2021 P Cr (PLP)

ASJAD JAVAID GHURAL, J.

Through the afore-titled criminal appeal under section 32 of National Accountability Ordinance, 1999, appellant Najam-us-Saqib has challenged the vires of judgment dated 23.06.2018 passed by the learned Judge, Accountability Court No.V, Lahore in A.C.R. No.63/2008 titled "The State v. Najam-us-Saqib etc." whereby he was convicted under section 9(a)(ix) of NAO, 1999 and sentenced as under:- Rigorous imprisonment for five years and to pay the fine of Rs.16.827 million. In case of default the amount of fine was ordered to be recovered as arrears of land revenue in terms of section 33-E of NAO, 1999. The moveable and immovable properties of the appellants were ordered to be forfeited to satisfy the claims of affectees. He was also held disqualified for a period of ten years from the date of his release after serving the sentence to hold any public office, any statutory or local authority or in service of Pakistan or of any province. He was also held not entitled for any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the Government for a period of ten years from the date of his conviction. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. As per prosecution story, the appellant along with his co-accused in order to cheat and defraud the members of public at large established an entity on 2nd May, 2003 under the name and style of 'Sun Reliance International (Pvt.) Ltd.' as a Private Limited Company and got it registered under registration No.12657/20030502 with companies Registration Office, Lahore. Appellant along with his co-accused with mala fide intention, dishonestly and fraudulently through their marketing staff and also by themselves, induced the members of public at large to invest their money on the promise of giving impossible profit upto 4% to 5% per month. According to the investigation the accused collected an amount of Rs.34.92-M from members of general public/victims under the garb of above Forex Company, inspite of the fact that the appellant had no authority or license from State Bank of Pakistan, Banking Laws or under Foreign Exchange Regulation Act, 1947 to conduct Forex Trade. The appellants committed criminal breach of trust of the amount entrusted by different claimants with them and thereby got illegal gains, which is an offence as defined under section 9(a) punishable under section 10 of the National Accountability Ordinance, 1999.

3. At the commencement of the trial, the learned trial Court framed charge against the appellant and his co-accused namely, Tassawar Hussain to which he pleaded not guilty and claimed to be tried.

4. The prosecution examined 46-claimants, 04-Bank employees, one official of the Stock Exchange, one witness from the FIA, Lahore and two witnesses of the National Accountability Bureau. The appellant, in his statement recorded under section 342, Cr.P.C., denied and controverted the allegations levelled against him. He got recorded his statement under section 340(2), Cr.P.C. and also produced four witnesses (DW-2) to (DW-4) in his defence.

5. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellant as stated above, hence this criminal appeal.

6. Learned counsel for the appellant pointed out certain minor discrepancies in the prosecution evidence, however in second thought, he did not challenge the conviction of the appellants with the prayer that his sentence may be reduced to the imprisonment already undergone.

7. Learned Law Officer has half-heartedly argued the matter with the submission that if the conviction is maintained then the quantum of sentence is the exclusive prerogative of the Court.

8. During trial, as many as 46-claimants got recorded their statements qua certain respective investments against heavy amount in US$. They were unanimous on the specific point that the appellant had received the amount and also entered into written agreement with them but thereafter he misappropriated the same and deprived them of heavy cash. The testimony of the investors stood corroborated not only with each other but also with the deposition of expert opinion of the bank and employees of the Stock Exchange, who had no ill-will to make false statement against the appellant and that too without any reason. The appellant, being one of the Directors of the Company, offered heavy monthly profit against the investments and collected heavy cash from different claimants under the umbrella of a registered company. All the aforesaid material witnesses were cross-examined at considerable length but the defence could not shatter their credibility and remained fail to extract any favourable material from their mouths rather they remained consistent on all material particulars of the incident. During cross-examination, the defence remained fail to pin-point any malice, ill-will or ulterior motive on part to the official witnesses to falsely implicate the appellant in this case. The prosecution has successfully proved the charge against the appellant to the hilt, which has otherwise not been challenged by the learned counsel for the appellants.

9. We have observed that the appellants have been convicted and sentenced in offence under Section 10 of the National Accountability Ordinance, 1999 to the rigorous imprisonment for 05-years. So far as the alternate prayer regarding reduction of sentence to the period already served out, we have observed that the appellant is the first offender, he is facing the agony of investigation and trial, he being on bail, was taken into custody on the day of pronouncement of the judgment impugned i.e. 23.06.2018 and till-date he is behind the bars. The continuous incarceration of the appellant for more than two years and eight months, has served the very purpose of prosecuting him, which meets the ends of justice as well. We deem it appropriate to maintain the conviction of the appellant in offences under sections 10 of the National Accountability Ordinance, 1999 with the modification of his sentence to the imprisonment already undergone. All the remaining sentences shall remain intact.

10. The epitome of above discussion is that the appeal in hand is without any merit, the same stands dismissed in the aforementioned terms. MH/N-9/L Order accordingly.