THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Accountability Appeal No. 12 of 2010
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Appellant : Peer Deedar Ahmed Sarhandi through Mr. Ghulam Sarwar Chandio
advocate
Respondent : The NAB through Mr. Shahbaz Sahotra Special Prosecutor
NAB
Date
of Hearing : 27.10.2021
Date
of decision : 29.10.2021
JUDGMENT
NAIMATULLAH PHULPOTO, J. Peer
Deedar Ahmed Sarhandi (since demised) was tried by learned Accountability Court
No.1, Sindh at Karachi in Reference No.01/2003. After regular trial, he was
found guilty under Sections 9(a)(iii)(iv) and (vi) of the National Accountability
Ordinance, 1999, he was sentenced under section 10(a) of the said Ordinance to
undergo 14 years R.I and to pay fine of Rs.62.354 Million. In case of default
in payment of fine he shall suffer further R.I for five (05) years. His
immovable properties were also ordered to be confiscated to the Habib Bank
Limited. Deceased appellant was declared disqualified to hold any public office
or contest the elections for a period of 10 years. However, benefit of section
382-B Cr.P.C was extended to him.
2. Brief facts of the prosecution case, as
mentioned in the impugned judgment dated 26.04.2010 are as under:
“The case of the prosecution as per FIR is that the
complainant who is a senior vice president Habib Bank Limited, small finance
division, Karachi, states that under the then Prime Minister scheme and to
revamp public transport dated 2nd December 1991 and 3rd
December 1991, the Habib Bank Limited disbursed billions of rupees in the
aforesaid scheme and said facility was availed by a number of the borrowers and
the 90% of the price of the vehicles popularly known as yellow cab had to
invest by the Habib Bank limited and 10% by the borrowers. It is further stated
that subsequently a separate division was introduced in the name of vigilance
branch whose function was to impound the defaulted vehicles. It is further
stated in the FIR that the accused Peer Deedar Ahmed Sarhandi, Assistant vice
president was posted as Divisional head of the vigilance cell and accused Sabir
Hussain, Assistant Vice president. The accused Peer Deedar Ahmed Sarhandi after
impounding of about 57 vehicles released the same without realizing the loan
amount unauthorizedly and caused a colossal loss of Rs.2,36,19,416/- as such
the accused exercised the powers in abuse of his official powers and committed
criminal breach of trust. The case was, therefore, registered and after usual
investigation, initially the challan was submitted in the Banking Court
(Offences in Banks) at Karachi from where it was transferred on the application
of the prosecution u/s 16-A of the Ordinance, 1999.”
3. Learned Accountability Court No. I,
Karachi framed charge
against deceased appellant/accused and others under the above referred sections
at Ex.3, 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.
6. Learned trial Court after hearing
learned advocate for the deceased appellant, 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:
“After appraisal of the whole
oral as well as documentary evidence available on record, I am of the firm
opinion that the accused Peer Deedar Ahmed Sarhandi while acting as divisional
head of the vigilance team to impound vehicles from defaulting borrowers and
disposed off 57 vehicles involved in the present reference by using corrupt
practice and misuse of powers vested in him either released the vehicles after
receiving money from the customers/ purchasers or after recovery of defaulting
installments from the borrowers but did not deposit the same with the
respective branches of the bank who disbursed the loan to the borrowers by issuing
release orders in writing throughout Pakistan and it has been proved beyond any
reasonable doubt that the accused Peer Deedar Ahmed Sarhandi is the main
offender and the author who committed the offence of embezzlement as such he by
disposal of such vehicles have caused colossal loss of Rs.62.354 million to the
Habib bank limited. The evidence against the remaining accused is not
sufficient to implicate them in the present crime.
After appraisal of whole evidence available on record I am of the firm
opinion that the accused Peer Deedar Ahmed Sarhandi is the accused who is
responsible for the present crime and the evidence did not implicate the
remaining accused to implicate them in the present crime and is highly doubtful
against them as such it brought me to the proposition as to what sentence may
be awarded to the accused. The record shows that originally the accused were
challaned u/s 409/34 PPC r/w section 5(2) of Act-II, 1947 before the Banking
Court (Offences in banks) from where the case was transferred to this court u/s
16-A of the ordinance 1999 and the charge against all the accused was framed
u/s 409/34 PPC r/w section 9(a)(iii),(iv) and (vi) of the ordinance 1999. I am
oblivious of the fact that in criminal administration of justice if the case
has been proceeded in two distinct laws, for the same offence the law which
provides the lesser punishment to the accused will be applied against him. In
the present case originally the accused has been challaned u/s 409 PPC, before
the banking court relating to the offences in banks and the punishment of
section 409 PPC is of life imprisonment besides the fine whereas u/s 10 of the
Ordinance 1999 the maximum punishment of the ordinance is 14 years with fine as
such the law which is providing lesser punishment to the accused is to be
followed by this court. The accused Peer Deedar Ahmed Sarhandi is, therefore,
convicted and sentenced as follows:
(a)
Convict the accused Peer Deedar
Ahmed Sarhandi s/o late Nisar Ahmed Sarhandi u/s 10(a) of the ordinance 1999
and sentence him to suffer Rigorous Imprisonment (R.I) for 14 (Fourteen) years
and a fine of Rs.62.354 million being the colossal loss caused to the Habib
bank limited. In case of default in payment of fine he shall suffer further R.I
for five (05) years. His immovable properties are also confiscated to the Habib
Bank Limited.
(b)
He is also declared
disqualified to hold any public office or contest the elections for a period of
10 years.
(c)
He shall be entitled to the
benefit of section 382-B Cr.P.C.
(d)
He is on bail his bail bond
stands cancelled. He is taken into custody and is remanded to the prison to
serve the sentence in the light of the observation made as above.
(e)
Acquit the accused Sabir
Hussain s/o Suleman, accused Anwar Hyder Qureshi s/o Ghulam Qadri and accused
Muhammad Younus Dalia s/o Muhammad Ismail from the charge u/s 265-H Cr.P.C.
They are on bail, their bail bonds stand cancelled.
7. 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. However, we have decided to hear appeal on
merits in view dictum laid down by the 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, for the
reasons that financial liability of the deceased appellant, consequent upon
conviction and shifted upon the estate, would certainly require the decision by
this 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.
8. Learned advocate for the deceased appellant
mainly contended that prosecution has failed to produce any witness from whom
deceased appellant had recovered cash, whose vehicle was sold out; that no
documentary evidence has been produced against appellant to prove prosecution
case. It is further submitted that co-accused Sabir Hussain, Anwar Haider
Qureshi and Muhammad Younus Dalia have been acquitted by the trial court more
or less on the same evidence and case of the deceased appellant was on better
footing. Lastly, he contended that appellant has expired during pendency of
appeal; prosecution has failed to establish its’ case; liability is not to be
exacted from the assets devolving upon the legal heirs of the deceased
appellant.
9. Learned Special Prosecutor NAB argued
that deceased appellant was head of Vigilance Division to revamp public
transport under the Prime Minister Scheme of Yellow cab for the purpose of
impounding vehicles taken on loan of defaulters borrowers; that prosecution has
proved its’ case that deceased appellant had impounded 57 vehicles of
defaulters, but later on released the vehicles without receiving any loan from
them and in that way caused a loss of Rs.62.354 Million to the HBL; that fact
of issuance of release orders was never disputed in the cross-examination. It
is further argued that PW-10 Yousuf Hussain produced release order at Ex.17/4
signed by the deceased appellant; that PW-13 Muhammad Azeem worked in the
subordination of the deceased appellant confirmed that release orders were
issued by the deceased appellant and signatures of the deceased appellant on
release orders were not disputed at the time of trial. 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
in the circumstances of the case.
10. After
re-assessment of evidence, we have come to the conclusion that prosecution has
proved its’ case beyond reasonable doubt against the appellant, who expired
during pendency of Appeal. Evidence of complainant Anwar Aziz (P.W-01) is very
important for just deciding this appeal on merits. He has deposed that he
joined Habib Bank Limited as Probationary officer in the year 1965. In the year
1996 he assumed the charge of Small Finance Division of Habib Bank Limited. His
duties were to monitor and inform higher ups in office about the small financial
activities. On 13.08.1996, he sent an application to FIA in connection with
misappropriation in yellow cab finances. He further deposed that he found
misappropriation of over 23 million including mark up of 8 million. The
principle amount was of Rs.15 million. The misappropriation in yellow cab
scheme detected since April 1995 to June 1996 by accused Peer Deedar Ahmed
Sarhandi, Sabir Hussain, Muhammad Younus Dalia and other officers of different
grades, then employed in Habib Bank Limited. He further stated that under the
yellow cab scheme specific instructions were passed on to all the concerned
branches of HBL for effective recoveries from the defaulters of the said
scheme. In supersession of the aforesaid circulars accused Muhammad Younus
Dalia had issued circular No.2 in the months of April 1995 whereby a separate
cell was created for effecting recoveries from the defaulters. He further
stated that accused Peer Deedar Ahmed Sarhandi the AVP was appointed as Head of
the Cell. Accused Peer Deedar Ahmed Sarhandi was re-instated by accused
Muhammad Younus Dalia the then President of the bank in the year 1995. As per
Circular No.2 of 1995 it was the duty of accused Peer Deedar Ahmed to intercept
the defaulting vehicles and effect recoveries of the defaulted amount and also
to seize the defaulting vehicles for the purpose of the recoveries of the loans
and the amounts thus recovered was required to be deposited in the concerned
branch wherefrom the loan was granted for the purchase of the vehicle. Accused
Muhammad Younus Dalia had issued circular No.4 of 1995 whereby the status of
the vigilance cell was upgraded to a Division. He further stated that accused
Peer Deedar was authorized to lookafter all affairs, he was required to report
directly to accused Muhammad Younus Dalia. As per his knowledge accused Peer
Deedar was terminated from service of the bank in the year 1973, based on
resignation. During Martial Law regime, he applied for withdrawal of
resignation on the basis that he was victimized, his appeal was rejected by
Martial Law authorities. In the mid of 1980’s accused Peer Deedar approached to
the Labour court for his reinstatement in service. His such plea was rejected
by Labour Court, he thereafter approached appellate labour court where in the
year 1992 a decision was passed in his favour. Habib Bank assailed such
decision before this Court. Order of appellate labour court was set aside by
this Court with direction to deposit all benefits in court. The amount was more
than 400,000/-. It is further stated that accused did not deposit the said
amount in court. Accused Muhammad Younus Dalia reinstated accused Peer Deedar
in service and all the benefits beside Rs.400,000/- were extended in favour of
Peer Deedar. On the proposal of HR Division, accused Muhammad Younus Dalia
rewarded five promotions to accused Peer Deedar. As per approval, the recovery
of Rs.400,000/- from accused Deedar was also waived. He further stated that
initially accused Peer Deedar was inducted as cashier later he was promoted to
AVP after his reinstatement in service. More than Rs.700,000/- were paid to
accused Peer Deedar on his reinstatement as back benefits. One surety furnished
by accused Peer Deedar is still outstanding liability against him. Accused Peer
Deedar and other who were responsible for the affairs of vigilance division
regarding the impounding yellow revamp scheme did not discharge their duties as
per rules. As per procedure the vehicles were required to be impounded and in
case of default those vehicles were required to be kept in bank godown. He further
stated that accused Peer Deedar Ahmed Sarhandi released the vehicles
unauthorizedly without realizing the amount, some vehicles were released after
realizing the amount which was not deposited in the branches of Habib Bank. The
complaint started arising from the loans when the vehicles were impounded and
after realizing the amount the same were not released, the loanees wanted their
vehicles back. He further deposed that he had received complaints of 29
vehicles including two vehicles of UBL. When he took over the charge, as per
reports from different divisions, one thousand impounded vehicles were
available with the banks. Accused Deedar Ahmed had released the vehicles
unauthorizedly without depositing the recovered amount in HBL which caused
colossal loss of Rs.23 million to HBL. Accused Muhammad Younus Dalia served as
president HBL upto June 1996, during his regime also complaints were received.
Shujaul Hassan took over as president of HBL after accused Muhammad Younus
Dalia, he gave instructions to him to investigate into the matter. He further
stated that he reported the matter to FIA for investigation. Formal report was
lodged in September 1996. He produced letter Ex.8/1, FIR at Ex.8/2 and detailed
list of vehicles at Ex.8/3.
11. In cross-examination, he denied the
suggestion that he had hatched conspiracy with Shujaul Hassan and other
official of the bank for removal of accused Peer Deedar and Muhammad Younus
Dalia from services of HBL. He has also denied the suggestion that he had
deposed falsely against deceased appellant due to enmity. Other P.Ws namely
Muhammad Athar Jamal, Nafees Ahmed Khan, Raeesuddin Ansari, Abdul Saleem,
Khalid Hussan Rajpar, Muhammad Amir Saeed, Syed Faizur Rehman, Shakeel Raza,
Yousuf Hussain, Muhammad Arif, Shahzad Ahmed Khan, Muhammad Azeem, Rahim Bux
Mahar, Ateshamuddin Nazar, Jahangir Ahmed Awan, Muhammad Saleem, Dost Muhammad,
Sheikh Irshad Hussain, Ayaz Hussain, Mirza Masood Alam Baig and Gulsher Mugeri,
have also fully supported the prosecution case at trial. Evidence of all the
P.Ws is consistent on material aspect of the case. No doubt, there are some
minor contradictions, which were highlighted by the learned counsel for the deceased
appellant, but the same are minor in nature and not material and certainly not
such materiality so as to effect the prosecution case and the conviction of the
deceased appellant. In this respect reliance is placed on the case of Zakir
Khan vs. State (1995 SCMR 1793).
12. Admittedly,
deceased appellant was head of Vigilance Cell under the Prime Minister Scheme
of yellow cab for the purpose of impounding vehicles obtained on loan of
defaulters borrowers. It has come on record that deceased appellant had
impounded 57 vehicles of defaulters, but later on released vehicles without
receiving any loan from them and in that way caused a loss of Rs.62.354 Million
to the HBL. Prosecution examined 22 witnesses in order to substantiate the case.
All of them have deposed against deceased appellant at trial. Amir Aziz PW-01
bank official, deposed that he had made complaint to FIA on 13.08.1996 against
embezzlement and misappropriation in yellow cab finance scheme and it was duty
of the deceased appellant to impound defaulting vehicles and to effect
recoveries but deceased appellant misused his authority and without recovering
defaulted amount. As regards to the
issuance of release orders is concerned, it is matter of record that this fact
was not disputed in the cross-examination. All the P.Ws were cross-examined at
length but signatures of the deceased appellant were not challenged/disputed by
his counsel. Abdul Salam PW-5 had produced release orders before trial court at
Ex.12/1 to 12/10. PW-06 Khalid Hussain recognized the signatures of deceased
appellant on release orders. P.W-10 Muhammad Yousuf Hussain produced release
order at Ex.17/4 signed by deceased appellant. P.W-13 deposed that he had
directly worked under deceased appellant. He confirmed the fact that release
orders were not issued by deceased appellant.
13. Learned trial Court has rightly appreciated
evidence according to settled principles of law and disbelieved defence plea by
assigning sound reasons. Therefore, we have no hesitation to hold that conviction
and sentence recorded by learned trial Court vide judgment dated 26.04.2010,
calls for no interference on merits, but during pendency of appeal, the deceased
appellant has expired and his appeal is abated against him. So far fine of
Rs.62.354 million is concerned, in terms of Section 431 Cr.P.C, fine is ordered
to be recovered as land revenue from assets devolved upon the legal heirs of
deceased appellant. Immovable properties of deceased convict have rightly been
confiscated by trial court to Habib Bank Limited. We further observe that
normally criminal cases and appeals abate after the expiry of an accused but
this abatement can affect the case to the extent of the punishment, provided
under the sections of law involved in the FIR and the case to that extent will
abate but as far as the property, which has also been made a subject matter of
reference or the FIR with the allegations of embezzlement, fraud, cheating etc.
cannot ipso facto be cleared from the
allegations and will not vest clear title on the deceased accused, therefore,
his legal heirs too could not be in position to claim the same until the
allegation in respect to the property is being disproved. The abetment, after
expiry of an accused, can only be in respect to his personal corporeal would be
punishments but not in respect to the properties, as such, the properties which
are made subject of the reference to involve an accused person in a criminal
case or a reference etc. cannot automatically be taken out of the allegations
and their status and title is to be considered by the court even after the
death of an accused person. Under the references of the NAB, the properties,
which are made subject matter of a reference are normally considered public
property until vice-virsa held by proper adjudication, therefore, death of an
accused cannot do that job. In the present case, deceased appellant faced
full-fledged trial and he was found guilty by the learned Accountability Court
and his appeal is without merit and appellant has expired during pendency of
the appeal. In this respect Honourable Supreme Court has laid down law in the case
of Sheikh
Iqbal Azam Farooqui through his legal heirs vs. The State through Chairman NAB
(Criminal Petition No. 79-K of 2019) decided on 02.01.2020. The relevant
portion is reproduced as under:
“4. Corporal consequences of a conviction wither
away with the death of the convict, therefore appeal filed by the convict would
automatically abate, as the death severs all temporal links with his corpus.
However, financial liability, consequent upon conviction and shifted upon the
estate, would certainly require the appellate court to decide the appeal on its
own merit 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 of
the Code ibid confirms the above contemplation of law. Criminal petition is
converted into appeal; allowed. The impugned order is set aside. Appeal filed
by the deceased, being sustained by his legal heirs, shall be deemed as pending
before the High Court for adjudication on merits.”
14. In another case reported as (2019 SCMR
1144) Muhammad Shamoon (deceased) through legal representatives vs. The State
and another, the Honourable Supreme Court held as under:
“Monetary punishment is to be carried out from the assets
held by the offender; his death would not absolve the legacy and it is
unambiguously evident by the legislative intent manifested in section 386 of
the Code of Criminal Procedure, 1898. Diyat is amongst the punishments provided
under the Code and according to clause (e) of section 299 thereof, it is
compensation payable to the legal heirs of the victim, value whereof, is
equivalent to 30,630 grams of Silver to be determined on yearly basis. Section
331 of the Code provides that an offender burdened with payment of Diyat, in
the event of default, shall remain lodged in prison until it is paid in full or
through installments settled against security, however, under subsection (3)
thereof, in the event of his death, it shall be recoverable from his estate. A
combined reading of section 431 of the Code of Criminal Procedure, 1898 with
section 331 of the Code, unambiguously ensure continuation of appeal by an
offender liable to payment of Diyat even after his death, thus, there was no
occasion for the learned Judges in the High Court to short-circuit the
proceedings without adjudication on merit.”
15. For the above stated reasons and law laid
down in the above mentioned judgments, as appellant has expired during pendency
of appeal, proceedings are abated against him. However, since we have heard his
appeal on merits and dismissed the same whilst upholding the impugned judgment.
So far as fine of
Rs.62.354 million is concerned, the same is ordered to be recovered as land
revenue from assets devolving upon the legal heirs of deceased appellant in
accordance with law.
16. The instant Accountability Appeal stands
disposed of in the above terms.
JUDGE
JUDGE