THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Accountability Appeal No. 26 of 2017
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Appellant : Mukarram Alam through Syed Fazal-ur-Rehman
advocate
Respondent : The NAB through Mr. R.D. Kalhoro, Special Prosecutor
NAB
Mr.
Irfan Memon D.A.G
Date
of Hearing : 07.12.2021
Date
of decision : 15.12.2021
JUDGMENT
NAIMATULLAH PHULPOTO, J.- Mukarram Alam was tried by
learned Accountability Court No.III, Sindh at Karachi in Reference No.10/2016. After
regular trial, he was convicted and sentenced as under:
“In view of my
findings and reasons on point Nos. 01 to 03, the prosecution has proved the
case against accused Mukarram Alam for committing an offence punishable U/s 10
of the National Accountability Ordinance, 1999 R/w Sr. No.5 of the schedule of
the offences appended with the National Accountability Ordinance. Therefore, this
court convict the accused Mukarram Alam Khan S/o Muhammad Maqbool Alam U/s
265-H(ii) Cr.P.C while taking lenient view that accused did not market the
subject leases and signed only 09 vehicles lease agreement hence sentenced him to suffer R.I for 04 years and accused is
equally responsible to pay 50% fine of nine (9) leases Ex 8/3, Ex 8/4, Ex
8/7, Ex 8/8, Ex 8/9, Ex 8/10, Ex 8/11, Ex 8/12, Ex 8/13, in which he signed
vehicle lease agreement after deduction of down payment and rental paid if any,
in case of nonpayment of fine accused shall suffer R.I for one year more. The
accused stands disqualified for a period of 10 years to be reckoned from the
date he release after serving the sentence, for seeking or from being elected,
chosen appointed or nominated as a member or representative of any public body
or any statutory or local authority or in service of Pakistan or of any
province so also shall not be allowed to apply for or be granted or allowed any
financial facilities in the form of any loan or advances from any bank or
Financial Institution in the public sector, for a period of 10 years from the
date of conviction. The accused namely Mukarram Alam produced in custody he is
remanded back to the Central Prison to serve the sentence. The Accused,
however, is entitled for the benefit of Section 382(B) Cr.P.C.”
2. Brief facts of the prosecution case, as
mentioned in the impugned judgment dated 31.10.2017 are as under:
“Briefly facts as narrated in the reference are that on
receipt of a complaint from Askari Leasing Limited against the officers of
Karachi Branch regarding their involvement in misappropriation through creating
fraudulent lease accounts on fake documents, thereafter an inquiry was
authorized which subsequently was converted into investigation and authorized
vide letter No.3489/FCIW/CO-B/T-2/NAB Sindh/2014/K-716 dated 19th
March 2014 by the then competent authority of NAB. It was found and alleged
that accused Mukarram Alam Khan being Vice President and Chief Manager of
Askari Leasing, Karachi Branch was responsible for sending lease cases to Head
Office for approval after ensuring that all due diligence requirements were
fulfilled, but he had sent sale & lease back cases on fake lease documents
to Head Office for approval and disbursement which were arranged on wrong
information/fake verification reports/ bogus documents, neither any customer
nor the assets are traceable in the said cases. The assets price was over
invoiced which resulted in excess disbursement and caused huge losses to Askari
Leasing and he had granted 13 leases amounting to Rs.40.324 million (approx.)
on the basis of forged and fictitious documents, the details of which are as
under:
|
Sr.No |
Customer No |
Facility
Type |
Name |
Terminal value |
|
1. |
003123/Kl |
Consumer |
Muhammad Amir |
502,149 |
|
2. |
003281/KI |
Consumer |
Bux Ali |
1,365,588 |
|
3. |
003369/KI |
Consumer |
Ali Muhammad |
1,524,962 |
|
4. |
003442/KI |
Consumer |
Gohar Ali |
3,034,700 |
|
5. |
003450/KI |
Consumer |
Ibrahim |
3,706,977 |
|
6. |
003467/KI |
Consumer |
Ashfaq Hussain |
720,465 |
|
7. |
003497/KI |
Consumer |
Muhammad Siddiq |
2,106,756 |
|
8. |
003499/KI |
Consumer |
Shaikh M. Azhar |
1,849,685 |
|
9. |
003511/KI |
Consumer |
Behzad Ahmed |
1,833,886 |
|
10. |
4676 |
Corporate |
Universal Plastic |
11,217,170 |
|
11. |
000421/KIC |
Corporate |
M/s Naik Wali & Company |
4,640,819 |
|
12. |
000437/KIC |
Corporate |
M/s Qalandar & Company |
3,907,158 |
|
13. |
00438/KIC |
Corporate |
M/s Qalandar & Company |
3,913,857 |
|
Total |
40,324,172 |
|||
It is also alleged by the prosecution that accused
Khawaja Husnain (who availed the option of plea bargain) being Marketing/
Operation Officer was responsible for processing Askari Individual, Askari Corporate,
Machinery lease cases (right from scratch till disbursement) by performing
complete due diligence and he processed 08 incomplete lease cases and provided
bogus documents in sale and lease back cases where the lease documents were
forged and assets did not exit, whereas accused Muhammad Naseem Akhtar (who
also availed the option of plea bargain) being Marketing/ Operation Officer was
also responsible for processing Askari Individual, Askari Corporate Machinery
lease cases (right from scratch till disbursement) by performing complete due
diligence and processed 05 incomplete lease cases and provided bogus documents
in sale and lease back cases where the lease documents were forged and assets
did not exist, he leased a Corolla Xli to M/s Qalandar Khan & Co. (Lease
No.3410/Ki) remained under his use for many months. It is further alleged that
accused Syed Imran Qaiser (availed the option of plea bargain) being Marketing
Officer was responsible for processing lease cases after performing due
diligence and he processed lease case of Suzuki Baleno JXL Petrol 2005 April 11th
2007 on bogus and incomplete documents which remained under his personal use
for many months, number of cases have been observed against sale of repossessed
vehicles in which bid money received from clients were not deposited in all
accounts, there are also cases where no bid money was received, but “Katchi”
receipts were prepared by him to convey Head Office for the genuineness of
offer, which offers were actually from dummy clients, mostly branch employees.
It is further the case of prosecution that accused Muhammad Salman Naseem being
Marketing/Operation Officer was responsible for processing Askari Individual,
Askari Corporate, Machinery lease cases (right from scratch till disbursement),
he processed one incomplete lease case and provided bogus documents in sale and
lease back cases where the lease documents were forged and assets did not exit
and he leased machinery through bogus document sin case of M/s Universal
Plastic which was mortgage as additional security. Thus, all accused persons in
connivance with each other have processed 13 leases on fake and forged
documents which resulted in a loss to the tune of Rs.40.324 million (approx.) to Askari Leasing Limited, hence this
reference.”
3. Learned Accountability Court No. III,
Karachi framed the charge
against the 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 09 witnesses, who exhibited various documents in support of
the prosecution case, where after the prosecution closed its’ side.
5. Trial Court recorded statement of
appellant/accused under Section 342 Cr.P.C, in which he denied prosecution
allegations and claimed his false implication in this case. Neither he examined
himself on oath in disproof of the prosecution allegations in terms of Section
340(2) Cr.P.C nor examined defence witness.
6. Learned trial Court after hearing
learned advocate for the appellant, Special Prosecutor NAB and after assessment
of the evidence convicted and sentenced the appellant as mentioned above, mainly
for the following reasons:
“PW-3 Arshad Qureshi and PW 9 Bux
Ali directly implicated the accused Mukaram Alam in wrong practices, no ill
will or motive alleged against them to depose falsely or any enmity alleged
against said PWs, it shows that the accused has committed the criminal
negligence while discharging his official duty which resulted into loss to the
financial institution. In view of above findings point is answered in
affirmative.
POINT No. 2:
The fact of non-registration of
vehicles in the name of Askari Leasing are established from evidence of PW 6 Qaim
Ali Inspector, Excise & Taxation Department, Lasbella who deposed that
THL-881 (Hino Oil Tanker Trailer), TLH-520 (Hino Oil Tanker Trailer), TTB-476
(Hino Oil Tanker Trailer), TLG-262 (Hino Oil Tanker Trailer), TKH-979 (Hino Oil
Tanker Trailer), TKE-917 (Nisan Dump Tuck), TLJ-275 (Nisan Truck Trailer) not
registered in the name of Askari Leasing and W 8 Miadad Soomro Inspector Excise
& Taxation Department, Karachi confirmed that vehicles viz AFN-907 (Toyota
Corolla) in the name of Muhammad Imran Javeed, AMR-109 (Daihatsu Coure) in the
name of Asif Mehmood, AKP-140 (Suzuki Mehran) in the name of Masood Ali,
AMB-509 (Suzuki Cultus) in the name of Muhammad Saeed, ATN-483 (Suzuki Cultus)
in the name of Atlas Capital Market Pvt Ltd, AKN-759 (Suzuki Cultus) in the
name of Sharifa Agha Ibrahim ANP-115 (Toyota Corolla) in the name of Pak
Limousine Services Pvt Ltd, ANA-397 (Suzuki Mehran) in the name of Wasif
Mansoor and ANE-116 (Suzuki Alto) in the name of Irshad Ali Baig, so these
vehicles are not registered in the name of Askari Leasing.
In consumer leasing the only
available security is leased asset i.e. vehicle and itself the strongest
security as the ownership of the assets remains in the name of leasing company
and in case of non-payment the assets can be repossessed for recovery of
overdue amounts, in present case huge amount invested in very weak assets or
the parties are not traceable so the only remedy was to repossess the vehicle
to recompense loss, but vehicles were not registered in the name of the Askari
Leasing Limited due to which Askari Leasing could not repossess the vehicle
which resulted into losses. Accused pointed out the Photostat copies of
registration books available with documents produced by PW 1 and alleged that
vehicles are in the name of Askari Leasing, but it is the case of the
prosecution that these registration books were tempered and fake books were
prepared just to mislead and cheat the financial institution and such version
of the prosecution is proved through the evidence of Motor Vehicle Inspectors
PW 6 & 8 who firmly deposed that mostly vehicles are not the name of Askari Leasing...”
7. 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 the appeal
on merits in view of the dictum laid down by the Honourable Supreme Court of
Pakistan in the case reported in 2020 SCMR 359 (Sheikh Iqbal Azam Farooqui
through his legal heirs vs. The State through Chairman NAB), 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 appellant was employee of Askari Leasing Limited; that no
loss was caused by the deceased appellant to the Government Exchequer. It is
further argued that prosecution failed to establish that deceased appellant on
the basis of fake CNICs leased out vehicles; that nothing incriminating was
recovered from the deceased appellant during investigation. Lastly, it is submitted
that prosecution has utterly failed to prove liability to be exacted from the
assets devolving upon the legal heirs of the deceased appellant. Learned
advocate in support of his contentions relied upon the cases reported in 2016
P.Cr.L.J 193 (Dr. Asghar Ali vs. The State and others), 2017 P.Cr.L.J 147 (Zahid
Ali Noor vs. NAB and others), 2017 P.Cr.L.J 854 (Syed Hamid Saeed Kazmi and
others vs. The State) and 2006 YLR 1648 (Malik Salah-ud-Din Dogar vs. The State).
9. Learned Special Prosecutor NAB argued
that prosecution has succeeded to prove its’ case against deceased appellant by
producing documentary evidence; that deceased appellant was Chief Manager in
the Askari Leasing Limited at the relevant time and he, on the basis of fake
documents/ CNICs got vehicles leased from the company. Learned Special
Prosecutor NAB further argued that P.Ws-03 and 09 have fully implicated
deceased appellant in the commission of the offence; that P.Ws had no ill-will
or enmity with deceased appellant to falsely implicate him in the case. Lastly,
he prayed for dismissal of the appeal on merits and submitted that liability may
be ordered to be exacted from the assets devolved upon the legal heirs of
deceased appellant in the circumstances of the case.
10. The learned counsel for the deceased appellant at the very
outset submitted that the appellant died during pendency of this appeal,
however the learned counsel requested to hear the appeal on merits and assisted
the Court about maintainability of an appeal of a "dead person".
Before discussing other aspects of the case for the purpose of convenience
section 431, Cr.P.C. is reproduced as under:-
"Section 431. Abatement of appeals…...Every
appeal under section 411A, subsection (2), or section 417 shall finally abate
on the death of the accused, and every other appeal under this Chapter (except
an appeal from a sentence of fine) shall finally abate on the death of the
appellant".
11. It
is clear that 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. 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 appellant has expired during
pendency of the appeal. In the case reported in 1971 SCMR 35 (Dr. Ghulam
Hussain (Represented by 8 heirs) vs. The State), it is held that appellant died
during pendency of the appeal. As, however, a sentence of fine was inflicted by
the Court below in addition to the sentence of imprisonment, the appeal does
not abate under section 431 of the Criminal Procedure Code. In
case reported in 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.”
12. In the case reported in 2020 SCMR 359 (Sheikh
Iqbal Azam Fraooqui through Legal Heirs vs. The State through Chairman NAB), it
is held
as under:
“2. Learned counsel for the legal heirs of the
deceased convict contends that notwithstanding death of the convict, his
appeal, admitted to regular hearing during his life time, merited full dress
regular adjudication as not only his name required vindication but also for the
additional reason that his estate, devolving upon the legal heirs, was burdened
with impugned conviction. While referring to the provisions of section 431 of
the Code of Criminal Procedure, 1898, law declared by this Court in the cases
of Dr. Ghulam Hussain (represented by 8 heirs) v. The State (1971 SCMR 35) and
Muhammad Shamoon (deceased) through legal representatives v. The State and
another (2019 SCMR 1144) has been referred to argue that there was no occasion
for the learned High Court to short circuit the pending proceedings with fiscal
consequences of the conviction still impinging upon the estate. The learned Law
Officer has contested the motion.
3. Heard. Record perused.
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.”
13. After hearing
the learned advocate for legal heirs of deceased appellant and Special
Prosecutor NAB, we have come to the conclusion that prosecution had proved its’
case beyond reasonable doubt against the appellant, who expired during pendency
of Appeal for the following reasons:
(i)
Evidence of Arshad
Qureshi (PW-03) is very important for deciding this appeal on merits. He has
deposed that he was working as Verification and Recovery Officer in Askari
Leasing Limited. I.O Sarvesh called him regarding investigation against accused
Mukaram Alam Khan and others. He further deposed that he declined several cases
which were not fit for leasing for that accused Mukaram asked him not to reject
the case in order to achieve the target. He further stated that accused Mukaram
Alam Khan warned him to follow his instructions in order to continue his job.
PW Arshad Qureshi further stated that he resigned from his job on account of dishonest
instructions given by accused Mukaram Alam Khan.
In cross examination, he denied the suggestion that he was terminated
from services. He further denied the suggestion that he was deposing falsely
against accused Mukaram Alam Khan.
(ii)
Other P.Ws namely Rahim,
Shaikh Mujeeb-ur-Rasheed, Syed Hussain Haider Zaidi, Qaim Ali, Amir Muhammad
Imran Khan, Miandad Soomro, Bux Ali and I.O Sarvesh Sheikh 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) and Muhammad Ilyas and others vs. The State (2011 SCMR
46).
(iii)
Admittedly, in the view of terms of appointments deceased
appellant was responsible for overall activities and performance of branch etc.
However, it has come on record that that leases were defaulted, poor/
negligence follow up in recovery of defaulted lease rentals and non-available
of proper record of all credit proposals etc. connected the deceased appellant
in the offence of corruption and corrupt practices. Documentary evidence has also been produced against deceased appellant
at trial.
(iv)
PW-3 Arshad Qureshi
and PW 9 Bux Ali have fully implicated the deceased appellant Mukaram Alam, no
ill will or motive has been alleged against them to depose falsely against the
deceased appellant, prosecution has successfully proved that the deceased
appellant has committed the offences while discharging his official duty which
resulted into loss to the financial institution.
(v)
Learned trial Court
has rightly appreciated evidence according to settled principles of law and
evasive answers of deceased appellant in his statement recorded under section
342 Cr.P.C can conveniently be taken as strong circumstance going against him.
Therefore, we hold that trial court rightly disbelieved the defence plea by
assigning sound reasons thus, we have no hesitation to hold that conviction and
sentence recorded by learned trial Court vide judgment dated 31.10.2017 call
for no interference on merits, but during pendency of appeal, the deceased appellant
has expired and his appeal is abated against him. So far 50% fine of nine (9) leases i.e. Ex 8/3, Ex 8/4, Ex 8/7, Ex 8/8, Ex 8/9, Ex
8/10, Ex 8/11, Ex 8/12, Ex 8/13, in
which he signed vehicle lease agreement after deduction of down payment and
rental paid if any, is concerned, in terms of
Section 431 Cr.P.C, fine is to be recovered as land revenue from assets devolved
upon the legal heirs of deceased appellant.
(vi)
In
case involving a charge under Section 9(a)(vi) of the National Accountability
Ordinance, 1999 the prosecution has to make out a reasonable case against the
accused person first and then the burden of proof shifts to the accused person
to rebut the presumption of guilt in terms of section 14(d) of the said
Ordinance, but in the present case, deceased appellant had failed to rebut the
presumption of guilt in terms of section 14(d) of the said Ordinance. Rightly
reliance is placed upon the case reported in PLD 2016 S.C 276 (The State vs.
Anwar Saif ullah Khan).
(vii)
For
the above stated reasons and law laid down in the above mentioned judgments, as
appellant has expired during pendency of appeal, appeal is 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 as imposed by
the learned trial Court is concerned, the same be recovered as land revenue
from assets devolving upon the legal heirs of deceased appellant in accordance
with law.
14. The upshot of the above discussion is
that the instant Accountability Appeal stands disposed of in the above terms.
JUDGE
JUDGE
.