2009 PLP 517 (SCMR)

MUHAMMAD MOOSA K. LEGHARI, J.

The judgment dated 5-9-2005 passed by High Court of Balochistan, Quetta in Special Criminal Appeal No.3 of 2001 has been assailed through this petition for leave to appeal. By the said judgment the conviction of the appellants and sentence awarded to them under section 409, P.P.C. by Special Judge Banking Court of Balochistan, Quetta was maintained.

2. The proceedings against the appellants and the co-accused were initiated on the written complaint submitted by Syed Ikhlaq Ahmed Zedi, Zonal Chief National Bank of Pakistan, Quetta vide letter dated 26-5-1996, alleging therein that on the instructions of co-accused, Mr. M.B. Abbasi the then President of National Bank of Pakistan, a bank guarantee worth Rs.60 million was issued in favour of Pakistan State Oil, on behalf of Messrs Taftan Oil Company (Pvt.) Ltd, and in the name of the appellants as the Directors of the said Company. Allegedly the said Bank guarantee was issued without obtaining the certificate of the legal advisor, without obtaining CIB report and NOC from NCBS thus in defiance of the conditions stipulated in the memo. of Credit Division. It was alleged that the land mortgaged by way of collateral security was also highly over-valued. As such the Bank was exposed to a great risk/loss. It was further alleged that the transaction was made with mala fide intention whereby the offence of cheating and breach of trust was committed. On the basis of such complaint, F.I.R. was registered for the offences punishable under sections 409, 420, 467, 468, 471 and 109, P.P.C. read with section 5(2) of Act II of 1947, against M.B. Abbasi the then President of National Bank of Pakistan and the appellants being the Directors of Messrs Taftan Oil Company (Pvt.) Ltd.

3. The appellants were sent up to face trial before the Special Court (Offences in respect of Bank) Balochistan, Quetta, whereas co-accused M.B. Abbasi and Jehangir Ansari the then Managing Director Pakistan State Oil were declared proclaimed offenders. The appellants having refused to plead guilty were put to trial.

4. The prosecution in order to substantiate the accusation examined as many as 17 witnesses and tendered number of documents in evidence. In their statements recorded under section 342, Cr.P.C. the appellants denied the charges and claimed to be innocent.

5. On conclusion of trial the appellants were convicted under Sections 403, 409 and 420, P.P.C. and section 5(2) of Act II of 1947 for various terms to the extent of 7 years' R.I. However, on appeal, learned High Court of Balochistan set aside the sentence awarded to the appellants under sections 403, 420, P.P.C. and section 5(2) of Act II of 1947 while the conviction and sentence awarded to them under section 409, P.P.C. was maintained.

6. Vide judgment dated 27-10-2005 leave was ranted to consider the question whether the alleged transaction of misuse of Bank guarantee constituted an offence under section 409, P.P.C. and the conviction and sentence awarded to the appellants has the sanction of law.

7. We have heard Mr. Waseem Sajjad, Senior Advocate Supreme Court for the appellants and Sardar Muhammad Ghazi, learned Deputy Attorney General for the State.

8. It is contended on behalf of the appellants that the appellants were the Directors of a private Company on whose behalf the Bank guarantee was allegedly issued by National Bank of Pakistan in favour of Pakistan State Oil. Learned Advocate Supreme Court submitted that the accusation even if presumed to have been proved would not fall within the ambit of section 409, P.P.C. to constitute an offence of criminal breach of trust as the essential ingredients of the offence were conspicuously missing. Learned Advocate Supreme Court argued that the appellants were neither entrusted with the property nor had any domain over property and that there was no proof that any money was actually converted by the appellants to their own use. He further submitted that the Bank guarantee was not encashed and that no monetary loss was caused to the Bank.

9. Notwithstanding the Above arguments learned Advocate Supreme Court contended that the Review Board (NRO) Accountability on the petition moved by M.B. Abbasi and another vide order dated 26-7-2008 has recommended the withdrawal of the above case against the appellants M.B. Abbasi and another observing that the above case was falsely initiated against the appellants for political reasons and were implicated because of political victimization. Learned counsel pleaded that consequent thereto the State decided to withdraw from prosecution of the appellants (M.B. Abbasi and another) under subsection (2) of section 494 of Cr.P.C. Learned Advocate Supreme Court has placed on record a copy of the order dated 3.9-2008 passed by this Court in Criminal Petition No.293 of 2008 to demonstrate that the co-accused namely M.B. Abbasi and Nabi Bakhsh Soomro convicted by the Special Court vide judgment dated 14-5-2001 were acquitted. Learned Advocate Supreme Court submitted that as the two Officers of the Bank who were the principal accused stood acquitted as the case was withdrawn by the prosecution, the judgment of conviction recorded against the appellants was rendered unsustainable and invalid, as the appellants were also entitled to the same treatment and benefit by adhering to the rule of consistency. Learned Sr. Advocate Supreme Court for the appellants in support of the above propositions relied upon the citations reported in National Accountability Bureau through Chairman v. Aamir Lodhi and another PLD 2008 SC 697 and Muhammad Iqbal Chatha v. The State 1988 MLD 354.

10. Learned Deputy Attorney-General for Pakistan though vigorously supported the judgment and emphatically opposed the plea of acquittal yet he was at great pain to controvert the legal and factual position, having emerged out of the case of National Accountability Bureau (supra) referred by learned Senior Advocate Supreme Court for the appellants.

11. We have considered the submissions and have examined the material placed on the record.

12. It will be appropriate to reproduce hereunder the order dated 20-7-2008 passed by Chairman, Review Board (NRO) Accountability on the petition submitted by co-accused M.B. Abbasi and others:

"This Board has gone through the petition and the material annexed with it carefully and minutely. The petitioners have been acquitted of all NAB cases except one F.I.R. No.4 of 1997-PS F.I.A./C.B.C., Quetta (Case No.37 of 1997) pending in the Court of Special Judge, (Offences in Banks), Balochistan, Quetta. Wherein the petitioner No.1 in the capacity of President of National Bank of Pakistan issued guarantee of Rs.60 million in favour of Tafton Oil Company, Quetta. Perusal of the record in the case shows that the above case was falsely initiated against the petitioners for political "reasons and were implicated because of political victimization, as it would appear from the material produced on record the petitioners refused to give statement against the leader of the political parties, hence the petitioners were involved in the false cases with political motivation. This Board is firmly of the view after considering the material on record that this case was a result of political reasons for political victimizing the petitioners, therefore, we would recommend the withdrawal of the above case against the petitioners."

13. On the basis of the above order Criminal Petition No.293 of 2008 filed by the appellants was converted into appeal and allowed by a Full Bench of this Court in the following terms:

"For the reasons to be recorded later, this petition is converted into appeal and is allowed. Since as per statement made by the learned Attorney General for Pakistan, the State, on the recommendations made by the Federal Review Board contained in letter No.6/2008/FRB, dated 31st July, 2008, has decided to withdraw from prosecution of the appellants, under subsection (2) of section 494, Cr.P.C., inserted through National Reconciliation Ordinance (Ordinance No.LX) of 2007, therefore, the conviction and sentences recorded against the appellants, namely, M.B. Abbasi and Nabi Bakhsh Soomro, under sections 409, 420, P.P.C. read with section 5(2) of the Act II of 1947, by the Special Judge, (Offence in respect of Banks), Balochistan, Quetta, vide judgment dated 14-5-2001, are set aside and they are acquitted of the charges. The appellants are already on bail therefore, their bail bonds are discharged."

14. From the perusal of the order passed by a Full Bench of this Court which has been reproduced hereinabove, it is evidently clear that the proceedings against the principle offender viz. M.B. Abbasi the President National Bank of Pakistan had come to an end, as the prosecution was withdrawn. The case reported in National Accountability Bureau through Chairman v. Aamir Lodhi and another PLD 2008 SC 697 is fully applicable to the facts and circumstances of the instant case, wherein it has been observed "that if an abettor or any other person could be charged, tried or convicted along with holder of a public office, then if the principle offender was acquitted or proceedings against him were dropped under the National Reconciliation Ordinance, 2007, then as to why benefit thereof would not be extended to the ordinary person, because both sailed in the same boat". There being no legal justification to deviate from the above rule, the appellants are entitled to be acquitted in the instant case.

15. In addition to above, it may be observed that to constitute an offence under section 409, P.P.C. there must not only be entrustment but dishonest, misappropriation or conversion to one's own use or dishonest disposal of property by the offender. As clearly obvious from the scrutiny of evidence, such ingredients are absolutely lacking in the present case. There is no evidence to conclude that the Bank guarantee was encashed by the appellants, or by some one else acting on their behalf and the cash was misappropriated. Even there is no material to establish that the Bank sustained any loss attributable to the appellants on account of alleged transaction.

16. The facts and the circumstances discussed hereinabove have led us to an irresistible conclusion that the conviction and sentence awarded to the appellants is unsustainable in law. We are, therefore, persuaded to allow this appeal, which is accordingly allowed. The judgment of conviction and sentence recorded against appellants is set aside. Consequently the appellants stand acquitted. N.H.Q./A-12/SC Appeal accepted.