2004 P Cr (PLP)

TASSADUQ HUSSAIN JILANI, J.

Appellant Dr Ejaz Ali the former Assistant Commissions: Khanpur was tried by the National Accountability Court in Reference No.35 of 2000 on the allegation that in the afore-referred capacity he misappropriated the public money, that he dishonestly withdrew a sum of Rs.92,72,138.20 from the official bank account to his personal account and thereby obtained illegal gain. The learned trial Court vide its judgment dated 22-11-2000 convicted the appellant under section 10 of- the NAB Ordinance, 1999 and sentenced him to four years RI and a fine of Rs.5;00,000 in default whereof he was to further undergo RI for one year. In terms of section 15 of the NAB Ordinance he was also held disqualified to hold any public office for a period of 21 years. The prosecution case stands reflected in the charge framed against the appellant which is as under:- "(i) In April, 1998 an amount of Rs.89,32,578.20 was, lying in PLS Account No.215 in the name of Assistant Commissioner Khanpur with the Bank of Punjab, Khanpur for shelter of shelterless and after. your posting, you opened two new PLS Accounts No. 916 and CD-1184 and transferred the total amount of Rs.92,72,138.20 to these accounts after withdrawal from PLS Account No.215 and during the period from 1-6-1998 for 13-10-1998 you withdrew total amount of Rs.16,47,688 and retained the same with you and thus committed criminal breach of trust. (ii) During the period from 1-6-1998 to 6-6-1998, Government money amounting to Rs 37.42,800 was drawn from PLS Account No.916 and Rs.51,47,688 were drawn from CD-1184 during 7-10-1998 to 13-10-1998 and thus total amount to the tune of Rs.88,90,488 was drawn during the period from 1-6-1998 to 13-10-1998 and Regular Income Certificates Nos. 1855 (investing Rs.20,00,000) 1856 (investing Rs.16,00,000) and 1866. (investing Rs.10,00,000) were purchased on 13-10-1998, 14-10-1998 and 26-10-1995 respectively from National Saving Centre and Account No.SSA-90 (investing Rs.30,00,000) was opened on 3-10-1998 and you illegally retained the Government money and gained benefit to the tune of Rs.14,59,440 and caused loss to Government of Punjab. (iii) During the period from 11-2-1999 to 23-9-1999 You operated personal Account No. PLS 8121-5 with Muslim Commercial , Bank, Shujja and deposited an amount of Rs.7,18,750 and withdrew an amount of Rs.7,18,811 leaving balance nil and during a period of five months, you sent to your elder brother Agha Iftikhar Ali total amount of Rs.3,30,000 through various drafts etc. and you have failed to account for the sources of your income."

2. The material evidence produced by the prosecution to prove the afore-referred charges. (i) P.W.1, Waseem Rustam who proved the declaration of assets filed by the appellant (Exh.P.A.) his declared assets were of an approximate value of Rs.30,00,000 Rs.27,00,000 was declared to be the value of the agricultural land, he was to inherit from his father He declared his annual income Rs.66,000. (ii) P.W.2, is Faizul Haq, he proved the income and expenditure and pertaining to the scheme of the shelter for the shelterless, the accounts received for the said scheme and the amount distributed to Assistant Commissioner at Sub-Divisional Headquarters. He placed on record Exhs.P.B./1 to Exhs. P. B. /21. (iii) P.W.3, is Faqeer Muhammad, who stated that the first grant received in Rahimyar Khan for the afore-referred purpose was to the tune of Rs.98,70,

000. He also placed on record Exh.P.C. to indicate that an amount of Rs.22,72,138,22 was drawn from the official Account No.PLS-215 and was credited to the two newly opened Accounts i.e. PLS-916 and CD-1184. However, this witness also stated that upto 13-7-2000 the accused deposited a sum of Rs.1,03,57,792.70. The accused remained. Assistant Commissioner Khanpur from 22-4-1998 to 2-12-1998 and thereafter was transferred to Shuja Abad (Exh.P.D.). (iv) P.W.4 is Ghulam Hussain Sumro, Special Assistant to Commissioner, he stated that as per record appellant accused neither filed any return of Income-tax or Wealth-tax. nor his father and brother filed any return of Income-tax or Wealth-tax. (v) P.W.5 is Faisal Riaz Manager Bank of Punjab, who proved various documents which were to be related from PLS, Account No.215 and their subsequent transfer to the new Account No. PLS 91 6 and CD 1184. (vi) P.W.6, is Abdul Khaliq Majid, National Saving Officer, in National Saving Centre Khanpur. He proved the documents by which the Regular Saving Certificates worth Rs.46,00,000 were purchased by the accused in his own name. Regular Income Certificates Exh.P.F./13 and Exh.P.F./14 for an amount of Rs.5,00,000 each on the basis of application Exh.P.E. were transferred to the National Saving Centre Shuja Abad. The accused vide application Exh.P.F./17 dated 3-10-1998 opened a Special Saving Account No.90 in his name with an amount of Rs.30,00,

000. He also filed an affidavit Exh P-F./19 regarding, exemption of this account from the payment of Zakat indicated himself to be a Shia. This witness so stated that in December. 1999 vide letter Exh.P.F./20 the National Saving Centre Sukkur made a request tier the transfer of Special Saving Account No.90 from Khanpur to Sukkur and then vide advice dated 9-3-2000 (Exh.P.F./21) in amount of Rs 30,00,000 was transferred to National Saving Centre, Sukkur. He also stated that on 7-8-1999 the accused had written a letter for correction of the in of Registration .Nos.1855 and 1856 regarding purchase of certificates and Special Saving Account No.90. This witness tendered the documents Exh-P F./I to Exh.P.F./21 before the Investigating Officer vide memo. Exh. P F. (vii) P.W.7 is Latif Akhtar Rana. a National Saving Officer, poster at the relevant time in the National Saving Centre Shuja Abad. He proved the receipt of Regular Income Certificate Exh.P.F./13 and Exh.P.F./14 in the naive of the appellant accused. (viii) P.W.8 is A Muhammad Khan, lie was Assistant Accounts Officer, Rahimyar Khan. He proved his report Exh.P.H to the effect that the accused had drawn a total amount of Rs.1,01,820,60 from the District Accounts Office, Rahimyar Khan towards his salary during the period from 16-4-1997, to 2-12-1998. (ix) P.W.9 is Ayub Tahir. Assistant Accounts Officer, who placed on record a letter Exh P.J./1, Exh.PJ./2 and Exh.P J./3 to accused was not authorised to open account in any of the bank. (x) P.W.10 is Syed Ayub Ali Manager Muslim Commercial Flank, who joined the investigation and proved the account opening of Iftikhar Hussain elder brother of the accused. He also proved the statement of account Ex P.K./3. (xi) P.W.13 is Ghulam Sarwar Ahro, who at the relevant tithe was Officer-in-Charge National Saving Centre who stated that an amount of Rs.30,00,000 lying in the SSA-90 at Khanpur was transferred to Special Saving Account No.34 which was allottee to the accused on 14-3-2000 He added that the accused closed. his account and received an amount an amount of Rs. 37,79,040. (xii) P.W.14 is Abdul Aziz Javed Manager Muslim Commercial Bank, who placed on record the requisite documents to prove that the accused had opened PLS Account No.8121-5 with Muslim Commercial Bank, Qasim Baila (Exh.P.Q./1 to Exh.P.Q./40). (xiii) P.W.15 is Mufti Abdul Haq Shah, Inspector F.I.A. who conducted the inquiry and investigation.

3. The accused when examined under section 342, Cr.P.C. admitted all the transactions but explained that the amount withdrawn from the official account was deposited in more profitable scheme of the Bank of Punjab In answer to question No.10, (in his statement under section 342, Cr.P.C.) he stated that, this amount was transferred to two new Accounts PLS Account No.916 and CD-1184 which were opened in the same branch as the record of PLS Account No.215 opener in the year 1992, was not available in the office and a new cheque book was got issued when I assumed charge as previous cheque book was not available in the office of the Assistant Commissioner, Khanpur." He also admitted to have purchased Regular Income Certificates by during the amount from the newly opened account and in, answer to question No. 11, he explained as under:- "It is correct that the above certificates were purchased from the Account of PLS No.916 as Bank of Punjab had refused to give more profit and I had written a letter No. 1051 dated 5-5-1998 to Deputy Commissioner, Rahimyar Khan seeking permission for transfer of amount to National Saving Centre Khanpur due to high rate of profit and said certificates were not purchased in my personal capacity." He admitted having filed an affidavit Exh P.F /19 requesting that the Zakat may not be charged butt explained that he had tendered the afore referred affidavit for his personal account and it had wrongly been attached with the newly opened accounts which were according to the appellant the official With regard to a total turnover of Rs.7,18,750 in the PLS Account No.8121-5 with Muslim Commercial Bank, Shuja Abad during the period from 11-2-1999 to 23-9-1999. He explained in answer No.25 as under:- "The amount of Rs.1,00,000 was received in the said account through a T.T. remitted by my father-in-law for meeting my marriage expenses. Copy of credit advice is Exh.D.G Rs.3,50,000 were given to me by my father for meeting my marriage expenses and photo copy of the affidavit is Exh.D.H. The monthly profit from Regular Income Certificates of Rs.10,00,000 used to be deposited by me in the said account. Rs.3,30,000 on various dates were remitted-by me to my brother for the purchase of articles of my marriage." He produced following witnesses in defence:-- Muhammad Yousaf D.W.1, Abdul Khaliq Majid D.W.2 Mohammad Afzal Waraich D.W 3, Arshad Hussain D.W.4 Waseem Rustam D.W.5, Mohammad Abdul Rashid D.W.6. Iftikhar Hussain D.W.7 and Mohammad Zarif Malik D.W.8.

4. In support of this appeal learned counsel for the appellant as under:- (i) That mere withdrawal from official account of trust and deposit of the same amount in personal account for a limited period would not constitute an offence under section 406, PPC or section 9 of the NAB, Ordinance 1999, unless it is accompanied by a dishonest intention. He submitted that evidence has been brought on record by the appellant to indicate that the amount se drawn was used to invest the same to more profit bearing scheme, .for the purchase of prize bonds and for the purchase of Regular Income Certificates. (ii) That the reinvestment took place in appellant's personal name and not in the official capacity by mistake. The mistake being bona fide would not constitute an offence. (iii) That the appellant tried to rectify the afore-referred mistake but was told that he could not do so in the official capacity. (iv) That within a month of the afore-referred investment appellant was transferred to Shuja Abad and all the documents relating to the investment in question, i.e. Regular Income Certificates the prize bonds and the documents relating to opening of SSA-90 account in the National Saving Department remained in the office of Assistant Commissioner Khanpur. (v) That the bona fide of the appellant is manifest from the fact that the entire amount drawn from the official account and reinvested was deposited back in the official account from August, 1999 to April, 2000. The total amounts so deposited included the profit accrued on the afore-referred amount In support of submissions learned counsel relied on Nadir Shah v. The State 1980 SCMR 402 and REX v Krishan AIR 1940 Mad. 329. (vi) That in case the afore-referred submissions do not find favour with the Court, the Court may while dismissing the appeal remit the fine as the entire amount drawn stood deposited and no loss accrued to the Government. Reliance was placed on Ashfaq Ahmad v. The State PLD 1968 Lah 1124. (vii) That section 15 of the NAB Ordinance was amended vide Ordinance No.XXXV of 2001 and the period to which a convict may be disqualified (sic) that the sentence reduced to 21 years to 10 years Since appeal was pending at the time of the amendment, appellant may also be extended the benefit of this amended provision.

5. The learned Special Public Prosecutor for NAB-defended the impugned ,judgment by submitting as under:-- (i) That the prosecution case stood proved beyond reasonable doubt. The conviction and sentence recorded, therefore, do not merit interference. (ii) That the appellant accused admitted entrustment of the funds. He withdrew the same from the official account deposited the same in personal account without any justification and against the standing instructions. The afore-referred conduct reflects criminal intent and it cannot be argued that the money was withdrawn for any bona fide purpose. (iii) That the appellant admits retention of Government dues even if it is for a limited period, the same would constitute an offence, if no reasonable explanation is offered in defence for its retention.

6. We have heard the learned counsel for the parties, have gone through the impugned judgment, the evidence led and have given anxious consideration to the issues raised.

7. There is no cavil to the proposition that , mere retention of Government property/funds would not constitute an offence, unless it is accompanied by a criminal intent. Since the facts as alleged stand admitted and entrustment of property is not a moot point. The primary issue which would require consideration is as to whether the withdrawal of the amount and deposit of the same in personal account reflected mens rea or not The chart prepared with regard to the manner the official account was operated and on which dates the appellant withdrew the funds from PLS Account No.215 and deposited the same in two new accounts i.e. PLS 916 and Account No.CD-1184 would be helpful in understanding the alleged transactions. The same is .being reproduced as under:-- PLS ACCOUNT NO.215 (A.C. KHANPUR) Date of opening. 28-3-1992. Initial deposit. Rs.55,45,485.20 Profit (28-3-1992 to 30-6-1998) Rs.33,87,093.00 Balance on 21-1-1998. Rs.89,32,578.00 (Exh.P.D./16) Profit added on 20-7-1998 Rs.3,39,585.00 Profit added on 30-7-1998 Rs.41,975.00 WITHDRAWAL (Refer to Exh.D.Z. also) Documents Amount, 8-5-1998. 29-7-1998 29-7-1998 3-8-1998 Cheque Exh.PD/17 Cheque Exh.PD/18 Cheque Exh.PD/19 Cheque Exh.PD/20 Total Withdrawals Exh. P. D/

16. Rs.37,42,827,00 (transferred to PLS A/C.No.916 Rs.51,47,751.00 (Cash) Rs,3.39,585.00 (Cash) Ra 41,975.00 Gash) Rs.92,72,138.00 PLS ACCOUNT NO.916 (A.C KHANPUR) Date of opening 10-5-1998 (Exh.P.D./7) DEPOSITS WITHDRAWALS Date Document Amount Date Document Amount 9-5-1998 Exh.D.AA. Rs.37,42,827 28-5-1998 Cheque Exh.PD/9 Rs.7,00,000 1-6-1998 Cheque Exh.PD/10 Rs.8,42,800 3-6-1998 Cheque. Exh.PD/11 Rs.7,00,000 5-6-1998 Cheque Exh.PD/13 Rs.8,00,000 1-6-1998 Cheque Exh.PD/12 Rs.7,00,000 Total ACCOUNT.NO.CD 1184 (A.C. KHANPUR) Date of opening 29-7-1998 (Exh.PD/1) DEPOSITS WITHDRAWALS Date Document Amount Date Document Amonut 30-7-1998 Exh.P.D/6 & Exh.D.BB Rs.51,47,751.00 7-10-1998 Cheque Exh.PD/5 Rs.15,00,000.00 By Cash 10-6-1998 Cheque Exh.PD/4 Rs.20,00,000,00 13-10-1998 Cheque Exh.PD/3 Rs.16,47,688.00 Total Rs.51,47,688.00 Deposits/made by accused. Date Documents Amount Account No No. 14-4-2000 Exh.D.1(P.D./15) Rs.13,12,664 916 1-5-2000 Exh.D.K.(P.D./14) Rs.15,15,815 916 20-5-2000 Exh.D.J. Rs.15,00,000 916 13-7-2000 Exh.D.L. Rs.2,50,000 916 14-7-2000 Exh.D.M,. (P.D./24) Rs.3,39,585 215 1-5-2000 Exh.D.N. (P.D./22) Rs.41,975 215 14-4-2000 Exh.D.O. (P.D32) Rs.51,47,751 1184 7-7-2000 Exh.D.P. (T.T.) Rs.2,50,000 215 24-8-2000 Exh.D.Q.(T.T.) Rs.2,00,000 215 31-8-2000 Exh.D.R. (T. T.) Rs.1,68300 215 Total: Rs:1,07,26,090.00 Broadly the afore-referred chart indicates following facts:-- (i) That a sum of Rs.3,81,560 (vide cheque Exh.P.D./19 and Exh. PD/20) were not deposited in newly opened Accounts No. 916 and CD-1184. (ii) That the appellant withdrew an amount of Rs.88,90,550 from Accounts No.916 and CD-1184. With he afore-referred withdrawn amount the appellant purchased Regular Income Certificates in his own name on 3-10-1998 vide application. Exh.P.F./17 and opened a Special Saving Account No.90 with National Saving Centre, Khanpur with a cash deposit of Rs.30,00,

000. He n6minated his ,real brother a resident of Airport Road Sukkur to receive the amount in the event of his death. It is further in evidence that he withdrew yet another sum of Rs.51;47,750 from CD-1184 (during the period froth 7-10-1998 to 13-10-1998) and with this amount, he purchased Regular Income Certificates worth Rs.46,00,

000. Admittedly the funds meant for the Housing Scheme i.e. shelter for the shelterless amounting to Rs.92,72,138.00 were lying in PLS Account No.215. It is in evidence that an amount of Rs.37,42,800 was withdrawn (in ten days from 28-5-1999 to 6-6-1999) and nothing has been brought on. record to indicate as to where this amount was kept till the opening of another account and that too in appellant's own name, i.e. on 3-10-1998, Account No.SSA-90. It is not denied that an amount of Rs.51,47,750. was drawn by the appellant from CD-1184 (during the period from 3-10-1998 to 13-10-1998) and again on 14-10-1998 Regular Income Certificates worth Rs.46,00,000 were purchased. The plea of the appellant before the trial Court was that out of the afore-referred Rs.46,00,000 , Rs.10,00,000 were his own name investment in proof of which he tendered Exh.D.C. and produced D.W.8 Muhammad Zarif Malik, his father-in-law who stated that he had given Rs.10,00,000 as a gift to the appellant in February; 1999 (though admittedly he got married on' 9-4-1999). Exh.D.C. is an affidavit tendered by Muhammad Zarif Malik D.W.8 on 20-5-1999 which reads as under:-- "I gift Rs.10,00,000 (one million) to my son-in-law Dr. Agha Aijaz Ali s/o Nadir Khan r/o House No.197, Friends Society, Airport Road, Sukkur during the assessment year 1998-99. I gift him due to natural love and affection, now I have no right on the said amount." This affidavit was tendered when the accused was under arrest. This has rightly been held by the learned trial Court to be an afterthought. The explanation given by the appellant for the delayed deposit of Rs.37,42,800 in Account No.SSA-90 is that he had purchased prize bonds and after its encashment he opened the afore-referred account and deposited in the same. . This is again an afterthought. Firstly there is nothing in the official record of the Assistant Commissioner; Khanpur's office to show that there was any authorization to purchase the bonds or that the bonds were ever purchased. A mere statement of a clerk serving with the Assistant Commissioner, i.e Abdul Rashid D.W.6, would be of no avail and secondly the appellant could not have drawn the amount in question from the official account in the manner a did. It's a clear violation of Rule 2.10-b of Punjab Financial Rule. Volume-1. In the afore-referred acts and omissions following elements are reflective of mens rea. (i) No authorization by the competent authority for withdrawal of the amount from the original account. (ii) Reinvestment in personal account. (iii) Nomination by the appellant of his real brother to be the beneficiary in the event of appellant's death. Appellant produced Exh.D.A. a letter dated 5.5.1998 purported to have been sent by the appellant to the Deputy Commissioner, Rahimyar Khan through which according to him he sought permission to invest the amount in question in the Saving Centre. This document again is of no help because firstly there is nothing on record to indicate that this letter was ever received by the Deputy Commissioner, Rahimyar Khan, secondly even if such a letter was issued, the appellant should have waited for the reply/permission and thirdly the Deputy Commissioner has not been examined in defence. The refund of the amount at a belated stage would not absolve the appellant of the criminal liability in the facts and circumstances of the instant case. The unauthorized withdrawal, the unauthorized investments. the retention of the amount for the period indicated above, the return of the amount after the inquiry against him had been initiated and in fact after his arrest are in circumstances betraying the criminal intent. Ex.D.DD indicates that he was arrested in January, 2000 and he kept on depositing the misappropriated amount till 31-8-2000. Although he did deposit the entire amount withdrawn and reinvested but the afore-referred resume of the evidence led clearly establishes criminal misappropriation and dishonest retention of public funds. In Jahan-ud-Din v. The State 1971 SCMR 71 it was held that retention of Government funds and failure to produce the public money even for a short period would amount to criminal misappropriation. That C being so, the judgment of conviction does not merit interference. The appeal is, therefore, dismissed. However, coming to the question of sentence we note that while awarding the sentence of imprisonment and fine, the learned trial Court has not kept in. view the recognized principles governing the award of sentence. The classical principles in this regard can be summed up to tour words i.e. (1) retribution, (2) deterrence, (3) prevention and (4) rehabilitation. The sentence has to be E proportionate to the gravity of the offence. Imposing longer sentences of imprisonment besides throwing the convict to the mercy of the prison world offends against the principle of rehabilitation referred to above. Similarly the sentence of fine has to be proportionate to the gain made or the loss suffered-by the Government. Section II of the National Accountability Ordinance itself lays down a minimum parameter it mandates as under:-- "Imposition of fine. Where an accused found guilty of an offence is sentenced to pay a fine the amount of the fine shall in no case be less than the gain derived by the accused or any-relative or associate by the commission of the offence." . The appellant is an M.B.,B.S. doctor, who joined civil services through competitive examination and got married a year before his arrest. Admittedly there is no allegation that any loss accrued to the Government. For a person of appellant's background the shaming element in the conviction itself would be quite a punishment. In the afore-referred circumstances the sentence of imprisonment for four years G was on the higher side and ends of justice would have been met if he had been awarded sentence of imprisonment for a period of two years and the sentence of fine to the tune of Rs.2,00,000 would have been sufficient. However, since the appellant has undergone the entire period of sentence of imprisonment we are inclined to reduce the sentence to what he has already undergone.' Since the amendment in section 15 of the NAB Ordinance 1999 came into effect during the pendency of this appeal, we are inclined to further modify the sentence in terms of this section ands hold that the appellant shall stand disqualified for a period of 10-years in terms of the amended provision and not 21-years as directed by the learned trial Court which was in accord with the un amended section 15 of the NAB Ordinance, 1999. N.H.Q./I-35/L Sentence reduced