was being investigated and the said inquiry/investigation was also against him; that he had not stated in his earlier statement recorded in this case about the clarification of the audio cassette as disclosed by him in the Court; that on 05.06.2001, he appeared before the Court of Special Judge, Customs and Taxation, Karachi as an accused. He has also admitted that he served Central Excise Department.

 

8.      PW-7 Saifuddin Junejo, Deputy Controller Valuation Department, Customs, Karachi stated about shortage of missing Silver, however in his cross-examination, he said that on 13.11.2000, a note was submitted to him by his sub-ordinate stating that on the basis of record available on the State Warehouse No. 1, it was revealed that no stock taking of this huge Warehouse was conducted ever and he had also put his signature on the said note, which was moved by the order of collector. He has categorically stated that “no period of missing of 1087 kgs of Silver or its shortage was disclosed by S.M. Sagheer . PW-8 Mr. Raees Khan, Senior Preventive officer, stated that consignment of Silver weighing 1087 kgs was missing during checking the record and physical verification of consignment of Silver. However, in cross, he has stated that the missing period is from the year 1980-2001 and the accused was posted at the mentioned Warehouse only for 3 months period from August to October, 2000. He further stated that “ I do not know the total numbers of officers, transferred or posted after October, 2000 till November, 2001 in state warehouse No.1, Karachi”.                    

 

9.      The evidence of remaining prosecution witnesses is of formal nature as PW-7 and 8 were not found able to mention period of missing of 1087 Kgs Silver as its shortage was noticed for the period spreading on 21 years i.e. 1980 to 2000. PW- 9 Rana Saleem, SPS, who scrutinized and taken over the charge from Mukhtiar stated that all valuable items including the Silver are mentioned in the relevant register and further stated in cross that “ I cannot say about missing of Silver for the period from August 2000 to October 2000.”     PW-10 Bashir Ahmed Preventive Officer, conducted the investigation and found four customs officers and one jeweler responsible in pilferage of Silver, stated in cross-examination that he submitted challan before the court of Special Judge Customs & Taxation, Karachi. He further stated in cross that the charge of Warehouse was never handed over or taken over by outgoing and incoming officer but the charge of handing over and taking over is made on a simple register and the keys of Warehouse were handed over by outgoing officer to incoming officer; that he had not prepared any separate report for the period of three months, that is August to October 2000, when appellant was posted there; that Arif Shah was released on bail who is still an accused before the customs court in the case challaned by him; that PW- Inam had disclosed him about receipt of illegal gratification but he did not report such matter to Anti-Corruption authorities. He has further categorically stated in cross that charge has not taken by new officer through valuable register but a simple register and said that “I did not know when lastly stock of goods was taken in warehouse.” Lastly, he stated in cross that valuable register of store room of the Warehouse did not show remarks of Mukhtiar the successor of accused Mansoor Ahmed in respect of shortage of valuable register and that as to when the accused Feroze handed over the charge to the accused Mansoor Ahmed; besides he did not write any remark in the valuable register in respect of shortage of article.

 

10.    PWs 11 & 12 Shamim Ahmed Khan and Muhammad Ashraf Zia SPO; said nothing against the appellant. Evidence of PW-14 Muhammad Irfan and PW- 15 Muhammad Aziz Malik is of formal nature. PW-16 Sibte Asghar Bilgrami Program Manager Pakistan Broadcasting Karachi played audio cassette and prepared transcription of recorded conversation in an audio cassette. PW-17 Ghulam Mustafa Judicial Magistrate recorded statement of some of prosecution witnesses under section 164 Cr.P.C. and last witness of the prosecution is PW-18 Salahuddin, inspector FIA who conducted subsequent investigation on directions of the NAB, arrested the accused, who was already facing the trial of the alleged occurrence before the Customs and Taxation Court and stated in cross that PW Muhammad Inam Khan and Arif Shah were also shown involved in the scam by the NAB but both the said persons have been made witnesses in this case. He categorically stated that he did not make Muhammad Inam Khan and Arif Shah as accused at any stage of investigation of this case; that he had not secured any handing over and taken over of charge of officers of said Warehouse No.1 and that he had not secured any valuation certificate for the period of three months i.e. 01.8.2000 or after 31.10.2000 and had not secured stock taking report of State Warehouse. In the last of cross-examination, he admitted that matter relating to same case property is also pending before the Court of Customs and Taxation Karachi and that he had not arrested Constable Aziz nor secured the keys or deposit register from the Customs House Karachi.

 

11.    Conversely, in his statement, recorded under section 342 Cr.P.C. the accused has vehemently denied the allegations of prosecution and claimed his innocence in the following manner

 

“In the month of April 2001 I had gone to USA for my private visit. While I was there, I made a telephone call to my office in order to enquire about leave on which I was informed that an inquiry had been initiated against me in respect of this case. Immediately thereafter I returned to Pakistan and reached on 11.6.2001. I was captain of Pakistan Hockey Team. I had played three Olympic Games for Pakistan. I carried the National Flag of Pakistan in Atlanta Olympics games U.SA 1996. I have received a pride of performance award. As such I am a national hero in the field of Hockey. During the inquiry I had a NOC to play hockey abroad with three months valid visa of Indiana. I did not utilize the said visa, as I wanted to clear myself from the inquiry. In the year 1987 I joined customs department as a preventive officer. I became Superintendent Preventive Services in the month of August 2001. I remained in charge of warehouse No.1 customhouse Karachi for a period of 2.1/2 months only from the month of August to October 2001. I had taken over the charge from co-accused Feroze Ahmed. It was absolutely in order. I had handed over the charge to my successor Mukhtiar Ahmed complete in all respect. There was no complaint of any missing or shortage of articles and particularly Silver from the warehouse No.1 during the period of my posting. All the documents produced by the prosecution sow missing of Silver pertain to the period from 1980 to 2001 whereas I remained posted in the warehouse for a small period of 2.1/2 months. The property of case No.211 of 1983of Customs Court has also been included in the present reference although the property and the case had already been disposed of. The case has been filed with malicious intention against me. I have committed no offence. I am innocent and pray for justice.”

 

12.    It is not out of context to mention here that according to the relevant rules; more particularly, CGO 66/73 provides periodical physical stock taking or checking of Warehouse which includes physical verification of quantity/quality/sort/description/value and condition of storage of goods as to whether or not goods deteriorating due to unsatisfactory condition at the place of storage, have not ever been made, particularly, the period of pilferage is spreading on 21 years i.e. 1980-2000; besides audit and scrutiny of the Warehouse register and record has not been made to ensure that goods were kept in Warehouse according the standing order; more so, stock taking report had neither been prepared by the stock taking officer nor the same has ever been submitted to the Collector of Customs. It further provides that State Warehouse will be under double locked, one key will be retained by the custodian and other key by the Deputy Custodian but the prosecution has failed to explain about the responsibility or function of Custodian or Deputy Custodian.

 

13.    Perusal of record transpires the charges against the appellant Mansoor Ahmed, Superintendent Preventive Services Customs, Karachi alongwith four other accused, in connivance with M/s Feroze Ahmed and Muhammad Inam Khan officers of the Custom Deppt: and Arif Shah, Sepoy Customs, who misused their official powers as custodian of State Warehouse and removed 1087 Kg Silver which caused a loss of Rs.9.7 million to the national exchequer. It appears that investigation was conducted in a haphazard manner without following the rules and law as well; more particularly, no recovery whatsoever has been made from the appellant. More particularly, in reply to our specific query, Mr. Muhammad Altaf, learned ADPG NAB candidly admitted non-availability of charge of handing over/taking over of the stock by the appellant. Admittedly, stock taking of Warehouse was never done during lengthy period, spreading on 21 years and the documents and the stocktaking report was also not prepared during the investigation of this case. It is also an admitted fact that appellant’s tenure as Superintendent Preventive Services of the Warehouse was only for a very short period of three months and for that period no separate audit or stock taking was held, though number of officers were posted in the said Warehouse alongwith appellant and all of them were sitting in the same hall and it was rather impossible to remove the mentioned consignment from the Warehouse in their presence; more so, it is daily routine that the State warehouse is locked and sealed at the time of its closure and key is to be deposited with the security staff and at the time of opening of State Warehouse the keys are taken from the security staff, which is matter of daily routine. In such peculiar circumstances, it is not attracting to a prudent mind that how an officer can succeed to remove Silver weighing 1087 Kgs, during office hours, particularly, Warehouse was not in the exclusive possession of the appellant.  

 

14.    Suffice it to say that the prosecution through cogent and convincing evidence has miserably failed to establish the misappropriation of huge valuable property by the appellant, more particularly, the trial court in the impugned judgment held responsible to the appellant alone for misappropriating some Silver out of the missing 1087 Kgs from the State Warehouse No.1, however no specific quantity for the missing Silver has been attributed to him; more so, at the top of page 19 of impugned judgment the deposition of PW-1, the Investigating Officer, Bashir Ahmed Bhutto was reproduced regarding handing over/taking over the charge, reads as under:-

 

“The charge of warehouse is never handed over and taken over by outgoing or incoming officers but a charge of handing over and taking over is made on a simple register and the keys of the warehouse are handed over by outgoing officer to incoming officer.”

 

The above statement of Investigating Officer shows that charge of stock including valuables had never been handed over or taken over by outgoing or incoming officer. PW Saifuddin Deputy Collector had also admitted that the stock checking of Warehouse was not done ever. PW-2 Inam Khan admitted himself to be a corrupt officer as he had allegedly received bribe amounting to Rs.1,00,000/- from the appellant No.1, hence in our view no legal sanctity is attached to the deposition of such witness, against whom neither the case has been referred to the Anti-Corruption department nor departmental proceedings had been initiated against him. Crux of the aforementioned prosecution story depicts that no evidence with regard to the quantity of Silver received by the appellant has shown as the missing Silver 1087 Kgs pertains to the period from 1980-2001, thus the prosecution has miserably failed to establish beyond any shadow of doubt that the appellant is solely responsible of pilferage or misappropriation of missing Silver, during the period of three months of his posting.

 

15.    It is an admitted position that PW-4 and PW-6 are accused in a case pending before the Judge Customs & Taxation Karachi and being accomplice of appellant recorded their depositions. It may be observed that the rule prudence requiring that evidence of an accomplice should be supported by independent evidence to implicate each accused person, whom it affects. The veracity of these accomplice witnesses is open to serious doubt as they had betrayed their companions hence their evidence needs corroboration; more particularly, the possibility of these prosecution witnesses/accused implicating the appellant and others must be carefully perused. Unfortunately, the trial court did not examine this aspect of evidence at all in respect of “stocktaking” and “handing over/taking over” charge of the warehouse, therefore the finding of trial court purely based upon the evidence of co-employees being associates cannot , in our view, be considered to have been arrived at upon sound principle of safe dispensation of justice. In the case of MUNAWAR HUSSAIN ALIAS BOBI AND 2 OTHERS V/S THE STATE (1993 SCMR 785) the Shariat Appellate Bench examined such aspect of the matter in the following manner:-

 

“No doubt that the above illustration (b) to above Article 129 of the Order provides that an accomplice is unworthy of credit, unless he is corroborated in material particulars. However, we may point out that the above illustration of Article 129 of the Order is to be read with Article 16 of the Order, which lays down that an accomplice shall be a competent witness against an accused person except in the case of an offence punishable with Hadd and the conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The above Article 16 of the Order corresponds with section 133 of the late Act. In other words in terms of above Article 16, a conviction can be recorded on the basis of evidence of an accomplice but the Court, as a rule of prudence, seeks corroboration in material particulars.”

 

 

16.    Later-on, in a Full Bench ruling in the case of FEDERATION OF PAKISTAN V/S MUHAMMAD SHAFI MUHAMMADI, ADVOCATE AND OTHERS (1994 SCMR 932), the apex court, by enunciating upon the evidentiary value of an accomplice, by majority judgment held that in exceptional cases for the reasons to be recorded by the Court, testimony of accomplice may be acted upon as sufficient for warranting recording of conviction, provided that an accomplice is unworthy of credit unless he is corroborated in material particulars.

 

17.    We shall now commence with determining the scope of section 16-A (a) of National Accountability Ordinance, 1999, which is reproduced hereunder:

 

“Notwithstanding anything contained in any other law for the time being in force, the Chairman NAB may apply to any court of law or tribunal that any case involving any offence under this Ordinance pending before such court or tribunal shall be transferred to a Court established under this Ordinance, then such other court or tribunal shall transfer the said case to any Court established under this Ordinance and it shall be deemed to be a reference under section 18 of the Ordinance, and it shall not be necessary for the Court to recall any witness or again to record any evidence that may have been recorded.”

 

 

18.    The aforesaid section 16-A (a) enables the Chairman NAB to apply to any court where a case involving an offence under NAO is pending. And upon receipt of an application submitted by the Chairman NAB under section 16-A (a) the court before which the case is pending is obliged to transfer it. However, herein the Special Judge Customs did not pass any order transferring the case. The said section further provides that the transfer, “shall be deemed to be a reference under section 18” of NAO, however, NAB proceeded to exonerate a number of the listed accused, which they could not. At best NAB could have sought the transfer of the case, and if such transfer was allowed by the Special Judge Customs, it was to be treated as a Reference and proceeded with by the Accountability Court as held by the Apex Court in a latest pronouncement in Civil Petition No. 1603 of 2012 (Anti-Corruption Establishment, Punjab through its DG V/S Versus National Accountability Bureau through Chairman NAB & others). It need not to reiterate that section 16-A (a) of NAO stipulates that the transfer of a case shall be deemed to be a Reference under section 18 of NAO , but this provision was disregarded as some of the nominated accused were exonerated by NAB itself

 

19.    For the foregoing reasons we were persuaded to set aside the impugned judgment by short order dated 18.11.2015, being not sustainable in law, mainly on the ground that neither the evidence has been appreciated nor the law as laid down in the aforementioned statutes was followed in its true prospects. Apparently, there were not only glaring contradictions amongst the depositions of prosecution witnesses but their evidence is not creditworthy as the prosecution witnesses have not corroborated each other in stricto senso.

 

 

J U D G E

 

 

*Aamir/PS*                                                                            J U D G E