P L D 2012 Balochistan 164
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
FAIZ MUHAMMAD JAFFAR and others ---Appellants
versus
THE STATE through NAB, Quetta and others ---Respondents
Criminal Estasab Appeals Nos.50, 53, 54 of 2001, decided on 22nd March, 2012.
(a) National Accountabi lity Ordinance (XVIII of 1999) ---
----Ss. 9(a) (iv) (vi) & 14 (a) ---Corruption and corrupt practices ---Appreciation of
evidence ---Paying of commission ---Presumption of guilt ---Shifting of onus, principle of --
-Applicability ---Prosecution alleged that accus ed persons received commission and
released payments to contractors without supply of goods by them ---Accused were
convicted by Trial Court and were sentenced to imprisonment for various terms ---Plea
raised by accused persons was that prosecution witnesses had paid commission which
itself was illegal thus they were accomplices ---Validity ---Prosecution witnesses were
cross -examined at length, yet nothing was brought on record which could shake intrinsic
value of their depositions ---Even no ill -will or malice was alleged against witnesses to
falsely implicate accused in commission of offence ---Merely because witnesses had
paid commissions, which was illegal, was not sufficient to disbelieve their
straightforward and confidence inspiring evidence ---All witnesses had deposed that on
refusal of payment of commission, accused persons withheld cheques, as such, they were
forced to pay commission to accused thus such witnesses could not be termed as
accomplice in commission of offence being consenting parties ---After specific allegation
regarding payment of commission/bribe to accused, onus under S.14 of National
Accountability Ordinance, 1999, shifted to them to prove that they accepted or obtained
gratification not as a motive or reward other than legal remu neration ---Accused failed to
discharge their onus and only denied to have received any such commission, which
assertion on their part could not be believed in the light of overwhelming evidence in
shape of statements of prosecution witnesses, as the same w ere straightforward and
confidence inspiring and fit in probabilities of the case ---Prosecution had successfully
brought the guilt home against accused persons and they were rightly found guilty by the
Trial Court ---High Court maintained conviction and fin e awarded by Trial Court but
reduced sentences of imprisonment to that already undergone by the accused prior to their
release on bail ---Appeal was dismissed accordingly.
(b) National Accountability Ordinance (XVIII of 1999) ---
----S. 18(g) ---Reference, filing of ---Pre-conditions ---Reference is not supposed to be an
encyclopedia of prosecution case ---Two conditions are to be satisfied under S.18(g) of
National Accountability Ordinance, 1999; firstly that there is sufficient material to justify
filing of Reference and secondly, the Chairman NAB decides that it would be proper and
just to file Reference, then the matter can be referred to Accountability Court.
(c) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 18(g) & 24(b) ---Cognizance by A ccountability Court ---Accused persons ---
Cognizance by Accountability Court is taken on Reference made by Chairman NAB
under Ss.18(g) and 24(b) of National Accountability Ordinance, 1999 ---Such offenders
can be tried whom the Chairman NAB finds liable to be tried and, therefore, names them
in the Reference.
(d) National Accountability Ordinance (XVIII of 1999) ---
----S. 33 -E---Fine, recovery of ---Death of accused ---Effect ---Criminal liability ends with
death of convict but civil liability of accused/offende r remains there and death of offender
regarding payment of fine, does not operate as discharge or satisfaction of the order for
payment of fine ---Legal heirs of deceased convict cannot take advantage of death of their
predecessor -in-interest i.e. the conv ict---Fine amount can be recovered from the
assets/properties of deceased.
Muhammad Yousaf v. Syed Ghayyur Hussain Shah 1993 SCMR 1185 rel.
Muhammad Aslam Chishti, Syed Ayaz Zahoor, Saleem Lashari and Munir Ahmed
for Appellants.
Syed Manzoor Shah and A mir Zaman Jogezai, Special Prosecutor NAB for the
State.
Date of hearing: 22nd December, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---By this common judgment, we
intend to dispose of Criminal Ehtesab Appeals Nos.50, 53 and 54 of 2011, arising out of
the common judgment dated 25th June 2011, rendered by the Accountability Court No -I,
Quetta (the "trial Court"), whereby the appellants, Faiz Muhammad Jaffar, Sikandar and
Muhammad Rasheed Anjum, were held guilty under section 10(a) and (b) of the National
Accountability Bureau Ordinance, 1999 (the "NAB Ordinance") and sentenced in the
following manner: --
(i) Accused Faiz Muhammad Jaffar to suffer five (05) years' RI and to pay a fine of
Rs.25,00,000 (rupees twenty five lacs only). The amount of fine was dir ected to be
recovered by way of forfeiture of his movable/immovable properties through
Collector concerned. In case of non -recovery of amount of fine to suffer undergo
RI for one and half (11/2) year.
(ii) Accused Sikandar to suffer ten (10) years RI and t o pay a fine of Rs.50,00,000
(rupees fifty lacs only). The amount of fine was directed to be recovered by way of
forfeiture of his movable/immovable properties through Collector concerned. In
case of non -recovery of amount of fine to suffer undergo RI for three (3) years.
(iii) Accused Muhammad Rasheed Anjum to suffer twelve (12) years RI and to pay a
fine of Rs.90,00,000 (rupees ninety lacs only). The amount of fine was directed to
be recovered by way of forfeiture of his movable/immovable properties throu gh
Collector concerned. In case of non -recovery of amount of fine to suffer undergo
RI for four (04) years.
The accused persons were barred from holding any public office, taking part in any
election and obtaining loan from any financial institution for te n (10) years and the said
period was ordered to be counted from the date of release of the convicts after serving
their sentences. They were also extended the benefit of section 382 -B of the Cr.P.C.
2. Briefly stated the facts of the case are that the Chai rman, NAB filed a Reference
bearing No.22 of 2000, under sections 18(g) and 24(b) of the NAB Ordinance before the
trial Court, stating therein that in the month of September, 1997, the Primary Education
Directorate, assisted by the World Bank, called for t enders from the qualified contractors
for provision of mat, furniture and reading and writing material. The contractors (53
firms) participated in the bidding process, however, despite higher rates than that of the
other contractors, Messrs Ghazi Trading C ompany, owned by accused Muhammad
Nadeem Waris, was awarded the contract for supply of the items for an amount of
Rs.18,37,681 (rupees eighteen lacs thirty seven thousand six hundred eighty one only).
The firm, thereafter, succeeded in getting contract of Rs. 1,41,14,462 (rupees one crore
forty one lacs fourteen thousand four hundred and sixty two only) with the cooperation of
accused Sardar Abdul Rehman Khethran, Muhammad Rasheed Anjum and Khan
Muhammad Bhangar, thus, the genuine tenders of low rates of th e other contractors were
ignored. It is alleged that the above firm did not supply the items in the Districts, but
managed to get receipts from DEOs and SDEOs and by this way, without supply of the
items, an amount of Rs.1,28,25,808 (rupees one Crore twent y eight lacs twenty five
thousand eight hundred and eight only) was paid to the firm and on the basis of fake
receipts, an amount of Rs.69,13,554 (rupees sixty nine lacs thirteen thousand five hundred
and fifty four only) was drawn.
Similarly, in Social A ction Programme, tenders were also invited in February 1999
by the Director, Primary Education Directorate for the supply of reading and writing
material, mats and furniture, in which 23 firms participated, however, before submitting
the tenders, accused S ikandar Khan, Accounts Officer, PED, on the directives of accused
Muhammad Rasheed Anjum, summoned a meeting of representatives of dealers Messrs
Majid and Sons, Azhar Brothers, Muhammad Mohi -ud-Din Traders, Bilal Traders and
Fahad Furniture and directed t hem to include 25% in excess in their tenders for the
Minister and Accountant General Office. Hence supply order after opening of tenders
were issued and from the first bill, 25% commission amounting to Rs.29,55,000 (rupees
twenty nine lacs fifty five thou sand only) was deducted. It is further the case of
prosecution that in addition to an amount of Rs.69,00,000 (rupees sixty nine lacs only),
accused Muhammad Rasheed Anjum received an amount of Rs.48,07,320 (rupees forty
eight lacs seven thousand three hund red and twenty only) as commission from Ghazi
Trading Company and further drew an amount of Rs.12,00,000 (rupees twelve lacs only)
on the pads of Messrs Mohi -ud-Din and Iqra Furniture and embezzled the same. It is
further alleged that accused Faiz Muhammad Jaffar, who was dealing the financial
matters of World Bank, received an amount of Rs.29,00,000 (rupees twenty nine lacs
only) with the connivance of accused Muhammad Rasheed Anjum from Messrs Khawaja
Furniture, Mohi -ud-Din Traders, Bilal Traders, Hamid a nd Sons and Fahad Furniture.
Thus, the accused persons, in their respective capacity, violated the rules and regulations,
received receipts from DEOs/SDEOs under threat and embezzled millions of rupees
without supply of material on fake receipts. The cause of education was badly hit,
students were deprived of reading and writing material and the Province was defamed.
3. On the basis of the aforesaid allegations, the accused persons were arrested and
interrogated. During course of the investigation, IP Muham mad Arif, Anti
Corruption/NAB Quetta took into possession the relevant record including certified
copies of the stock registers from the concerned offices Article A/1 to Article A/2535
vide recovery memos Exh.P/1 -A to Exh.P/17 -A and Exh.P/19 -A. He also rec orded the
statements of P.Ws. and after completion of the investigation, prepared challan Exh.P/29 -
A along with sanction letter of Chairman NAB Exh.P/29 - B.
4. After receipt of reference and observing legal formalities, charge was framed and
read over to t he appellants, to which they did not plead guilty and claimed trial.
Thereafter, the prosecution produced twenty nine witnesses in support of the accusation.
At the end of prosecution evidence, the appellants were examined under section 342 of
the Cr.P.C. in respect of incriminating pieces of evidence, which were denied by them.
The appellants recorded their statements on oath, but did not produce any witness in their
defence, however, appellant Rasheed Anjum examined Muhammad Ishfaq, Assistant
Director (Ju dicial), Primary Education Directorate in his defence. On the conclusion of
trial, the Accountability Court found the appellants guilty of the offence under section
10(a) and (b) of the Ordinance and sentenced them as mentioned and detailed above.
5. We ha ve heard learned counsel for the appellants as well as learned D.P. -G. and
also gone through the impugned judgment. Learned counsel for the appellants raised
following contentions: --
(i) that evidence of P.W.20 Bashir Ahmed, P.W.21 Ghulam Murtaza, P.W.22 Abdul
Hameed, P.W.23 Malik Muhammad Arif and P.W.25 Muhammad Mohi -ud-Din is
not reliable for the reason that intrinsic value is lacking in their testimony. They
are also unreliable for the reason that they never made complaints regarding
commission/bribe obtained by the appellants till the investigating officer
approached them;
(ii) all the witnesses have mentioned different rates of commission, which also made
their testimonies doubtful and unreliable;
(iii) all the witnesses have admitted that they could not produce any evidence regarding
payment of commission to the appellants, as such, the conviction could not be
based only on the bald allegations of such witnesses;
(iv) all the witnesses were accomplice in the commission of the offence, as such, their
evidence could not form basis for conviction until and unless corroborated by
some independent evidence;
(v) there is no reference regarding Social Action Programme (SAP) and the reference
was only confined to World Bank aided project, as such, the Account ability Court
has wrongly taken cognizance of the alleged offence in absence of reference;
(vi) no power is vested with trial Court to order forfeiture of properties for recovery of
fine, such order is in excess of jurisdiction; and
(vii) the acquittal of Minister for elementary education had also bearing on the
fate of other accused/appellants, but this important aspect of the case has been
ignored.
6. On the other hand, learned Deputy Prosecutor General (NAB) controverting the
contentions, raised by lear ned counsel for the appellants, urged as under: --
(i) the prosecution has proved its case against the appellants to the hilt and there
could be no other evidence than that of the persons, who gave commission/bribe to
the appellants, as such, the Accountabi lity Court rightly relied upon their
testimonies while convicting the appellants;
(ii) that the appellant Rasheed Anjum was Drawing and Disbursing Officer, whereas
appellants Sikandar and Faiz Muhammad Jaffar were supervising the World Bank
aided projects respectively and the cheques were to be issued by the appellants, as
such, it was not unnatural on the part of the witnesses to have paid commission to
the appellants on their demand at the time of receiving cheques; and
(iii) there was neither any previou s enmity between the witnesses and the appellants,
nor had they any motive or ill will to falsely rope the appellants in the commission
of the offence. After their statements regarding payment to the appellants, burden
was shifted to them to have disproved the charges as provided under Section 14 of
the Ordinance.
7. Before dilating upon the respective contentions put forth by the parties learned
counsel, we deem it appropriate to give resume of the evidence produced during course of
the trial:
(i) P.W.1 Ha ji Abdul Manan is Supervisor Education Department, Pishin, who
handed over certified copies of stock register Article A/1 to Article A/55 along
with certificate of DEO Pishin vide Article A/56, which were taken into
possession vide memo Exh.P/1 -A;
(ii) P.W.2 Piral Khan is Junior Clerk, Education Department, Quetta, who handed over
record of mat, furniture, reading/ writing material, pertaining to the period of
accused Muhammad Rasheed Anjum, vide Article A/57 to Article A/366, which
were taken into possessi on vide memo Exh.P/2 -A. He further handed over record
of bills of five firms vide Article A/368 to Article A/1499, which was taken
into possession vide memo Exh.P/2 -B;
(iii) P.W.3 Syed Ghulam Sarwar Shah, Sub -Divisional Education Officer, Thal Ma gsi,
deposed that accused Khan Muhammad Bhangar, called him on telephone that
2000 mats have been sanctioned for their area and to contact Ghazi Trading firm,
but only 500 mats were received and for the remaining mats, promises were made,
but with no fruit ful results. He further deposed that bill Article A/61 was signed by
accused Faiz Muhammad Jaffar and Rasheed Anjum;
(iv) P.W.4 Najeebullah, Store Keeper/Junior Clerk, District Education Officer office
(Female), Pishin, deposed that in the year 1998, he wa s posted as Store Keeper and
during his tenure, he has not received any item from Ghazi Trading Company,
Quetta, however, Ghazi Trading Company sent a bill of 1000 mats to DEO
(Female), Killa Abdullah for payment of an amount of Rs.200,000 (rupees two
lacs only). He handed over the certified copies of the stock register to NAB
authorities vide Article A/1500 to Article A/1586, which were taken into
possession vide recovery memo Exh.P/4 -A;
(v) P.W.5 Muhammad Qasim, Learning Coordinator, Education Department, Pishin,
deposed that 6000 mats were issued for the office of SDEO, Pishin, but the same
were not provided to them, however, Ghazi Trading Company had shown issuance
of 3000 mats, but they received only 2000 mats in different time;
(vi) P.W.6 Muhammad Ibra him is Assistant, Education Department, Quetta, who
provided record of firms to the NAB authorities on the directives of Director
Education vide Article A/1689 to Article A/1844, which was taken into possession
vide memo Exh.P/6 -A;
(vii) P.W.7 Khuda -e-Dad, Store Keeper, Sub Divisional Education Officer,
Primary Sibi, received 25 tables from Ghazi Trading Company, about which he
had made relevant entry in the stock register, however, he deposed that he had not
received any mats, reading/writing material from the firm. He handed over
certified copies of stock register vide Article A/1845 to Article A/1947 to the
NAB authorities, which were taken into possession vide recovery memo Exh.P/7 -
A;
(viii) PW -8 Shah Nawaz, Junior Clerk/Store Keeper, District Education Officer
(Female), Dhadhar, handed over certified copies of stock register to the
investigating officer on the directives of Director Primary Education vide Article
A/1948 to Article A/2083, which were taken into possession vide memo Exh.P/8 -
A;
(ix) P.W.9 M uhammad Asif, Store Keeper, District Education Officer (Female), Sibi,
handed over certified copies of stock register to the investigating officer on the
directives of Director Primary Education vide Article A/2084 to Article A/2103,
which were taken into possession vide memo. Exh.P/9 -A;
(x) P.W.10 Abdul Razaq, Assistant, District Education Officer, Sub Division Lehri,
District Bolan, deposed that they have not received 1500 mats from Ghazi Trading
Company, nor issued any receipt in respect thereof. He hand ed over certified
copies of stock register to the investigating officer vide Article A/2104 to Article
A/2146, which were taken into possession vide memo Exh.P/10 -A;
(xi) P.W.11 Sana -ul-Haq, Store Keeper, Sub -Divisional Education Officer, Saddar
Quetta, de posed that in the year 1999, the owner of Ghazi Furniture, namely,
Muhammad Nadeem brought 500 mats and asked for issuance of receipt in respect
of 2000 mats, at which he asked him to approach the Sub -Divisional Officer, but
he does not know as to whether the said officer had issued him the receipt. In the
month of May 1999, accused Muhammad Nadeem once again brought 210 mats
and asked for issuance of receipt in respect of 2000 mats, but he again asked him
to approach the concerned officer. He handed over c ertified copies of stock
register to the investigating officer vide Article A/2147 to Article A/2175, which
were taken into possession vide memo Exh.P/11 -A;
(xii) P.W.12 Hamayun, Store Keeper, District Education Officer (Male), Quetta,
deposed that on 22nd April 1999, Superintendent Muhammad Younas called and
asked him that some persons are demanding issuance of a receipt in respect of
2000 mats and since he had not received the mats, therefore, he refused to do so.
Thereafter, District Education Officer, N awab Khan, called and told him that
Ghazi Traders will provide 60% mats now and 40% later on, however, they,
without receiving the mats, issued a receipt of 2000 mats. He handed over certified
copies of stock register to the investigating officer vide Arti cle A/2176 to Article
A/2191, which were taken into possession vide memo Exh.P/12 -A;
(xiii) P.W.13 Jamal -ud-Din, Headmaster, Middle School, Haji Kot Barkhan, deposed
that in the year 1999, he has not received any article from Education Department.
He hande d over certified copies of stock register to the investigating officer
vide Article A/2192 to Article A/2219, which were taken into possession vide
memo Exh.P/13 -A;
(xiv) P.W.14 Jamal Khan, Store Keeper/Superintendant, District Education Officer
(male), Barkhan, deposed that they have not received any item from Primary
Education Directorate on 25th January 1999. He handed over certified copies
of stock register to the investigating officer vide Article A/2220 to Article
A/2249, which were take n into possession vide memo. Exh.P/14 -A;
(xv) P.W.15 Abdul Bari, the then Store Keeper, SDEO Office, Muslim Bagh, deposed
that during his incumbency from May 1997 to 20th February 1999, as Store
Keeper, he has not received any article from Ghazi Trading Co mpany. He handed
over certified copies of stock register to the investigating officer vide Article
A/2250 to Article A/2388, which were taken into possession vide memo Exh.P/15 -
A;
(xvi) P.W.16 Muhammad Alam, Senior Clerk/Store Keeper, District Education Of fice,
Naseerabad, handed over certified copies of stock register to the investigating
officer vide Article A/2389 to Article A/2517, on the directives of District
Education Officer, Naseerabad, which were taken into possession vide memo
Exh.P/16 -A;
(xvii) P.W.17 Rafique Ahmed Barrech, the then Officer Grade -III, National Bank
Corporate Branch, Quetta, handed over documents in respect of account of
Primary Education Directorate to the investigating officer vide Article A/2518 to
Article A/2537, on the direct ives of Chief Officer of the Bank, which were taken
into possession vide memo Exh.P/17 -A;
(xviii) P.W.18 Syed Athar Shah, Sub -Divisional Education Officer, Sibi, deposed that
Ghazi Traders, who had to supply 1500 mats, have not been received by them;
(xix) P.W.19 Muhammad Anwar, Assistant District Education Officer, Sany Bolan,
handed over the copies of stock register to the investigating officer vide Article
A/2538 to Article 2553, which was taken into possession vide memo Exh.P/19 - A;
(xx) P.W.20 Bashir A hmed, Government Contractor, Education Department, deposed
that he had directly paid rupees 1.6 million as 10% commission to accused
Rasheed Anjum in the contracts of three firms, who had told him that the amount
of commission will be paid to the high -ups and directed him to include 25% in his
tender for payment of the commission. He further told the witness that the
payment is to be made to AG office and Audit parties too, at which he paid rupees
1.4 million and at the relevant time, accused Sikandar was a lso present. He further
deposed that the amount, which was paid, was more than the amount of
commission made on the amount of tender and accused Rasheed Anjum directed
accused Sikandar to return the difference amount. He further deposed that a
contract for World Bank Fund in the name of Fahad Furniture was awarded for
rupees 0.88 million commission of rupees 0.1 million and the same was paid to
accused Khan Muhammad Bhangar. He further stated that accused Faiz
Muhammad Jaffar also obtained Rs.6,00,000 as lo an from him, but the same has
not been returned as yet;
(xxi) P.W.21 Ghulam Murtaza, Furniture Supplier, deposed that in the year 1999,
tenders were invited for supply of furniture. He was awarded two contracts, in
which he had paid commissions to accused Sikandar, Jaffar and Rasheed Anjum;
(xxii) P.W.22 Abdul Hameed, Furniture Dealer, deposed that he paid an amount of
rupees 0.25 million to accused Jaffar in the work of Social Action Programme,
rupees 0.4 million to Sikandar Khan Jamali, rupees 0.15 millio n to accused
Rasheed Anjum, Rs.50,000 on the occasion of Eid and Rs.1,00,000 was paid
subsequently towards commission. The work order was for rupees 6.5 million, but
the work could not be done because the funds were withheld;
(xxiii) P.W.23 Malik Muhammad Asif, Businessman, deposed about the procedure
being adopted by the Education Department towards the amount of commission.
He paid an amount of rupees 1.50 million to accused Rasheed Anjum towards the
work of SAP Programme, rupees 0.50 million in presence of accused Sikandar
Jamali. He paid rupees 0.4 million to accused Faiz Muhammad Jaffar as loan, out
of which he returned rupees 0.3 million to him;
(xxiv) P.W.24 Muhammad Asghar, Officer Grade -I, National Bank, Corporate Branch,
Jinnah Road Quetta, depose d that on his request, accused Sikandar opened an
account in his branch. He further deposed that the cheques were presented in the
bank by the parties in whose name the same were issued. This witness was
declared hostile;
(xxv) P.W.25 Muhammad Mohi -ud-Din, Contractor, deposed that he had paid an
amount of Rs.400,000 as commission to accused Rasheed Anjum. He further paid
an amount of Rs.600,000 to accused Sikandar as commission and an amount of
Rs.200,000 to accused Faiz Muhammad Jaffar as loan, which was, later on,
returned;
(xxvi) P.W.26 Sultan Muhammad, District Education Officer, Killa Saifullah, deposed
that accused Khan Muhammad Bhangar called him on telephone to Quetta, where
he asked him to sign two receipts regarding issuance of 2000 mats. Initially he
refused, but, subsequently, he signed the same as accused Khan Muhammad
Bhangar advanced threats;
(xxvii) P.W.27 Ali Dost, Principal, Government High School, Dera Allah Yar, deposed
that accused Khan Muhammad Bhangar called him to Quetta and obtained h is
signatures on a receipt, pertaining to 2000 mats, however, the mats have not been
received;
(xxviii) P.W.28 Pir Bakhsh, Superintendant, Education Office, Dera Bugti, deposed
that on the directions of accused Khan Muhammad Bhangar on telephone, he
issued a receipt of 2000 mats to accused Nadeem of Ghazi Traders, however, the
mats have not been received, and
(xxix) P.W.29 Muhammad Arif, Circle Officer, Anti -Corruption/NAB Quetta, is the
investigating officer of the case, who produced the relevant record, a s mentioned
and detailed above.
8. The appellants in their statements on oath deposed that the tenders were not
awarded to the undeserving firms, having excessive rates. They also denied obtaining of
10% to 25% commission from the representative of differe nt firms, who were given the
tenders under the World Bank aided projects. They further denied that the amount was
drawn without supplying material to the DEOs and SDEOs.
9. We have considered the respective contentions put forth by the parties learned
coun sel in the light of above discussed evidence. According to prosecution's allegation,
the appellants, being in -charge of World Bank aided projects, received commission from
different representatives of firms, who supplied furniture and reading/writing mater ial to
different DEOs and SDEOs.
10. The prosecution has produced the documents including cheques pertaining to
supply of furniture, mats, reading/writing material etc. to the DEOs and SDEOs during
the period, when the appellants were in -charge of the Worl d Bank aided projects. The
perusal of these documents shows that P.W.20 Bashir Ahmed (Fahad Furniture), P.W.21
Ghulam Murtaza (Bilal Traders), P.W.22 Abdul Hameed (Hameed Furniture), P.W.23
Malik Muhammad Asif (Khawaja Furniture) and P.W.25 Muhammad Mohi -ud-Din
(Mohi -ud-Din Furniture) have supplied the aforesaid articles to the DEOs and SDEOs and
were issued cheques in lieu of such supply, therefore, there is no doubt in the depositions
of above mentioned witnesses that they had supplied the furniture and o ther allied articles
to tile Education Department during the period, when the appellants were in charge. It is
also not denied by the defence that appellant Rasheed Anjum was the Drawing and
Disbursing Officer, whereas appellants Sikandar and Faiz Muhammad Jaffar were in -
charge/supervisors of both the World Bank aided projects. All the aforesaid witnesses
have specifically stated that at the time of delivery of cheques, they paid commission to
the appellants, because in case of non -payment of the commission , they used to withhold
the cheques.
11. The record is also indicative of the fact that under the World Bank aided projects,
Education Department invited tenders for supply of furniture, mats, reading and writing
material and out of twenty firms, in spite of exorbitant rates, tender of accused
Muhammad Nadeem Waris (since acquitted on the basis of plea -bargain) of Messrs Ghazi
Trading Company was accepted, who, without supplying complete material, through fake
and forged receipts managed from Districts Quet ta, Pishin, Killa Saifullah, Barkhan,
Bolan, Sibi and Jaffarabad, drawn illegally certain amount. In this connection, besides the
documentary evidence, comprises of supply orders, receipts, cheques, bank record and
certified copies of stock registers, ocul ar account has been furnished by the employees of
Education Department i.e. the Store Keepers, ADEOs and DEOs, who categorically stated
that the proprietor of Messrs Ghazi Trading Company did not supply the material in
accordance with the tender and obtain ed receipts without supply of material.
12. Though the prosecution witnesses were cross -examined at length, yet nothing was
brought on record, which could shake the intrinsic value of their depositions. Even no ill -
will or malice was alleged against these witnesses to falsely implicate the appellants in
the commission of the offence. Merely because they have paid commission, which was
illegal, is not sufficient to disbelieve their straightforward and confidence inspiring
evidence. All the witnesses have dep osed that on refusal of payment of the commission,
the appellants withheld the cheques, as such, under such circumstances, they were forced
to pay the commission to the appellants and by no stretch of imagination, they could be
termed as accomplice in the commission of the offence being consenting parties.
13. After specific allegation regarding payment of the commission/ bribe to the
appellants, onus under section 14 of the Ordinance shifted to them to prove that they
accepted or obtained the gratification not as a motive or reward other than legal
remuneration, but they failed to discharge their onus and only denied to have received any
such commission, which assertion on their part cannot be believed in the light of
overwhelming evidence in shape of the s tatements of P.Ws. 20 to 23 and 25, whose
statements are straightforward and confidence inspiring and fit in the probabilities of the
case.
14. Learned counsel for the appellants urged that the statements of P.Ws. 20 to 23 and
25 are liable to be excluded from consideration. According to the prosecution's own
showing, there were 23 suppliers, out of whom, only five had, allegedly, made the
payment of the commission, whereas none of the remaining supplier was produced in
order to substantiate the allegations , but we find no substance in such arguments, as by
now it is settled that the Courts are required to see quality of the evidence and not the
quantity produced during the trial. Even if it is presumed that the other suppliers have not
paid any commission t o the appellants, such fact alone is not sufficient to discard the
statements of P.Ws. 20 to 23 and 25, who have categorically stated that they had paid the
commission/ bribe to the appellants, as they were forced to pay the same, otherwise the
cheques wou ld have been withheld by them.
15. Coming to the next contention of learned counsel for the appellants that the
witnesses have not approached or complained to any authority regarding payment of
commission prior to the approach by the investigating officer, we are of the opinion that
prior to promulgation of the Ordinance, the corruption was a menace in our country, as
highlighted by the then Transparency International and other Organizations, which
necessitated in promulgation of the Ordinance to curb the c orruption with iron hands,
therefore, the payment of commission by the said witnesses to the appellants for timely
release of their cheques during the period when corruption was un -checked, was neither
improbable nor unnatural and under the circumstances, non-complaining about the receipt
of the commission by the appellants by itself is not sufficient to discard the testimonies of
these witnesses, which is, otherwise, found consistent and confidence inspiring.
16. Coming to the next contention of learned c ounsel for the appellants that the
appellant Sikandar could not have been tried and convicted in the Reference in hand,
as there was no Reference regarding Social Action Programme (SAP). It is sufficed to
observe that Exh.P/29 -A and Exh.P/29 -B cle arly demonstrate that the matters regarding
both the projects aided by the World Bank were referred to the Chairman, NAB for
sanction, which was, accordingly, given by way of making reference for the prosecution
of the appellants along with co -accused. Eve n otherwise, a Reference is not supposed to
be encyclopedia of the prosecution case. Two conditions are to be satisfied under
section 18(g) of the Ordinance; firstly, that there is sufficient material to justify filing of
Reference and secondly, t he Chairman NAB decides that it would be proper and just to
file Reference, then matter can be referred to the Accountability Court. The cognizance
by the Accountability Court was taken on the Reference made by the Chairman,
NAB under sections 18 (g) and 24(b) of the Ordinance. Those offenders can be tried,
whom the Chairman, NAB finds liable to be tried and, therefore, names them in the
Reference. The Chairman, NAB, had before him the complete report submitted by the
investigating officer, in whic h complete details regarding both the projects were given.
17.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.