NAB related Writ Petition for suspension of sentence as the provisions of Section 426 Cr. P.C are not applicable for seeking such relief in NAB cases

This client approached us to file a Writ Petition,  assailing a judgment of the High Court dated 2012 to the extent of suspension of sentence as the provisions of Section 426 Cr. P.C are not applicable for seeking such relief in NAB cases.A Cr.A of 2012 was still pending against the conviction of the petitioner is already pending adjudication before the hon’able High Court.It was brought to the court’s notice that a NAB Reference in 2009 was filed in the Accountability Court wherein it was alleged that on the complaint received from one Bank, an inquiry was initiated, which was subsequently converted into investigation and ultimately the above-said Reference was filed against the petitioner and 4 other accused persons.The allegation leveled in the complaint filed by the Bank complainant was that the Bank had been cheated and defrauded by the five accused persons including the petitioner for a sum of Rs.71.938 million issued against fake Inland Letter of Credits (ILCs). For seeking suspension of sentence, the following grounds were utilized.

GROUNDS

1. The impugned judgment convicting petitioner and not the four others accused is not sustainable in the eye of law.

1. The principal accused  had, admittedly and evidently, opened his bank accounts with  in 1998, and  the complainant of the Reference was his also his introducer and in the senior management of PICIC and it was further added that he definitely facilitated the plaintiff  in seeking loan etc. and other facilities from the Bank. These loans and running finance facilities were provided against solid and credible sureties in the form of properties which were admittedly redeemed off later on the direction of RGM of PICIC. There is no denying the factum, that the bank had filed banking suit in the hon’able Lahore High Court, Rawalpindi Bench, for the recovery of loan from the said borrower/plaintiff , and the said suit is still pending adjudication. The mortgaging of properties for securing of loan and running finance facilities were actively concealed from the learned trial Court and also with malafide intention for ousting the case from the ambit of imprudent loan and thereby default of the said plaintiff. Since there were mortgages, though released by the bank itself, thus there was a case of default on the part of the borrower. In such situation, it was incumbent upon NAB to adopt the procedure in Section 31-D of NAB Ordinance. Any reference made by NAB Chairman without a reference from the Governor State Bank of Pakistan, in view of mandatory provision of Section 31-D of the Ordinance, was illegal and nullity in the eye of law. A witness in the case also admitted in his testimony that no permission was sought from State Bank of Pakistan to file the subject Reference. When fundamental premise is wrong and illegal ab initio then the whole structure built thereon will definitely fall to the ground.
2. The complainant was never authorized to file complaint with the NAB. Neither such permission was ever sought from the Board of the Bank nor it was ever granted at all. The prosecution witness admitted that there was no authority letter/power of Attorney in the favour of the complainant  available on his record. He also admitted that there was no special permission issued in favour of any of the bankers or prosecution witnessess by the Bank’s Board to lodge the subject reference. Additionally, the complainant also got recorded his statement under section 161 Cr.P.C. but never appeared in the witness box to support his complaint. This speaks volumes about his malafides intentions and base motivations. Admittedly he was the one who had introduced the bank account of the principal accused, and then avoided to depose so as to save his skin. Infact, he was responsible for his acts of commission and omissions in introducing and promoting the plaintiff’s loan interest with the Bank but himself went scot-free and junior officers including the petitioner have been incarcerated and made scape-goats for sins of the likes of the complianant and others. The impugned judgement has failed to appreciate this aspect of the matter.
3. The very filing of the NAB reference suffered from another incurable defect because it was neither filed by the Chairman NAB nor any such authorization in this behalf was placed on record. Such facts were admitted by a prosecution witness in his testimony before the trial Court. Since the very cognizance could be taken by the Court on a reference filed by the Chairman NAB or any authorized person in this behalf, thus in its absence the learned trial Court assumed jurisdiction which was not vested in it. This makes the whole proceedings a nullity in the eye of law.
4. The learned trial Court, respectfully submitting, passed the impugned judgement in haste and in casual manner. Instead of looking the case from all angles, it relied on blatant lies brought on record by the prosecution witnesses, thus huge contradictions and inconsistencies have emerged in it which are not even curable, thus the same is liable to be set aside.Evidently, the impugned judgement has neither taken into consideration the defence version of the petitioner nor placed it in juxtaposition with that of the prosecution evidence. Thus it is one sided judgement and has merely followed the prosecution evidence which was not credible at all.
5. The reasons along with reference material in support of conviction of the appellant are tainted and not cogent at all. The facts were approbated and reprobated with great inconsistency and speed by the prosecution witnesses, yet the learned trial Court has omitted to note the same in the impugned judgement. It is very clear from the evidence brought on the Court file that the complainant and the Zonal Head/RGM with the connivance of his other close colleagues in the PICIC Bank roped the appellant and other to save their skin. Being an introducer, promoter and friend of plaintiff became the prosecutor. It is in evidence that he being RGM released the properties of the plaintiff which were mortgaged with the Bank for seeking of loan and running finance facilities etc. The impugned judgement has not taken care of such facts at all. On this score, the conviction of the petitioner is liable to be set aside.
6. It was further suggested that the learned trial Court has heavily relied on evidence and alleged inquiry report conducted by one one the prosecution witnesses. It is submitted that firstly, the very name of the said Prosecution witness was not mentioned in the Calendar of Witnesses submitted by the prosecution in its reference. Secondly, the statement of the said PW-18 was never written under Section 161 Cr.P.C. by the IO. Thirdly, no such inquiry was present in the NAB reference submitted in the Court. Fourthly, no PW at any stage of evidence ever alluded to or mentioned the existence of any such inquiry report in their depositions before the Court. Fifthly, the prosecution with malafide intentions managed to place the same as an additional evidence under Section 540 Cr.P.C. and the learned trial Court allowed it as such, notwithstanding vehement objections of the appellant and others. Lastly, original report was never presented by the said witness in his examination-in-chief, or in his cross-examination and only a photocopy of the same was introduced. The matter could be looked at from another angle that one  officer of the bank as allegedly associated with the said inquiry but the photocopy of the report did not bear his signature. Unfortunately, the said inquiry report has been considered a gospel truth by the learned trial Court which makes the impugned judgement highly controversial and not worthy of credence at all.
7. The issue of SWIFT was much publicized by the prosecution witnesses and that too, without realizing that as per their own testimony it was controlled by a separate department of the Bank at Karachi and neither the petitioner nor his co-accused had any thing to do with it. Admittedly and evidently, SWIFT operators and authorizers were posted in different branches of the bank who after checking the credit limits of customers and fulfilling all codal formalities, were transmitting swift messages to head office etc. evidently, the petitioner was neither the operator nor authorizer of such SWIFT message. Now in this context, the heaping of such blame on the innocent shoulders of petitioner for any such action was not justifiable at all. However, the impugned judgement based its conviction, besides other irrelevant factors, on this false allegation as well. Thus it renders the impugned judgement as illegal and void ab initio.
8. The Learned trial court, respectfully submitting, has not applied judicial mind while delivering its judgement. It was contended in the grounds that the prosecution miserably failed to prove its malafide charge beyond any shadow of doubt, yet the impugned judgement accorded much credence to the same. Even the material contradictions of the prosecution witnesses which were cogently pointed by the petitioner have not taken care of.It was pleaded by the Josh and Mak Team that such glaring contradictions and discrepancies make the prosecution case highly doubtful, hence not sustainable in the eye of law.The court was also apprised of the fact that none of the relatives of the petitioner whose alleged accounts were used for alleged deposit and transmission of money in favor of the principal accused were neither associated with NAB investigation nor shown in the calendar of witnesses. In absence of such legal requirement, the petitioner could not be saddled with apportionment of any such blame at all.It was  pointed that the and the bank/complainant of the reference had admittedly entered into settlement for the payment of the pending loan outside the Court and without involving the NAB but the petitioner and others have been punished for no fault of them. The factum of settlement of the loan was on record but the impugned judgement did not mention even a passing reference to it. In this way, the impugned judgement is definitely the result of misreading and non-reading of evidence on the file.

The court was further apprised that the petitioner was actually innocent and had not committed any crime at all. The petitioner was falsely been roped in the NAB reference being a junior officer and those who were actually responsible for the alleged crime have been let off. Definitely a false story has been concocted, and no proper inquiry was ever conducted and that too by associating the appellant in it.The petitioner never connived and abetted the principal accused in his alleged ventures. It was a conspiracy by the Zonal Head of the bank involved the petitioner and others to save his skin and those of his friends as well. The court was apprised that there was no alternate remedy provided under the law for the grant of bail/suspension of sentence awarded to the petitioner by the learned Accountability Court, hence the Writ petition.

The Writ Petition  was resolved in the favour of the Plaintiff.