2004 PLP 46 (YLR)

Muhammad Anwar Tariq, D.P.‑G., NAB. This order shall dispose of the appeals cited above.

2. We have heard Mr. Farid Gul Khan and Mr. Shahadat Awan, learned counsel for appellants and Mr. Muhammad Anwar Tariq learned D.P.‑G., NAB and with their assistance perused the material on record.

3. As regards the case of prosecution, it has been alleged that between first January, 1995 and 25th November, 2000 Messrs Ahson Drug Company was availing exemptions of Customs Duty and Sales Tax on imported raw material on the ground, that the raw material was used in preparation of medicines, but during investigation it transpired that the raw material was sold in the local market in connivance and collaboration with the Assistant Drug Controllers under whose jurisdiction the factory was located. It is alleged that the Assistant Drug Controllers including the appellants and the said company prepared and produced, at different times, wrong/bogus consumption certificates showing that the raw material was used in production of finished goods and thereby caused colossal loss to the National Exchequer. On a reference made by the Chairman NAB Biz. Reference No.40 of 2001 the Accountability Court took cognizance of the offence, and proceeded with the trial. Earlier, the owner of the factory entered into plea bargaining and paid Rs.6,00,00,000 to the Chairman NAB, therefore, his name was excluded before the submission of reference to the Court.

4. It would be of much significance to mention that on 16‑1‑2002 when the stage was set for commencement of trial a legal point was raised as to whether the joint trial of all the accused persons was permissible under the law. The learned Accountability Court after hearing the arguments of both sides took the view that as a consequential effect of provisions of sections 222(2), 233, 234, 235 and 239, Cr.P.C. and the law enunciated by the Honourable Supreme Court in the case of Noor Ahmed v. State PLD 1964 SC 120 the joint trial of all the accused persons was not permissible. Accordingly, by an order passed on the said date the Accountability Court separated the cases of all the accused from each other and assigned separate numbers to them for their trial and in each case cited Reference No.40 of 2001 commonly alongwith separated reference numbers assigned by it. As such, the instant appeals arise out of separated References Nos.14 of 2002, 9 of 2002, 11 of 2002, 12 of 2002 and 13 of 2002 respectively.

5. On going through the judgments passed in the aforecited references it is noted that the conviction is, inter alia, founded on the fact that consumption certificates, on the basis of which the rebate/refund of Customs duty was claimed under the S.R.O. 1147(1)/89 dated 7‑11‑1989 of the Ministry of Finance, Government of Pakistan, were issued by the appellant without verifying the entries in the relevant Registers and were false. It was observed that in result of the above act colossal loss was caused to Public Exchequer and thereby the appellants, the Assistant Drug Controllers committed the offences with which they were charged.

6. During the course of arguments, in this Court it was noticed that although each separated reference was tried independently no such register was produced or exhibited in each case in accordance with the provisions of Qanun‑e‑Shahadat Order. Although learned D.P.G. pointed out that the Registers Exhs.53, 55, 56 and 57 have been produced in another case, giving rise to Appeal No. 14 of 2002 but it was conceded by the learned counsel on both sides that the Registers have not been exhibited in the instant cases. It is well settled that the evidence recorded in one case cannot be read in another case unless the same is produced and exhibited in the latter case in accordance with Rules of Evidence that is to say Qanun‑e‑Shahadat Order.

7. Secondly, it was commonly stated by the learned counsel for the appellants ,and the learned counsel for the State that the witness Maqsood was examined in these references as also in the other connected references by the Accountability Court and was declared hostile in one case, but he was not declared hostile in every cases, yet the learned trial Court took note of his hostility and placed reliance on it in the judgment in separated References Nos. 13 of 2002 and 12 of 2002 and dealt with the evidence of those two cases on the premises of the said fact. Both the learned counsel conceded that the appraisal of evidence of a witness who has not been declared hostile, as done in the cases, is not in accordance with normal procedure as far those cases are concerned (not all the above‑cited appeals).

8. Accordingly, by consent the cases are remanded to the trial Court for examining the witness Maqsood Alam and al lowing an opportunity to the prosecution to produce relevant documents including Registers through this witness.

9. It is needless to mention that the statement of accused would be recorded once again and consequential opportunity would also be extended to him to lead defence.

10. In this view of the matter, the judgments, in the above‑cited appeals as also the convictions and sentences are set aside and the cases are remanded to the trial Court for retrial for the aforesaid specific and limited purpose.

11. Learned counsel for the appellants, submitted that appellants during the retrial of the cases may be released on bait. Mr. Muhammad Anwar Tariq learned D.P.G. opposed the same.

12. We are conscious of the fact that presently the Accountability Courts are lying vacant. Secondly, a good portion of the sentence (although set aside hereby) has been served out by each of the appellants as they are in custody since 3‑7‑2001. Accordingly, it is ordered that pending trial, the appellants be released on bail on furnishing surety in the sum of Rs.10,00,000 each and executing P.R. bond in the like amount to satisfaction of Nazir of this Court. We also find it expedient in the interest of justice to direct that trial in these cases should be concluded as far as possible within a period of three months.

13. All these appeals stand disposed of in the above manner. H.B.T./R‑100/K Order accordingly.