IN THE HIGH COURT OF SINDH CIRCUIT BENCH AT SUKKUR

 

C.P No.D-444 of 2021

 

 

Present:-

Mr. Justice Zafar Ahmed Rajput,

Mr. Justice Amjad Ali Sahito

 

 

Petitioner:                     Javed Ali s/o Muhammad PannahJagirani through Mian Ali
Ashfaq, Advocate.

Respondent:                  NAB through its Chairman through Mr.Mujeeb-ur-RehmanSoomro Special Prosecutor NAB, Sukkur.

                                      Mr. MumtazGopang, Assistant Attorney General.

Date of hearing:            12.10.2021.

Date of Order:               12.10.2021.

 

 

O R D E R

 

 

AMJAD ALI SAHITO, J:-      Through the instant petition, the petitioner namely Javed Ali is seeking suspension of his sentence pending final disposal of his Criminal Accountability Appeal No.D-25 of 2021, directed against the judgment dated 27.02.2021, whereby he was convicted for the offences under section 9 (a), (iii), (iv), (vi) and (xii) of the National Accountability Ordinance, 1999 (the “Ordinance”)by the Accountability Court, Sukkur in Reference No.08 of 2016 (Re. The State v. AsifSardarArain and others) and sentenced him to suffer R.I. for 07 years and to pay fine of Rs.5,24,922/- with the direction that if he fails to pay the fine, the same shall be recoverable as arrears of Land Revenue in terms of section 33-E of the Ordinance. The benefit of section 382-B, Cr.P.C. was however extended to him.

2.                           The allegations against the petitioner are that during his incumbency as DC/Administrator from 1st January 2015 to 28th August 2016 in Larkana Municipal Corporation in connivance with the other accused issued 69 fake quotations for supply of electric material and thereafter released funds on fake documentation, as such, accused caused loss to the government exchequer and NAB authorities fixed individual liability and gain of Rs.5,24,922/- upon the petitioner.

3.                           Learned counsel for the petitioner has contended that the petitioner is not involved in such illegal activities which may cause loss to the government exchequer; that neither the petitioner was beneficiary nor there was the allegation of corruption or corrupt practice; that no allegation of misuse of authority or embezzlement of funds is against him; that PW-27 admitted that purchasing on the part of the department was taken place in the light of SPPRA Rules, 2010. He further contended that there is no notification of the Provincial Government whereby the administrators of the council were assigned the power of Chairman or Mayor; that the petitioner was signatory authority, which too after pre-audit. The petitioner remained in jail for a sufficient period and there are bright chances of his acquittal, as such, by considering the well-settled maxim that an innocent should not be kept behind the bars, the sentence awarded to the petitioner may be suspended and he may be enlarged on bail. According to him, even if the NAB authorities succeeded to prove its case against the petitioner he will serve out the remaining portion of his sentence.

4.                           Conversely, learned Special Prosecutor for NAB as well as learned AAG has vehemently opposed for suspension of sentence awarded to the petitioner on the ground that he is involved in corruption and corrupt practice.

5.                           We have heard the learned counsel for the petitioner, Special Prosecutor NAB and AAG for State have minutely perused the record with their able assistance.

6.                           Against his conviction and sentence, the petitioner has already preferred a Criminal Accountability Appeal No.D-25 of 2021, which has already been admitted to regular hearing; however, the same has not been decided and still may take some time as the evidence of prosecution witnesses and observations of the trial Court are yet to be re-appreciated and re-evaluated. However, the apparent defects in the impugned judgment cannot be ignored as pointed by learned counsel for the petitioner, which goes to the root of the case. Besides this, this Court is cognizant of the fact that while hearing the petition seeking the release of the petitioner during the pendency of his appeal by suspending the sentence, deeper appraisal of the evidence is to be avoided. It will not be out of place to observe that this Court’s discretion to grant bail by suspending sentence is not fettered or restricted by reference either to the conviction or to the sentence passed against the appellant by trial Court, but like all discretions vested in the Courts, the discretion has to be exercised judicially. Reference in this regard can be made to the case of AltafHussain Shah v. The State (1986 P Cr. LJ 2202) and the case of Abdul Ghaffar v. Anwar-ul-Hassan (1978 SCMR 149). Similarly, in the case of Abdullah Khan v. Karam Dad Khan and another (1986 SCMR 1064), the Hon’ble Supreme Court has held that section 426, Cr.P.C. does not impose any limitation on the powers of the High Court to grant bail to an accused convicted even for the murder. In the case of Faqir Muhammad v. Akbar (1979 SCMR 270), the Hon’ble Supreme Court refused to interfere with the order of the High Court suspending the sentence of a convict sentenced to imprisonment for life on the ground that plea of self-defence needed examination. Further reference in this regard reference can also be made to the case of Haji Mir Aftab v. The State (1979 SCMR 320) Maqsood v. Ali Muhammad and another (1971 SCMR 657) HazratUllah v. The State (1979 P Cr. L.J 1104), Maqsood Ahmed v. State (2005 YLR 1049).

7.                           Admittedly the petitioner Javed Ali jagirani neither was an employee of Municipal Corporation Larkana nor posted as Municipal Commissioner or Mayor but after the dissolution of the Local Government, he was given charge of Administrator, at that time the petitioner was posted/working as Deputy Commissioner, Larkana. The allegation against the petitioner was that during the posting from 1st January 2015 to 28thAugust 2016 in connivance with accused No.8 (Ghulam Abbas Shaikh) Ex-Store Purchase Officer, K.K. Contractor and Abdul Hameed Ex- Municipal Commissioner and Munwar Ali Brohi were involved in the misuse of authority and misappropriation of funds by issuing 69 fake quotations for supply of electric material in connivance with the above accused. His liability and gain was Rs.5,24,922/-. On the above allegations, the charge was framed and in the judgment, the point for the determination of the case was framed in point No.2 it was observed that “Whether the accused JavedJagirani and other accused persons by misusing their authorities approved fake quotations containing fake bills managed by the accused Ghulam Abbas Shaikh, Store Purchase Officer for awarding contracts of supply of electric material etc.

8.                           From the perusal of the Sindh Local Government Act, 2013 (hereinafter referred to as ‘Act of 2013’), no definition of Administrator has been provided nor any job description has been given. PW-27 Karim Bux Assistant Director, Local Fund Audit Department Larkana deposed that powers of the Administrator have been defined in Sections 79 and 80 of the Act, 2013. Section 79 of the Act, 2013 reads as under:-

79. Executive Powers.- (1) The executive powers of a Council shall extend to the doing of all acts necessary for the due discharge of its functions under this Act.

(2) Save as otherwise provided in this Act and the rules, the executive powers of a Council shall vest in and be exercised by its Mayor or Chairman, as the case may be, either directly or through any person authorized by him in accordance with the rules.

(3) All acts of a Council shall be expressed to be taken in the name of the Council and be authenticated in the prescribed manner.

 

Whereas section 80 provides the powers of Mayor or Chairman, which reads as follow:-

 

80. Powers of Mayor or Chairman.- (1) The Mayor or Chairman, as the case may be, shall –

(a) unless prevented by reasonable cause, preside at all meetings of the Council, and regulate the conduct of business at such meetings in accordance with rules;

(b) watch over the financial and executive administration of the Council and perform such executive functions as are assigned to him by or under this Act;

(c) exercise supervision and control over the acts and proceedings of all employees of the Council and dispose of all questions relating to their service, pay, privileges and allowances in accordance with the rules; provided that service matters of the members of the Sindh Councils Unified Grades shall be referred to Government;

(d) have power in cases of emergency to direct the execution or stoppage of any work or the doing of any act which requires the sanction of Government or the Council, and the immediate execution or stoppage or doing of which is, in his opinion, necessary for the service or safety of the public and the action so taken shall forthwith be reported to Government or, as the case may be, to the Council at its next meeting; provided that he shall not act under this clause in contravention of any provision of this Act or order of the Council or Government.

(2) When the Mayor or Chairman by reason of absence from Pakistan or any other cause, is unable to exercise his powers and perform his functions, the Deputy Mayor or, as the case may be, Vice Chairman, shall exercise powers and perform functions of the Mayor or, as the case may be, Chairman:

Provided that in the absence of Mayor, Deputy Mayor, Chairman or Vice-Chairman, the Government may by Notification entrust the duties of the Mayor, Deputy Mayor, Chairman or Vice-Chairman as the case may be to some other member.

 

                   From the above, it is clear that only the Council and Mayor or Chairman can use the powers. The PW-27 failed to produce any notification, which could suggest that all the powers of the Council (Council means a Corporation, Municipal Committee, Town Committee, District Council or Union Council, as the case may be) Mayor or Chairman has been given to the Administrator. Further, Sindh Local Councils (Accounts) Rules, 1983 provides the definition of “Accounts Officer” which means the Accounts Officer of Council and includes the Chief Accounts Officer, Senior Accounts Officer, Assistant Accounts Officer and an Accountant responsible for up-keep and correct maintenance of accounts of a Council. It is worth mentioning here that Rules 70 and 95 of the Sindh Local Councils (Accounts) Rules, 1983 do not concern the roles and responsibilities of an Administrator. These Rules define the roles and responsibilities of the official/officer relating to the Accounts Department of the Local Councils as is clear from the name and nomenclature of the rules. The Rule 70 ibid provides that;

Preparation and issue of cheques.

70.   (1) Cheques shall be prepared by the Chief Accounts Officer after such scrutiny and examination by him of the bill as may seem necessary to him and after passing of the bill by the Auditor of the Local Fund Audit Department where day-to-day audit is in force.

        (2) The Chief Accounts Officer shall scrutinize the bill or voucher with reference to rules and orders in force and if claim is admissible and the authority good i.e. if the charge has been sanctioned by a competent authority according to rules, and the signature be true and in order, will attach a face sheet to the bill or voucher in Form No.61 and then pass it on to the Chief Executive, Town Officer or the Secretary as the case may be or to any officer authorized to record “Payment Order” who after recording the same return the bill or voucher to the said Accounts Officer for further action.

        (3) In a Council where Day-to-Day audit of the Local Fund Audit Department is in force, the Chief Accounts Officer shall cause the bills to be submitted to the Auditor for pre-audit and passing of the bills. The Chief Accounts Officer shall attend to all pre-audit objections and arrange to meet the same most expeditiously. On the return of the bill duly passed by the Auditor, the Chief Accounts Officer shall proceed to issue cheque for the amount of the bill or voucher less adjustments, if any. In councils where there is no Day-to-Day audit of the Local Fund Audit Department, the Chief Accounts Officer shall proceed to issue cheque soon after Payment order has been recorded by the Chief Executive or his authorized delegate. Simultaneously with the preparation of the cheque, its entry shall be made in the cheque Register in Form No.62 forwarded to the officers authorized to sign cheques of the Council for payment, provided that in Councils where Day-to-Day audit of the Local Fund Audit Department is in force both the Chief Executive, Town Officer or Secretary as the case may be shall sign the cheques provided the Mayor or Chairman may assign the duty of signing the cheque on his behalf to an officer not below Grade-16.

        (4) …….

          (5) …….

          (6) …….

(7) …….

(8) …….

(9) …….

(10) ….

 

9.                           In the instant case alleged 69 quotations have been duly processed as per rules and procedure by respective branches and duly verified by all those officers duly audited by Audit Officer and finally approved by the Administrator. The PW-27 KarimBux, Assistant Director, Local Fund Audit Department Larkana admits in his cross-examination that “It is correct to suggest that there is no notification of the Provincial Government whereby the administrators of the council were assigned power of Chairman and Mayor are defined… It is correct to suggest that there is a pre-audit fund provision in the Local Government Act, 2013. Pre-Audit is conducted by local fund audit department. It is correct to suggest that whenever any bills is tabled, it is pre-audited as to whether the same was prepared in accordance with rule or not. I pre-audited all the bills came before me pertaining to the case during my period. I pre-audited the bills on the basis that all the bills were processed in accordance with law. I found that the rules enforced in that time were properly applied. It is correct to suggest that amounts were disbursed from proper head. It is correct to suggest that there is a system of post audit. I did not raise any objection on the bills during the course of pre-audit. I did not find fault with the documents during pre-audit.” During his cross-examination, he has also deposed that “It is correct to suggest that maximum period of my service is in Larkana. It is correct to suggest that I have been residing in Larkana since my birth. It is correct to suggest that every vouchers of purchasing is presented before me, which is checked. Voucher is signed by the purchaser. No complaint from Larkana Municipal Corporation was received to me that any officer raised objection that the voucher or bill was not signed by him…. It is correct to suggest that cheque is not issued without pre-audit… It is correct to suggest that technical checking and verification is function of engineering branch. It is correct to suggest that certificate of “work done” is also issued by engineering branch. It is correct to suggest that administrator is not concerned with technical checking, verification and issuance of work done certificate…It is correct to suggest that under sections 79 and 80, administrator is not bound to check the work physically.”…It is correct to suggest that most of the cheques in the present case were issued on my pre-audit. It is correct to suggest that having completed all the documentation, I allowed the issuance of cheques. It is correct to suggest that Administrator was bound to issue the cheque after my pre-audit.

10.                       So far the allegation against the petitioner in respect of quotations with regard to electric materials is concerned; a ‘Certificate’ has been signed by the officials. For the sake of convenience, we would like to reproduce the same as under:-

 

CERTIFICATE

 

1.       Certified that claim has been checked with reference to be all rules and order involve any claim admitted according.

2.       Certified that I have satisfied that the expenditure has been sanctioned by the competent.

3.       Certified that the expenditure has been charge to correct budget head i.e. by Head/Sub Head unit and subsidiary unit.

4.       Certified that all recoveries which to be made have been made in this bill.

5.       Certified that amount claimed in this bill have not been drawn before.

 

Sd/-                                   Sd/-                             Sd/-

Senior Accountant.Accounts Superintendent. Superintendent Budget.

Passed for payment of Rs.50000 Rupees Fifty thousand only.

 

            Sd/-                                                                       Sd/-

Accounts Officer                                        Municipal Commissioner

Larkano Municipal Corporation   LarkanoMunicipal  Corporation

 

Sd/-

Administrator

Larkano Municipal Corporation

Larkano.

 

                   Learned Counsel for the petitioner submits that in all bills passed for payment, such type of certificate is being signed by six persons i.e. Senior Accountant, Accounts Superintendent, Superintendent Budget, Accounts Officer, Municipal Commissioner and in last the Administrator. It is relevant to mention here that under the relevant provisions as quoted above after the methodical scrutiny of the relevant Account Officers and audit by the Auditor of the Local Fund Audit Department, the Administrator finally sign the bills. Surprisingly, if any misappropriation of funds has been made, the concerned officers who checked/audited the subject bills, have not been made accused in the instant reference by the NAB authorities.

11.                       In the circumstances, to prove the charge of misuse of authority, at least two basic ingredients i.e. Mens Rea and Actus Reus of crime have to be necessarily established and in case any one of them is found missing, the offence is not made out as it is a general principle in criminal law that for a person's liability to be established it must be shown that the defendant possessed the necessary Mens Rea at the time the Actus Reus was committed. The Actus Reus is the amount to be a crime only when it is accompanied by the appropriate Mens Rea. To cause an Actus Reus without the requisite Mens Rea is not a crime but maybe an innocent act. Tentatively, from the evidence of PW-27 KarimBux, we found a lack of both ingredients.

12.                       It is worthwhile to note that suspension of sentence and enlargement of an accused means to procure the release of one charged with an offence by ensuring his future appearance in Court and compelling him to remain within the hands of the Court through surety coupled with to minimize further incarceration of a period if after long run finally he is acquitted.  In addition to the above, the concept of the release of the accused during the pendency of appeal against his conviction should not clash merely on the ground that the trial Court has convicted and sentenced the accused but the element of a forthcoming decision of appellate Court is to be focused, which in the case comes in favour of accused, the release of an accused on bail is a greater step to stop further incarceration of an innocent; and in case, the conviction and sentence awarded by the trial Court are maintained then the accused who is released on bail would be taken into custody for serving his remaining period of sentence etc.

13.                       Keeping in view the ratio of the judgments of the Hon’ble Supreme Court as referred hereinabove, and defect as noted in the impugned Judgment. We were persuaded to suspend the sentence awarded by the learned trial court to the extent of the petitioner Javed Ali Jagirani. As a consequence of the above discussion, we allowed the instant petition and above are the reasons for our short order dated 12.10.2021, whereby the operation of the sentence awarded to the petitioner under the impugned judgment dated 27.02.2021 was suspended and the petitioner was enlarged on bail subject to furnishing solvent surety in the sum of Rs.500,000/00(five lac) and PR  bond in the like amount to the satisfaction of Additional Registrar of the Court in Criminal Accountability Appeal No.D-25/2021, with direction to the petitioner to attend the appellate Court.

 

 

                                                                                                JUDGE

                                                             JUDGE

 

 

 

*Abdullah Channa/PS*