2008 P Cr (PLP)

RAHMAT HUSSAIN JAFFERI, J.

The present appeal is directed against the judgment dated 16-10-2004 passed. by the learned Judge, Accountability Court No.1, Karachi by which the learned Judge convicted the appellant for offence punishable under section 10 of National Accountability Ordinance, 1999 (hereinafter referred to the "Ordinance") and sentenced him to suffer R.I. for 7 years and fine of Rs.66,833 million or in default thereof to undergo S.I. for 1 year with benefit of section 382-B, Cr.P.C. The learned trial Judge further disqualified the appellant as provided under section 15 of the said Ordinance whereas co-accused Hatim Ali was acquitted and the case against absconder accused was kept on dormant file.

2. On 3-6-1997 at 3-00 p.m. the complainant Javed Aziz Khan, Manager/AVP, UBL, Bandar Road Branch, Karachi lodged the F.I.R. that reads as under:-- "Complaint: Complaint against Tawakkal group of Companies UBL is the banking company duly incorporated. The undersigned being Manager of Bandar Road Branch, Karachi has to lodge this complaint against the accused persons named below:-- In the year 1993, various irrevocable letters of credit were issued by East Mediterrean Trust and Banking Corporation (EMTBC) a sister concern of Tawakkal Group of Companies for export from Pakistan. Messrs M. Ashraf, M. Farooq and M. Iqbal were the Directors of the Company while Mr. Abdul Qadir Tawakkal was the guarantor. EMTBC opened a number of L.Cs. ostensibly at the instance of Macro Services Limited of Hong Kong, being the purported importer of the goods in favour of Messrs Moon River International (Pvt.) Limited. Tenure of export bills of exchange was 60/90 days on D/A basis. The bills of exchange were drawn by Messrs Moon River International (Pvt.) Ltd., pursuant to the L.Cs. The documents including the bills of exchange, as required by the L.Cs. were presented to the Bandar Road Branch, UBL, Karachi which negotiated the documents and made payments to Messrs Moon River International (Pvt.) Ltd., who were exporters/beneficiaries of the L.Cs. At the time of presentation and negotiation of the documents the beneficiaries of the L.Cs. including the Directors/guarantors and their associates knew that EMTBC would not and could not honour its payment obligations under the L.Cs. On maturity dates, documents were submitted to EMTBC for payments but EMTBC had ignored to make payment of Rs.66.833 (M). Messrs Moon River International (Pvt.) Ltd. a sister concern of Tawakkal Group of Companies thereby cheated the Bank causing wrongful loss to the tune of Rs.66.833(M) and corresponding wrongful gain for themselves. Enquiries, made by the Bank revealed that EMTBC was a Bank established in October, 1991 in Turkish Cyprus, a country which is not recognized by Pakistan. It was established that the capital of EMTBC was US $5,00,000 only. On record of registry in Turkish Cyprus, one Saleem I. Kapoorwala is mentioned as the Director and Akram Khan as the General Manager of EMTBC. Both of them have been associated with Tawakkal Group of Companies. EMTBC is not one of the correspondent Bank of UBL, whose letter of credit would be acceptable for the purpose of negotiating the documents and giving credit against the same. Some officials of the Bank have wrongfully accommodated the beneficiaries of the L.Cs. Thus, the accused persons named above in collusion and complicity with each other have committed the offences punishable under the law. It is, therefore, requested that necessary legal action may kindly be taken against the culprits."

3. After investigation FIA Authorities submitted the challan before the Special Court (Offences in banks) Sindh, Karachi. The Chairman NAB moved an application under section 16A of the Ordinance for transfer of the case to the Accountability Court. The application was allowed and the case was transferred to the Accountability Court No.1 which was received on 5-8-2003.

4. On 27-10-2003 the Accountability Court framed the charge against the appellant and acquitted accused for offence as defined under section 9(a), (iii), (ix) and (xi) of the Ordinance and punishable under section 10 of the Ordinance. Both the accused pleaded not guilty. In support of the case the prosecution examined 10 witnesses. The appellant in his statement recorded under section 342, Cr.P.C. denied all the allegations of the prosecution. In his further statement he stated as under:-- "I am 70 years old, confined in jail from the last eight years. I have not committed any criminal offence, liability if any is of civil nature. Most of civil cases, filed by the banks against the have been decreed, as I was in jail I could not defend, the cases on merits. Some of the executions are pending in Banking Courts as well as in High Court. Presently my assets in Pakistan as per face value are more than my liabilities."

5. The appellant did not examine himself on oath or any witness in his defence. The learned Judge, after considering the evidence and hearing the parties' counsel, acquitted the co-accused Hatim Ali whereas convicted the appellant as mentioned above under the impugned judgment.

6. We have heard the Advocate for the appellant, ADPGA for NAB and perused the record of this case very carefully.

7. The learned Advocate for the appellant has stated that the prosecution alleged that the appellant stood guarantor but that by itself is no offence; that for violation of deed of guarantee the bank had filed the civil suit which is pending before the Court, as such, the liability of the appellant was of civil nature and not of criminal nature. He has further stated that the prosecution further led evidence to the effect that the appellant had opened EMTBC in Cyprus, Turkey and relied upon the evidence of two witnesses P. Ws.5 and 6; that from their evidence the prosecution failed to prove that the appellant had any role in establishing the said Bank; and that the evidence is not sufficient to make out a case for offence punishable under section 10 of the Ordinance.

8. Conversely, the learned ADPGA NAB has stated that the appellant stood guarantor for repayment of the amount but the amount was not paid and it was done in connivance with the bank officials to cause loss to the bank and caused wrongful gains to himself; that the L.Cs. were opened by importer issued by EMTBC, Cyprus; that the said bank was opened by the appellant as per statements of P. Ws.5 and 6; that they have supported the case of the prosecution; that the Investigating Officer has produced documents Exhs.26/2 to 26/7 which establishes the fact that the appellant had opened the said bank, therefore, through the said bank the appellant had misappropriated the amount. He has supported the impugned judgment.

9. We have given due consideration to the arguments, gone through the evidence with the assistance of learned Advocate for the appellant and found that the importer had opened L.Cs. issued by EMTBC, Cyprus Turkish. The consignment was exported by Moon River International (Pvt.) Limited. There is no evidence to show that the appellant was Director of the said company. The said transaction was found to be in accordance with Rules. The EMTBC Bank did not honour the commitment by making payment to the bank, therefore, the appellant alleged to have stood guarantor for repayment of the said amount.

10. The main allegation against the appellant is that he had opened the EMTBC at Turkey, therefore, through the said bank he committed the fraud and misappropriated the amount. In order to prove the said aspect of the case the prosecution relied upon the evidence of two witnesses namely P.W.5 Sher Ali and P.W.6 Zahoorul Islam Zuberi. Their evidence reveals that the appellant contacted P.W.5 for opening the bank in Cyprus and he executed a power of attorney in favour of both the P.Ws. They went to Cyprus. The appellant also went there. He deposited the required amount, then the bank was opened and thereafter the documents were handed over to the appellant. The P.W.5 produced the special power of attorney which was allegedly executed by the appellant. A perusal of this document (Exh.21/1) reveals that it was not executed by the appellant but it was executed by Saleem I. Kapoorwala and Muhammad Ashraf Popatia in favour of P. Ws.5 and

6. Thus, the statement of P.W.5 to that extent has neither been supported or corroborated by Exh.21/1. He also did not show any connection with both the said persons with the appellant. However, P.W.6 stated that both the said persons were servants of the appellant. The said statement was challenged by the appellant but no further evidence was led by the prosecution to prove such assertion. Even otherwise the said power of attorney was executed in Pakistan. There is no endorsement of Embassy of Pakistan or endorsement of Turkish Government. The question is whether a special power of attorney executed in Pakistan can be validly used in another country. For that the relevant law of the said country is required to be examined. As far the Pakistan is concerned, there is Notaries Ordinance, 1961 (Ordinance XIX of 1961). Section 14 reads as under:- "

14. Reciprocal arrangements for recognition of notarial acts done by foreign notaries.

If the Central Government is satisfied that by the law or practice of any country or place outside Pakistan the notarial acts done by notaries within Pakistan are recognized for all or any limited purposes in that country, or place, the Central Government may, by notification in the official Gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognized within Pakistan for all purposes or, as the case may be, for such limited purposes as maybe specified in the notification."

11. No such document or notification from Pakistan or Turkish Government has been produced to examine whether a special power of attorney executed in Pakistan can be used in Turkey.

12. Furthermore, neither the P.Ws. specify the date when the appellant approached them for opening the bank nor they specified the date of reaching at Cyprus nor they specified the date when the c appellant deposited the amount nor they specified the date of opening the bank. There is also no evidence to show that on the relevant dates the appellant also went to Cyprus. The said dates, the departure of P.Ws. and the appellant could have been proved from the evidence of airlines through which they left Pakistan or purchased the tickets or through emigration office but no such proof has been filed to establish such fact.

13. Further, the bank was opened in Turkey, therefore, it must have been registered in the relevant department. The documents of registration could have been produced to show as to who was the owner of the bank but the prosecution did not produce such documents to establish the ownership of the EMTBC, Turkey. The bare statements of two P.Ws. without any supporting evidence and particularly not supported by Exh.21/1 cannot be safely relied upon.

14. The prosecution relied upon Exh.26/2. This is a letter sent by one Ahmed Abdul Aziz to Ambassador of Pakistan Ankara through post with a request that the accompanying documents Exhs.26/4 and 26/5 which were addressed to Dr. Kamran Fazal PSP, Deputy Director, FIA CBC, Karachi might be sent to the said person. The Embassy, after receiving the said documents, put an endorsement that the said documents were being forwarded at the request of applicant which were received by post. Exh.26/7 is a document dated 18-9-1991 addressed to Faisal Islamic Bank by Abdul Qadir Tawakkal with the following request: "Please debit Account No.412 with yourselves with the sum of US $ 5,00,000. (five hundred thousand US Dollars) and issue a cheque drawn on UBAF Arab American Bank in the name of Central Bank of Turkish Republic of Northern Cyprus."

15. These documents were produced by the Investigating Officer P. W.9 Abdul Hameed. He did not state as to from where he secured those documents. He simply produced those documents in evidence. It was incumbent upon the Investigating Officer to have stated as to from where those two documents were received by him. The learned ADPGA NAB has stated that the documents were' secured from the bank in Karachi which were produced by bank official but no such bank official has been examined. However, it will be noticed that Exh.26/4 could not have been produced from the bank as it was addressed to Deputy Director, FIA, therefore, the said document could have been given to the Investigating Officer by the Deputy Director, FIA. A perusal of Exh.26/4 shows that the FIA Authority sent questionnaire to Abdul Aziz for filling the same. After filling the same Abdul Aziz sent the questionnaire to the Deputy Director, FIA It will be noticed that the case was investigated by the FIA, therefore, the Deputy Director FIA was the Police Officer for holding the investigation. The letter was addressed to a Police Officer by a witness. Therefore, this will be a statement before a Police Officer which is inadmissible under section 162, Cr.P.C. Similar point was discussed in the case of Kaka Kishan Chand v. State PLD 2004 Kar. 618 in which it was held that if a letter is issued by the witness or accused to a Police Officer then it will come within the ambit of confession or statement, under Article 38 of Qanun-e-Shahadat Order, 1984 or under section 161, Cr.P.C. respectively. As such, the same would be inadmissible.

16. As regards the Exh.26/7, the signature on the document was not got verified from any handwriting expert to show that it was signed by the appellant. It is on a plain paper without any authentication. The record of Faisal Islamic Bank, Lefkosa could have been produced to ascertain whether the letter was received by the bank or otherwise. Even if we take this letter into consideration, this does not show that the amount was deposited in the Central Bank of Turkish for the purpose of opening EMTBC. There is also no evidence to show that 5,00,000 US Dollars were the condition for opening the EMTBC. As such, without such proof this document cannot be relied upon. The learned trial Judge has relied upon these two documents while holding that the bank was owned by the appellant. As the documents are inadmissible in evidence and the evidence of P. Ws.5 and 6 are not sufficient to establish the ownership of the appellant of EMTBC, therefore, the prosecution has failed to prove this aspect of the case.

17. As regards the guarantee, 'the appellant has denied the said guarantee. The prosecution produced the said guarantee as Exh.24/61. A perusal of this document reveals that the name of the appellant is not mentioned at any place. Some signatures are available on the document. One of the witnesses P. W.8 deposed that the signature on Exh.24/61 is that of the appellant. The learned trial Judge also compared the signature appearing on Exh.24/61 with the signature of the appellant on the Vakalatnama of his Advocate and formed the opinion that the signatures on both the documents were similar to each other. While forming such opinion the learned trial Judge did not assign any reason. The trial Judge was required to give some reasons with regard to flow of pen, various slants, curve of letters, words, etc. which were similar in both the signatures. Without giving such reasons it is difficult for us to agree with the learned trial Judge, therefore, -we have examined the signatures appearing on Exh.24/61 and admitted signatures of the appellant appearing on Vakalatnama of his Advocate, plea recorded by the trial Court and statement under section 342, Cr.P.C. Perusal of the admitted signatures on the above mentioned documents of the appellant reveals that he was writing his full name viz. "Abdul Qadir". Each letter of the first word "Abdul" is clearly mentioned and so also the second word "Qadir" except the letter "i" in between "d" and "r" whereas the signature appearing on Exh.24/61 shows that in the first word only two letters are mentioned i.e. "A" and "a" whereas in the second word six letters are written viz. "j, w, o, h, 1 and d". The first word "Abdul" appearing in. the admitted documents of the appellant is written with one flow without any break mentioning five letters viz. "A, b, d, u and 1" whereas such letters are not appearing in the first word of Exh.24/61. The second word of the admitted document starts from "Q" then "a", "d" and "r". The said word has been written in one flow whereas such letters are not available in the second word of Exh.24/61. From the bare glance of the admitted signatures of the appellant and signatures appearing on Exh.24/61, it clearly shows that both the signatures are completely different from each other and there is no similarity whatsoever between them, particularly, with regard to flow of pen, curves, slants of letters in each word, therefore, we are of the view that the signatures appearing on Exh.24/61 do not tally with the admitted signatures of the appellant available on the record.

18. As regards the statement of P.W.B, he was posted in the bank in the year 1996, as such, when the document Exh.24/61 was executed he was not present. In the cross-examination he categorically stated that in the year 1993 he had no knowledge about the subject transaction. He further admitted that there were many documents in the bank whereby the signatures of the appellant could be verified and compared with his signatures on Exh.24/61. When he was asked to compare the signature on the said document he replied that he could not do so as other admitted signatures were not available in the Court. Thus, the evidence of P.W. Abdul Aziz cannot be safely relied upon about the authenticity of signature of the appellant on Exh.24/61.

19. However, the bank has already filed civil suit in respect of enforcement of the said guarantee. The matter is pending before the Civil Court. The observations made by us in respect of Exh.24/61 are tentative in nature which shall not come in the way of Civil Court while deciding the similar question. We have examined this document purely to see whether any criminal liability can be fixed upon the appellant, therefore, such exercise was made. The civil liability would continue and is required to be decided in accordance with law and evidence produced before the Civil Court. As regards the criminal liability, we are of the considered view that by merely becoming guarantor the provisions of section 10 of the NAB Ordinance are not attracted unless the ingredients of the offence are made out which are lacking in the present case.

20. After considering the material available on the record we are of the considered view that the prosecution has failed to prove the case against the appellant, therefore, the appeal was allowed bail by our short order dated 20-2-2007. These are the reasons of the said short order. H.B.T./A-125/K Appeal allowed.